E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 111 CONGRESS, SECOND SESSION

Vol. 156 WASHINGTON, FRIDAY, NOVEMBER 19, 2010 No. 152 House of Representatives The House was not in session today. Its next meeting will be held on Monday, November 29, 2010, at 2 p.m. Senate FRIDAY, NOVEMBER 19, 2010

The Senate met at 10:30 a.m. and was to the Senate from the President pro The ACTING PRESIDENT pro tem- called to order by the Honorable MARK tempore (Mr. INOUYE). pore. Objection is heard. The bill will R. WARNER, a Senator from the Com- The legislative clerk read the fol- be placed on the calendar. monwealth of Virginia. lowing letter: f U.S. SENATE, SCHEDULE PRAYER PRESIDENT PRO TEMPORE, The Chaplain, Dr. Barry C. Black, of- Washington, DC, November 19, 2010. Mr. REID. Mr. President, following fered the following prayer: To the Senate: any leader remarks, the Senate will Under the provisions of rule I, paragraph 3, turn to a period of morning business, Let us pray. of the Standing Rules of the Senate, I hereby Eternal Lord God, teach us this day, with Senators permitted to speak for appoint the Honorable MARK R. WARNER, a up to 10 minutes each. through all our employments, to see Senator from the Commonwealth of Vir- As a reminder to my colleagues, last You working for the good of those who ginia, to perform the duties of the Chair. night we were able to reach an agree- love You. DANIEL K. INOUYE, President pro tempore. ment to limit action on the FDA Food Deliver our lawmakers from all de- Safety and Modernization Act. I filed a jection and free their hearts to give Mr. WARNER thereupon assumed the cloture motion with respect to the bill. You zealous, active, and cheerful serv- chair as Acting President pro tempore. The cloture vote on the substitute ice. May they vigorously perform what- f amendment will occur at 6:30 p.m. ever You command, thankfully endur- Monday, November 29. Senators should RECOGNITION OF THE MAJORITY ing whatever You have chosen for them expect up to five additional votes Mon- LEADER to experience. Guard their desires so day night so we can complete action on that they will not deviate from the The ACTING PRESIDENT pro tem- that bill on Monday. Basically what we path of integrity. Lord, strengthen pore. The majority leader is recog- have is we have the bill, and we will them with Your almighty arms to do nized. complete action on that, and we have a Your will on Earth, even as it is done f number of amendments offered by Sen- in Heaven. ator COBURN. As I recall, there is only We pray in Your liberating Name. MEASURE PLACED ON THE one side-by-side to the work we have Amen. CALENDAR—S. 3975 done. So we should be able to complete f Mr. REID. Mr. President, I am told that very important bill, which will be that S. 3975 is at the desk and due for such a relief to the people of our coun- PLEDGE OF ALLEGIANCE a second reading. try. This will be the first moderniza- The Honorable MARK R. WARNER led The ACTING PRESIDENT pro tem- tion of our food safety programs in the Pledge of Allegiance, as follows: pore. The clerk will read the title of more than 100 years—something long I pledge allegiance to the Flag of the the bill for the second time. overdue. United States of America, and to the Repub- The legislative clerk read as follows: There will be no rollcall votes today. lic for which it stands, one nation under God, A bill (S. 3975) to permanently extend the We have a number of matters we are indivisible, with liberty and justice for all. 2001 and 2003 tax relief provisions, and to per- working on, trying to have cleared f manently repeal the estate tax, and to pro- today, and we hope we can do that. We vide permanent alternative minimum tax re- will have to wait and see what the out- APPOINTMENT OF ACTING lief, and for other purposes. come of the day is. PRESIDENT PRO TEMPORE Mr. REID. Mr. President, I would ob- But I appreciated everyone’s coopera- The PRESIDING OFFICER. The ject to any further proceedings with re- tion late yesterday. It was very dif- clerk will please read a communication spect to this piece of legislation. ficult to work through that. We had, of

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S8111

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Dan is a graduate from young men and women, not only while got that done. We were able to arrive the class of 2007 from the Military they are in acute care, but also as they at an agreement on the food safety bill Academy. He hails from Peachtree recuperate and rehabilitate, and that is so we would not have to have multiple City, GA. He served with the 5/2 an improvement that has been made votes over the weekend. So I think we Stryker Brigade Combat Team. He was and is so necessary. accomplished a lot this week. injured in Afghanistan. They were op- These young men—in this case, all For me personally, I had three cau- erating around the Arghandab River young combat officers—men, but young cuses, which were all extremely impor- Valley near Kandahar. He was on pa- men and women who are serving and tant for me and the caucus. We spent trol, dismounted, when he was hit by sacrificing and sustaining the wounds about 10 or 11 hours over the last few an IED and suffered the loss of both of and, in some cases, giving their lives to days discussing the lameduck and what his legs but not the diminution of his this Nation are the fabric of our de- we have next Congress. spirit or his commitment of service to fense. They are what has sustained us The floor is now open. the Nation. through not just this moment but f We were also joined by 1LT Chris throughout our history. They continue Nichols, from the class of 2008. Chris is to inspire us with their service, and RESERVATION OF LEADER TIME from Myersville, MD. He served with they continue to represent to the world The ACTING PRESIDENT pro tem- the 1st Heavy Brigade Combat Team of the continued promise that wherever pore. Under the previous order, the the 3rd Infantry Division. He was in- we are challenged, we will meet that leadership time is reserved. jured in Iraq, northeast of Baghdad, by challenge. f an explosively formed penetrator IED, We cannot repay them enough. We a very sophisticated weapons system. cannot thank them enough. But last MORNING BUSINESS It injured both of his legs. He was month this Senate had the opportunity The ACTING PRESIDENT pro tem- joined by his friend, Stacey Aleksejus. to say to five of these warriors: Thank pore. Under the previous order, there We were pleased that Chris and Stacey you very much. Come here, see the will now be a period of morning busi- were here. Chris is, hopefully, going to Senate of the United States where ness, with Senators permitted to speak return to Active Duty. great debates have taken place, where therein for up to 10 minutes each. We were also joined by 1LT Rahul the rights and the responsibilities have Mr. REID. Mr. President, I suggest Harpalani from the class of 2008. Rahul been fashioned over more than 200 the absence of a quorum. is from Carbondale, IL. He served with years. This is what you defend. But, The ACTING PRESIDENT pro tem- the 4th Brigade Combat Team of the more importantly, you give us the op- pore. The clerk will call the roll. 4th Infantry Division. He was wounded portunity and the obligation to ensure The legislative clerk proceeded to in Konar Province in Afghanistan. An that your sacrifice is not in vain; that call the roll. IED exploded against the vehicle he we work here, as you do, as committed Mr. REED. Mr. President, I ask unan- was driving. Both legs were injured. We Americans to improve the lives of our imous consent that the order for the hope, again, that he will be fellow Americans, to defend their secu- quorum call be rescinded. recuperating well. rity, but also to provide opportunity, The ACTING PRESIDENT pro tem- We were also joined by 1LT Josh to do what is difficult and sometimes pore. Without objection, it is so or- Linvill, USMA class of 2008 from unpopular but what is necessary for dered. Wayne, PA. He served with the 3/2 the success of freedom and the success f Stryker Cavalry Regiment. He was of the families of this country. wounded in Kandahar, Afghanistan. He At moments in this body, we have, a VISIT TO THE CAPITOL stepped on a land mine, injuring his sense of frustration, a sense of—let me Mr. REED. Mr. President, I rise this right leg. stop at frustration. At those moments morning to talk about a wonderful op- We were joined also by 1LT Zach when we are divided by political issues, portunity we had on October 20 in the Osborne, class of 2008, from Roanoke, by policy debates, I ask us all to think Senate to host heroes, five young West VA. He served with the 5/2 Stryker Bri- for a moment of these young men and Point graduates, who are currently gade Combat Team, once again in the women. I think that will help im- recuperating at Walter Reed Army Arghandab River Valley of Afghani- mensely in our response to the chal- Medical Center. They came for a tour stan. An IED hit the vehicle he was lenges we face as a Senate and as a na- of the Capitol and for a lesson in his- riding in. Both of his legs were injured. tion. tory, and I want to thank the Senate We were pleased he was joined by his I also wish to say something else be- Historian who came to the floor. non-medical attendant, Daniel Key. cause this week in Rhode Island, we They had the opportunity to be in These young men have served, but had to bury a warrior, SGT Michael the Chamber and to see where the laws their families have served also, and we Paranzino of the 10th Mountain Divi- are created, which they, through their wish to thank them as well. They, too, sion. Michael left his wife and two service and sacrifice, give us the have sacrificed. In fact, all of us have small children, his parents, his family, chance to improve and defend and pre- been up to Walter Reed and as we have his friends, and the whole community serve the Constitution and make the gone through the corridors, we have of Rhode Island. He was an extraor- laws of this country. seen mothers and fathers in the rooms dinary young man. We were able, more importantly, to with their sons, as well as wives and The cost of this great experiment in thank them, to thank them for their husbands and children and grand- democracy is high indeed. We have to service to the Nation, and I am par- parents and uncles and aunts, because recognize that cost, not just in speech- ticularly pleased and proud because the sacrifice of these young men and es on the floor of the Senate but going they carry on a tradition of selfless women has been borne by their families forward: how we conduct ourselves as service to the Nation exemplified in as well as themselves. Senators; what we do to make this the best moments of the graduates of I also wish to thank COL Jim country stronger and better; what we the U.S. Military Academy. Each one Wartski. Jim is from the class of 1982. do to make it more a place of oppor- was wounded while leading his troops He serves as a mobilized reservist at tunity for all of our citizens. Particu- out front, exposed to the dangers and Walter Reed; he, as well as Mr. Fred larly, it is about what we will do not in hardships of warfare. Larson, the director of Care and Serv- the next 2 months or the next 10 We had previously hosted a group of ice Transformation. These two gentle- months but in the next 20 years to en- soldiers from the 82nd Airborne Divi- men escorted the wounded warriors. sure that the veterans we honor on this

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I ask not just with an annual parade and flag capacity, Drew represented the minor- unanimous consent that the full article waving, but with the care, the support, ity leader and the other Senate Demo- be printed in the RECORD. the assistance to the VA and the De- cratic member interests on the $35 bil- There being no objection the mate- partment of Defense as well as in their lion per year bill that funds the U.S. rial was ordered to be printed in the communities, not just these individ- Department of Energy, the U.S. Army RECORD as follows: uals but their families. Corps of Engineers, the U.S. Bureau of LOCAL FOLKS: DR. MEREDITH EVANS I hope years from now, and I will Reclamation, the Nuclear Regulatory MIDDLESBORO.—‘‘I decided I was going to pray, that others will stand up and say Commission, the Federal Energy Regu- be a doctor when I was six years old,’’ re- they paid the price and we have kept latory Commission, and other smaller called longtime Middlesboro doctor Meredith our promise to them. agencies. Evans. With that, Mr. President, I yield the In 2007, Mr. Willison was appointed One of his brothers, 18 years his senior, floor and I note the absence of a Deputy Senate Sergeant at Arms where went to medical school, inspiring Meredith quorum. he served as the chief operating officer to do the same. His first cousin also owned Evans Hospital in Middlesboro and his uncle The ACTING PRESIDENT pro tem- of the Senate’s largest organization, was a physician in Pineville and Straight pore. The clerk will call the roll. with over 850 employees and an annual Creek. The assistant legislative clerk pro- budget exceeding $200 million. Mr. Evans was born and raised in the Bell ceeded to call the roll. Willison directly supervised senior County community of Little Clear Creek The PRESIDING OFFICER (Mr. managers responsible for all oper- with his parents, Rose-Ota Fuson Evans and UDALL of Colorado). In my capacity as ations, including the chief information father Marion F. Evans, a hillside farmer, a Senator from the State of Colorado, I officer, the chief financial officer, secu- and his three sisters and two brothers. ask unanimous consent that the order rity and emergency preparedness, po- The family lived off of the land, growing and hunting all their own food. Evans re- for the quorum call be rescinded. lice operations, general counsel, human members hunting and eating game like Without objection, it is so ordered. resources, the media and public gal- squirrels and rabbits. f leries, the Employee Assistance Pro- All six children went to college; the three gram, the Protocol Office, the Door- girls became school teachers and the boys RECESS SUBJECT TO THE CALL OF keepers, the Page Program, printing, went into the medical field. THE CHAIR the photo studio, the Senate Post Of- Walking was the primary means of trans- The PRESIDING OFFICER. In my fice, parking, and education and train- portation in Little Clear Creek at the time, capacity as a Senator from the State of ing. and was supplemented by horses and mules. Colorado, I ask unanimous consent ‘‘My dad never owned a car,’’ he said. Around the Office of the Senate Ser- Meredith walked to elementary school, that the Senate stand in recess subject geant at Arms, Mr. Willison was best where he was taught mostly by his school- to the call of the Chair. known not just for his accomplished teaching sister, and later, by his brother who There being no objection, the Senate, and distinguished work in the Senate was putting himself through dental school. at 12:49 p.m., recessed subject to the but for his love of animals, music, the He walked four and a half miles to a bus call of the Chair and reassembled at latest technology and his extensive stop to go to Bell County High School, from 4:22 p.m. when called to order by the Amazon on-line gift list. which he graduated at the age of 16. Presiding Officer (Mr. BINGAMAN). Congratulations! We wish Mr. ‘‘I doubled-up on a couple of subjects when The PRESIDING OFFICER. The ma- I was under my sister,’’ he explained. Willison all the best in his future en- Meredith went to the University of Ken- jority leader. deavors. tucky to get his Bachelor’s degree and the f f University of Louisville Medical School. TRIBUTE TO ANDREW B. WILLISON TRIBUTE TO DR. MEREDITH Going from Little Clear Creek to the city re- quired some adjustment. Mr. REID. Mr. President, I rise today EVANS ‘‘It was quite a change. But I adapted rath- to recognize the extraordinary work of Mr. MCCONNELL. Mr. President, I er quickly,’’ Evans said. ‘‘I was spending Andrew B. ‘‘Drew’’ Willison who has rise today to honor the work of my most of my time going to school, going to served with great distinction since 2007 friend, Dr. Meredith Evans. A native of classes.’’ as U.S. Senate Deputy Sergeant at Little Clear Creek in Bell County, Ky., Evans was in college during World War II, Arms. Mr. Willison, who is leaving his and was set to head overseas when the war Meredith knew what career path he ended. position to pursue new adventures in wanted to follow at a very young age. ‘‘I had already had my physical examina- the private sector, has lead a distin- Influenced by his family members who tion, and was ready to go in the war. And guished career in the U.S. Senate that were in the medical field, he decided by they dropped the atomic bomb and that elevated him to the highest levels of age six that he wanted to be a doctor. ended the war,’’ Meredith remembered. decisionmaking. His work greatly en- Through diligence and perseverance Evans was told by his college roommate, hanced the safety and security of the he graduated high school early and Wendell Demarcus, that the war was nearly U.S. Senate, staff, and visitors. went on to earn degrees from the Uni- over. Demarcus, it turned out, had some in- Mr. Willison was born in Mount side information. The physics major had versity of Kentucky and the University been working on the development of the Vernon, OH, and was raised in Ohio, of Louisville Medical School. After 6 atomic bomb. Missouri, Alabama, Connecticut, and years in surgical residency, he became ‘‘He kept telling me, he said Something Virginia. He earned a B.A. with Honors a certified general surgeon, and will happen that’s going to end the war,’ but in government from the College of Wil- throughout his career he has heavily he never would tell me what and I didn’t liam and Mary in 1988. He also holds a valued the doctor-patient relationship. push him for it. But when they dropped the masters’ degree in public administra- Not only was my good friend a great bomb, he said That’s what I’ve been telling tion from the Ohio State University, doctor, but he also gave back to his you about.’’’ 1990, and a law degree from the George community and our Commonwealth When the Korean War broke out in 1950, Evans joined the service, to avoid being Washington University, 2001. through his involvement in the Cham- drafted. He spent eight months in Fort Mr. Willison started his government ber of Commerce and in ROHO, a chari- Campbell learning about reconstructive plas- career as a presidential management table organization aimed to further the tic surgery. intern at the National Aeronautics and success of young people, which he ‘‘We did a lot of reconstructive surgeries Space Administration, NASA, and later founded. His compassion worked to- on soldiers that were returning home. I worked for the Environmental Protec- ward building new schools, immunizing learned a lot about plastic surgery there,’’ tion Agency’s acid rain division. citizens against polio, and raising Evans said. In 1997 he joined my staff to work on money to give Christmas presents to After training at Fort Campbell, Evans and his three friends shipped out. Evans ended up the Environment and Public Works underprivileged children. His commu- in Europe, thanks to the luck of the draw. Committee, including the $200 billion nity and our Commonwealth have ben- ‘‘They put our names in a hat and they 1998 highway bill. In 1999, I selected Mr. efited greatly because of his work. The said the first one drawn out of the hat would Willison to become his Appropriations Middlesboro Daily News recently pub- go to Europe and the other two to Korea. So

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After medical school, Evans spent six years Claiborne counties. Last year, the group Mr. President, I ask unanimous con- in surgical residency at three locations— spent around $30,000 on the program. sent that the relevant portion of the Florida, West Virginia, and Pennsylvania. He Additionally, Evans served for 12 years on Forbes article be printed in the emerged a certified general surgeon with the the Middlesboro School Board, was a city RECORD. American Board of Surgery, with whom he councilman for 20 years and served as vice There being no objection, the mate- later became a diplomat. mayor. The first operation Evans completed was Although Evans has retired from medicine, rial was ordered to be printed in the an appendectomy at a hospital in West Vir- he continues to keep up with advancements RECORD as follows: ginia, and he recalls the butterflies that in the field. He stays healthy and sharp with [From Forbes Magazine, Nov. 12, 2010] filled his stomach that day. regular exercise and fresh produce from his THE BEST COLLEGES IN THE SOUTH ‘‘I was doing an appendectomy. The main garden. (By Jacquelyn Smith) reason I was nervous, was that my wife was He still hunts and fishes as he did as a If you’re accepted to be a student at the in the operating room as a nurse,’’ he re- child, but no longer brings home squirrel. He best college in the South, you are guaran- called. is enjoying retirement. His wife, Helen, continued to work as a teed an internship, the opportunity to study nurse, helping support the couple while Mer- f abroad and graduation within four years—or the school will pay for an additional year of edith completed his residency. After fin- RECOGNIZING CENTRE COLLEGE ishing his training, he set up shop in tuition-free study. Middlesboro, and felt fortunate to be able to Mr. MCCONNELL. Mr. President, in The benefits of attending the best college return home. 1819, a group of citizens petitioned the in the South don’t even stop when you re- ‘‘I really enjoy being with country people. Kentucky General Assembly for a char- ceive your diploma. Within 10 months of I think we have the cream of the crop in the ter to create a new liberal arts college. graduation, 98% of the college’s students, on average, are employed or engaged in ad- mountains,’’ Evans declared. The result was Centre College—a re- Helen worked as a nurse in the practice vanced study. Upon graduating you become until the couple started a family. They had markable institution named for its part of the nation’s most loyal and generous five children, Marilyn, Deborah, Carobeth, proximate location in the geographic group of alumni. Michelle, and Meredith II. Evans enjoyed fa- center of the Commonwealth. So com- Located in the heart of Kentucky, Centre therhood. mitted was the legislature to the suc- College has 1,197 undergraduate students and ‘‘I had four cheerleaders and a football cess of this school that it placed some more than 100 faculty members, 98% of whom player,’’ he said. ‘‘I loved athletics. Of of the State’s most important citizens hold the highest degrees in their fields. course, I was always interested in their scho- ‘‘My time at Centre has been highlighted in charge of its board of trustees. Ken- by the professors and mentors who have lastics. My children always did well in tucky’s first Governor, Isaac Shelby, school, which made us happy.’’ guided me and the unique experiences I’ve The couple now has ten grandchildren and served as its chair, and Dr. Ephraim taken part in,’’ says Paul Adams, a 21-year- the family is always together for the holi- McDowell—a pioneer in abdominal sur- old senior from Chicago. days. gical techniques whose statue is on In the last decade alone, Centre produced During his medical career, Meredith Evans permanent display here in the Cap- 17 Fulbright scholars, five Goldwater schol- witnessed tremendous changes in medicine. itol—also served on the board. ars, two Rhodes scholars and a Truman Post-graduate education was a consistent From this august beginning, Centre scholar. Its alumni include two U.S. vice presidents, a chief justice of the United part of his career as technology and College matured into a nationally rec- diagnostics advanced. States, 13 U.S. senators and 43 U.S. rep- Evans says that diagnostic advancements ognized educational institution that fo- resentatives. changed the face of medicine, and that the cuses its mission on the success of its ‘‘The education is intense and challenging, invention of ultrasound machines, and students. As their motto indicates, but also supportive,’’ says the college’s com- laparoscopic and endoscopic surgery made it every student can expect a personal munications director, Mike Norris. ‘‘We have possible for doctors to save more lives than education and extraordinary success. It students saying, ‘I’ve found myself doing ever before. is not surprising, then, that Centre things at Centre that I would have never Acquiring the ability to control circula- alumni include two Vice Presidents, even aspired to do.’ Our students achieve be- yond what they ever thought possible.’’ tion during surgery, he says, may be the big- one Chief Justice and one Associate gest advantage in medicine. More than 85 percent of Centre’s students ‘‘You have machines that breathe and act Justice of the U.S. Supreme Court, 13 study abroad, and to emphasize its commit- as a heart, pumping blood through the sys- U.S. Senators, 43 U.S. Representatives, ment to global citizenship, the college re- tem while you’re working on it,’’ said Evans. 11 Governors—as well as 3 alumni cur- cently implemented a program that provides ‘‘That’s one of the biggest advances . . . ’’ rently serving on my staff. Indeed, Cen- a free passport to all first-year students who For Evans though, who has always had an tre College has been a proving ground don’t already have one. intense interest in medical ethics, spending for generations of men and women ‘‘Even though we’re just a small college in Kentucky, Centre students are doing great time with patients to offer full explanations whom have gone on to become leaders of procedures and conditions was also a vital things—studying abroad in Mexico, China, part of the occupation. in a variety of fields. England, France, Spain, Vietnam, Israel, Af- ″The doctor-patient relationship is the More recently, under the steady hand rica, the Bahamas and many more places most important part of medicine,’’ he as- of its president, Dr. John Roush, Cen- worldwide, taking on the challenges of soci- serted. tre College broke onto the national ety in our classrooms and across campus, In addition to working as a doctor, Evans stage in 2000 when it hosted the Vice- and generally making a difference,’’ says took on many roles in Middlesboro. He is the Presidential debate between Dick Che- Elizabeth Trollinger, a 21-year-old senior from Kentucky. ‘‘Centre is a place where we director of Community Trust Bank, pre- ney and our colleague JOE LIEBERMAN are given countless chances to become active viously Commercial Bank, a post he has held of Connecticut. since 1962. members of our society and community, and Evans served as the president of the Junior When you consider the fact that it we know we’ll be able to effectively use the Chamber of Commerce and later the Senior also holds a national record in annual knowledge and skills we acquire in our four Chamber of Commerce. alumni contributions, it is little won- years here, no matter what comes after Cen- The Junior Chamber, under Evans, passed der that Forbes magazine recently tre.’’ a bond issue to provide the funding to build named Centre College as the top col- Over the last 25 years, Centre alumni have new schools in Middlesboro. lege in the South for a second year in led the nation in loyalty, in terms of the per- ‘‘It was a very difficult thing to do,’’ Evans a row. As the article begins, ‘‘If you’re centage of graduates who make financial do- said. ‘‘People opposed the taxes that were nations each year. ‘‘The entire Centre com- necessary to do it.’’ accepted to be a student at the best munity seems to be knit together by two In the early 1960s, the group confronted college in the South, you are guaran- strands,’’ Adams says, ‘‘a firm commitment other city issues, including immunizing the teed an internship, the opportunity to to a meaningful education and an unwaver- town against polio and defeating a resolution study abroad and graduation within ing passion for Centre herself. And for the

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00004 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8115 past three years, I’ve found myself happily daughters Kim and Katherine; and her Kentucky Medical Association, Kentucky woven into her fabric.’’ four grandchildren. The Common- Commission of Women, an award for endeav- Centre is also the 24th best college in wealth Journal recently published an ors to promote, educate and advise women of the Commonwealth and Somerset Business America overall, according to Forbes and the article about Jan and the legacy she Center for College Affordability and and Profession Women’s Club, ‘‘Woman of Productivity’s ranking of America’s Best left behind. I ask unanimous consent Achievement in Business.’’ Colleges, which was published in August. The that the full article be printed in the She is survived by her husband, James D. list ranks U.S. undergraduate institutions by RECORD. Crase, M.D. of Somerset; one son, Karl (and the quality of the education they provide, There being no objection the mate- Melissa) Crase of Richmond, Ky.; two daugh- the experiences of their students, the rial was ordered to be printed in the ters, Kim (and Joe) Claytor of Berea, Ky., and Katherine Crase of Tampa, Fla.; one amount of debt students graduate with and RECORD as follows: how much they achieve. To determine the brother, Jerry Hunley of Louisville, Ky.; and SOMERSET.—Jan Crase, 72, of Somerset, four grandchildren, Laura and Neil Claytor best schools in the South, we narrowed that Ky., passed away Tuesday, Sept. 28, 2010 in list according to the regional divisions used and Jonathon and Amelia Crase. Lexington, Ky. Visitation will be after 8 a.m. today at by the U.S. Census Bureau; that means She was born in Summer Shade, Ky., on Somerset First Presbyterian Church. schools in the South are located in Alabama, July 11, 1938, daughter of the late Seymore A funeral service will be held at 1 p.m. Arkansas, Delaware, the District of Colum- and Ruby Smith Hunley. She was a member today, Oct. 1, at Somerset First Presbyterian bia, Florida, Georgia, Kentucky, Louisiana, of Somerset First Presbyterian Church. She Church with Rev. Allen Brimer officiating. Maryland, Mississippi, North Carolina, Okla- attended Berea College and graduated from Burial will be in Lakeside Memorial Gar- homa, South Carolina, Tennessee, Texas, University of Louisville with a degree in dens. Virginia and West Virginia. Home Economics with emphasis in Dietetics. Expressions of sympathy may be made to f Jan was the first female in Kentucky to the Somerset First Presbyterian Church Capital Fund or Berea College. REMEMBERING MRS. JAN CRASE pass Series I examination for the Member of Appraisal Institute designation. She became Pulaski Funeral Home is in charge of the arrangements. Mr. MCCONNELL. Mr. President, I a licensed Real Estate Broker in Kentucky rise today to honor the life and legacy where she did appraisals and feasibility stud- f of Mrs. Jan Crase, who passed away on ies in 15 Kentucky counties. She owned and HONORING OUR ARMED FORCES September 28, 2010, in Lexington, KY. operated a Somerset insurance agency suc- SPECIALIST DALE J. KRIDLO As a resident of Somerset, KY, Jan was cessfully for ten years. She was a home agent with the University Mr. BENNET. Mr. President, it is a prime example of a woman who gave of Kentucky Extension Service where she with a heavy heart that I rise today to back to her community. She valued worked in Louisville and Jefferson County honor the life and heroic service of education, faith and family, and was with both 4–H and homemaker programs. Specialist Dale J. Kridlo. Specialist one of the hardest workers I have ever She developed the first 4–H clubs in inner Kridlo, assigned to the 27th Engineer had the privilege of knowing. She at- city schools in the nation. She was a chief Battalion, based in Fort Bragg, NC, therapeutic dietitian at Baptist Hospital in tended Berea College for 3 years, and died on November 7, 2010, of injuries then transferred to the University of Louisville and instructor of dietetics and nu- trition at Louisville Baptist School of Nurs- sustained when his dismounted patrol Louisville where she graduated with a ing. encountered small arms fire. Specialist degree in home economics. Even after She was previously a member with Berea Kridlo was serving in support of Oper- leaving Berea College, she stayed con- College Board of Trustees, Berea College ation Enduring Freedom in Kunar nected to the college community President’s Club, Founder’s Club, Kentucky Province, Afghanistan. He was 33 years throughout the years, serving on the Medical Association Education Committee old. Berea College Board of Trustees and as a non-physician member, former president A native of Pittston, PA, Specialist the College President’s Club. Jan was a of Kentucky Medical Association Alliance Kridlo graduated from Pittston Area caring friend who wanted college stu- Board of Directors, chairman of Kentucky High School. After managing his own Music Hall of Fame and Museum Advisory dents to have the same positive experi- Board member, where she helped establish painting business for several years, ence she did in higher education. She the museum, 5th District Steering Com- Specialist Kridlo enlisted in the Army helped raise millions of dollars for stu- mittee and also a member of local UNITE or- and served a tour of duty in Afghani- dent scholarships, study-abroad pro- ganization, lifetime member and former stan with decoration. He followed in grams, and computer funding at Berea president of Lake Cumberland Performing the footsteps of his father and grand- College. As a member of Somerset’s Arts Advisory Board, former president of Pu- father, both of whom served in the First Presbyterian Church, she saw a laski County Medical Alliance, first presi- Armed Forces. need to educate children not yet old dent of Pulaski County Lincoln Club and During almost 2 years of service, Spe- ember of Pulaski Republican Women’s club. cialist Kridlo distinguished himself enough to attend grade school, so she Her prior civic activities include chairman helped start the first preschool in Pu- through his courage, dedication to of Berea College President’s Council, Berea duty, and the high standards to which laski County in 1970. Since then, many College Alumni Co-chairman for Alumni families have benefited not only from fundraising, Kentucky Medical Association he held his fellow soldiers. Family the preschool but also from the youth Legislative Committee as a non-physician members recall his overwhelming pride groups and 4–H programs that Jan member, Kentucky GED Foundation chair- when he used to describe the accom- helped establish. man, Kentucky Foundation for Adult Edu- plishments of his combat unit in Af- Starting youth programs and bring- cation chairman, Southern Medical Associa- ghanistan. Commanders recognized tion Auxiliary Medical Heritage Councilor ing the community together to raise Specialist Kridlo’s extraordinary brav- for Kentucky, Master Musician Festival ery and talent, promoting him one money for a great cause were not the Board of Directors member, Pulaski County week before his passing. only things Jan excelled in; she was a Extension Service Advisory Council member, Specialist Kridlo worked on the front determined entrepreneur and business- Somerset/Pulaski County Economic Develop- lines of battle, serving in the most dan- woman. She had her hand in a variety ment Board member, Somerset/Pulaski gerous areas of Afghanistan. He is re- of different careers, as a real-estate County Convention and Visitor’s Bureau Board chairman, Somerset Community Col- membered by those who knew him as a broker, an insurance agency owner, a consummate professional with an home agent for Kentucky 4–H pro- lege Development Board member, started the first preschool in Pulaski County at St. Pat- unending commitment to excellence. grams, as well as a dietician at Baptist rick’s Episcopal Church in 1970, Somerset Co- His family remembers him as a dedi- Hospital in Louisville. Jan inspired ev- operative Preschool Board of Directors mem- cated son, husband, and loving father eryone she came into contact with be- ber for many years, Sunday School teacher to two young daughters. In his free cause of her positive outlook and deter- at Somerset First Presbyterian Church for 12 time, Specialist Kridlo enjoyed fishing. mination in everything that she did. years, Co-director of Somerset first Pres- He was also an avid Philadelphia sports She was truly an upstanding woman, byterian Church youth group for many fan. who spent much of her life giving her years, Somerset First Presbyterian Church Mark Twain once said, ‘‘The fear of time and talents to better her commu- Elder, United Way Board of Directors and Appropriations Committee chairman and death follows from the fear of life. A nity and our Commonwealth. There is PTA board member. man who lives fully is prepared to die no doubt the Commonwealth is poorer Special award Jan received were Kentucky at any time.’’ Specialist Kridlo’s serv- for her loss. My thoughts go out to her Medical Association 2010 Layperson of the ice was in keeping with this senti- husband, James; her son, Karl’ her two Year, 2005 Special Appreciation Award from ment—by selflessly putting country

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Nominees like Benita Pearson of his fate on the battlefield was uncer- country, 50 of them for vacancies Ohio, William Martinez of Colorado, tain, he pushed forward, protecting deemed judicial emergencies by the Ad- Louis Butler of Wisconsin, Edward America’s citizens, her safety, and the ministrative Office of the U.S. Courts. Chen of California, John McConnell of freedoms we hold dear. For his service The Senate has ready for consideration Rhode Island, Goodwin Liu of Cali- and the lives he touched, Specialist and confirmation 23 judicial nominees fornia and Robert Chatigny of Con- Kridlo will forever be remembered as of the President, all of whom have had necticut. I have reviewed their records one of our country’s bravest. hearings before the Judiciary Com- and considered their character, back- To Specialist Kridlo’s entire family— mittee and have been reported favor- ground and qualifications. I have heard I cannot imagine the sorrow you must ably to the Senate by a majority of the criticisms of the Republican Sen- be feeling. I hope that, in time, the that committee. Sixteen of these judi- ators on the Judiciary Committee as pain of your loss will be eased by your cial nominees were reported unani- they have voted against this handful of pride in Dale’s service and by your mously. The Senate can confirm those nominees. I disagree, and believe the knowledge that his country will never 16 nominees today, and we can then Senate would vote, as I have, to con- forget him. We are humbled by his schedule such debate as needed on the firm them. That they will not be con- service and his sacrifice. remaining seven. Our working together servative activist judges should not SECOND LIEUTENANT ROBERT M. KELLY to do so would send the right message disqualify them from serving. Mr. VITTER. Mr. President, today I to the American people. Let’s work to- But that is not what is happening. recognize Second Lieutenant Robert M. gether and approve these nominations We are not debating the merits of those Kelly of Tallahassee, FL, who was without additional delay. Let’s end the nominations, as Democratic Senators killed November 9, 2010, from an impro- gridlock. Let’s move forward. did when we opposed the most extreme vised explosive device while on a foot As the Senate recessed for the elec- handful of nominees of President Bush. patrol in Helmand Province, Afghani- tions, we were not allowed to consider What is happening is that judicial con- stan. Lieutenant Kelly is survived by and confirm any of the 23 judicial firmations are being stalled virtually his wife Heather, his sister Kathleen, nominations pending on the Senate Ex- across the board. What is new and par- and his brother John Kelly, who is also ecutive Calendar—this despite the judi- ticularly damaging is that 16 judicial a marine. LT Robert Kelly was the son cial vacancies crisis in our Federal nominees who were all reported unani- of Lieutenant General Kelly and Mrs. courts. As of today there are 108 cur- mously by the Senate Judiciary Com- John Kelly. Lieutenant General Kelly rent judicial vacancies. We already mittee, without Republican opposition, is the commander of the Marine Forces know of 20 future vacancies. In addi- are still being delayed. These nominees Reserve in New Orleans. tion, the Senate has not acted on the include Albert Diaz and Catherine Ea- Lieutenant Kelly was engaged in his request by the Judicial Conference of gles of North Carolina. They are both third combat deployment and was as- the United States to authorize 56 addi- supported by Senator HAGAN and Sen- signed to the 3rd Battalion, 5th Marine tional judges, which will allow the Fed- ator BURR. Sadly, Senator BURR’s sup- Regiment, 1st Marine Division out of eral judiciary to do its work. Accord- port has not freed them from the Camp Pendleton, CA. Following in his ingly, the Federal judiciary is cur- across the board Republican hold on all father’s footsteps, Lieutenant Robert rently more than 180 judges short of judicial nominees. Judge Diaz was re- Kelly rose through the ranks during those needed. ported unanimously in January, al- his service. He was commissioned as an At the end of September, the Presi- most 11 months ago, and still waits for officer in the Marine Corps on Decem- dent of the United States sent a letter agreement from the minority in order ber 12, 2008, where he continued to hon- to Senate leaders expressing his justifi- for the Senate to consider his nomina- orably serve with distinction. able concern with the pace of judicial tion so that he may be confirmed. A decorated marine, LT Robert confirmations. The President wrote Also being delayed for no good reason Kelly’s bravery is a testament to true that the American people and the Fed- from joining the bench of the most American heroism. Having received eral judiciary suffer from this inaction overloaded Federal district in the multiple awards that include the Pur- and that a minority of Senators has, in country in the Eastern District of Cali- ple Heart, Combat Action Ribbon, his words ‘‘systematically and irre- fornia is Kimberly Mueller, whose Navy and Marine Corps Achievement sponsibly used procedural maneuvers nomination was reported last May, Medal, Iraq Campaign Medal, and Af- to block or delay confirmation votes on more than 6 months ago, without any ghanistan Campaign Medal, Lt. Kelly judicial nominees—including nominees opposition. Her nomination is one of deserves to be recognized. He also re- that have strong bipartisan support four circuit and district nominations ceived the Marine Corps Good Conduct and the most distinguished records.’’ to positions in the Ninth Circuit cur- Medal, National Defense Service All of these nominees have the back- rently on the Executive Calendar that Medal, Global War on Terrorism Medal, ing of their home State Senators. In- Republicans are blocking from Senate Global War on Terrorism Expedi- deed, President Obama has worked consideration. In addition to the Liu tionary Medal, Humanitarian Service hard with home State Senators regard- and Chen nominations, the nomination Medal, and the Sea Service Deploy- less of party affiliation, and by so of Mary Murguia from Arizona to the ment Ribbon. doing has done his part to restore com- Ninth Circuit has been stalled since There is no doubt that this tragic ity to the process. August despite the strong support of loss will not only be felt within the Sixteen judicial nominees have been Senator KYL, the assistant Republican Kelly family but also the Marine Corps delayed despite the fact that they were leader. and this Nation. Our thoughts and reported without a single vote in oppo- I want to put into the RECORD a let- prayers will continue to be with his sition from the Senate Judiciary Com- ter we received this week from Ninth family and friends. Today I ask my col- mittee. Regrettably, despite the Presi- Circuit Chief Judge Alex Kozinski, a leagues to join me in honoring and re- dent’s efforts and his selection of out- President Reagan appointee, and the membering 2LT Robert M. Kelly, who standing nominees the Senate has not other members of the Judicial Council made the ultimate sacrifice for our Na- reciprocated by promptly considering of the Ninth Circuit writing ‘‘to em- tion. his consensus nominees. To the con- phasize our desperate need for judges’’ f trary, as the President has pointed out, in the Nation’s largest Federal circuit. nominees are being stalled who, if al- They write that ‘‘[c]ourts cannot do JUDICIAL NOMINATIONS lowed to be considered, would receive their work if authorized judicial posi- Mr. LEAHY. Mr. President, in the unanimous or near unanimous support, tions remain vacant’’ and urge ‘‘that aftermath of the November election re- be confirmed, and be serving in the ad- the Senate act on judicial nominees

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00006 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8117 without delay.’’ This letter echoes the of these nominees. These are not judi- would increase the confirmations from serious warning I have previously spo- cial nominations whose judicial philos- the historically low level of 41, where it ken about issued by Justice Anthony ophy Republicans question. currently stands, to between 70 and 75. Kennedy at the Ninth Circuit Con- The President noted in his September That would be in the range of judicial ference about skyrocketing judicial va- letter to Senate leaders that the ‘‘real confirmations during President George cancies in California and throughout harm of this political game-playing H.W. Bush’s first 2 years, 70, while rest- the country. He said: ‘‘It’s important falls on the American people, who turn ing far below President Reagan’s first 2 for the public to understand that the to the courts for justice’’ and that the years, 87, and pale in comparison to the excellence of the federal judiciary is at unnecessary delay in considering these 100 confirmed in the first 2 years of the risk.’’ He noted that ‘‘if judicial excel- noncontroversial nominations ‘‘is un- George W. Bush administration or lence is cast upon a sea of congres- dermining the ability of our courts to those confirmed during President Clin- sional indifference, the rule of law is deliver justice to those in need . . . ton’s first 2 years, 127. imperiled.’’ from working mothers seeking timely I come before the Senate today to The District of Columbia suffers from compensation for their employment make a proposal to end this impasse. four vacancies on its Federal District discrimination claims to communities This is a proposal the American people Court. Two nominees could help that hoping for swift punishment for per- will understand and, I believe, support. court, but they are now being delayed petrators of crimes to small business It, too, has scriptural roots. I ask the from final consideration. Beryl Howell owners seeking protection from unfair Republican leadership to follow the was reported by the committee unani- and anticompetitive practices.’’ Golden Rule with respect to these judi- mously. She is well known to many of President Obama has reached out to cial nominations. This is not com- us from her 10 years of service as a Republican home State Senators re- plicated. It is something we teach our counsel on the Senate Judiciary Com- garding his judicial nominations. They children from a young age. It is a basic mittee. She is a decorated former Fed- should reciprocate. As the President rule of good behavior. Do unto these eral prosecutor and the child of a mili- said in his inaugural address calling for nominations as you would have done to tary family. Robert Wilkins was also a new era of responsibility, he called the nominations of a Republican Presi- reported without opposition. The dis- for ‘‘an end to the petty grievances . . . dent. Following this basic precept tinguished Chief Judge of the District recriminations and worn-out dogmas would lead to the confirmation without Court, Chief Judge Royce Lamberth that for far too long have strangled our further delay of the nominations re- sent a recent letter to Senate leaders politics.’’ The President recalled the ported without opposition. They can be urging prompt action on these nomina- words of Scripture as he urged ‘‘the confirmed today. If someone wishes to tions. time has come to set aside childish ask for rollcall votes on these nomina- John Gibney of Virginia, James things.’’ Let the Senate end this across tions, tell the majority leader so that Bredar and Ellen Hollander of Mary- the board blockade against confirming he can schedule that vote without fur- land, Susan Nelson of Minnesota, Ed- noncontroversial judicial nominees. ther delay. End this across the board mond Chang of Illinois, Leslie Democrats did not engage in such a stall on judicial nominations by allow- Kobayashi of Hawaii, and Denise Cas- practice with President Bush and Re- ing the many noncontroversial nomi- per of Massachusetts are the other dis- publicans should not continue their nations to proceed without further ob- trict court nominees reported unani- practice any longer. With more than jection, obstruction or delay. mously from the Judiciary Committee 100 vacancies plaguing the Federal The new tactic of objecting to consid- and could have been confirmed as con- courts, we do not have the luxury of in- eration of noncontroversial nomina- sensus nominees long ago. dulging in such games. tions is an escalation of the so-called Another district court nominee is The Senate is well behind the pace ‘‘judge wars.’’ The attempted justifica- Carlton Reeves of Mississippi, who is set by a Democratic majority in the tion as some kind of tit-for-tat is supported by Senator COCHRAN and is a Senate considering President Bush’s wrong. But my proposal does not de- former president of the Magnolia Bar nominations during his first 2 years in pend on whether you agree with me or Association. Only Senator COBURN office. By this date in President Bush’s side with partisans from across the asked to be recorded as opposing his second year in office, the Senate, with aisle. While seeking to justify ‘‘an eye nomination. I believe Mr. Reeves would a Democratic majority, had confirmed for an eye’’ would require a look back receive a strong bipartisan majority 100 of his Federal circuit and district and a factual accounting, the Golden vote for confirmation. court nominations. They were all con- Rule is a rule of current and prospec- Counting Judge Diaz, there are five sidered and confirmed during the 17 tive behavior. I hope those on the other consensus nominees to the circuit months I chaired the Senate Judiciary side will remember our shared values courts who are being stalled. Judge Committee. Not a single nominee re- and adopt the Golden Rule going for- Ray Lohier of New York would fill one ported by the Judiciary Committee re- ward from this day. That would be a of the four current vacancies on the mained pending on the Senate’s Execu- step toward returning to our Senate United States Court of Appeals for the tive Calendar at the end of the Con- traditions and allow the Senate better Second Circuit. He is another former gress. to fulfill its responsibilities to the prosecutor with support from both In sharp contrast, during President American people and the Federal judi- sides of the aisle. His confirmation has Obama’s first 2 years in office, the mi- ciary. been stalled for no good reason for nority has allowed only 41 Federal cir- During these 17 months I chaired the more than 6 months, as well. Scott cuit and district court nominees to be Judiciary Committee during President Matheson is a Utah nominee with the considered by the Senate. In 2002, we Bush’s first 2 years, I scheduled 26 support of Senator HATCH who was re- proceeded in the lame duck session hearings for the judicial nominees of a ported without opposition. Mary after the election to confirm 20 of Republican President and the Judici- Murgaia is from Arizona and is sup- President Bush’s judicial nominees. ary Committee worked diligently to ported by Senator KYL and was re- This year there are 23 judicial nomina- consider them. During the 2 years of ported without opposition. Finally, tions ready for Senate consideration the Obama administration, I have tried Judge Kathleen O’Malley of Ohio, nom- and another 11 noncontroversial nomi- to maintain that same approach. The inated to the Federal circuit, was re- nations on the committee’s business committee held its 25th hearing for ported without opposition. agenda that could have been reported President Obama’s Federal circuit and Many of these nominees could have out yesterday. Those 11 nominations district court nominees this week. I been considered and confirmed before were needlessly held over another two have not altered my approach and nei- the August recess. All of them could weeks by Republican Senators but ther have Senate Democrats. have been considered and confirmed be- could be reported to the Senate at our One thing that has changed is that fore the October recess. They were not. next business meeting. That is more we now receive the paperwork on the They were not because of Republican than 30 additional confirmations that nominations, the nominee’s completed objections that, I suspect, have nothing could be easily achieved with a little questionnaire, the confidential back- to do with the qualifications or quality cooperation from the minority. That ground investigation and the American

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The average time for confirmed cial Conference, we would be greatly assisted had adopted and that had been used by circuit court nominees was 26 days. By if our judicial vacancies—some of which have President George H.W. Bush, President contrast, the average time for the 41 been open for several years and declared ‘‘ju- Reagan and all Presidents for more Federal circuit and district and circuit dicial emergencies’’—were to be filled than 50 years. Instead, President court judges confirmed since President promptly. We respectfully request that the George W. Bush delayed the start of Obama took office is 90 days and the Senate act on judicial nominees without delay. the ABA peer review process until after average time for circuit nominees is Sincerely, the nomination was sent to the Senate. 148 days—and that disparity is increas- Alex Kozinski, Chief Judge, Ninth Cir- That added weeks and months to the ing. cuit; timeline in which hearings were able to This vacancies crisis alarms the Sidney R. Thomas, Circuit Judge, Ninth be scheduled on nominations. President of the United States. It Circuit; When I became chairman of the Judi- alarms Supreme Court Justices. It Ronald M. Gould, Circuit Judge, Ninth ciary Committee midway through alarms the Federal Bar Association. It Circuit; President Bush’s first tumultuous year alarms the American Bar Association. Audrey B. Collins, Chief Judge, Central in office, I worked very hard to make District of California; I ask unanimous consent that the Vaughn R. Walker, Chief Judge, North- sure Senate Democrats did not perpet- President’s September 30 letter, Chief ern District of California; uate the ‘‘judge wars’’ as tit-for-tat. Judge Lamberth’s November 4 letter, Procter Hug, Jr., Senior Judge, Ninth Despite the fact that Senate Repub- and statements by the Federal Bar As- Circuit; licans pocket filibustered more than 60 sociation and American Bar Associa- Raymond C. Fisher, Circuit Judge, Ninth of President Clinton’s judicial nomina- tion be printed in the RECORD at the Circuit; tions and refused to proceed on them conclusion of my statement. Johnnie B. Rawlinson, Circuit Judge, while judicial vacancies skyrocketed The PRESIDING OFFICER. Without Ninth Circuit; during the Clinton administration, in objection, it is so ordered. Roger L. Hunt, Chief Judge, District of (See exhibit 1.) Nevada; 2001 and 2002, during the 17 months I Robert H. Whaley, Senior Judge, Eastern chaired the committee during Presi- Mr. LEAHY. There is no good reason District of Washington. to hold up consideration for weeks and dent Bush’s first two years in office, CHIEF JUDGES, U.S. DISTRICT COURTS OF THE the Senate proceeded to confirm 100 of months of nominees reported without NINTH CIRCUIT his judicial nominees. opposition from the Judiciary Com- Ralph R. Beistline, Chief Judge, District By refusing to proceed on President mittee. I have been urging since last of Alaska; Clinton’s nominations while judicial year that these consensus nominees be Irma E. Gonzalez, Chief Judge, Southern vacancies skyrocketed during the 6 considered promptly and confirmed. If District of California; years they controlled the pace of nomi- Senators would follow the Golden Rule, Susan Oki Mollway, Chief Judge, District nations, Senate Republicans allowed that would happen without further of Hawaii; vacancies to rise to more than 110 by delay. Richard F. Cebull, Chief Judge, District the end of the Clinton administration. I ask unanimous consent that the Ju- of Montana; dicial Council letter be printed in the Lonny R. Suko, Chief Judge, Eastern As a result of their strategy, Federal District of Washington; circuit court vacancies doubled. When RECORD. Anthony W. Ishii, Chief Judge, Eastern Democrats regained the Senate major- There being no objection the mate- District of California; ity halfway into President Bush’s first rial was orderd to be printed in the Frances Marie Tydingco-Gatewood, Chief year in office, we turned away from RECORD, as follows: Judge, District of Guam; these bad practices. As a result, overall NOVEMBER 15, 2010. B. Lynn Winmill, Chief Judge, District of judicial vacancies were reduced during Hon. HARRY REID, Idaho; the Bush years from more than 10 per- Majority Leader, Ann L. Aiken, Chief Judge, District of Oregon; cent to less than four percent. During U.S. Senate, Washington, DC. Hon. MITCH MCCONNELL, Robert S. Lasnik, Chief Judge, Western the Bush years, the Federal court va- Minority Leader, District of Washington. cancies were reduced from 110 to 34 and U.S. Senate, Washington, DC. Federal circuit court vacancies were Hon. PATRICK J. LEAHY, EXHIBIT 1 reduced from a high of 32 down to sin- Chair, Senate Judiciary Committee, THE WHITE HOUSE, gle digits. U.S. Senate, Washington, DC. Washington, DC, September 30, 2010. This progress has not continued with Hon. JEFF SESSIONS, Hon. HARRY REID, a Democratic President back in office. Ranking Member, Senate Judiciary Committee, Majority Leader, Instead, Senate Republicans have re- U.S. Senate, Washington, DC. U.S. Senate, Washington, DC. turned to the strategy they used during GENTLEMEN: We write on behalf of the Hon. PATRICK J. LEAHY, courts of the Ninth Circuit. As you know, Chairman, Judiciary Committee, the Clinton administration of blocking the Ninth Circuit is by far the largest federal U.S. Senate, Washington, DC. the nominations of a Democratic Presi- circuit in the country, encompassing the 9 Hon. MITCH MCCONNELL, dent, again leading to skyrocketing va- western states, plus the territory of Guam Republican Leader, cancies. Last year the Senate con- and the Commonwealth of the Northern Mar- U.S. Senate, Washington, DC. firmed only 12 Federal circuit and dis- iana Islands. Approximately one fifth of the Hon. JEFF SESSIONS, trict court judges, the lowest total in population of the United States lives within Ranking Member, Judiciary Committee, 50 years. This year we have yet to con- the borders of the Ninth Circuit. Our case- U.S. Senate, Washington, DC. DEAR SENATOR REID, SENATOR MCCONNELL, firm 30 Federal circuit and district load reflects the diversity of our territory and the people that inhabit it and is heavily SENATOR LEAHY, AND SENATOR SESSIONS: I judges. We are not even keeping up impacted by increased immigration enforce- write to express my concern with the pace of with retirements and attrition. As a re- ment, drug interdiction activities, prison judicial confirmations in the United States sult, judicial vacancies are, again, over litigation, bankruptcy and environmental Senate. Yesterday, the Senate recessed with- 100 and, again, more than 10 percent. cases—to name just a few of the most active out confirming a single one of the 23 Federal Regrettably, the Senate is not being areas. judicial nominations pending on the Execu- allowed to consider the consensus, In order to do our work, and serve the pub- tive Calendar. The Federal judiciary and the mainstream judicial nominees favor- lic as Congress expects us to serve it, we American people it serves suffer the most ably reported from the Judiciary Com- need the resources to carry out our mission. from this unprecedented obstruction. One in While there are many areas of serious need, eight seats on the Federal bench sits empty, mittee. It has taken nearly five times we write today to emphasize our desperate and the Administrative Office of the U.S. as long to consider President Obama’s need for judges. Our need in that regard has Courts has declared that many of those va- judicial nominations as it did to con- been amply documented (See attached March cancies constitute judicial emergencies. De- sider President Bush’s during his first 2 2009 Judicial Conference Recommendations spite the urgent and pressing need to fill

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these important posts, a minority of Sen- justice to those in need. All Americans de- AMERICAN BAR ASSOCIATION, ators has systematically and irresponsibly pend on having well-qualified men and Chicago, IL, August 5, 2010. used procedural maneuvers to block or delay women on the bench to resolve important Hon. BARACK OBAMA, confirmation votes on judicial nominees—in- legal matters—from working mothers seek- President of the United States of America, cluding nominees that have strong bipar- ing timely compensation for their employ- The White House, Washington, DC. tisan support and the most distinguished ment discrimination claims to communities Hon. HARRY REID, records. The minority has even been block- hoping for swift punishment for perpetrators Majority Leader, ing non-controversial nominees—a dramatic of crimes to small business owners seeking U.S. Senate, Washington, DC. shift from past practice that could cause a protection from unfair and anticompetitive Hon. MITCH MCCONNELL, crisis in the judiciary. practices. Minority Leader, The Judiciary Committee has promptly U.S. Senate, Washington, DC. considered my judicial nominees. Nonethe- As a former Senator, I have the greatest Hon. PATRICK LEAHY, less, judicial confirmation rates in this Con- respect for the Senate’s role in providing ad- Chair, Senate Judiciary Committee, gress have reached an all-time low. At this vice and consent on judicial nominations. If U.S. Senate, Washington, DC. point in the prior Administration (107th Con- there is a genuine concern about the quali- Hon. JEFF SESSIONS, gress), the Senate had confirmed 61% of the fications of judicial nominees, that is a de- Ranking Member, Senate Judiciary Committee, President’s judicial nominations. By con- bate I welcome. But the consistent refusal to U.S. Senate, Washington, DC. trast, the Senate has confirmed less than move promptly to have that debate, or to DEAR PRESIDENT OBAMA, MAJORITY LEADER half of the judicial nominees it has received confirm even those nominees with broad, bi- REID, MINORITY LEADER MCCONNELL, CHAIR- in my Administration. Nominees in the 107th partisan support, does a disservice to the MAN LEAHY, AND SENATOR SESSIONS: Now Congress waited less than a month on the greatest traditions of this body and the that the Senate has concluded another his- floor of the Senate before a vote on their American people it serves. In the 107th Con- toric debate and vote on a nominee to the confirmation. The men and women whom I gress, the Judiciary Committee reported 100 U.S. Supreme Court and is about to recess have nominated who have been confirmed to for its summer break, I am writing to ex- judicial nominees, and all of them were con- the Courts of Appeals waited five times press the American Bar Association’s mount- firmed by the Senate before the end of that longer and those confirmed to the District ing concern over the persistently high num- Courts waited three times longer for final Congress. I urge the Senate to similarly con- ber of judicial vacancies on our federal dis- votes. sider and confirm my judicial nominees. trict courts and courts of appeals. I urge you, Right now, 23 judicial nominees await sim- Sincerely, upon your return to Washington in Sep- ple up-or-down votes. All of these nominees BARACK OBAMA. tember, to make the filling of judicial vacan- have the strongest backing from their home- cies a priority for the Administration and for state Senators—a fact that usually counsels U.S. DISTRICT COURT the Senate. As lawyers who represent our in favor of swift confirmation, rather than FOR THE DISTRICT OF COLUMBIA, clients in federal courts across this nation, delay. Sixteen of those men and women re- Washington, DC, November 4, 2010. members of the American Bar Association ceived unanimous support in the Judiciary Re: Judicial Vacancies—United States Dis- know first hand that longstanding vacancies Committee. Nearly half of the nominees on trict Court for the District of Columbia. and protracted delays in the nomination and the floor were selected for seats that have confirmation process do great harm to the Hon. HARRY REID, gone without judges for anywhere between federal judiciary and to public life. Majority Leader, U.S. Senate, 200 and 1,600 days. But despite these compel- Despite the confirmation of 37 Article III The Capitol, Washington, DC. ling circumstances, and the distinguished ca- judges during the 111th Congress, the va- Hon. MITCH MCCONNELL, reers led by these candidates, these nomina- cancy rate has not dropped below 10 percent Minority Leader, U.S. Senate, tions have been blocked. since last August. For the past six months, The Capitol, Washington, DC. Judge Albert Diaz, the well-respected state the vacancy rate has remained at over 11 court judge I nominated to the U.S. Court of DEAR SENATOR REID AND SENATOR MCCON- percent, and the number of vacancies has Appeals for the Fourth Circuit, has waited NELL: On behalf of the judges of the United hovered around the 100 mark. The lack of 245 days for an up-or-down vote—more than 8 States District Court for the District of Co- progress in reducing the vacancy rate this months. Before becoming a judge, Diaz lumbia, I request that the Senate act soon to session is especially worrisome in light of the number of judges who have reached, or served for over 10 years in the United States fill the vacancies that exist at our Court. Marine Corps as an attorney and military are fast approaching, retirement age: eight- Of our 15 authorized judgeships, we cur- judge. If confirmed, he would be the first His- een judges have announced their intention to rently have four vacancies. One has been va- retire in the next year, and several addi- panic to sit on the Fourth Circuit. The seat tional vacancies will no doubt arise as a re- to which he was nominated has been declared cant since January 2007. With the additional sult of judicial elevations, deaths and res- a judicial emergency. Judge Diaz has the vacancy that will result from Judge Ricardo ignations. If the nomination and confirma- strong support of both of North Carolina’s M. Urbina’s assumption of senior status, ef- tion process does not speed up significantly, Senators. Senator Burr has publicly advo- fective January 31, 2011, this Court faces the prospect of having only 10 of its 15 author- confirmations will not even keep pace with cated for Judge Diaz to get a final vote by the rate of attrition. The high number of va- the Senate. And just before the August re- ized judgeships filled. The severe impact of this situation already is being felt and will cancies, combined with the low number of cess, Senator Hagan went to the floor of the confirmations, has created a problem that is only increase over time. The challenging Senate to ask for an up-or-down vote for fast approaching crisis proportions. Judge Diaz. Her request was denied. caseload that our Court regularly handles in- Vacancies have different effects on dif- We are seeing in this case what we have cludes many involving national security ferent courts. Those courts with relatively seen in all too many others: resistance to issues, as well as other issues of national sig- normal caseloads per judgeship and a suffi- highly qualified candidates who, if put to a nificance. A large number of these complex, cient number of active judges may be able to vote, would be unanimously confirmed, or high-profile cases demand significant time absorb the extra workload and operate nor- confirmed with virtually no opposition. For and attention from each of our judges. mally if vacancies are filled within a reason- example, Judge Beverly Martin waited 132 Without a complement of new judges, it is able time. In contrast, courts that already days for a floor vote—despite being strongly are operating with staggering caseloads and backed by both of Georgia’s Republican Sen- difficult to foresee how our remaining active judges will be able to keep up with the heavy too few authorized judgeships are strained ators. When the Senate finally held a vote, beyond capacity by unfilled vacancies and volume of cases that faces us. A 33 percent she was confirmed to the Eleventh Circuit are unable to keep up with the workload. unanimously. Jane Stanch was recently con- vacancy ratio is quite extraordinary. In these jurisdictions, persistent vacancies firmed by an overwhelming majority of the Two nominees (Beryl Howell and Robert make it impossible for the remaining judges Senate, after waiting almost 300 days for a Wilkins) have been reported out of the Sen- on the court to give each case the time it de- final vote. Even District Court nominees ate Judiciary Committee and await floor serves; community and business life suffers have waited 3 or more months for confirma- votes; two nominees (James Boasberg and because shorthanded courts have no choice tion votes—only to be confirmed unani- Amy Jackson) have had their hearings and but to delay civil trial dockets due to the mously. hopefully will soon be reported out of Com- Speedy Trial Act; and courts are forced to Proceeding this way will put our judiciary mittee. adopt time-saving procedures, some of which on a dangerous course, as the Department of may serve efficiency at the price of altering Justice projects that fully half of the Fed- We hope the Senate will act quickly to fill the delivery and quality of justice over time eral judiciary will be vacant by 2020 if we this Court’s vacancies so the citizens of the in ways not intended. The harm caused by continue on the current pace of judicial con- District of Columbia and the Federal Gov- persistent vacancies on these courts may firmations. The real harm of this political ernment and other litigants who appear be- reach into the future, too: if no abatement of game-playing falls on the American people, fore us continue to enjoy the high quality of these conditions is in sight, the specter of who turn to the courts for justice. By deny- justice they deserve. this kind of work environment is likely to ing these nominees a simple up-or-down Sincerely, result in additional judicial retirements and vote, the Republican leadership is under- ROYCE C. LAMBERTH, resignations and deter excellent attorneys mining the ability of our courts to deliver Chief Judge. from seeking positions on the federal bench.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8120 CONGRESSIONAL RECORD — SENATE November 19, 2010 Lawyers who practice regularly in the fed- proved with little dissent, and only seven re- federal Article III judgeships stood vacant, eral courts and their clients who expect ceived significant opposition. That almost equaling nearly one out of every eight fed- timely judicial resolution of their disputes two-thirds of them had no or little opposi- eral judgeships. The Judicial Conference are deeply concerned that the partisanship tion in committee, combined with the fact says that 48 of these vacant judgeships con- that has long characterized the process and that many prior nominees subjected to de- stitute ‘‘judicial emergencies,’’ meaning the persistently high number of vacancies layed floor consideration ultimately were they have been vacant for at least 18 months are creating strains that will inevitably re- confirmed by unanimous or almost unani- and are in districts or circuits dealing with duce the quality of our justice system and mous vote, strongly suggests that the failure pressing caseloads. erode public confidence in the independence to schedule timely floor votes on many pend- Judicial vacancies are harmful. They pre- and impartiality of our federal courts. This ing nominees has little or nothing to do with vent the courts from operating at their full is a result we, as a nation, can ill-afford: all their qualifications. capacity in dispensing fair, prompt justice. three branches must be robust and strong to Tactics to delay votes on nominees that Vacancies mean larger dockets, longer delay, advance the important work of government. are launched for reasons not associated with and greater pressure and expense for lawyers We urge you to take immediate action to their qualifications blatantly inject politics and litigants. As Slate legal columnists avert a potential crisis and preserve the into the process. Such tactics waste the time Dahlia Lithwick and Carl Tobias recently quality and vitality of the federal judiciary, of the Senate and increase the time a nomi- commented, ‘‘Crowded dockets mean longer and we offer the following suggestions: nee is in limbo. Worst of all, they needlessly waits for cases to be heard promptly. This af- 1. The President and the Senate should deprive the federal courts of the judges they fects thousands of ordinary Americans— make the prompt filling of federal judicial sorely need. plaintiffs and defendants—whose liberty, vacancies a priority. Each party to the proc- Senate leaders should seek to avoid sched- safety, or job may be at stake and for whom ess should commit sufficient time and re- uling delays over nominees who have bipar- justice may arrive too late, if at all.’’ Justice sources to the endeavor, and resolve to work tisan support and should discourage and dis- Anthony Kennedy said it best, in comments cooperatively and across the political aisle suade their colleagues from using the judi- to the Los Angeles Times: ‘‘It’s important to reduce the vacancy rate as quickly as pos- cial confirmation process to advance or de- for the public to understand that the excel- sible. A commitment should be made to cul- feat other legislative objectives. If legiti- lence of the federal judiciary is at risk. If ju- tivate a process that is dominated by com- mate concerns are raised over a nominee’s dicial excellence is cast upon a sea of con- mon purpose and a spirit of mutual respect qualifications for a lifetime appointment to gressional indifference, the rule of law is im- and bipartisan cooperation. the federal bench, sufficient time should be periled.’’ Politics and bipartisanship are not mutu- scheduled to permit the Senate to engage in Under the Constitution, the U.S. Senate is ally exclusive. Even though the judicial full debate. The objective should not be to the sole entity charged with the responsi- nomination and confirmation process is po- rush consideration of nominees whose quali- bility to ‘‘advise and consent’’ upon the litical by design and gives each branch an fications are questioned, but to assure time- President’s appointment of judges. Despite opportunity to exercise a check on the qual- ly consideration of every judicial nominee the Founders’ straightforward wishes, the ju- ity of the federal bench, it should not serve whose nomination has been approved by the dicial confirmation process has grown dis- as a battleground for other political dis- Senate Judiciary Committee and forwarded torted before our very eyes. Over the past 30 putes. A renewed spirit of bipartisanship is to the Senate for a confirmation vote. years, the Senate has increasingly essential to reducing the backlog of vacan- We urge all members of the Senate to re- stonewalled or rejected the President’s judi- cies and improving the process. main cognizant of the central importance of cial nominees, regardless of party. Confirma- 2. The Administration should make a con- a fully staffed federal judiciary and to make tion rates at 18 months into a presidency certed effort to shorten the time between va- an effort to reach across the aisle to try to have fallen from the high-water mark set in cancy and nomination and to submit a nomi- find constructive ways to support the judici- 1982 by President Reagan (93 percent) to 47 nation to the Senate for every outstanding ary and protect it from excessive political percent today (the percentage of President Article III judicial vacancy. The Administra- zeal. We believe that a true respect for the Obama’s nominees who have won Senate con- tion should make a special effort to act with importance of the federal courts will best in- firmation). These numbers—along with due diligence to nominate individuals to the form each senator’s decision with regard to opaque, obstructionist ‘‘secret holds’’ on vacant judicial seats that the Administra- action on pending judicial nominations. nominations and unprecedented use of the tive Office of the United States Courts has Our judicial system is predicated on the filibuster—reflect a process more like ‘‘Ad- classified as ‘‘judicial emergencies’’ (42 now principles that each case deserves to be eval- vice & Dissent,’’ the apt title of Sarah Bind- exist), based on a combination of the length uated on its merits, that justice will be dis- er and Forrest Maltzman’s recent work on of time the seat has been vacant and the pensed even-handedly, and that justice de- the struggle to shape the federal judiciary. number of weighted or adjusted case filings layed is justice denied. There may be dis- Finger pointing by the two main U.S. po- for that seat. agreements with individual decisions ren- litical parties is in overdrive over how the We commend the Administration for its dered by the federal courts, but few would process has devolved and who is at fault. If commitment to engage in meaningful dispute their essential role in our system of the confirmation wars expand and increase, prenomination consultation with home-state government and their impact on daily life. regardless of which party takes control of senators, a concept that the ABA endorsed in Congress should take action to support, not the Senate, the implications for the future 2007 as a means to reduce partisanship. As a undermine, the vital work of the federal are even more troubling. In August, Assist- result, many nominations have had the courts. ant Attorney General Christopher H. Schroe- backing of both home-state senators, regard- We urge the President and the Senate to der warned an audience of Ninth Circuit less of party affiliation. Unfortunately, even take all necessary steps to fill existing va- judges and lawyers that if the current rate of though prenomination consultation has in- cancies promptly and to restore bipartisan replacing retired, resigned, and deceased creased bipartisan accord during the initial accord to the nomination and confirmation judges continues, nearly half of the 875 fed- phases of the process, it has not insulated process so that the federal courts will not be eral judgeships could be vacant by the end of nominees from partisan politics on the Sen- deprived of the judges they need to do their the decade. ate floor: senators have blocked or delayed important work. When the Senate left Washington for its the consideration of numerous nominees who Sincerely, election recess, it abandoned its responsi- bility to provide an up-or-down vote on 16 have the support of their home-state sen- CAROLYN B. LAMM, ators as well as the overwhelming support of President. federal judicial nominees—all of whom were the Senate Judiciary Committee. favorably approved by the Senate Judiciary 3. The Senate should give every nominee [From the Washington Watch, Oct. 2010] Committee with strong bipartisan support. an up-or-down vote within a reasonable time One nominee, Albert Diaz, who would be the OCTOBER 201: VACANCY SIGNS AT THE FEDERAL after the nomination is reported by the Sen- first Hispanic judge on the U.S. Circuit COURTHOUSE ate Judiciary Committee. Court of Appeals for the Fourth Circuit, has Dilatory tactics have been used repeatedly (By Bruce Moyer) waited the longest: the Senate Judiciary to stall Senate floor consideration of judicial The federal judicial confirmation process Committee favorably reported his nomina- nominees, starting with the first nomination is at one of its most dysfunctional junctures tion to the Senate back in January. to reach the floor for a vote. Even though in American history, and its failure to move The Federal Bar Association’s mission is the Senate has confirmed 25 nominees this nominees has brought about a vacancy crisis to promote the effective crafting and admin- session, the Senate Judiciary Committee has in our federal courts. This is not a partisan istration of justice and jurisprudence in our reported out nominees far faster than the issue with shades of black and white; the federal courts. That cannot happen if judge- Senate has scheduled votes. As a result, the breakdown in the Senate owes itself as much ships remain vacant at current levels. Over backlog of nominees awaiting floor action to one party as the other. This is a national the past year, the FBA has called upon Sen- has steadily increased over the course of the issue that speaks to the country’s declining ate leaders of both parties to hasten their session. appreciation for its courts, the increasing work on judicial confirmations to assure Twelve of the 21 nominees currently await- corrosiveness of our politics, and the rising that nominees who have been favorably re- ing floor consideration were approved by abuse in the Senate of its procedures. ported out of the Senate Judiciary Com- unanimous consent, unanimous vote, or As the Senate departed Washington on mittee are assured of a prompt up-or-down voice vote of the committee; two were ap- Sept. 30 for a six-week election recess, 103 vote in the Senate. The association also has

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00010 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8121 encouraged the President to promptly nomi- ment of natural gas, we must ensure The Environmental Protection Agen- nate qualified nominees with dispatch. FBA participants in policy crafting are cy, EPA, is considering how to con- chapters in districts and circuits with pend- above reproach. struct its study of fracking, which was ing judicial nominees have contacted their U.S. natural gas supplies are abun- ordered last year by Congress after the home-state senators to urge a prompt vote dant and will increase our Nation’s en- on their nominees. This advocacy must con- agency’s 2004 study, that declared the tinue. ergy security. There is an estimated technology safe, was criticized by some Will the FBA help to make a difference? If 2,000 trillion cubic feet of U.S. natural groups as being as flawed. The EPA’s the FBA doesn’t raise its voice, who will? gas reserves found in shale gas plays Science Advisory Board recently re- f across the U.S. As countries around the leased a list of candidates for its panel world move aggressively to secure oil CONVICTION OF BAHA’I LEADERS to assist with the review of its Hydrau- resources, U.S. natural gas reserves lic Fracturing Study Plan. This panel Mrs. FEINSTEIN. Mr. President, can play an important role in enhanc- is to provide technical and scientific today I wish to express my concern ing our energy security. The significant U.S. reserves of nat- advice to the EPA as it crafts the about the detention of seven leading study plan. members of the Baha’i community in ural gas provide the opportunity to re- Iran: Mahvash Sabet, Fariba shape our energy future. A recent This is a great practice by the EPA Kamalabadi, Jamaloddin Khanjani, study by the Massachusetts Institute to seek advice from knowledgeable ex- Afif Naeimi, Saeid Rezaie, Behrouz of Technology, MIT, states that nat- perts and sound science to develop pol- Tavakkoli, and Vahid Tizfahm. ural gas will provide an increasing icy. These panel members must be The seven leaders were arrested in share of America’s energy needs over above reproach. Sadly, several of these 2008 and accused of espionage and prop- the next several decades, doubling its candidates have a troubled history, in- aganda against the state. In June, the share of the energy market from 20 per- cluding questions about expert sci- Iranian Government sentenced them to cent today to 40 percent. entific credentials, error-laden re- The increase in our natural gas re- 20 years in prison, a sentence which search on the issue of hydraulic frac- serves is creating economic opportuni- was subsequently reduced to 10 years. turing, and questions of objectivity ties for American workers and commu- The State Department, the U.N. High based on previous research and state- nities around the country. In 2008, nat- Commissioner for Refugees, and lead- ments regarding fracking. ural gas companies directly employed ing human rights organizations like roughly 622,000 Americans and indi- One nominee is an environmental ac- Amnesty International and Human rectly sustained almost 2.2 million ad- tivist who also happens to be a sci- Rights Watch have all expressed con- ditional jobs. The industry contributed entist. A chemist by trade, she cern about the harsh sentence and the $385 billion to our Nation’s economy in consults and advocates against various lack of due process in these cases. 2008 alone. Representing Oklahoma, I industries, including the petrochemical The seven Baha’i leaders were held recognize the benefits of the natural and natural gas industries. Her activist for 2 years without formal charges and gas industry all too well. One in seven roots color her professional judgments. access to legal representation and they jobs in Oklahoma is directly or indi- In fact, her expert testimony was once were convicted behind closed doors. rectly supported by the energy indus- excluded from trial. If her so-called ex- The Senate added its voice to this try. According to the U.S. Energy In- pert judgment was inadequate for a case by passing a resolution introduced formation Administration, Oklahoma court of law, how can it be adequate for by Senator WYDEN, S. Res. 71, calling ranks third in the country in natural our nation’s top environmental agen- on the Government of Iran to release gas production. cy? the seven leaders and respect the free- One of the key techniques for natural Another nominee issued a draft re- dom of religion of the Baha’i commu- gas production is hydraulic fracturing. port concluding that natural gas pro- nity. I have spoken on this floor many times duction specifically using hydraulic These convictions are yet another ex- over the past 2 years about the value of fracturing negates the clean burning ample of the abuses suffered by the this production method. Hydraulic attributes of natural gas. However, the Baha’i community, the largest reli- fracturing, coupled with horizontal report contained so many errors that gious minority in Iran with more than drilling, has not only aided in the pro- the author was forced to withdraw it 300,000 members. duction of both oil and natural gas shortly after it was released. The Baha’i are denied official rec- from more than a million wells over ognition of their faith by the state and the past 60 years, production from It is clear that these nominees are are barred from establishing places of thousands of wells is dependent on hy- simply opposed to natural gas develop- worship and schools. According to the draulic fracturing. First used in 1947, ment and have already rendered a judg- U.S. Commission on International Reli- hydraulic fracturing allows previously ment regarding hydraulic fracturing, gious Freedom, Baha’is cannot serve in inaccessible reserves of natural gas to which raises serious questions about the military and are barred from gov- be recovered with a relatively small their ability to objectively assess sci- ernment jobs and benefits. footprint. A mixture of pressurized entific data on this issue and remain In condemning the sentences as a water, sand and additives—less than 1 impartial. Clearly, they are not impar- violation of Iran’s obligations under percent of the overall mixture—is used tial. the International Covenant on Civil to create small fissures in the shale But more troubling are the questions and Political Rights, Secretary of rock which releases the natural gas, al- raised about their scientific credentials State Hillary Clinton stated: ‘‘Freedom lowing it to flow up the wellbore to be and quality of their academic research. of religion is the birthright of people of collected. Having testimony thrown out by a all faiths.’’ I could not agree more. As natural gas development assumes court of law and being forced to with- As a U.S. Senator representing ap- a more prominent role in our Nation’s draw research on this subject because proximately 30,000 Baha’i Americans in energy supply, some Members of Con- of errors should disqualify an indi- California, I urge the Iranian Govern- gress and the administration are look- vidual from serving on the Agency’s ment to release these seven leaders and ing at ways to have the federal govern- panel of advisors. allow the Baha’i community in Iran to ment regulate the natural gas indus- practice their religion freely and with- try. Natural gas drilling and hydraulic EPA record for accepting comments out fear of persecution. fracturing is regulated effectively at on the nominees to assist the Science f the State level. Legislation has been Advisory Board will soon close. I know introduced in Congress, the Fracturing that the EPA has received a wide vari- NATURAL GAS PRODUCTION Responsibility and Awareness of ety of comments, and I urge the EPA Mr. INHOFE. Mr. President, the de- Chemicals Act of 2009, FRAC Act, to Administrator and the Science Advi- velopment of natural gas in the U.S. is impose new Federal regulations on hy- sory Board to carefully consider these vital to our energy security, environ- draulic fracturing which would only comments so that this study may be ment, and economy. As we continue to add unnecessary regulations on this above reproach and not be affected by craft policies affecting the develop- vital industry. anti-natural gas political agendas.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00011 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8122 CONGRESSIONAL RECORD — SENATE November 19, 2010 ADDITIONAL STATEMENTS benefit programs including loan for- novation, we must continue to promote giveness and low interest rates. The and invest in the sciences and honor Purdy Scholarship Fund to benefit stu- those who have accomplished so much REMEMBERING ALLAN PURDY dents demonstrating the greatest fi- in the name of discovery. ∑ Mr. BOND. Mr. President, on behalf nancial need was also established to I offer my heartfelt congratulations of my fellow Missourians, I wish to re- honor his legacy. to these accomplished recipients from member the life and achievements of At the 2006 NASFAA National Con- my State and wish them the best in Mr. Allan Purdy, a native of Missouri ference in Seattle, Mr. Purdy told his their continued pursuits of science and and the founding president of the Na- financial aid colleagues, ‘‘It has been a technology research and innovation.∑ tional Association of Student Finan- wonderful 40 years of service to stu- f cial Aid Administrators, NASFAA, who dents.’’ died at age 96 this past October. Mr. ‘‘It is, I’m sure, a wonderful experi- REMEMBERING CHRISTOPHER A. Purdy dedicated his life to removing fi- ence to each of you when you see stu- WILSON nancial barriers to higher education dents that have long-since graduated ∑ Mrs. BOXER. Mr. President, today I and the awards and scholarships that and now are gray-haired, and they am honored to commemorate San are named after him are a testament to thank you for what you have done for Diego Police Officer Christopher A. his hard work and dedication to this them over the years,’’ Allan added. Wilson, who tragically died in the line purpose. ‘‘That is your overtime pay. Certainly of duty on October 28, 2010 in San Mr. Purdy’s passion for financial aid we are not in the highest paid profes- Diego. He was 50. and serving students was sparked by sion, but I think that we have the high- Throughout his 17-year career with his extraordinary life experiences. He est rewards for the work that we have the San Diego Police Department, Offi- graduated from high school without a done.’’ cer Wilson placed duty ahead of his nickel in 1932—the middle of the Great Allan is survived by his wife Vivian personal safety while protecting the Depression. He managed to attend col- and their four children, Robert, community in southeast San Diego. lege through the National Youth Ad- George, Ray and Christina, and their Christopher Wilson was an extraor- ministration, a newly created national families. dinary police officer. He trained more work program for students. Although It is my distinct honor to remember than 50 police officers, many of whom he only earned $15 a month at 25 cents Allan Purdy’s life today. His legacy of have stated that they are better offi- an hour through the program, it was opening the doors of college to Missou- cers because of him. A past trainee de- enough to attend the College of Agri- rians will be remembered by the count- clared, ‘‘Chris was always interested in culture at the University of Missouri, less lives he touched.∑ making me the best officer he could.’’ where he ultimately earned a graduate f In addition to training officers, for degree. more than 2 years Officer Wilson After graduating, Allan taught at CALIFORNIA MEDAL WINNERS helped a fellow officer recuperate from Rutgers University and then joined the ∑ Mrs. BOXER. Mr. President, I ask my an on-duty shooting by monitoring his U.S. Navy where he served as a PT boat colleagues to join me in recognizing physical and mental health. San Diego captain during World War II. After the the recipients of the National Medal of Police Chief William Lansdowne said war, he returned to the University of Science and National Medal of Tech- that Officer Wilson was ‘‘the kind of Missouri, MU, to work as an extension nology and Innovation from my State person you want in your department, horticulturist—driving across the of California. your City.’’ State to help farmers resolve problems I am so proud of the National Medal In a moving tribute to a committed with their fruit and vegetable crops. As of Science Recipients from California: and caring man, more than 700 people he toured the State, he met many Yahir Aharonov from Chapman Univer- attended a candlelight vigil in the Sky- qualified students who lacked the fi- sity, Marye Anne Fox from the Univer- line neighborhood to honor Officer Wil- nancial resources to attend college. He sity of California San Diego, Stanley B. son, demonstrating the community’s advocated grant and work aid for these Prusiner from the University of Cali- admiration for this brave and honor- students to allow them to attend col- fornia San Francisco, and Amnon able man. More than 2,000 police offi- lege. Allan was so diligent at recruit- Yariv, from the California Institute of cers, dignitaries, and community mem- ing these students that he was pro- Technology. bers paid tribute to Officer Wilson at moted to assistant to the dean of the I am also very proud of the National his memorial service on November 4, College of Agriculture. In this position, Medal of Technology and Innovation 2010. he recruited students, arranged schol- Recipients: Marcian Hoff, Stanley Officer Wilson is survived by his arships and part-time jobs for students, Mazor, and Federico Faggin, from the mother Anne Myers, son Conner, and and helped graduates find jobs. Intel Corporation. daughter Kaylee. My thoughts and At this time, catching the attention Since its creation by Congress in prayers are with them during this trag- of the MU president, Allan was asked 1959, the National Medal of Science has ic time. I also send my deepest condo- to start a department in the Presi- honored individuals for their out- lences to Officer Wilson’s colleagues in dent’s Office to coordinate all scholar- standing contributions to knowledge in the San Diego Police Department who ships, jobs, and loans for all students the physical, biological, mathematical, serve our community and protect our on campus. Under the direction of the engineering, chemistry, and social people every day.∑ MU president, Allan began meeting sciences. f with other aid administrators in the The National Medal of Technology Midwest, which led to the formation of and Innovation is presented to individ- WAYNE NATIONAL FOREST the Midwest Association of Student Fi- uals, teams, and companies for ∑ Mr. BROWN of Ohio. Mr. President, nancial Aid Administrators in 1962. The achievement in the innovation, devel- 75 years ago this November, Ohio’s first group eventually grew to become opment, commercialization, and man- national forest was established. On No- NASFAA in 1969 and was incorporated agement of technology. vember 12, 1935, 43 acres in the Appa- in 1973 as a nonprofit corporation in It is a great honor to receive these lachian foothills of Lawrence County the District of Columbia and empha- medals which represent the highest became the Wayne National Forest. sized, above all else, the needs of stu- honor for achievements in science and Today, more than 240,000 acres of re- dents. technology that are bestowed by the claimed and reforested land spanning Shortly after Allan’s retirement in President of the United States. 12 counties makeup the ‘‘Wayne.’’ 1979, as then-Governor of Missouri, it This week, we recognized those who For 75 years, rangers, foresters, and was my pleasure to appoint him to the have invested so much in the advance- dedicated volunteers have worked to Missouri Higher Education Loan Au- ment of knowledge and who inspire the restore landscapes that had been aban- thority, MOHELA, in 1981 where he next generation to follow in their foot- doned or stripped bare by mining and served more than 20 years. During that steps. In order for our country to re- logging. The early years of the Wayne time he worked to implement borrower main a strong leader in science and in- corresponded with President Franklin

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00012 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8123 Roosevelt’s New Deal program, the Ci- ing. Jane will be remembered warmly at 2 Government Center in Fall River, Mas- vilian Conservation Corps, CCC. The for her kindness, meaningful interest, sachusetts, as the ‘‘Sergeant Robert Barrett CCC gave young people across the sense of humor, wisdom, spirit and Post Office Building’’. country work—and a hot meal—im- commitment to her family and the bet- The message also announced that the proving our Nation’s infrastructure terment of Idaho. House has agreed to the following con- and preserving our natural resources. She leaves behind a legacy of support current resolutions, in which it re- The legacy of the CCC lives on in the for Idaho’s arts and significant Boise quests the concurrence of the Senate: Wayne’s Shawnee and Snake Ridge institutions and organizations. Jane H. Con. Res. 259. Concurrent resolution rec- Lookout Towers, constructed in 1939, helped establish and supported the ognizing the 500th anniversary of the birth of and the Vesuvius Dam, completed in Idaho Botanical Garden and the Idaho Italian architect Andrea Palladio. H. Con. Res. 327. Concurrent resolution rec- 1941 and now home to wildlife and rec- Community Foundation. She also sup- ported the Boise Philharmonic, Idaho ognizing and supporting the efforts of the reational activities on the lake. USA Bid Committee to bring the 2022 Fed- With the help of President Obama’s Public Television, Idaho Shakespeare eration Internationale de Football Associa- American Recovery and Reinvestment Festival, Head Start, Boise Junior tion (FIFA) World Cup competition to the Act of 2009, the Wayne National Forest League, Family Advocate Program, United States. is once again preparing for the future; College of Idaho, Boise Opera Guild, restoring ecosystems, improving roads, Boise Art Museum and the Young Ten- At 4:29 p.m., a message from the and installing more than 250 solar pan- nis Foundation. She was also a member House of Representatives, delivered by els on its headquarters in Nelsonville. of the Boise Garden Club, Women’s In- Mr. Novotny, one of its reading clerks, Home to more than 300 miles of vestment Club, Hillcrest Country Club announced that the House agreed to trails, the Wayne receives thousands of and Arid Club. She advocated for art the following concurrent resolution, in visitors and families each year who go programs throughout Idaho through which it requests the concurrence of hiking, biking, hunting, horseback her service on the Idaho Commission the Senate: riding, and camping along the scenic on the Arts, and her support of the arts H. Con. Res. 329. Concurrent resolution rec- hills and hollows of the forest. was recognized through a Governor’s ognizing the 35th anniversary of the enact- The Wayne has also played an impor- Award for Lifetime Achievement in the ment of the Education for All Handicapped Children Act of 1975. tant role in preserving the storied his- Arts. Her patronage of the arts also ex- tory of the Adena and Hopewell Cul- tended to her consistent attendance at The message further announced that tures in Ohio. Because the archae- plays, concerts, art openings and other the House has passed the following bill, ological ruins of these mound-building community events. Jane received many without amendment: cultures have been maintained, a new other awards and recognitions, includ- S. 3774. An act to extend the deadline for generation of visitors will learn about ing Idaho Statesman Distinguished Cit- Social Services Block Grant expenditures of izen, Girl Scout Women Leaders of supplemental funds appropriated following the history of Native Americans in disasters occurring in 2008. Ohio. Today and Tomorrow and the Boise Our public lands, and in particular Area Chamber of Commerce Distin- The message also announced that the the Wayne, are part of Ohio’s heritage guished Citizen of the Year Award for House agrees to the amendment of the and history. John F. Seiberling, a her outstanding service. Senate to the bill (H.R. 1722) to require former Congressman from Akron and Born in Boise, Jane graduated from the head of each executive agency to longtime conservationist said, ‘‘We St. Teresa’s Academy, attended Stan- establish and implement a policy under will never see the land as our ancestors ford University and Finch School, and which employees shall be authorized to worked for the Navy. Jane then served did. But we can understand what made telework, and for other purposes. in the Red Cross during World War II in The message further announced that it beautiful and why they lived and Washington, DC, London and pursuant to 10 U.S.C. 9355(a), and the died to preserve it. And in preserving it Walhampton, England. After returning order of the House of January 6, 2009, for future generations, we will preserve from the war, Jane married Arthur the Speaker appoints the following something of ourselves. If we all have Oppenheimer in 1945. They traveled the member to the Board of Visitors to the an interest in this land, then we all world together during their wonderful United States Air Force Academy: Mr. have a stake in its preservation. There more than 55-year marriage. Alfredo A. Sandoval of Indian Wells, is no more worthwhile cause.’’ Leo J. and Helen Falk, Jane’s par- The Wayne has strengthened the re- California. ents, were also dedicated supporters of The message also announced that gion’s economy and encouraged respon- Idaho institutions. Her father assisted pursuant to section 1238(b)(3) of the sible stewardship of southeast Ohio’s with the construction of the Egyptian Floyd D. Spence National Defense Au- varied ecosystems and habitats. Theater, the Boise Depot and the I congratulate and thank the rang- thorization Act for fiscal year 2001 (22 Owyhee Plaza Hotel. Helen assisted U.S.C. 7002), as amended, and the order ers, staff, and supporters who for 75 with the establishment of the Boise years have served as stewards of Wayne of the House of January 6, 2009, the Art Gallery, known today as the Boise Speaker reappoints the following mem- National Forest. When Thomas Jeffer- Art Museum. son granted Ohio’s statehood 207 years ber on the part of the House of Rep- Jane Oppenheimer’s dedication, be- resentatives to the United States- ago, southeastern Ohio was the gate- nevolence and generous spirit will be way to our nation’s westward expan- China Economic and Security Review greatly missed but not forgotten. Her Commission, effective January 1, 2011: sion—and Marietta the first official legacy of loving and devoted support town of the newly established North- Mr. Michael Wessell of Falls Church, will continue to serve as an enduring Virginia. west Territory. Wayne National Forest example. Through her leadership and f plays a vital role in our frontier his- advocacy, more Idahoans are able to tory and will continue to serve as a benefit from the arts. I extend deep MESSAGE FROM THE HOUSE getaway for the tens of thousands of gratitude for her many years of great ENROLLED BILLS AND JOINT RESOLUTION Ohioans who enjoy its beauty and em- service to our State and Idahoans.∑ SIGNED brace its role as one of Ohio’s natural f At 1:45 p.m., a message from the crown jewels.∑ MESSAGES FROM THE HOUSE ON House of Representatives, delivered by f NOVEMBER 18 Ms. Niland, one of its reading clerks, announced that the Speaker has signed REMEMBERING JANE At 9:59 a.m., a message from the OPPENHEIMER the following enrolled bills and joint House of Representatives, delivered by resolution: ∑ Mr. CRAPO: Mr. President, today I Mrs. Cole, one of its reading clerks, an- honor the life of Jane Falk S. 1376. An act to restore immunization nounced that the House has passed the and sibling age exemptions for children Oppenheimer. I join with her family, following bill, in which it requests the adopted by United States citizens under the including her 4 children, 12 grand- concurrence of the Senate: Hague convention on Intercountry Adoption children and 1 great-grandchild, and H.R. 5758. An act to designate the facility to allow their admission into the United her many friends in mourning her pass- of the United States Postal Service located States.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00013 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8124 CONGRESSIONAL RECORD — SENATE November 19, 2010 S. 3567. An act to designate the facility of PIAGGIO P–180 Airplanes’’ ((RIN2120– a rule entitled ‘‘Airworthiness Directives; the United States Postal Service located at AA64)(Docket No. FAA–2010–0736)) received Learjet Inc. Model 45 Airplanes’’ ((RIN2120– 100 Broadway in Lynbrook, New York, as the in the Office of the President of the Senate AA64)(Docket No. FAA–2010–0676)) received ‘‘Navy Corpsman Jeffrey L. Wiener Post Of- on October 29, 2010; to the Committee on in the Office of the President of the Senate fice Building’’. Commerce, Science, and Transportation. on October 29, 2010; to the Committee on S.J. Res. 40. Joint resolution appointing EC–8031. A communication from the Senior Commerce, Science, and Transportation. the day for the convening of the first session Program Analyst, Federal Aviation Adminis- EC–8039. A communication from the Senior of the One Hundred Twelfth Congress. tration, Department of Transportation, Program Analyst, Federal Aviation Adminis- The enrolled bills and joint resolu- transmitting, pursuant to law, the report of tration, Department of Transportation, a rule entitled ‘‘Airworthiness Directives; transmitting, pursuant to law, the report of tion were subsequently signed by the PIAGGIO AERO INDUSTRIES S.p.A Model a rule entitled ‘‘Airworthiness Directives; President pro tempore (Mr. INOUYE). PIAGGIO P–180 Airplanes’’ ((RIN2120– Bombardier, Inc. Model CL–600–2B19 (Re- ENROLLED BILLS SIGNED AA64)(Docket No. FAA–2010–0734)) received gional Jet Series 100 & 440) Airplanes’’ At 3:49 p.m., a message from the in the Office of the President of the Senate ((RIN2120–AA64)(Docket No. FAA–2010–1229)) House of Representatives, delivered by on October 29, 2010; to the Committee on received in the Office of the President of the Ms. Niland, one of its reading clerks, Commerce, Science, and Transportation. Senate on October 29, 2010; to the Committee EC–8032. A communication from the Senior on Commerce, Science, and Transportation. announced that the Speaker has signed Program Analyst, Federal Aviation Adminis- EC–8040. A communication from the Senior the following enrolled bills: tration, Department of Transportation, Program Analyst, Federal Aviation Adminis- S. 3774. An act to extend the deadline for transmitting, pursuant to law, the report of tration, Department of Transportation, Social Services Block Grant expenditures of a rule entitled ‘‘Airworthiness Directives; transmitting, pursuant to law, the report of supplemental funds appropriated following PIAGGIO AERO INDUSTRIES S.p.A Model a rule entitled ‘‘Airworthiness Directives; disasters occurring in 2008. PIAGGIO P–180 Airplanes’’ ((RIN2120– Fokker Services B.V. Model F.28 Mark 0070 H.R. 1722. An act to require the head of AA64)(Docket No. FAA–2010–0737)) received and 0100 Airplanes’’ ((RIN2120–AA64)(Docket each executive agency to establish and im- in the Office of the President of the Senate No. FAA–2010–0479)) received in the Office of plement a policy under which employees on October 29, 2010; to the Committee on the President of the Senate on October 29, shall be authorized to telework, and for Commerce, Science, and Transportation. 2010; to the Committee on Commerce, other purposes. EC–8033. A communication from the Senior Science, and Transportation. Program Analyst, Federal Aviation Adminis- EC–8041. A communication from the Senior The enrolled bills were subsequently tration, Department of Transportation, Program Analyst, Federal Aviation Adminis- signed by the Acting President pro transmitting, pursuant to law, the report of tration, Department of Transportation, tempore (Mr. REID). a rule entitled ‘‘Airworthiness Directives; transmitting, pursuant to law, the report of f Empresa Brasileira de Aeronautica S.A. a rule entitled ‘‘Airworthiness Directives; (EMBRAER) Model EMB–500 Airplanes’’ BAE SYSTEMS (OPERATIONS) LIMITED ENROLLED BILLS AND JOINT ((RIN2120–AA64)(Docket No. FAA–2010–0754)) Model BAe 146 and Avro 146–RJ Airplanes’’ RESOLUTION PRESENTED received in the Office of the President of the ((RIN2120–AA64)(Docket No. FAA–2010–0642)) The Secretary of the Senate reported Senate on October 29, 2010; to the Committee received in the Office of the President of the on Commerce, Science, and Transportation. Senate on October 29, 2010; to the Committee that on November 19, 2010, she had pre- EC–8034. A communication from the Senior on Commerce, Science, and Transportation. sented to the President of the United Program Analyst, Federal Aviation Adminis- EC–8042. A communication from the Senior States the following enrolled bills and tration, Department of Transportation, Program Analyst, Federal Aviation Adminis- joint resolution: transmitting, pursuant to law, the report of tration, Department of Transportation, S. 1376. An act to restore immunization a rule entitled ‘‘Airworthiness Directives; transmitting, pursuant to law, the report of and sibling age exemptions for children McDonnell Douglas Corporation Model DC– a rule entitled ‘‘Airworthiness Directives; adopted by United States citizens under the 10–10, DC–10–10F, DC–10–30, DC–10–30F (KDC– Bombardier, Inc., Model CL 600 2C10 (Re- Hague convention on Intercountry Adoption 10), DC–10–40, and DC–10–40F Airplanes’’ gional Jet Series 700, 701, and 702) Airplanes, to allow their admission into the United ((RIN2120–AA64)(Docket No. FAA–2010–0672)) Model CL 600 2D15 (Regional Jet Series 705) States. received in the Office of the President of the Airplanes, and Model CL 600 2D24 (Regional S. 3567. An act to designate the facility of Senate on October 29, 2010; to the Committee Jet Series 900) Airplanes’’ ((RIN2120– the United States Postal Service located at on Commerce, Science, and Transportation. AA64)(Docket No. FAA–2010–0438)) received 100 Broadway in Lynbrook, New York, as the EC–8035. A communication from the Senior during adjournment of the Senate in the Of- ‘‘Navy Corpsman Jeffrey L. Wiener Post Of- Program Analyst, Federal Aviation Adminis- fice of the President of the Senate on No- fice Building’’. tration, Department of Transportation, vember 7, 2010; to the Committee on Com- S. 3774. An act to extend the deadline for transmitting, pursuant to law, the report of merce, Science, and Transportation. EC–8043. A communication from the Senior Social Services Block Grant expenditures of a rule entitled ‘‘Airworthiness Directives; Program Analyst, Federal Aviation Adminis- supplemental funds appropriated following Eurocopter France (Eurocopter) Model tration, Department of Transportation, disasters occurring in 2008. AS350B, BA, B1, B2, B3 , D, AS355E, F, F1, F2, transmitting, pursuant to law, the report of S.J. Res. 40. Joint resolution appointing and N Helicopters’’ ((RIN2120–AA64)(Docket a rule entitled ‘‘Airworthiness Directives; the day for the convening of the first session No. FAA–2010–0969)) received in the Office of The Boeing Company Model 747–100, 747–100B, of the One Hundred Twelfth Congress. the President of the Senate on October 29, 2010; to the Committee on Commerce, 747–100B SUD, 747–200B, 747–200C, 747–200F, f Science, and Transportation. 747–300, 747–400, 747–400D, 747–400F, and 747SR MEASURES PLACED ON THE EC–8036. A communication from the Senior Series Airplanes’’ ((RIN2120–AA64)(Docket Program Analyst, Federal Aviation Adminis- No. FAA–2010–1069)) received during adjourn- CALENDAR tration, Department of Transportation, ment of the Senate in the Office of the Presi- The following bill was read the sec- transmitting, pursuant to law, the report of dent of the Senate on November 7, 2010; to ond time, and placed on the calendar: a rule entitled ‘‘Airworthiness Directives; the Committee on Commerce, Science, and McDonnell Douglas Corporation Model MD– Transportation. S. 3975. A bill to permanently extend the 90–30 Airplanes’’ ((RIN2120–AA64)(Docket No. EC–8044. A communication from the Senior 2001 and 2003 tax relief provisions, and to per- FAA–2010–0554)) received in the Office of the Program Analyst, Federal Aviation Adminis- manently repeal the estate tax, and to pro- President of the Senate on October 29, 2010; tration, Department of Transportation, vide permanent alternative minimum tax re- to the Committee on Commerce, Science, transmitting, pursuant to law, the report of lief, and for other purposes. and Transportation. a rule entitled ‘‘Airworthiness Directives; f EC–8037. A communication from the Senior Eclipse Aerospace, Inc. Model EA500 Air- Program Analyst, Federal Aviation Adminis- planes’’ ((RIN2120–AA64)(Docket No. FAA– EXECUTIVE AND OTHER tration, Department of Transportation, 2010–0691)) received during adjournment of COMMUNICATIONS transmitting, pursuant to law, the report of the Senate in the Office of the President of The following communications were a rule entitled ‘‘Airworthiness Directives; the Senate on November 7, 2010; to the Com- laid before the Senate, together with Eurocopter France (ECF) Model AS35B3 and mittee on Commerce, Science, and Transpor- accompanying papers, reports, and doc- EC130 B4 Helicopters’’ ((RIN2120– tation. AA64)(Docket No. FAA–2010–0779)) received EC–8045. A communication from the Senior uments, and were referred as indicated: in the Office of the President of the Senate Program Analyst, Federal Aviation Adminis- EC–8030. A communication from the Senior on October 29, 2010; to the Committee on tration, Department of Transportation, Program Analyst, Federal Aviation Adminis- Commerce, Science, and Transportation. transmitting, pursuant to law, the report of tration, Department of Transportation, EC–8038. A communication from the Senior a rule entitled ‘‘Airworthiness Directives; transmitting, pursuant to law, the report of Program Analyst, Federal Aviation Adminis- Agusta S.p.A. (Agusta) Model A109E Heli- a rule entitled ‘‘Airworthiness Directives; tration, Department of Transportation, copters’’ ((RIN2120–AA64)(Docket No. FAA– PIAGGIO AERO INDUSTRIES S.p.A Model transmitting, pursuant to law, the report of 2010–0449)) received during adjournment of

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00014 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8125 the Senate in the Office of the President of EC–8053. A communication from the Direc- utive Office of the President, transmitting, the Senate on October 14, 2010; to the Com- tor of the Regulatory Management Division, pursuant to law, a report entitled ‘‘Statis- mittee on Commerce, Science, and Transpor- Office of Policy, Economics, and Innovation, tical Programs of the United States Govern- tation. Environmental Protection Agency, transmit- ment: Fiscal Year 2011’’; to the Committee EC–8046. A communication from the Senior ting, pursuant to law, the report of a rule en- on Homeland Security and Governmental Af- Program Analyst, Federal Aviation Adminis- titled ‘‘Approval and Promulgation of Imple- fairs. tration, Department of Transportation, mentation Plans; New York Prevention of EC–8063. A communication from the Gen- transmitting, pursuant to law, the report of Significant Deterioration of Air Quality and eral Counsel, Federal Retirement Thrift In- a rule entitled ‘‘Airworthiness Directives; Nonattainment New Source Review’’ (FRL vestment Board, transmitting, pursuant to Airbus Model A310 Series Airplanes’’ No. 9212–1) received in the Office of the Presi- law, the report of a rule entitled ‘‘Partici- ((RIN2120–AA64)(Docket No. FAA–2010–0680)) dent of the Senate on November 16, 2010; to pants’ Choices of TSP Funds’’ (5 CFR Part received in the Office of the President of the the Committee on Environment and Public 1601) received during adjournment of the Senate on November 10, 2010; to the Com- Works. Senate in the Office of the President of the mittee on Commerce, Science, and Transpor- EC–8054. A communication from the Direc- Senate on November 7, 2010; to the Com- tation. tor of the Regulatory Management Division, mittee on Homeland Security and Govern- EC–8047. A communication from the Senior Office of Policy, Economics, and Innovation, mental Affairs. Program Analyst, Federal Aviation Adminis- Environmental Protection Agency, transmit- EC–8064. A communication from the Direc- tration, Department of Transportation, ting, pursuant to law, the report of a rule en- tor of the Regulatory Management Division, transmitting, pursuant to law, the report of titled ‘‘Cobalt Lithium Manganese Nickel Office of Policy, Economics, and Innovation, a rule entitled ‘‘Airworthiness Directives; Oxide; Withdrawal of Significant New Use Environmental Protection Agency, transmit- Airbus Model A330–201, –202, –203, –223, and Rule’’ (FRL No. 8853–2) received in the Office ting, pursuant to law, the report of a rule en- –243 Airplanes, and Model A330–300 Series of the President of the Senate on November titled ‘‘Flumioxazin; Pesticide Tolerances’’ Airplanes’’ ((RIN2120–AA64)(Docket No. 16, 2010; to the Committee on Environment (FRL No. 8850–3) received in the Office of the FAA–2010–0697)) received in the Office of the and Public Works. President of the Senate on November 10, President of the Senate on November 10, EC–8055. A communication from the Direc- 2010; to the Committee on Agriculture, Nu- 2010; to the Committee on Commerce, tor of the Regulatory Management Division, trition, and Forestry. Science, and Transportation. Office of Policy, Economics, and Innovation, EC–8065. A communication from the Direc- EC–8048. A communication from the Senior Environmental Protection Agency, transmit- tor of the Regulatory Management Division, Program Analyst, Federal Aviation Adminis- ting, pursuant to law, the report of a rule en- Office of Policy, Economics, and Innovation, tration, Department of Transportation, titled ‘‘Extension of Deadline for Action on Environmental Protection Agency, transmit- transmitting, pursuant to law, the report of the Second Section 126 Petition From New ting, pursuant to law, the report of a rule en- a rule entitled ‘‘Airworthiness Directives; Jersey’’ (FRL No. 9227–6) received in the Of- titled ‘‘Flubendiamide; Pesticide Tolerances; Eurocopter Deutschland GmbH Model MBB– fice of the President of the Senate on No- Technical Correction’’ (FRL No. 8849–2) re- BK 117 C–2 Helicopters’’ ((RIN2120– vember 16, 2010; to the Committee on Envi- ceived in the Office of the President of the AA64)(Docket No. FAA–2010–0780)) received Senate on November 10, 2010; to the Com- in the Office of the President of the Senate ronment and Public Works. EC–8056. A communication from the Direc- mittee on Agriculture, Nutrition, and For- on November 10, 2010; to the Committee on tor of the Regulatory Management Division, estry. Commerce, Science, and Transportation. EC–8066. A communication from the Ad- EC–8049. A communication from the Direc- Office of Policy, Economics, and Innovation, ministrator of the Fruit and Vegetable Pro- tor of the Regulatory Management Division, Environmental Protection Agency, transmit- grams, Agricultural Marketing Service, De- Office of Policy, Economics, and Innovation, ting, pursuant to law, the report of a rule en- partment of Agriculture, transmitting, pur- Environmental Protection Agency, transmit- titled ‘‘Water Quality Standards for the suant to law, the report of a rule entitled ting, pursuant to law, the report of a rule en- State of Florida’s Lakes and Flowing Wa- ‘‘Haas Avocado Promotion, Research, and In- titled ‘‘Acequinocyl; Pesticide Tolerances’’ ters’’ (FRL No. 9228–7) received in the Office formation Order; Section 610 Review’’ (Dock- (FRL No. 8851–7) received during adjourn- of the President of the Senate on November et No. AMS–FV–10–0007) received during ad- ment of the Senate in the Office of the Presi- 16, 2010; to the Committee on Environment dent of the Senate on November 16, 2010; to and Public Works. journment of the Senate in the Office of the the Committee on Agriculture, Nutrition, EC–8057. A communication from the Direc- President of the Senate on November 3, 2010; and Forestry. tor of the Regulatory Management Division, to the Committee on Agriculture, Nutrition, EC–8050. A communication from the Direc- Office of Policy, Economics, and Innovation, and Forestry. tor of the Regulatory Management Division, Environmental Protection Agency, transmit- EC–8067. A communication from the Direc- Office of Policy, Economics, and Innovation, ting, pursuant to law, the report of a rule en- tor of Defense Procurement and Acquisition Environmental Protection Agency, transmit- titled ‘‘Mandatory Reporting of Greenhouse Policy, Department of Defense, transmit- ting, pursuant to law, the report of a rule en- Gases: Additional Sources of Fluorinated ting, pursuant to law, the report of a rule en- titled ‘‘Approval and Promulgation of Imple- GHGs’’ (FRL No. 9226–8) received in the Of- titled ‘‘Defense Federal Acquisition Regula- mentation Plans; Georgia; Prevention of Sig- fice of the President of the Senate on No- tion Supplement; Defense Cargo Riding Gang nificant Deterioration and Nonattainment vember 16, 2010; to the Committee on Envi- Members’’ (DFARS Case 2007–D002) received New Source Review Rules’’ (FRL No. 9229–5) ronment and Public Works. during adjournment of the Senate in the Of- received in the Office of the President of the EC–8058. A communication from the Chair- fice of the President of the Senate on Octo- Senate on November 16, 2010; to the Com- person of the National Commission on Chil- ber 21, 2010; to the Committee on Armed mittee on Environment and Public Works. dren and Disasters, transmitting, pursuant Services. EC–8051. A communication from the Direc- to law, the Commission’s 2010 report; to the EC–8068. A communication from the Direc- tor of the Regulatory Management Division, Committee on Health, Education, Labor, and tor of Defense Procurement and Acquisition Office of Policy, Economics, and Innovation, Pensions. Policy, Department of Defense, transmit- Environmental Protection Agency, transmit- EC–8059. A communication from the Dis- ting, pursuant to law, the report of a rule en- ting, pursuant to law, the report of a rule en- trict of Columbia Auditor, transmitting, pur- titled ‘‘Defense Federal Acquisition Regula- titled ‘‘Approval and Promulgation of State suant to law, a report entitled, ‘‘Review of tion Supplement; Award–Fee Reductions for Implementation Plan Revisions; State of D.C. Taxicab Commission’s Assessment/Com- Health and Safety Issues’’ (DFARS Case North Dakota; Interstate Transport of Pollu- mission Fund for Fiscal Years 2005 Through 2009–D039) received in the Office of the Presi- tion for the 1997 PM2.5 and 8–hour Ozone 2009, As of June 30, 2009’’; to the Committee dent of the Senate on November 10, 2010; to NAAQS: ‘Interface with Maintenance’ Re- on Homeland Security and Governmental Af- the Committee on Armed Services. quirement’’ (FRL No. 9229–1) received in the fairs. EC–8069. A communication from the Direc- Office of the President of the Senate on No- EC–8060. A communication from the Dis- tor of Defense Procurement and Acquisition vember 16, 2010; to the Committee on Envi- trict of Columbia Auditor, transmitting, pur- Policy, Department of Defense, transmit- ronment and Public Works. suant to law, a report entitled, ‘‘Review of ting, pursuant to law, the report of a rule en- EC–8052. A communication from the Direc- the D.C. Taxicab Commission’s titled ‘‘Defense Federal Acquisition Regula- tor of the Regulatory Management Division, Fingerprinting Fund’’; to the Committee on tion Supplement; Prohibition on Interroga- Office of Policy, Economics, and Innovation, Homeland Security and Governmental Af- tion of Detainees by Contractor Personnel’’ Environmental Protection Agency, transmit- fairs. (DFARS Case 2010–D027) received in the Of- ting, pursuant to law, the report of a rule en- EC–8061. A communication from the Dis- fice of the President of the Senate on No- titled ‘‘Approval and Promulgation of State trict of Columbia Auditor, transmitting, pur- vember 10, 2010; to the Committee on Armed Implementation Plans; State of Colorado; suant to law, a report entitled, ‘‘Compara- Services. Interstate Transport of Pollution Revisions tive Analysis of Actual Cash Collections to EC–8070. A communication from the Sec- for the 1997 8–hour Ozone NAAQS: ‘Inter- the Revised Revenue Estimate Through the retary of the Treasury, transmitting, pursu- ference with Maintenance’ Requirement’’ 3rd Quarter of Fiscal Year 2009’’; to the Com- ant to law, a six–month periodic report on (FRL No. 9229–2) received in the Office of the mittee on Homeland Security and Govern- the national emergency with respect to President of the Senate on November 16, mental Affairs. Sudan that was declared in Executive Order 2010; to the Committee on Environment and EC–8062. A communication from the Direc- 13067 of November 3, 1997; to the Committee Public Works. tor, Office of Management and Budget, Exec- on Banking, Housing, and Urban Affairs.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00015 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8126 CONGRESSIONAL RECORD — SENATE November 19, 2010 EC–8071. A communication from the Presi- of the Interior, transmitting, pursuant to ment’’; to the Committee on Foreign Rela- dent of the United States, transmitting, pur- law, the report of a rule entitled ‘‘Marine tions. suant to law, a report on the continuation of Mammal; Polar Bear Deterrence Guidlines’’ EC–8088. A communication from the Acting the national emergency with respect to the (RIN1018–AW94) received in the Office of the Assistant Secretary, Bureau of Legislative proliferation of weapons of mass destruction President of the Senate on November 10, Affairs, Department of State, transmitting, that was declared in Executive Order 12938, 2010; to the Committee on Environment and pursuant to law, a report entitled ‘‘Security- as amended, is to continue in effect for 1 Public Works. Related Assistance Provided by the United year beyond November 14, 2010; to the Com- EC–8080. A communication from the Chief, States to the Countries of Central Asia’’; to mittee on Banking, Housing, and Urban Af- Listing Branch, Fish and Wildlife Services, the Committee on Foreign Relations. fairs. Department of the Interior, transmitting, EC–8089. A communication from the Sec- EC–8072. A communication from the Gen- pursuant to law, the report of a rule entitled retary of Health and Human Services, trans- eral Counsel of the National Credit Union ‘‘Endangered and Threatened Wildlife and mitting, pursuant to law, a report entitled Administration, transmitting, pursuant to Plants; Determination of Endangered Status ‘‘Report to Congress on the Impact and Ef- law, the report of a rule entitled ‘‘Display of for the Georgia Pigtoe Mussel, Interrupted fectiveness of Administration for Native Official Sign; Permanent Increase in Stand- Rocksnail, and Rough Hornsnail and Des- Americans (ANA) Projects: Fiscal Year ard Maximum Share Insurance Amount’’ ignation of Critical Habitat’’ (RIN1018–AU88) 2009’’; to the Committee on Indian Affairs. EC–8090. A communication from the Dis- (RIN3133–AD78) received during adjournment received in the Office of the President of the trict of Columbia Auditor, transmitting, pur- of the Senate in the Office of the President Senate on November 10, 2010; to the Com- suant to law, a report entitled, ‘‘Compara- of the Senate on November 7, 2010; to the mittee on Environment and Public Works. tive Analysis of Actual Cash Collections to EC–8081. A communication from the Chief, Committee on Banking, Housing, and Urban the Revised Revenue Estimate Through the Branch of Foreign Species, Fish and Wildlife Affairs. 4th Quarter of Fiscal Year 2009’’; to the Com- EC–8073. A communication from the Asso- Services, Department of the Interior, trans- mittee on Homeland Security and Govern- ciate General Counsel for Legislation and mitting, pursuant to law, the report of a rule mental Affairs. Regulations, Office of Public and Indian entitled ‘‘Endangered and Threatened Wild- EC–8091. A communication from the Dep- Housing, Department of Housing and Urban life and Plants; Determination of Endan- uty Assistant Administrator of Diversion Development, transmitting, pursuant to law, gered Status for the African Penguin; Final Control, Drug Enforcement Administration, the report of a rule entitled ‘‘HUD Programs: Rule’’ (RIN1018–AV60) received in the Office Department of Justice, transmitting, pursu- Violence Against Women Act Confirming of the President of the Senate on November ant to law, the report of a rule entitled ‘‘Ad- Amendments’’ (RIN2577–AC65) received dur- 10, 2010; to the Committee on Environment ditions to Listing of Exempt Chemical Mix- ing adjournment of the Senate in the Office and Public Works. tures’’ (RIN1117–AB29) received during ad- of the President of the Senate on November EC–8082. A communication from the Chief, journment of the Senate in the Office of the 7, 2010; to the Committee on Banking, Hous- Branch of Recovery and Delisting, Fish and President of the Senate on November 7, 2010; ing, and Urban Affairs. Wildlife Services, Department of the Inte- to the Committee on the Judiciary. EC–8074. A communication from the Sec- rior, transmitting, pursuant to law, the re- EC–8092. A communication from the Assist- retary, Division of Trading and Markets, Se- port of a rule entitled ‘‘Endangered and ant Attorney General, Office of Legislative curities and Exchange Commission, trans- Threatened Wildlife and Plants; Reinstate- Affairs, Department of Justice, transmit- mitting, pursuant to law, the report of a rule ment of Protections for the Gray Wolf in the ting, pursuant to law, a report entitled ‘‘2009 entitled ‘‘Extension of Compliance Date for Northern Rocky Mountains in Compliance Annual Report of the National Institute of Amendments to Rule 201 and 200(g) of Regu- with a Court Order’’ (RIN1018–AX37) received Justice’’; to the Committee on the Judiciary. lation SHO—Short Sale-Related Circuit in the Office of the President of the Senate EC–8093. A communication from the Acting Breaker that Imposes a Short Sale Price on November 10, 2010; to the Committee on Director of Sustainable Fisheries, National Test Restriction’’ (RIN3235–AK35) received in Environment and Public Works. Marine Fisheries Service, Department of the Office of the President of the Senate on EC–8083. A communication from the Chief, Commerce, transmitting, pursuant to law, November 10, 2010; to the Committee on Listing Branch, Fish and Wildlife Services, the report of a rule entitled ‘‘Fisheries of the Banking, Housing, and Urban Affairs. Department of the Interior, transmitting, Exclusive Economic Zone Off Alaska; Pacific EC–8075. A communication from the Sec- pursuant to law, the report of a rule entitled Cod by Vessels Catching Pacific Cod for retary, Division of Trading and Markets, Se- ‘‘Endangered and Threatened Wildlife and Processing by the Offshore Component in the curities and Exchange Commission, trans- Plants; Revised Critical Habitat for Central Regulatory Area of the Gulf of Alas- mitting, pursuant to law, the report of a rule Navarretia fossalis (Spreading Navarretia)’’ ka’’ (RIN0648–XZ79) received during adjourn- entitled ‘‘Risk Management Controls for (RIN1018–AW22) received in the Office of the ment of the Senate in the Office of the Presi- Brokers or Dealers with Market Access’’ President of the Senate on November 10, dent of the Senate on November 7, 2010; to (RIN3235–AK53) received in the Office of the 2010; to the Committee on Environment and the Committee on Commerce, Science, and President of the Senate on November 10, Public Works. Transportation. EC–8094. A communication from the Senior 2010; to the Committee on Banking, Housing, EC–8084. A communication from the Chief Program Analyst, Federal Aviation Adminis- and Urban Affairs. of the Publications and Regulations Branch, EC–8076. A communication from the Gen- Internal Revenue Service, Department of the tration, Department of Transportation, transmitting, pursuant to law, the report of eral Counsel of the Federal Housing Finance Treasury, transmitting, pursuant to law, the a rule entitled ‘‘Airworthiness Directives; Agency, transmitting, pursuant to law, the report of a rule entitled ‘‘User Fees Relating PILATUS Aircraft Ltd. Model PC–7 Air- report of a rule entitled ‘‘Debt Collection In- to Enrollment and Preparer Tax Identifica- planes’’ ((RIN2120–AA64)(Docket No. FAA– terim Final Rule’’ (RIN2590–AA15) received tion Numbers’’ (RIN1545–BI71) received dur- 2010–0849)) received in the Office of the Presi- in the Office of the President of the Senate ing adjournment of the Senate in the Office dent of the Senate on November 10, 2010; to on November 10, 2010; to the Committee on of the President of the Senate on November the Committee on Commerce, Science, and Banking, Housing, and Urban Affairs. 7, 2010; to the Committee on Finance. Transportation. EC–8077. A communication from the Direc- EC–8085. A communication from the Chief EC–8095. A communication from the Senior tor of the Regulatory Management Division, of the Publications and Regulations Branch, Program Analyst, Federal Aviation Adminis- Office of Policy, Economics, and Innovation, Internal Revenue Service, Department of the tration, Department of Transportation, Environmental Protection Agency, transmit- Treasury, transmitting, pursuant to law, the transmitting, pursuant to law, the report of ting, pursuant to law, the report of a rule en- report of a rule entitled ‘‘Fringe Benefits a rule entitled ‘‘Airworthiness Directives; titled ‘‘Revisions to the California State Im- Aircraft Valuation Formula’’ (Revenue Rul- Fokker Services B.V. Model F.28 Mark 0070 plementation Plan, Imperial County Air Pol- ing 2010–22) received during adjournment of and 0100 Airplanes’’ ((RIN2120–AA64)(Docket lution Control District’’ (FRL No. 9221–6) re- the Senate in the Office of the President of No. FAA–2010–0516)) received in the Office of ceived in the Office of the President of the the Senate on November 7, 2010; to the Com- the President of the Senate on November 10, Senate on November 10, 2010; to the Com- mittee on Finance. 2010; to the Committee on Commerce, mittee on Environment and Public Works. EC–8086. A communication from the Sec- Science, and Transportation. EC–8078. A communication from the Chief, retary of Commerce, transmitting, pursuant EC–8096. A communication from the Senior Listing Branch, Fish and Wildlife Services, to law, a report relative to the export to the Program Analyst, Federal Aviation Adminis- Department of the Interior, transmitting, People’s Republic of China of items not det- tration, Department of Transportation, pursuant to law, the report of a rule entitled rimental to the U.S. space launch industry; transmitting, pursuant to law, the report of ‘‘Endangered and Threatened Wildlife and to the Committee on Foreign Relations. a rule entitled ‘‘Airworthiness Directives; Plants; Revised Designation of Critical Habi- EC–8087. A communication from the Assist- McDonnell Douglas Corporation Model MD– tat for Bull Trout in the Coterminous United ant Secretary, Legislative Affairs, Depart- 90–30 Airplanes’’ ((RIN2120–AA64)(Docket No. States’’ (RIN1018–AW88) received in the Of- ment of State, transmitting, pursuant to FAA–2010–0645)) received in the Office of the fice of the President of the Senate on No- law, a report relative to the status of the President of the Senate on November 10, vember 10, 2010; to the Committee on Envi- Government of Cuba’s compliance with the 2010; to the Committee on Commerce, ronment and Public Works. United States-Cuba September 1994 ‘‘Joint Science, and Transportation. EC–8079. A communication from the Chief, Communique’’ and on the treatment of per- EC–8097. A communication from the Senior Division of Habitat and Resource Conserva- sons returned to Cuba in accordance with the Program Analyst, Federal Aviation Adminis- tion, Fish and Wildlife Services, Department United States-Cuba May 1995 ‘‘Joint State- tration, Department of Transportation,

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00016 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8127 transmitting, pursuant to law, the report of tration, Department of Transportation, flation Adjustment’’ (Notice 2010–72) received a rule entitled ‘‘Airworthiness Directives; transmitting, pursuant to law, the report of in the Office of the President of the Senate Rolls Royce Deutschland Ltd. and Co. KG, a rule entitled ‘‘Airworthiness Directives; on November 17, 2010; to the Committee on (RRD) Models Tay 650–15 and Tay 651–54 Tur- Bombardier, Inc. Model CL–600–2B19 (Re- Finance. bofan Engines’’ ((RIN2120–AA64)(Docket No. gional Jet Series 100 and 440) Airplanes; EC–8114. A communication from the Chief FAA–2007–0037)) received in the Office of the Model CL–600–2C10 (Regional Jet Series 700, of the Publications and Regulations Branch, President of the Senate on November 10, 701, and 702) Airplanes; Model CL–600–2D15 Internal Revenue Service, Department of the 2010; to the Committee on Commerce, (Regional Jet Series 705) Airplanes; and Treasury, transmitting, pursuant to law, the Science, and Transportation. Model CL–600–2D24 (Regional Jet Series 900) report of a rule entitled ‘‘2010 Marginal Pro- EC–8098. A communication from the Senior Airplanes’’ ((RIN2120–AA64)(Docket No. duction Rates’’ (Notice 2010–73) received in Program Analyst, Federal Aviation Adminis- FAA–2010–0550)) received during adjournment the Office of the President of the Senate on tration, Department of Transportation, of the Senate in the Office of the President November 17, 2010; to the Committee on Fi- transmitting, pursuant to law, the report of of the Senate on October 6 , 2010; to the Com- nance. a rule entitled ‘‘Airworthiness Directives; mittee on Commerce, Science, and Transpor- EC–8115. A communication from the Chief McCauley Propeller Systems Five–Blade tation. of the Publications and Regulations Branch, Propeller Assemblies’’ ((RIN2120– EC–8105. A communication from the Con- Internal Revenue Service, Department of the AA64)(Docket No. FAA–2005–22690)) received gressional Review Coordinator, Animal and Treasury, transmitting, pursuant to law, the in the Office of the President of the Senate Plant Health Inspection Service, Department report of a rule entitled ‘‘ARRA Battery on November 10, 2010; to the Committee on of Agriculture, transmitting, pursuant to Grants’’ (Rev. Proc. 2010–45) received in the Commerce, Science, and Transportation. law, the report of a rule entitled ‘‘Karnal Office of the President of the Senate on No- EC–8099. A communication from the Senior Bunt; Regulated Areas in Arizona, Cali- vember 17, 2010; to the Committee on Fi- Program Analyst, Federal Aviation Adminis- fornia, and Texas’’ (Docket No. APHIS–2009– nance. tration, Department of Transportation, 0079) received in the Office of the President EC–8116. A communication from the Chief transmitting, pursuant to law, the report of of the Senate on November 16, 2010; to the of the Publications and Regulations Branch, a rule entitled ‘‘Airworthiness Directives; Committee on Agriculture, Nutrition, and Internal Revenue Service, Department of the Bombardier, Inc. Model CL 600 2B19 (Re- Forestry. Treasury, transmitting, pursuant to law, the gional Jet Series 100 & 440) Airplanes’’ EC–8106. A communication from the Con- report of a rule entitled ‘‘ARRA High–Speed ((RIN2120–AA64)(Docket No. FAA–2010–1037)) gressional Review Coordinator, Animal and Rail Grants’’ (Rev. Proc. 2010–46) received in received in the Office of the President of the Plant Health Inspection Service, Department the Office of the President of the Senate on Senate on November 10, 2010; to the Com- of Agriculture, transmitting, pursuant to November 17, 2010; to the Committee on Fi- mittee on Commerce, Science, and Transpor- law, the report of a rule entitled ‘‘Update of nance. tation. Noxious Weed Regulations’’ (Docket No. EC–8117. A communication from the Chief EC–8100. A communication from the Senior APHIS–2007–0146) received in the Office of the of the Publications and Regulations Branch, Program Analyst, Federal Aviation Adminis- President of the Senate on November 16, Internal Revenue Service, Department of the tration, Department of Transportation, 2010; to the Committee on Agriculture, Nu- Treasury, transmitting, pursuant to law, the transmitting, pursuant to law, the report of trition, and Forestry. report of a rule entitled ‘‘Section 263A Safe a rule entitled ‘‘Airworthiness Directives; EC–8107. A communication from the Prin- Harbor Methods for Motor Vehicle Dealer- Cessna Aircraft Company (Cessna) Models cipal Deputy Under Secretary of Defense ships’’ (Rev. Proc. 2010–44) received in the Of- 336, 337, 337A (USAF 02B), 337B, M337B (USAF (Policy), transmitting, pursuant to law, a re- fice of the President of the Senate on No- 02A), T337B, 337C, T337C, 337D, T337D, 337E, port relative to a request of the United vember 17, 2010; to the Committee on Fi- T337E, 337F, T337F, 337G, T337G, 337H, P337H, States Government by the Government of nance. T337H, T337H–SP, F337E, FT337E, F337F, Spain to contribute to a clean–up of pluto- EC–8118. A communication from the Pro- FT337F, F337G, FT337GP, F337H, and nium contamination in Spain; to the Com- gram Manager, Centers for Medicare and FT337HP Airplanes’’ ((RIN2120–AA64)(Docket mittee on Armed Services. Medicaid Services, Department of Health No. FAA–2010–1013)) received in the Office of EC–8108. A communication from the Presi- and Human Services, transmitting, pursuant the President of the Senate on November 10, dent of the Federal Financing Bank, trans- to law, the report of a rule entitled ‘‘Medi- 2010; to the Committee on Commerce, mitting, pursuant to law, the Bank’s Annual care and Medicaid Programs: Changes to the Science, and Transportation. Report for Fiscal Year 2010; to the Com- Hospital and Critical Access Hospital Condi- EC–8101. A communication from the Senior mittee on Banking, Housing, and Urban Af- tions of Participation to Ensure Visitation Program Analyst, Federal Aviation Adminis- fairs. Rights for All Patients’’ (RIN0938–AQ06) re- tration, Department of Transportation, EC–8109. A communication from the Chief ceived in the Office of the President of the transmitting, pursuant to law, the report of Counsel of the Fiscal Service, Bureau of Pub- Senate on November 17, 2010; to the Com- a rule entitled ‘‘Airworthiness Directives; lic Debt, Department of the Treasury, trans- mittee on Finance. The Boeing Company Model 767–200, –300, and mitting, pursuant to law, the report of a rule EC–8119. A communication from the Sec- –300F Series Airplanes’’ ((RIN2120– entitled ‘‘Regulations Governing Securities retary of Health and Human Services, trans- AA64)(Docket No. FAA–2010–1036)) received Held in Treasury Direct’’ (31 CFR Part 363) mitting, pursuant to law, a report entitled in the Office of the President of the Senate received in the Office of the President of the ‘‘Child Welfare Outcomes 2004–2007: Report to on November 10, 2010; to the Committee on Senate on November 16, 2010; to the Com- Congress’’; to the Committee on Finance. Commerce, Science, and Transportation. mittee on Banking, Housing, and Urban Af- EC–8120. A communication from the Dep- EC–8102. A communication from the Senior fairs. uty Director of Regulations and Policy Man- Program Analyst, Federal Aviation Adminis- EC–8110. A communication from the Chief agement Staff, Food and Drug Administra- tration, Department of Transportation, Counsel of the Fiscal Service, Bureau of Pub- tion, Department of Health and Human Serv- transmitting, pursuant to law, the report of lic Debt, Department of the Treasury, trans- ices, transmitting, pursuant to law, the re- a rule entitled ‘‘Airworthiness Directives; mitting, pursuant to law, the report of a rule port of a rule entitled ‘‘Medical Devices; Ra- The Boeing Company Model 747–400, 747–400D, entitled ‘‘Regulations Governing Securities diology Devices; Reclassification of Full– and 747–400F Series Airplanes’’ ((RIN2120– Held in Treasury Direct’’ (31 CFR Part 363) Field Digital Mammography System’’ (Dock- AA64)(Docket No. FAA–2010–0035)) received received in the Office of the President of the et No. FDA–2008–N–0273) received in the Of- during adjournment of the Senate in the Of- Senate on November 16, 2010; to the Com- fice of the President of the Senate on No- fice of the President of the Senate on Octo- mittee on Banking, Housing, and Urban Af- vember 17, 2010; to the Committee on Health, ber 6, 2010; to the Committee on Commerce, fairs. Education, Labor, and Pensions. Science, and Transportation. EC–8111. A communication from the Ad- EC–8121. A communication from Acting EC–8103. A communication from the Senior ministrator and Chief Executive Officer, General Counsel, Corporation for National Program Analyst, Federal Aviation Adminis- Bonneville Power Administration, Depart- and Community Service, transmitting, pur- tration, Department of Transportation, ment of Energy, transmitting, pursuant to suant to law, the report of a rule entitled transmitting, pursuant to law, the report of law, the Administration’s Annual Report for ‘‘AmeriCorps National Service Program’’ a rule entitled ‘‘Airworthiness Directives; fiscal year 2010; to the Committee on Energy (RIN3045–AA51) received in the Office of the Airbus Model A300 B4–600, B4–600R, and F4– and Natural Resources. President of the Senate on November 17, 600R Series Airplanes, and Model A300 C4– EC–8112. A communication from the Acting 2010; to the Committee on Health, Education, 605R Variant F Airplanes (Collectively Chief Human Capital Officer, Department of Labor, and Pensions. Called A300–600 Series Airplanes); and Model Energy, transmitting, pursuant to law, (16) EC–8122. A communication from the Sec- A300 and A310 Series Airplanes’’ ((RIN2120– sixteen reports relative to vacancies in the retary of Labor, transmitting, pursuant to AA64)(Docket No. FAA–2010–0478)) received Department of Energy; to the Committee on law, the Department of Labor’s fiscal year during adjournment of the Senate in the Of- Energy and Natural Resources. 2010 financial report; to the Committee on fice of the President of the Senate on Octo- EC–8113. A communication from the Chief Health, Education, Labor, and Pensions. ber 6, 2010; to the Committee on Commerce, of the Publications and Regulations Branch, EC–8123. A communication from the Dep- Science, and Transportation. Internal Revenue Service, Department of the uty Chief Financial Officer, Department of EC–8104. A communication from the Senior Treasury, transmitting, pursuant to law, the Homeland Security, transmitting, pursuant Program Analyst, Federal Aviation Adminis- report of a rule entitled ‘‘2010 Section 43 In- to law, the Department’s Fiscal Year 2010

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8128 CONGRESSIONAL RECORD — SENATE November 19, 2010 Annual Financial Report; to the Committee Whereas, the Hmong were recruited ini- care beneficiaries requiring rehabilitation on Homeland Security and Governmental Af- tially to shield Laos from communist take- therapy under a home health plan of care, fairs. over, and were later instructed to interdict based upon physician referral; to the Com- EC–8124. A communication from the In- convoys of supplies on the Ho Chi Minh mittee on Finance. spector General, Nuclear Regulatory Com- Trail; and f mission, transmitting, pursuant to law, a re- Whereas, these young Hmong earned a rep- port relative to the Commission’s Commer- utation as capable, loyal, and brave fighters, SUBMISSION OF CONCURRENT AND cial and Inherently Governmental Activities and their service in combat proved to match SENATE RESOLUTIONS for Fiscal Year 2010; to the Committee on the best guerrilla fighters in the world; and The following concurrent resolutions Homeland Security and Governmental Af- Whereas, many Hmong soldiers paid the ul- and Senate resolutions were read, and fairs. timate sacrifice in service to our country, EC–8125. A communication from the Sec- and our nation owes a debt of gratitude to referred (or acted upon), as indicated: retary of Veterans Affairs, transmitting, them; and By Ms. COLLINS (for herself and Ms. pursuant to law, the Department of Veterans Whereas, these Hmong soldiers played an SNOWE): Affairs Fiscal Year 2010 Performance and Ac- important and unique role in United States S. Res. 686. A resolution designating De- countability Report; to the Committee on military history; and cember 11, 2010, as ‘‘Wreaths Across America Homeland Security and Governmental Af- Whereas, about 130,000 ethnic Hmong Day’’; to the Committee on the Judiciary. fairs. moved to the United States after the 1975 By Ms. CANTWELL (for herself and EC–8126. A communication from the Chair- communist takeover as political refugees; Mrs. MURRAY): man of the Broadcasting Board of Governors, and S. Res. 687. A resolution honoring the life transmitting, pursuant to law, the Board’s Whereas, it is fitting that the service of and career of Dave Niehaus; to the Com- mittee on the Judiciary. Performance and Accountability Report for Hmong veterans be honored with burial ben- By Mr. CASEY: Fiscal Year 2010; to the Committee on Home- efits in our national cemeteries; and S. Res. 688. A resolution supporting the land Security and Governmental Affairs. Whereas, House Resolution 5879 would au- EC–8127. A communication from the Chair- goals and ideals of Pancreatic Cancer Aware- thorize the Secretary of Veterans Affairs to ness Month; to the Committee on Health, man of the Federal Energy Regulatory Com- inter in national cemeteries individuals who mission, transmitting, pursuant to law, the Education, Labor, and Pensions. served in combat support of the Armed Serv- By Mr. DORGAN (for himself, Mr. Commission’s Performance and Account- ices of the United States in the Kingdom of BARRASSO, Mr. UDALL of New Mexico, ability Report for Fiscal Year 2010; to the Laos from 1961 to 1975: Now, therefore, be it Mr. CRAPO, Mr. BAUCUS, Mr. TESTER, Committee on Homeland Security and Gov- Resolved by the Assembly of the State of Cali- Mr. FRANKEN, Mr. MERKLEY, Mr. ernmental Affairs. fornia, That the Assembly of the State of BINGAMAN, Ms. CANTWELL, Mr. EC–8128. A communication from the Chair- California respectfully requests the Congress AKAKA, Ms. MURKOWSKI, Mrs. MUR- man of the United States International of the United States to pass, and the Presi- RAY, Mr. BEGICH, Mr. JOHNSON, and Trade Commission, transmitting, pursuant dent to sign, House Resolution 5879, which to law, the Commission’s Performance and Mr. UDALL of Colorado): would authorize the Secretary of Veterans S. Res. 689. A resolution recognizing Na- Accountability Report for Fiscal Year 2010; Affairs to inter in national cemeteries indi- to the Committee on Homeland Security and tional American Indian and Alaska Native viduals who served in combat support of the Heritage Month and celebrating the heritage Governmental Affairs. Armed Services of the United States in the EC–8129. A communication from the Chair- and culture of American Indians and Alaska Kingdom of Laos from 1961 to 1975; and be it man of the National Credit Union Adminis- Natives and the contributions of American further tration, transmitting, pursuant to law, the Indians and Alaska Natives to the United Resolved, That the Chief Clerk of the As- Semi-Annual Report of the Inspector Gen- States; considered and agreed to. sembly transmit copies of this resolution to eral for the period from April 1, 2010 through the President and Vice President of the f September 30, 2010; to the Committee on United States, the Speaker of the House of Homeland Security and Governmental Af- ADDITIONAL COSPONSORS Representatives, the President pro Tempore fairs. S. 470 EC–8130. A communication from the Sec- of the United States Senate, and each Sen- ator and Representative from California in At the request of Mr. DURBIN, the retary of the Department of the Interior, name of the Senator from Idaho (Mr. transmitting, a report relative to the man- the Congress of the United States. RISCH) was added as a cosponsor of S. agement of individual Indian trust accounts; f to the Committee on Indian Affairs. 470, a bill to combat organized crime EC–8131. A communication from the Dep- REPORTS OF COMMITTEES involving the illegal acquisition of re- uty Director of Regulations Management, The following reports of committees tail goods for the purpose of selling Veterans Health Administration, Depart- were submitted: those illegally obtained goods through ment of Veterans Affairs, transmitting, pur- By Mr. KERRY, from the Committee on physical and online retail market- suant to law, the report of a rule entitled places. ‘‘Responding to Disruptive Patients’’ Foreign Relations, without amendment: S. 3739 (RIN2900–AN45) received in the Office of the S. 3665. A bill to promote the strength- President of the Senate on November 16, ening of the private sector in Pakistan At the request of Mr. CASEY, the 2010; to the Committee on Veterans’ Affairs. (Rept. No. 111–353). name of the Senator from California (Mrs. BOXER) was added as a cosponsor f f of S. 3739, a bill to amend the Safe and PETITIONS AND MEMORIALS INTRODUCTION OF BILLS AND Drug-Free Schools and Communities The following petition or memorial JOINT RESOLUTIONS Act to include bullying and harassment was laid before the Senate and was re- The following bills and joint resolu- prevention programs. ferred or ordered to lie on the table as tions were introduced, read the first S. 3906 indicated: and second times by unanimous con- At the request of Mr. ALEXANDER, the POM–146. A resolution adopted by the Leg- sent, and referred as indicated: name of the Senator from Missouri islature of the State of California urging By Mr. SANDERS (for himself, Mr. (Mr. BOND) was added as a cosponsor of Congress to pass House Resolution 5879, REID, Mr. SCHUMER, Mr. LEAHY, Mr. S. 3906, a bill to reduce preterm labor which would authorize the Secretary of Vet- BROWN of Ohio, Mr. LAUTENBERG, Mr. and delivery and the risk of preg- erans Affairs to inter in national cemeteries WHITEHOUSE, Mrs. GILLIBRAND, Ms. nancy—related deaths and complica- individuals who served in combat support of STABENOW, Mr. BEGICH, and Mr. tions due to pregnancy, and to reduce the Armed Services of the United States in MENENDEZ): the Kingdom of Laos from 1961 to 1975; to the S. 3976. A bill to amend the Internal Rev- infant mortality caused by pre- Committee on Veterans’ Affairs. enue Code of 1986 to extend certain expiring maturity. HOUSE RESOLUTION NO. 33 provisions, and for other purposes; to the S. CON. RES. 76 Whereas, from 1961 to 1975, during the Viet- Committee on Finance. At the request of Mrs. BOXER, the nam War, the United States Central Intel- By Mrs. FEINSTEIN: names of the Senator from North Caro- ligence Agency (CIA) ran a covert counter- S. 3977. A bill for the relief of Shing Ma lina (Mrs. HAGAN) and the Senator insurgency operation in Laos that became ‘‘Steve’’ Li; to the Committee on the Judici- from New Jersey (Mr. MENENDEZ) were known as the Secret War; and ary. added as cosponsors of S. Con. Res. 76, By Mr. JOHNSON: Whereas, the CIA recruited Hmong individ- a concurrent resolution to recognize uals from Laos to help fight the communists; S. 3978. A bill to ensure that home health and agencies can assign the most appropriate and honor the commitment and sac- Whereas, the Hmong soldiers fought shoul- skilled service to make the initial assess- rifices of military families of the der-to-shoulder with American soldiers; and ment visit for home health services for Medi- United States.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00018 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8129 S. RES. 664 choice to come to the United States; Summer Science Institute, which pro- At the request of Mr. SANDERS, the they were brought by their parents. vided a year-long internship to prepare name of the Senator from Michigan Many of these young people grew up in him for a career in health care upon his (Mr. LEVIN) was added as a cosponsor of the United States and have little or no graduation from college. S. Res. 664, a resolution expressing the memory of the countries they came My staff has talked with his parents sense of the Senate in opposition to from. They are hard working young and with Steve in the detention facil- privatizing Social Security, raising the people dedicated to their education or ity. It appears to me that the only retirement age, or other similar cuts to serving in the Nation’s military. They positive future for Steve is that he be benefits under title II of the Social Se- have stayed out of trouble. Some are able to finish his education and remain curity Act. valedictorians and honor roll students. in this country—at least until the AMENDMENT NO. 4713 Some are community leaders and have DREAM Act is considered by the Con- an unwavering commitment to serving At the request of Mr. BAUCUS, the gress. There is no future elsewhere. names of the Senator from Alaska (Mr. the United States. Steve Li is one such student. With this in mind, I introduce this BEGICH), the Senator from Louisiana Steve was only 12 years old when his bill. It is an act of compassion for one (Ms. LANDRIEU), the Senator from parents brought him to the United young person whose only hope is Amer- Michigan (Ms. STABENOW), the Senator States. Like many other DREAM Act ica. He knows no one, or has he any from New Hampshire (Mrs. SHAHEEN), eligible youngsters, Steve didn’t have a roots, elsewhere. the Senator from Massachusetts (Mr. choice to come to the United States, he BROWN), the Senator from Minnesota Educators working with Steve have came with his parents. highlighted his potential for giving (Ms. KLOBUCHAR), the Senator from Ne- Steve’s parents are Chinese nationals braska (Mr. NELSON), the Senator from back to the United States, while his who fled China to Peru to escape eco- friends and other community members Maryland (Mr. CARDIN), the Senator nomic oppression and the Chinese gov- from Ohio (Mr. BROWN), the Senator contacted me about the impact his ernment’s policies on reproductive compassion and helpfulness has had on from West Virginia (Mr. MANCHIN) and rights. From China, Steve’s parents the Senator from Montana (Mr. TEST- his community. Enactment of the leg- went to Peru, where he was born. The islation I am introducing on behalf of ER) were added as cosponsors of amend- family then sought asylum in the ment No. 4713 intended to be proposed Steve Li will enable him to continue to United States, which was denied. remain in the United States for the to S. 510, a bill to amend the Federal Steve was ordered removed along time being. Food, Drug, and Cosmetic Act with re- with his parents; however, according to spect to the safety of the food supply. his mother and himself, he was never Steve Li’s case demonstrates why we AMENDMENT NO. 4715 told about the denial or his illegal sta- need to pass the DREAM Act now and At the request of Mr. HARKIN, the tus. I am pleased that Leader REID has an- names of the Senator from Wyoming So, Steve didn’t know he was in the nounced that it will be brought to the (Mr. ENZI), the Senator from Illinois United States illegally or that his fam- floor in December. I will reevaluate (Mr. DURBIN) and the Senator from ily had been ordered to leave. He went this case in January. Connecticut (Mr. DODD) were added as through all of his teenage years in the I ask my colleagues to support this cosponsors of amendment No. 4715 pro- United States believing he was here le- private bill. gally. posed to S. 510, a bill to amend the Fed- Mr. President, I ask unanimous con- eral Food, Drug, and Cosmetic Act This past September, Immigration and Customs Enforcement agents ar- sent that the text of the bill be printed with respect to the safety of the food in the RECORD. supply. rived at his home early one morning in September and took him into custody There being no objection, the text of f for removal to Peru. That is apparently the bill was ordered to be printed in STATEMENTS ON INTRODUCED when he learned about his illegal sta- the RECORD, as follows: tus. He has remained in detention in BILLS AND JOINT RESOLUTIONS S. 3977 Arizona since October 8th. Steve’s par- By Mrs. FEINSTEIN: ents have been ordered to leave the Be it enacted by the Senate and House of Rep- S. 3977. A bill for the relief of Shing United States and return to China. resentatives of the United States of America in Ma ‘‘Steve’’ Li; to the Committee on They cannot accompany their son to Congress assembled, the Judiciary. Peru. SECTION 1. PERMANENT RESIDENT STATUS FOR Mrs. FEINSTEIN. Mr. President, Steve attended George Washington SHING MA ‘‘STEVE’’ LI. today I am introducing a private relief High School in San Francisco. While bill on behalf of Shing Ma ‘‘Steve’’ Li. (a) IN GENERAL.—Notwithstanding any there, he was enrolled in the Honor’s other provision of law or any order, for pur- Steve Li is a Peruvian national who, Program. Steve was an athlete on the poses of the Immigration and Nationality until his recent detention, lived in San cross country and track team. He Act (8 U.S.C. 1101 et seq.), Shing Ma ‘‘Steve’’ Francisco, California. He was brought worked for the school newspaper as a Li shall be— to the United States as a child and is reporter, editor, and cameraman. (1) deemed to have been lawfully admitted now a student at City College of San Steve also served his high school to, and remained in, the United States; and Francisco hoping to become a nurse. community by providing presentations (2) eligible for issuance of an immigrant I decided to introduce a private bill visa or for adjustment of status under sec- to other students on the risks of drink- tion 245 of such Act (8 U.S.C. 1255). on Steve’s behalf because I believe his ing and driving and sexually trans- removal would be unjust before the mitted diseases at the wellness center (b) APPLICATION AND PAYMENT OF FEES.— Senate gets a chance to vote on the Subsection (a) shall apply only if the appli- at George Washington High School. cations for issuance of an immigrant visa or DREAM Act. It is my sincere hope that Steve graduated high school in 2008 and for adjustment of status are filed, with ap- Congress will consider and pass the enrolled at City College of San Fran- propriate fees, not later than 2 years after DREAM Act before the end of this cisco to pursue a career in nursing. the date of the enactment of this Act. year. This important legislation would City College of San Francisco award- (c) REDUCTION OF IMMIGRANT VISA NUM- allow youngsters such as Steve Li to ed Steve the Goldman Scholarship, BERS.—Upon the granting of an immigrant continue making a contribution to the which covers the cost of his tuition. visa to Shing Ma ‘‘Steve’’ Li, the Secretary United States, the country that they Steve has continued his active involve- of State shall instruct the proper officer to grew up in and call home. ment in his community, joining the reduce by 1, during the current or next fol- Beginning with the new session in Asian American Student Success Cen- lowing fiscal year, the total number of immi- January, all of my bills are reviewed ter and the Science, Technology, Engi- grant visas that are made available to na- and evaluated for reintroduction. tives of the country of the birth of Shing Ma neering and Mathematics Program, ‘‘Steve’’ Li under— Each year, approximately 65,000 un- which is a two-year outreach and edu- (1) section 203(a) of the Immigration and documented youth graduate from cational support program. Nationality Act (8 U.S.C. 1153(a); or American high schools. Most of these This past summer, Steve attended (2) section 202(e) of such Act (8 U.S.C. undocumented youth did not make a the San Francisco State University 1152(e)), if applicable.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00019 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8130 CONGRESSIONAL RECORD — SENATE November 19, 2010 SUBMITTED RESOLUTIONS Whereas Dave Niehaus influenced multiple S. RES. 688 generations of baseball fans in the Pacific Whereas more than 43,000 people will be di- Northwest; agnosed with pancreatic cancer this year in SENATE RESOLUTION 686—DESIG- Whereas Dave Niehaus called nearly every the United States; NATING DECEMBER 11, 2010, AS Seattle Mariners game in the history of the Whereas pancreatic cancer is the fourth ‘‘WREATHS ACROSS AMERCA franchise, calling 5,284 of the 5,385 Seattle most common cause of cancer death in the DAY’’ Mariners games played during his illustrious United States and the tenth most commonly career; diagnosed cancer; Ms. COLLINS (for herself and Ms. Whereas Dave Niehaus broadcast the amaz- Whereas 76 percent of pancreatic cancer SNOWE) submitted the following resolu- ing moments of players such as Ken Griffey patients die within the first year of their di- tion; which was referred to the Com- Jr., Edgar Martinez, Dan Wilson, Randy agnosis and only 5 percent survive more than mittee on the Judiciary: Johnson, Alvin Davis, Jay Buhner, Ichiro 5 years, making pancreatic cancer the dead- S. RES. 686 Suzuki, and Felix Hernandez; liest form of any major cancer; Whereas Dave Niehaus provided the play- Whereas the number of new pancreatic Whereas 19 years ago, the Wreaths Across by-play for a game between the Seattle cancer cases is projected to increase by 12 America project began an annual tradition, Mariners and the New York Yankees in Sep- percent this year and by 55 percent by 2030; during the month of December, of donating, tember 1995, the first Major League Baseball Whereas there has been no significant im- transporting, and placing Maine balsam fir game to ever be broadcast over the Internet; provement in survival rates for pancreatic holiday wreaths on the graves of the fallen cancer during the last 30 years; heroes buried at Arlington National Ceme- Whereas Dave Niehaus threw out the cere- Whereas there are no early detection meth- tery; monial first pitch at Safeco Field on July 15, ods and minimal treatment options for pan- Whereas since that tradition began, 1999; creatic cancer; through the hard work and generosity of the Whereas Dave Niehaus voiced such notable Whereas the symptoms of pancreatic can- individuals involved in the Wreaths Across catchphrases as ‘‘My, Oh, My’’, ‘‘Fly Away’’, cer generally present themselves too late for America project, hundreds of thousands of and ‘‘Get out the rye bread and mustard, an optimistic prognosis, and the average sur- wreaths have been sent to national ceme- Grandma, it is grand salami time!’’; vival rate of individuals diagnosed with teries and veterans memorials in every State Whereas Dave Niehaus was given an award metastatic pancreatic cancer is only 3 to 6 and to locations overseas; by the Washington State Society for the months; Whereas in 2009, wreaths were sent to over Blind for the compelling ways he used words Whereas the incidence rate of pancreatic 400 locations across the United States, 100 to illustrate Seattle Mariners games; cancer is 50 percent higher for African-Amer- more locations than the previous year, and Whereas in 2000, Dave Niehaus was the sec- icans than for other ethnic groups; and 24 sites overseas; ond person to be inducted into the Seattle Whereas it would be appropriate to observe Whereas in December 2010, the Patriot Mariners Hall of Fame; November 2010 as Pancreatic Cancer Aware- Guard Riders, a motorcycle and motor vehi- Whereas Dave Niehaus began his career ness Month to educate communities across cle group that is dedicated to patriotic with the Armed Forces Network and contin- the United States about pancreatic cancer events and includes more than 200,000 mem- ued working in broadcasting for nearly half and the need for research funding, early de- bers nationwide, will continue their tradi- a century; tection methods, effective treatments, and tion of escorting a tractor-trailer filled with Whereas Dave Niehaus was the voice of the treatment programs: Now, therefore, be it donated wreaths from Harrington, Maine to Seattle Mariners during the first 14 losing Resolved, That the Senate supports the Arlington National Cemetery; seasons of the franchise as well as the his- toric 2001 season in which the Seattle Mari- goals and ideals of Pancreatic Cancer Aware- Whereas thousands of individuals volun- ness Month. teer each December to escort and lay the ners tied the Major League Baseball record wreaths; with 116 wins; f Whereas December 12, 2009, was previously Whereas baseball commissioner Bud Selig SENATE RESOLUTION 689—RECOG- recently stated that Dave Niehaus ‘‘was one designated by the Senate as ‘‘Wreaths Across NIZING NATIONAL AMERICAN IN- America Day’’; and of the great broadcast voices of our genera- Whereas the Wreaths Across America tion, a true gentleman, and a credit to base- DIAN AND ALASKA NATIVE HER- project will continue its proud legacy on De- ball’’; ITAGE MONTH AND CELE- cember 11, 2010, bringing 15,000 wreaths to Whereas Dave Niehaus, at the time of his BRATING THE HERITAGE AND Arlington National Cemetery on that day: passing, was the only Seattle Mariners staff CULTURE OF AMERICAN INDIANS Now, therefore, be it member remaining from the original staff of AND ALASKA NATIVES AND THE Resolved, That the Senate— 1977; CONTRIBUTIONS OF AMERICAN (1) designates December 11, 2010, as Whereas the soothing voice of Dave INDIANS AND ALASKA NATIVES ‘‘Wreaths Across America Day’’; Niehaus reassured fans during the earth- TO THE UNITED STATES (2) honors the Wreaths Across America quake that shook the King Dome and caused project, the Patriot Guard Riders, and all of tiles to fall from the ceiling of the King Mr. DORGAN (for himself, Mr. the volunteers and donors involved in this Dome in May 1996; and BARRASSO, Mr. UDALL of New Mexico, worthy tradition; and Whereas Safeco Field, which might not Mr. CRAPO, Mr. BAUCUS, Mr. TESTER, (3) recognizes the sacrifices our veterans, have been possible without Dave Niehaus, Mr. FRANKEN, Mr. MERKLEY, Mr. BINGA- members of the Armed Forces, and their was open on Saturday, November 13, 2010 so MAN, Ms. CANTWELL, Mr. AKAKA, Ms. families have made, and continue to make, that fans could come and pay their respects MURKOWSKI, Mrs. MURRAY, Mr. BEGICH, for our great Nation. to Dave Niehaus: Now, therefore, be it Mr. JOHNSON, and Mr. UDALL of Colo- f Resolved, That the Senate— rado) submitted the following resolu- SENATE RESOLUTION 687—HON- (1) commends the long and industrious ca- tion; which was considered and agreed reer of Dave Niehaus as the voice of the Se- to: ORING THE LIFE AND CAREER attle Mariners; S. RES. 689 OF DAVE NIEHAUS (2) recognizes the achievements of Dave Ms. CANTWELL (for herself and Mrs. Niehaus as a preeminent baseball broad- Whereas from November 1, 2010, through MURRAY) submitted the following reso- caster and as a fan and booster of baseball in November 30, 2010, the United States cele- lution; which was referred to the Com- Seattle, Washington; and brates National American Indian and Alaska Native Heritage Month; mittee on the Judiciary: (3) requests the Secretary of the Senate to transmit an enrolled copy of this resolution Whereas American Indians and Alaska Na- S. RES. 687 for appropriate display to Marilyn Niehaus tives are descendants of the original, indige- Whereas Dave Niehaus was the voice of the and to the Seattle Mariners organization. nous inhabitants of what is now the United Seattle Mariners and led the play-by-play States; announcing for the Seattle Mariners from Whereas the United States Bureau of the f 1977, the inaugural season of the franchise, Census estimated in 2009 that there were al- until his passing in 2010 at the age of 75; most 5,000,000 individuals in the United Whereas Dave Niehaus leaves behind a lov- SENATE RESOLUTION 688—SUP- States of American Indian or Alaska Native ing wife, Marilyn, 3 children, Andy, Matt, PORTING THE GOALS AND descent; and Greta, and 6 grandchildren; IDEALS OF PANCREATIC CANCER Whereas American Indians and Alaska Na- Whereas Dave Niehaus is largely consid- AWARENESS MONTH tives maintain vibrant cultures and tradi- ered one of the preeminent broadcasters in tions, and hold a deeply rooted sense of com- baseball history; Mr. CASEY submitted the following munity; Whereas in 2008, Dave Niehaus was awarded Whereas American Indians and Alaska Na- the Ford C. Frick Award, the highest honor resolution; which was referred to the tives have moving stories of tragedy, tri- for baseball broadcasters, by the National Committee on Health, Education, umph, and perseverance that need to be Baseball Hall of Fame; Labor, and Pensions: shared with future generations;

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Whereas American Indians and Alaska Na- SA 4720. Mr. REID (for Mr. BAUCUS (for member of the individual (not for resale) tives speak and preserve indigenous lan- himself and Mr. DORGAN)) proposed an from a registered exporter. guages, which have contributed to the amendment to the bill H.R. 4783, supra. ‘‘(3) RULE OF CONSTRUCTION.—This section English language by being used as names of f shall apply only with respect to a drug that individuals and locations throughout the is imported or offered for import into the United States; TEXT OF AMENDMENTS United States— Whereas Congress has recently reaffirmed SA 4716. Mr. DORGAN submitted an ‘‘(A) by a registered importer; or its support of tribal self-governance and its amendment intended to be proposed by ‘‘(B) from a registered exporter to an indi- commitment to improving the lives of all him to the bill S. 510, to amend the vidual. Native Americans by enhancing health care Federal Food, Drug, and Cosmetic Act ‘‘(4) DEFINITIONS.— services, increasing law enforcement re- ‘‘(A) REGISTERED EXPORTER; REGISTERED IM- sources, and approving settlements of litiga- with respect to the safety of the food PORTER.—For purposes of this section: tion involving Indian tribes and the United supply; which was ordered to lie on the ‘‘(i) The term ‘registered exporter’ means States; table; as follows: an exporter for which a registration under Whereas Congress is committed to improv- At the end, add the following: subsection (b) has been approved and is in ef- ing the housing conditions and socio- TITLE V—IMPORTATION OF fect. economic status of American Indians and PRESCRIPTION DRUGS ‘‘(ii) The term ‘registered importer’ means Alaska Natives; a pharmacy, group of pharmacies, or a Whereas the United States is committed to SEC. 501. SHORT TITLE. This title may be cited as the ‘‘Pharma- wholesaler for which a registration under strengthening the government-to-govern- ceutical Market Access and Drug Safety Act subsection (b) has been approved and is in ef- ment relationship that it has maintained of 2010’’. fect. with the various Indian Tribes; ‘‘(iii) The term ‘registration condition’ Whereas Congress has recognized the con- SEC. 502. FINDINGS. Congress finds that— means a condition that must exist for a reg- tributions of the Iroquois Confederacy, and istration under subsection (b) to be ap- its influence on the Founding Fathers in the (1) Americans unjustly pay up to 5 times more to fill their prescriptions than con- proved. drafting of the Constitution of the United ‘‘(B) QUALIFYING DRUG.—For purposes of States with the concepts of freedom of sumers in other countries; (2) the United States is the largest market this section, the term ‘qualifying drug’ speech, the separation of governmental pow- means a drug for which there is a cor- ers, and the system of checks and balances for pharmaceuticals in the world, yet Amer- ican consumers pay the highest prices for responding U.S. label drug. between the branches of government; ‘‘(C) U.S. LABEL DRUG.—For purposes of Whereas American Indians and Alaska Na- brand pharmaceuticals in the world; (3) a prescription drug is neither safe nor this section, the term ‘U.S. label drug’ tives have served with honor and distinction means a prescription drug that— in the Armed Forces of the United States, effective to an individual who cannot afford it; ‘‘(i) with respect to a qualifying drug, has and continue to serve in the Armed Forces in the same active ingredient or ingredients, greater numbers per capita than any other (4) allowing and structuring the importa- tion of prescription drugs to ensure access to route of administration, dosage form, and group in the United States; strength as the qualifying drug; Whereas the United States has recognized safe and affordable drugs approved by the Food and Drug Administration will provide a ‘‘(ii) with respect to the qualifying drug, is the contribution of the Native American manufactured by or for the person that man- code talkers in World War I and World War level of safety to American consumers that they do not currently enjoy; ufactures the qualifying drug; II, who used indigenous languages as an un- ‘‘(iii) is approved under section 505(c); and breakable military code, saving countless (5) American spend more than $200,000,000,000 on prescription drugs every ‘‘(iv) is not— Americans; and ‘‘(I) a controlled substance, as defined in Whereas the people of the United States year; (6) the Congressional Budget Office has section 102 of the Controlled Substances Act have reason to honor the great achievements (21 U.S.C. 802); and contributions of American Indians and found that the cost of prescription drugs are between 35 to 55 percent less in other highly- ‘‘(II) a biological product, as defined in sec- Alaska Natives and their ancestors: Now, tion 351 of the Public Health Service Act (42 therefore, be it developed countries than in the United States; and U.S.C. 262), including— Resolved, That the Senate— ‘‘(aa) a therapeutic DNA plasmid product; (1) recognizes the month of November 2010 (7) promoting competitive market pricing would both contribute to health care savings ‘‘(bb) a therapeutic synthetic peptide prod- as National American Indian and Alaska Na- uct; tive Heritage Month; and allow greater access to therapy, improv- ing health and saving lives. ‘‘(cc) a monoclonal antibody product for in (2) celebrates the heritage and culture of vivo use; and SEC. 503. REPEAL OF CERTAIN SECTION REGARD- American Indians and Alaska Natives and ‘‘(dd) a therapeutic recombinant DNA-de- honors the contributions of American Indi- ING IMPORTATION OF PRESCRIP- TION DRUGS. rived product; ans and Alaska Natives to the United States; Chapter VIII of the Federal Food, Drug, ‘‘(III) an infused drug, including a peri- and and Cosmetic Act (21 U.S.C. 381 et seq.) is toneal dialysis solution; (3) urges the people of the United States to amended by striking section 804. ‘‘(IV) an injected drug; observe National American Indian and Alas- ‘‘(V) a drug that is inhaled during surgery; ka Native Heritage Month with appropriate SEC. 504. IMPORTATION OF PRESCRIPTION DRUGS; WAIVER OF CERTAIN IM- ‘‘(VI) a drug that is the listed drug referred programs and activities. PORT RESTRICTIONS. to in 2 or more abbreviated new drug applica- f (a) IN GENERAL.—Chapter VIII of the Fed- tions under which the drug is commercially marketed; or AMENDMENTS SUBMITTED AND eral Food, Drug, and Cosmetic Act (21 U.S.C. 381 et seq.), as amended by section 503, is fur- ‘‘(VII) a sterile opthlamic drug intended PROPOSED ther amended by inserting after section 803 for topical use on or in the eye. SA 4716. Mr. DORGAN submitted an the following: ‘‘(D) OTHER DEFINITIONS.—For purposes of amendment intended to be proposed by him ‘‘SEC. 804. COMMERCIAL AND PERSONAL IMPOR- this section: to the bill S. 510, to amend the Federal Food, TATION OF PRESCRIPTION DRUGS. ‘‘(i)(I) The term ‘exporter’ means a person Drug, and Cosmetic Act with respect to the ‘‘(a) IMPORTATION OF PRESCRIPTION that is in the business of exporting a drug to safety of the food supply; which was ordered DRUGS.— individuals in the United States from Canada to lie on the table. ‘‘(1) IN GENERAL.—In the case of qualifying or from a permitted country designated by SA 4717. Mr. REID (for Mr. WYDEN) pro- drugs imported or offered for import into the the Secretary under subclause (II), or that, posed an amendment to the bill S. 3650, to United States from registered exporters or pursuant to submitting a registration under amend chapter 21 of title 5, United States by registered importers— subsection (b), seeks to be in such business. Code, to provide that fathers of certain per- ‘‘(A) the limitation on importation that is ‘‘(II) The Secretary shall designate a per- manently disabled or deceased veterans shall established in section 801(d)(1) is waived; and mitted country under subparagraph (E) be included with mothers of such veterans as ‘‘(B) the standards referred to in section (other than Canada) as a country from which preference eligibles for treatment in the civil 801(a) regarding admission of the drugs are an exporter may export a drug to individuals service. subject to subsection (g) of this section (in- in the United States if the Secretary deter- SA 4718. Mr. REID (for Mr. HATCH) pro- cluding with respect to qualifying drugs to mines that— posed an amendment to the bill H.R. 6198, to which section 801(d)(1) does not apply). ‘‘(aa) the country has statutory or regu- amend title 11 of the United States Code to ‘‘(2) IMPORTERS.—A qualifying drug may latory standards that are equivalent to the make technical corrections; and for related not be imported under paragraph (1) unless— standards in the United States and Canada purposes. ‘‘(A) the drug is imported by a pharmacy, with respect to— SA 4719. Mr. REID (for Mr. BAUCUS) pro- group of pharmacies, or a wholesaler that is ‘‘(AA) the training of pharmacists; posed an amendment to the bill H.R. 4783, a registered importer; or ‘‘(BB) the practice of pharmacy; and may be cited as ‘‘The Claims Resettlement ‘‘(B) the drug is imported by an individual ‘‘(CC) the protection of the privacy of per- Act of 2010’’. for personal use or for the use of a family sonal medical information; and

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‘‘(bb) the importation of drugs to individ- ‘‘(b) REGISTRATION OF IMPORTERS AND EX- be exported to any individual not authorized uals in the United States from the country PORTERS.— pursuant to subsection (a)(2)(B) to be an im- will not adversely affect public health. ‘‘(1) REGISTRATION OF IMPORTERS AND EX- porter of such drug. ‘‘(ii) The term ‘importer’ means a phar- PORTERS.—A registration condition is that ‘‘(ii) An agreement to post a bond, payable macy, a group of pharmacies, or a wholesaler the importer or exporter involved (referred to the Treasury of the United States that is that is in the business of importing a drug to in this subsection as a ‘registrant’) sub- equal in value to the lesser of— into the United States or that, pursuant to mits to the Secretary a registration con- ‘‘(I) the value of drugs exported by the ex- submitting a registration under subsection taining the following: porter to the United States in a typical 4- (b), seeks to be in such business. ‘‘(A)(i) In the case of an exporter, the name week period over the course of a year under ‘‘(iii) The term ‘pharmacist’ means a per- of the exporter and an identification of all this section; or son licensed by a State to practice phar- places of business of the exporter that relate ‘‘(II) $1,000,000. macy, including the dispensing and selling of to qualifying drugs, including each ware- ‘‘(iii) An agreement by the exporter to prescription drugs. house or other facility owned or controlled comply with applicable provisions of Cana- ‘‘(iv) The term ‘pharmacy’ means a person by, or operated for, the exporter. dian law, or the law of the permitted country that— ‘‘(ii) In the case of an importer, the name designated under subsection (a)(4)(D)(i)(II) in ‘‘(I) is licensed by a State to engage in the of the importer and an identification of the which the exporter is located, that protect business of selling prescription drugs at re- places of business of the importer at which the privacy of personal information with re- tail; and the importer initially receives a qualifying spect to each individual importing a pre- ‘‘(II) employs 1 or more pharmacists. drug after importation (which shall not ex- scription drug from the exporter under sub- ‘‘(v) The term ‘prescription drug’ means a ceed 3 places of business except by permis- section (a)(2)(B). drug that is described in section 503(b)(1). sion of the Secretary). ‘‘(iv) An agreement by the exporter to re- ‘‘(vi) The term ‘wholesaler’— ‘‘(B) Such information as the Secretary de- port to the Secretary— ‘‘(I) means a person licensed as a whole- termines to be necessary to demonstrate ‘‘(I) not later than August 1 of each fiscal saler or distributor of prescription drugs in that the registrant is in compliance with year, the total price and the total volume of the United States under section 503(e)(2)(A); registration conditions under— drugs exported to the United States by the and ‘‘(i) in the case of an importer, subsections exporter during the 6-month period from ‘‘(II) does not include a person authorized (c), (d), (e), (g), and (j) (relating to the January 1 through June 30 of that year; and to import drugs under section 801(d)(1). sources of imported qualifying drugs; the in- ‘‘(II) not later than January 1 of each fiscal ‘‘(E) PERMITTED COUNTRY.—The term ‘per- spection of facilities of the importer; the year, the total price and the total volume of mitted country’ means— payment of fees; compliance with the stand- drugs exported to the United States by the ‘‘(i) Australia; ards referred to in section 801(a); and mainte- exporter during the previous fiscal year. ‘‘(ii) Canada; nance of records and samples); or ‘‘(J) In the case of an importer, an agree- ‘‘(iii) a member country of the European ‘‘(ii) in the case of an exporter, subsections ment by the importer to report to the Sec- Union, but does not include a member coun- (c), (d), (f), (g), (h), (i), and (j) (relating to the retary— try with respect to which— sources of exported qualifying drugs; the in- ‘‘(i) not later than August 1 of each fiscal ‘‘(I) the country’s Annex to the Treaty of spection of facilities of the exporter and the year, the total price and the total volume of Accession to the European Union 2003 in- marking of compliant shipments; the pay- drugs imported to the United States by the cludes a transitional measure for the regula- ment of fees; and compliance with the stand- importer during the 6-month period from tion of human pharmaceutical products that ards referred to in section 801(a); being li- January 1 through June 30 of that fiscal has not expired; or censed as a pharmacist; conditions for indi- year; and ‘‘(II) the Secretary determines that the re- vidual importation; and maintenance of ‘‘(ii) not later than January 1 of each fiscal quirements described in subclauses (I) and records and samples). year, the total price and the total volume of (II) of clause (vii) will not be met by the date ‘‘(C) An agreement by the registrant that drugs imported to the United States by the on which such transitional measure for the the registrant will not under subsection (a) importer during the previous fiscal year. regulation of human pharmaceutical prod- import or export any drug that is not a ‘‘(K) Such other provisions as the Sec- ucts expires; qualifying drug. retary may require by regulation to protect ‘‘(iv) Japan; ‘‘(D) An agreement by the registrant to— the public health while permitting— ‘‘(v) New Zealand; ‘‘(i) notify the Secretary of a recall or ‘‘(i) the importation by pharmacies, groups ‘‘(vi) Switzerland; and withdrawal of a qualifying drug distributed of pharmacies, and wholesalers as registered ‘‘(vii) a country in which the Secretary de- in a permitted country that the registrant importers of qualifying drugs under sub- termines the following requirements are has exported or imported, or intends to ex- section (a); and met: port or import, to the United States under ‘‘(ii) importation by individuals of quali- ‘‘(I) The country has statutory or regu- subsection (a); fying drugs under subsection (a). latory requirements— ‘‘(ii) provide for the return to the reg- ‘‘(2) APPROVAL OR DISAPPROVAL OF REG- ‘‘(aa) that require the review of drugs for istrant of such drug; and ISTRATION.— safety and effectiveness by an entity of the ‘‘(iii) cease, or not begin, the exportation ‘‘(A) IN GENERAL.—Not later than 90 days government of the country; or importation of such drug unless the Sec- after the date on which a registrant submits ‘‘(bb) that authorize the approval of only retary has notified the registrant that expor- to the Secretary a registration under para- those drugs that have been determined to be tation or importation of such drug may pro- graph (1), the Secretary shall notify the reg- safe and effective by experts employed by or ceed. istrant whether the registration is approved acting on behalf of such entity and qualified ‘‘(E) An agreement by the registrant to en- or is disapproved. The Secretary shall dis- by scientific training and experience to sure and monitor compliance with each reg- approve a registration if there is reason to evaluate the safety and effectiveness of istration condition, to promptly correct any believe that the registrant is not in compli- drugs on the basis of adequate and well-con- noncompliance with such a condition, and to ance with one or more registration condi- trolled investigations, including clinical in- promptly report to the Secretary any such tions, and shall notify the registrant of such vestigations, conducted by experts qualified noncompliance. reason. In the case of a disapproved registra- by scientific training and experience to ‘‘(F) A plan describing the manner in tion, the Secretary shall subsequently notify evaluate the safety and effectiveness of which the registrant will comply with the the registrant that the registration is ap- drugs; agreement under subparagraph (E). proved if the Secretary determines that the ‘‘(cc) that require the methods used in, and ‘‘(G) An agreement by the registrant to en- registrant is in compliance with such condi- the facilities and controls used for the manu- force a contract under subsection (c)(3)(B) tions. facture, processing, and packing of drugs in against a party in the chain of custody of a ‘‘(B) CHANGES IN REGISTRATION INFORMA- the country to be adequate to preserve their qualifying drug with respect to the authority TION.—Not later than 30 days after receiving identity, quality, purity, and strength; of the Secretary under clauses (ii) and (iii) of a notice under paragraph (1)(H) from a reg- ‘‘(dd) for the reporting of adverse reactions that subsection. istrant, the Secretary shall determine to drugs and procedures to withdraw ap- ‘‘(H) An agreement by the registrant to no- whether the change involved affects the ap- proval and remove drugs found not to be safe tify the Secretary not more than 30 days be- proval of the registration of the registrant or effective; and fore the registrant intends to make the under paragraph (1), and shall inform the ‘‘(ee) that require the labeling and pro- change, of— registrant of the determination. motion of drugs to be in accordance with the ‘‘(i) any change that the registrant intends ‘‘(3) PUBLICATION OF CONTACT INFORMATION approval of the drug. to make regarding information provided FOR REGISTERED EXPORTERS.—Through the ‘‘(II) The valid marketing authorization under subparagraph (A) or (B); and Internet website of the Food and Drug Ad- system in the country is equivalent to the ‘‘(ii) any change that the registrant in- ministration and a toll-free telephone num- systems in the countries described in clauses tends to make in the compliance plan under ber, the Secretary shall make readily avail- (i) through (vi). subparagraph (F). able to the public a list of registered export- ‘‘(III) The importation of drugs to the ‘‘(I) In the case of an exporter: ers, including contact information for the United States from the country will not ad- ‘‘(i) An agreement by the exporter that a exporters. Promptly after the approval of a versely affect public health. qualifying drug will not under subsection (a) registration submitted under paragraph (1),

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00022 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8133 the Secretary shall update the Internet Code of Federal Regulations (or any cor- and such an assignment remains in effect on website and the information provided responding successor rule or regulation). a continuous basis. through the toll-free telephone number ac- ‘‘(2) The establishment is located in any ‘‘(2) MARKING OF COMPLIANT SHIPMENTS.—A cordingly. country, and the establishment manufac- registration condition is that the exporter ‘‘(4) SUSPENSION AND TERMINATION.— tured the drug for distribution in the United involved agrees to affix to each shipping con- ‘‘(A) SUSPENSION.—With respect to the ef- States or for distribution in 1 or more of the tainer of qualifying drugs exported under fectiveness of a registration submitted under permitted countries (without regard to subsection (a) such markings as the Sec- paragraph (1): whether in addition the drug is manufac- retary determines to be necessary to identify ‘‘(i) Subject to clause (ii), the Secretary tured for distribution in a foreign country the shipment as being in compliance with all may suspend the registration if the Sec- that is not a permitted country). registration conditions. Markings under the retary determines, after notice and oppor- ‘‘(3) The exporter or importer obtained the preceding sentence shall— tunity for a hearing, that the registrant has drug— ‘‘(A) be designed to prevent affixation of failed to maintain substantial compliance ‘‘(A) directly from the establishment; or the markings to any shipping container that with a registration condition. ‘‘(B) directly from an entity that, by con- is not authorized to bear the markings; and ‘‘(ii) If the Secretary determines that, tract with the exporter or importer— ‘‘(B) include anticounterfeiting or track- under color of the registration, the exporter ‘‘(i) provides to the exporter or importer a and-trace technologies, taking into account has exported a drug or the importer has im- statement (in such form and containing such the economic and technical feasibility of ported a drug that is not a qualifying drug, information as the Secretary may require) those technologies. or a drug that does not comply with sub- that, for the chain of custody from the estab- ‘‘(3) CERTAIN DUTIES RELATING TO EXPORT- section (g)(2)(A) or (g)(4), or has exported a lishment, identifies each prior sale, pur- ERS.—Duties of the Secretary with respect to qualifying drug to an individual in violation chase, or trade of the drug (including the an exporter include the following: of subsection (i), the Secretary shall imme- date of the transaction and the names and ‘‘(A) Inspecting, randomly, but not less diately suspend the registration. A suspen- addresses of all parties to the transaction); than 12 times annually, the places of busi- sion under the preceding sentence is not sub- ‘‘(ii) agrees to permit the Secretary to in- ness of the exporter at which qualifying ject to the provision by the Secretary of spect such statements and related records to drugs are stored and from which qualifying prior notice, and the Secretary shall provide determine their accuracy; drugs are shipped. to the registrant an opportunity for a hear- ‘‘(iii) agrees, with respect to the qualifying ‘‘(B) During the inspections under subpara- ing not later than 10 days after the date on drugs involved, to permit the Secretary to graph (A), verifying the chain of custody of which the registration is suspended. inspect warehouses and other facilities, in- a statistically significant sample of quali- ‘‘(iii) The Secretary may reinstate the reg- cluding records, of the entity for purposes of fying drugs from the establishment in which istration, whether suspended under clause (i) determining whether the facilities are in the drug was manufactured to the exporter, or (ii), if the Secretary determines that the compliance with any standards under this which shall be accomplished or supple- registrant has demonstrated that further Act that are applicable to facilities of that mented by the use of anticounterfeiting or violations of registration conditions will not type in the United States; and track-and-trace technologies, taking into ac- occur. ‘‘(iv) has ensured, through such contrac- count the economic and technical feasibility tual relationships as may be necessary, that of those technologies, except that a drug ‘‘(B) TERMINATION.—The Secretary, after the Secretary has the same authority re- that lacks such technologies from the point notice and opportunity for a hearing, may garding other parties in the chain of custody of manufacture shall not for that reason be terminate the registration under paragraph from the establishment that the Secretary excluded from importation by an exporter. (1) of a registrant if the Secretary deter- has under clauses (ii) and (iii) regarding such ‘‘(C) Randomly reviewing records of ex- mines that the registrant has engaged in a entity. ports to individuals for the purpose of deter- pattern or practice of violating 1 or more ‘‘(4)(A) The foreign country from which the mining whether the drugs are being imported registration conditions, or if on 1 or more oc- importer will import the drug is a permitted by the individuals in accordance with the casions the Secretary has under subpara- country; or conditions under subsection (i). Such reviews graph (A)(ii) suspended the registration of ‘‘(B) The foreign country from which the shall be conducted in a manner that will re- the registrant. The Secretary may make the exporter will export the drug is the per- sult in a statistically significant determina- termination permanent, or for a fixed period mitted country in which the exporter is lo- tion of compliance with all such conditions. of not less than 1 year. During the period in cated. ‘‘(D) Monitoring the affixing of markings which the registration is terminated, any ‘‘(5) During any period in which the drug under paragraph (2). registration submitted under paragraph (1) was not in the control of the manufacturer ‘‘(E) Inspecting as the Secretary deter- by the registrant, or a person that is a part- of the drug, the drug did not enter any coun- mines is necessary the warehouses and other ner in the export or import enterprise, or a try that is not a permitted country. facilities, including records, of other parties principal officer in such enterprise, and any ‘‘(6) The exporter or importer retains a in the chain of custody of qualifying drugs. registration prepared with the assistance of sample of each lot of the drug for testing by ‘‘(F) Determining whether the exporter is the registrant or such a person, has no legal the Secretary. in compliance with all other registration effect under this section. ‘‘(d) INSPECTION OF FACILITIES; MARKING OF conditions. ‘‘(5) DEFAULT OF BOND.—A bond required to SHIPMENTS.— ‘‘(4) PRIOR NOTICE OF SHIPMENTS.—A reg- be posted by an exporter under paragraph ‘‘(1) INSPECTION OF FACILITIES.—A registra- istration condition is that, not less than 8 (1)(I)(ii) shall be defaulted and paid to the tion condition is that, for the purpose of as- hours and not more than 5 days in advance of Treasury of the United States if, after oppor- sisting the Secretary in determining whether the time of the importation of a shipment of tunity for an informal hearing, the Sec- the exporter involved is in compliance with qualifying drugs, the importer involved retary determines that the exporter has— all other registration conditions— agrees to submit to the Secretary a notice ‘‘(A) exported a drug to the United States ‘‘(A) the exporter agrees to permit the Sec- with respect to the shipment of drugs to be that is not a qualifying drug or that is not in retary— imported or offered for import into the compliance with subsection (g)(2)(A), (g)(4), ‘‘(i) to conduct onsite inspections, includ- United States under subsection (a). A notice or (i); or ing monitoring on a day-to-day basis, of under the preceding sentence shall include— ‘‘(B) failed to permit the Secretary to con- places of business of the exporter that relate ‘‘(A) the name and complete contact infor- duct an inspection described under sub- to qualifying drugs, including each ware- mation of the person submitting the notice; section (d). house or other facility owned or controlled ‘‘(B) the name and complete contact infor- ‘‘(c) SOURCES OF QUALIFYING DRUGS.—A by, or operated for, the exporter; mation of the importer involved; registration condition is that the exporter or ‘‘(ii) to have access, including on a day-to- ‘‘(C) the identity of the drug, including the importer involved agrees that a qualifying day basis, to— established name of the drug, the quantity of drug will under subsection (a) be exported or ‘‘(I) records of the exporter that relate to the drug, and the lot number assigned by the imported into the United States only if there the export of such drugs, including financial manufacturer; is compliance with the following: records; and ‘‘(D) the identity of the manufacturer of ‘‘(1) The drug was manufactured in an es- ‘‘(II) samples of such drugs; the drug, including the identity of the estab- tablishment— ‘‘(iii) to carry out the duties described in lishment at which the drug was manufac- ‘‘(A) required to register under subsection paragraph (3); and tured; (h) or (i) of section 510; and ‘‘(iv) to carry out any other functions de- ‘‘(E) the country from which the drug is ‘‘(B)(i) inspected by the Secretary; or termined by the Secretary to be necessary shipped; ‘‘(ii) for which the Secretary has elected to regarding the compliance of the exporter; ‘‘(F) the name and complete contact infor- rely on a satisfactory report of a good manu- and mation for the shipper of the drug; facturing practice inspection of the estab- ‘‘(B) the Secretary has assigned 1 or more ‘‘(G) anticipated arrival information, in- lishment from a permitted country whose employees of the Secretary to carry out the cluding the port of arrival and crossing loca- regulatory system the Secretary recognizes functions described in this subsection for the tion within that port, and the date and time; as equivalent under a mutual recognition Secretary randomly, but not less than 12 ‘‘(H) a summary of the chain of custody of agreement, as provided for under section times annually, on the premises of places of the drug from the establishment in which 510(i)(3), section 803, or part 26 of title 21, businesses referred to in subparagraph (A)(i), the drug was manufactured to the importer;

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‘‘(I) a declaration as to whether the Sec- of custody of a qualifying drug as necessary, ‘‘(C) SOLE PURPOSE.—Fees collected by the retary has ordered that importation of the under subsection (d)(6); Secretary under paragraphs (1) and (2) are drug from the permitted country cease under ‘‘(ii) developing, implementing, and oper- only available to the Secretary and, if trans- subsection (g)(2)(C) or (D); and ating under such subsection an electronic ferred, to the Secretary of Homeland Secu- ‘‘(J) such other information as the Sec- system for submission and review of the no- rity, and are for the sole purpose of paying retary may require by regulation. tices required under subsection (d)(4) with the costs referred to in paragraph (3)(A). ‘‘(5) MARKING OF COMPLIANT SHIPMENTS.—A respect to shipments of qualifying drugs ‘‘(5) COLLECTION OF FEES.—In any case registration condition is that the importer under subsection (a) to assess compliance where the Secretary does not receive pay- involved agrees, before wholesale distribu- with all registration conditions when such ment of a fee assessed under paragraph (1) or tion (as defined in section 503(e)) of a quali- shipments are offered for import into the (2) within 30 days after it is due, such fee fying drug that has been imported under sub- United States; and shall be treated as a claim of the United section (a), to affix to each container of such ‘‘(iii) inspecting such shipments as nec- States Government subject to subchapter II drug such markings or other technology as essary, when offered for import into the of chapter 37 of title 31, United States Code. United States to determine if such a ship- the Secretary determines necessary to iden- ‘‘(f) EXPORTER FEES.— ment should be refused admission under sub- tify the shipment as being in compliance ‘‘(1) REGISTRATION FEE.—A registration with all registration conditions, except that section (g)(5). condition is that the exporter involved pays ‘‘(B) LIMITATION.—Subject to subparagraph the markings or other technology shall not to the Secretary a fee of $10,000 due on the (C), the aggregate total of fees collected be required on a drug that bears comparable, date on which the exporter first submits that under paragraph (2) for a fiscal year shall not compatible markings or technology from the registration to the Secretary under sub- exceed 2.5 percent of the total price of quali- manufacturer of the drug. Markings or other section (b). fying drugs imported during that fiscal year technology under the preceding sentence ‘‘(2) INSPECTION FEE.—A registration condi- into the United States by registered import- shall— tion is that the exporter involved pays a fee ers under subsection (a). ‘‘(A) be designed to prevent affixation of to the Secretary in accordance with this sub- ‘‘(C) TOTAL PRICE OF DRUGS.— the markings or other technology to any section. Such fee shall be paid not later than ‘‘(i) ESTIMATE.—For the purposes of com- container that is not authorized to bear the October 1 and April 1 of each fiscal year in markings; and plying with the limitation described in sub- paragraph (B) when establishing under sub- the amount provided for under paragraph (3). ‘‘(B) shall include anticounterfeiting or ‘‘(3) AMOUNT OF INSPECTION FEE.— track-and-trace technologies, taking into ac- paragraph (A) the aggregate total of fees to be collected under paragraph (2) for a fiscal ‘‘(A) AGGREGATE TOTAL OF FEES.—Not later count the economic and technical feasibility than 30 days before the start of each fiscal of such technologies. year, the Secretary shall estimate the total price of qualifying drugs imported into the year, the Secretary, in consultation with the ‘‘(6) CERTAIN DUTIES RELATING TO IMPORT- United States by registered importers during Secretary of Homeland Security and the Sec- ERS.—Duties of the Secretary with respect to that fiscal year by adding the total price of retary of the Treasury, shall establish an ag- an importer include the following: gregate total of fees to be collected under ‘‘(A) Inspecting, randomly, but not less qualifying drugs imported by each registered importer during the 6-month period from paragraph (2) for exporters for that fiscal than 12 times annually, the places of busi- year that is sufficient, and not more than ness of the importer at which a qualifying January 1 through June 30 of the previous fiscal year, as reported to the Secretary by necessary, to pay the costs for that fiscal drug is initially received after importation. each registered importer under subsection year of administering this section with re- ‘‘(B) During the inspections under subpara- (b)(1)(J). spect to registered exporters, including the graph (A), verifying the chain of custody of ‘‘(ii) CALCULATION.—Not later than March 1 costs associated with— a statistically significant sample of quali- of the fiscal year that follows the fiscal year ‘‘(i) inspecting the facilities of registered fying drugs from the establishment in which for which the estimate under clause (i) is exporters, and of other entities in the chain the drug was manufactured to the importer, made, the Secretary shall calculate the total of custody of a qualifying drug as necessary, which shall be accomplished or supple- price of qualifying drugs imported into the under subsection (d)(3); mented by the use of anticounterfeiting or United States by registered importers during ‘‘(ii) developing, implementing, and oper- track-and-trace technologies, taking into ac- that fiscal year by adding the total price of ating under such subsection a system to count the economic and technical feasibility qualifying drugs imported by each registered screen marks on shipments of qualifying of those technologies, except that a drug importer during that fiscal year, as reported drugs under subsection (a) that indicate that lacks such technologies from the point to the Secretary by each registered importer compliance with all registration conditions, of manufacture shall not for that reason be under subsection (b)(1)(J). when such shipments are offered for import excluded from importation by an importer. ‘‘(iii) ADJUSTMENT.—If the total price of into the United States; and ‘‘(C) Reviewing notices under paragraph qualifying drugs imported into the United ‘‘(iii) screening such markings, and in- (4). States by registered importers during a fis- specting such shipments as necessary, when ‘‘(D) Inspecting as the Secretary deter- cal year as calculated under clause (ii) is less offered for import into the United States to mines is necessary the warehouses and other than the aggregate total of fees collected determine if such a shipment should be re- facilities, including records of other parties under paragraph (2) for that fiscal year, the fused admission under subsection (g)(5). in the chain of custody of qualifying drugs. Secretary shall provide for a pro-rata reduc- ‘‘(B) LIMITATION.—Subject to subparagraph ‘‘(E) Determining whether the importer is tion in the fee due from each registered im- (C), the aggregate total of fees collected in compliance with all other registration porter on April 1 of the subsequent fiscal under paragraph (2) for a fiscal year shall not conditions. year so that the limitation described in sub- exceed 2.5 percent of the total price of quali- ‘‘(e) IMPORTER FEES.— paragraph (B) is observed. fying drugs imported during that fiscal year ‘‘(1) REGISTRATION FEE.—A registration ‘‘(D) INDIVIDUAL IMPORTER FEE.—Subject to into the United States by registered export- condition is that the importer involved pays the limitation described in subparagraph (B), ers under subsection (a). to the Secretary a fee of $10,000 due on the the fee under paragraph (2) to be paid on Oc- ‘‘(C) TOTAL PRICE OF DRUGS.— date on which the importer first submits the tober 1 and April 1 by an importer shall be an ‘‘(i) ESTIMATE.—For the purposes of com- registration to the Secretary under sub- amount that is proportional to a reasonable plying with the limitation described in sub- section (b). estimate by the Secretary of the semiannual paragraph (B) when establishing under sub- ‘‘(2) INSPECTION FEE.—A registration condi- share of the importer of the volume of quali- paragraph (A) the aggregate total of fees to tion is that the importer involved pays a fee fying drugs imported by importers under be collected under paragraph (2) for a fiscal to the Secretary in accordance with this sub- subsection (a). year, the Secretary shall estimate the total section. Such fee shall be paid not later than ‘‘(4) USE OF FEES.— price of qualifying drugs imported into the October 1 and April 1 of each fiscal year in ‘‘(A) IN GENERAL.—Fees collected by the United States by registered exporters during the amount provided for under paragraph (3). Secretary under paragraphs (1) and (2) shall that fiscal year by adding the total price of ‘‘(3) AMOUNT OF INSPECTION FEE.— be credited to the appropriation account for qualifying drugs exported by each registered ‘‘(A) AGGREGATE TOTAL OF FEES.—Not later salaries and expenses of the Food and Drug exporter during the 6-month period from than 30 days before the start of each fiscal Administration until expended (without fis- January 1 through June 30 of the previous year, the Secretary, in consultation with the cal year limitation), and the Secretary may, fiscal year, as reported to the Secretary by Secretary of Homeland Security and the Sec- in consultation with the Secretary of Home- each registered exporter under subsection retary of the Treasury, shall establish an ag- land Security and the Secretary of the (b)(1)(I)(iv). gregate total of fees to be collected under Treasury, transfer some proportion of such ‘‘(ii) CALCULATION.—Not later than March 1 paragraph (2) for importers for that fiscal fees to the appropriation account for salaries of the fiscal year that follows the fiscal year year that is sufficient, and not more than and expenses of the Bureau of Customs and for which the estimate under clause (i) is necessary, to pay the costs for that fiscal Border Protection until expended (without made, the Secretary shall calculate the total year of administering this section with re- fiscal year limitation). price of qualifying drugs imported into the spect to registered importers, including the ‘‘(B) AVAILABILITY.—Fees collected by the United States by registered exporters during costs associated with— Secretary under paragraphs (1) and (2) shall that fiscal year by adding the total price of ‘‘(i) inspecting the facilities of registered be made available to the Food and Drug Ad- qualifying drugs exported by each registered importers, and of other entities in the chain ministration. exporter during that fiscal year, as reported

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00024 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8135 to the Secretary by each registered exporter lished in the approved application for the country, unless the country requires that under subsection (b)(1)(I)(iv). U.S. label drug beyond— distribution of the qualifying drug with the ‘‘(iii) ADJUSTMENT.—If the total price of ‘‘(aa) the variations provided for in the ap- difference begin less than 120 days after the qualifying drugs imported into the United plication; and country requires the difference. States by registered exporters during a fiscal ‘‘(bb) any difference in labeling (except in- ‘‘(II) OTHER APPROVAL NOTICES.—A notice year as calculated under clause (ii) is less gredient labeling). under clause (i) to which subparagraph (D) than the aggregate total of fees collected ‘‘(ii) INFORMATION IN NOTICE.—A notice applies shall be submitted to the Secretary under paragraph (2) for that fiscal year, the under clause (i)(I) shall include the informa- not later than the day on which the quali- Secretary shall provide for a pro-rata reduc- tion that the Secretary may require under fying drug with the difference is introduced tion in the fee due from each registered ex- section 506A, any additional information the for commercial distribution in a permitted porter on April 1 of the subsequent fiscal Secretary may require (which may include country. year so that the limitation described in sub- data on bioequivalence if such data are not ‘‘(III) OTHER NOTICES.—A notice under paragraph (B) is observed. required under section 506A), and, with re- clause (i) to which subparagraph (E) applies ‘‘(D) INDIVIDUAL EXPORTER FEE.—Subject to spect to the permitted country that ap- shall be submitted to the Secretary on the the limitation described in subparagraph (B), proved the qualifying drug for commercial date that the qualifying drug is first intro- the fee under paragraph (2) to be paid on Oc- distribution, or with respect to which such tober 1 and April 1 by an exporter shall be an approval is sought, include the following: duced for commercial distribution in a per- amount that is proportional to a reasonable ‘‘(I) The date on which the qualifying drug mitted country and annually thereafter. estimate by the Secretary of the semiannual with such difference was, or will be, intro- ‘‘(vi) REVIEW BY SECRETARY.— share of the exporter of the volume of quali- duced for commercial distribution in the per- ‘‘(I) IN GENERAL.—In this paragraph, the fying drugs exported by exporters under sub- mitted country. difference in a qualifying drug that is sub- section (a). ‘‘(II) Information demonstrating that the mitted in a notice under clause (i) from the ‘‘(4) USE OF FEES.— person submitting the notice has also noti- U.S. label drug shall be treated by the Sec- ‘‘(A) IN GENERAL.—Fees collected by the fied the government of the permitted coun- retary as if it were a manufacturing change Secretary under paragraphs (1) and (2) shall try in writing that the person is submitting to the U.S. label drug under section 506A. be credited to the appropriation account for to the Secretary a notice under clause (i)(I), ‘‘(II) STANDARD OF REVIEW.—Except as pro- salaries and expenses of the Food and Drug which notice describes the difference in the vided in subclause (III), the Secretary shall Administration until expended (without fis- qualifying drug from a condition established review and approve or disapprove the dif- cal year limitation), and the Secretary may, in the approved application for the U.S. label ference in a notice submitted under clause in consultation with the Secretary of Home- drug. (i), if required under section 506A, using the land Security and the Secretary of the ‘‘(III) The information that the person sub- safe and effective standard for approving or Treasury, transfer some proportion of such mitted or will submit to the government of disapproving a manufacturing change under fees to the appropriation account for salaries the permitted country for purposes of ob- section 506A. and expenses of the Bureau of Customs and taining approval for commercial distribution ‘‘(III) BIOEQUIVALENCE.—If the Secretary Border Protection until expended (without of the drug in the country which, if in a lan- would approve the difference in a notice sub- fiscal year limitation). guage other than English, shall be accom- mitted under clause (i) using the safe and ef- ‘‘(B) AVAILABILITY.—Fees collected by the panied by an English translation verified to fective standard under section 506A and if Secretary under paragraphs (1) and (2) shall be complete and accurate, with the name, the Secretary determines that the qualifying be made available to the Food and Drug Ad- address, and a brief statement of the quali- drug is not bioequivalent to the U.S. label ministration. fications of the person that made the trans- drug, the Secretary shall— ‘‘(C) SOLE PURPOSE.—Fees collected by the lation. ‘‘(aa) include in the labeling provided Secretary under paragraphs (1) and (2) are ‘‘(iii) CERTIFICATIONS.—The chief executive under paragraph (3) a prominent advisory only available to the Secretary and, if trans- officer and the chief medical officer of the that the qualifying drug is safe and effective ferred, to the Secretary of Homeland Secu- manufacturer involved shall each certify in but is not bioequivalent to the U.S. label rity, and are for the sole purpose of paying the notice under clause (i) that— drug if the Secretary determines that such the costs referred to in paragraph (3)(A). ‘‘(I) the information provided in the notice an advisory is necessary for health care prac- ‘‘(5) COLLECTION OF FEES.—In any case is complete and true; and titioners and patients to use the qualifying where the Secretary does not receive pay- ‘‘(II) a copy of the notice has been provided drug safely and effectively; or ment of a fee assessed under paragraph (1) or to the Federal Trade Commission and to the ‘‘(bb) decline to approve the difference if (2) within 30 days after it is due, such fee State attorneys general. the Secretary determines that the avail- shall be treated as a claim of the United ‘‘(iv) FEE.— ability of both the qualifying drug and the States Government subject to subchapter II ‘‘(I) IN GENERAL.—If a notice submitted U.S. label drug would pose a threat to the of chapter 37 of title 31, United States Code. under clause (i) includes a difference that public health. ‘‘(g) COMPLIANCE WITH SECTION 801(a).— would, under section 506A, require the sub- ‘‘(IV) REVIEW BY THE SECRETARY.—The Sec- ‘‘(1) IN GENERAL.—A registration condition mission of a supplemental application if retary shall review and approve or dis- is that each qualifying drug exported under made as a change to the U.S. label drug, the approve the difference in a notice submitted subsection (a) by the registered exporter in- person that submits the notice shall pay to volved or imported under subsection (a) by the Secretary a fee in the same amount as under clause (i), if required under section the registered importer involved is in com- would apply if the person were paying a fee 506A, not later than 120 days after the date pliance with the standards referred to in sec- pursuant to section 736(a)(1)(A)(ii). Fees col- on which the notice is submitted. tion 801(a) regarding admission of the drug lected by the Secretary under the preceding ‘‘(V) ESTABLISHMENT INSPECTION.—If review into the United States, subject to paragraphs sentence are available only to the Secretary of such difference would require an inspec- (2), (3), and (4). and are for the sole purpose of paying the tion of the establishment in which the quali- ‘‘(2) SECTION 505; APPROVAL STATUS.— costs of reviewing notices submitted under fying drug is manufactured— ‘‘(A) IN GENERAL.—A qualifying drug that clause (i). ‘‘(aa) such inspection by the Secretary is imported or offered for import under sub- ‘‘(II) FEE AMOUNT FOR CERTAIN YEARS.—If shall be authorized; and section (a) shall comply with the conditions no fee amount is in effect under section ‘‘(bb) the Secretary may rely on a satisfac- established in the approved application 736(a)(1)(A)(ii) for a fiscal year, then the tory report of a good manufacturing practice under section 505(b) for the U.S. label drug as amount paid by a person under subclause (I) inspection of the establishment from a per- described under this subsection. shall— mitted country whose regulatory system the ‘‘(B) NOTICE BY MANUFACTURER; GENERAL ‘‘(aa) for the first fiscal year in which no Secretary recognizes as equivalent under a PROVISIONS.— fee amount under such section in effect, be mutual recognition agreement, as provided ‘‘(i) IN GENERAL.—The person that manu- equal to the fee amount under section under section 510(i)(3), section 803, or part 26 factures a qualifying drug that is, or will be, 736(a)(1)(A)(ii) for the most recent fiscal year of title 21, Code of Federal Regulations (or introduced for commercial distribution in a for which such section was in effect, adjusted any corresponding successor rule or regula- permitted country shall in accordance with in accordance with section 736(c); and tion). this paragraph submit to the Secretary a no- ‘‘(bb) for each subsequent fiscal year in ‘‘(vii) PUBLICATION OF INFORMATION ON NO- tice that— which no fee amount under such section is TICES.— ‘‘(I) includes each difference in the quali- effect, be equal to the applicable fee amount ‘‘(I) IN GENERAL.—Through the Internet fying drug from a condition established in for the previous fiscal year, adjusted in ac- website of the Food and Drug Administra- the approved application for the U.S. label cordance with section 736(c). tion and a toll-free telephone number, the drug beyond— ‘‘(v) TIMING OF SUBMISSION OF NOTICES.— Secretary shall readily make available to ‘‘(aa) the variations provided for in the ap- ‘‘(I) PRIOR APPROVAL NOTICES.—A notice the public a list of notices submitted under plication; and under clause (i) to which subparagraph (C) clause (i). ‘‘(bb) any difference in labeling (except in- applies shall be submitted to the Secretary ‘‘(II) CONTENTS.—The list under subclause gredient labeling); or not later than 120 days before the qualifying (I) shall include the date on which a notice is ‘‘(II) states that there is no difference in drug with the difference is introduced for submitted and whether— the qualifying drug from a condition estab- commercial distribution in a permitted ‘‘(aa) a notice is under review;

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‘‘(bb) the Secretary has ordered that im- ‘‘(II) notify the permitted country that ap- ‘‘(v) RELATED ACTIVE INGREDIENTS.—For portation of the qualifying drug from a per- proved the qualifying drug for commercial purposes of clause (i)(II), 2 active ingredients mitted country cease; or distribution of the determination; and are related if they are— ‘‘(cc) the importation of the drug is per- ‘‘(III) promptly notify registered exporters, ‘‘(I) the same; or mitted under subsection (a). registered importers, the Federal Trade ‘‘(II) different salts, esters, or complexes of ‘‘(III) UPDATE.—The Secretary shall Commission, and the State attorneys general the same moiety. promptly update the Internet website with of the determination. ‘‘(3) SECTION 502; LABELING.— any changes to the list. ‘‘(iii) If the Secretary determines that such ‘‘(A) IMPORTATION BY REGISTERED IM- ‘‘(C) NOTICE; DRUG DIFFERENCE REQUIRING a supplemental application regarding the PORTER.— PRIOR APPROVAL.—In the case of a notice U.S. label drug would be approved, the dif- ‘‘(i) IN GENERAL.—In the case of a quali- under subparagraph (B)(i) that includes a dif- ference shall be considered to be a variation fying drug that is imported or offered for im- ference that would, under subsection (c) or provided for in the approved application for port by a registered importer, such drug shall be considered to be in compliance with (d)(3)(B)(i) of section 506A, require the ap- the U.S. label drug. section 502 and the labeling requirements proval of a supplemental application before ‘‘(E) NOTICE; DRUG DIFFERENCE NOT REQUIR- under the approved application for the U.S. the difference could be made to the U.S. ING APPROVAL; NO DIFFERENCE.—In the case of a notice under subparagraph (B)(i) that in- label drug if the qualifying drug bears— label drug the following shall occur: ‘‘(I) a copy of the labeling approved for the ‘‘(i) Promptly after the notice is sub- cludes a difference for which, under section 506A(d)(1)(A), a supplemental application U.S. label drug under section 505, without re- mitted, the Secretary shall notify registered gard to whether the copy bears any trade- would not be required for the difference to be exporters, registered importers, the Federal mark involved; made to the U.S. label drug, or that states Trade Commission, and the State attorneys ‘‘(II) the name of the manufacturer and lo- that there is no difference, the Secretary— general that the notice has been submitted cation of the manufacturer; ‘‘(i) shall consider such difference to be a with respect to the qualifying drug involved. ‘‘(III) the lot number assigned by the man- variation provided for in the approved appli- ‘‘(ii) If the Secretary has not made a deter- ufacturer; cation for the U.S. label drug; mination whether such a supplemental appli- ‘‘(IV) the name, location, and registration ‘‘(ii) may not order that the importation of cation regarding the U.S. label drug would be number of the importer; and approved or disapproved by the date on the qualifying drug involved cease; and ‘‘(V) the National Drug Code number as- which the qualifying drug involved is to be ‘‘(iii) shall promptly notify registered ex- signed to the qualifying drug by the Sec- introduced for commercial distribution in a porters and registered importers. retary. ‘‘(F) DIFFERENCES IN ACTIVE INGREDIENT, permitted country, the Secretary shall— ‘‘(ii) REQUEST FOR COPY OF THE LABELING.— ‘‘(I) order that the importation of the ROUTE OF ADMINISTRATION, DOSAGE FORM, OR The Secretary shall provide such copy to the qualifying drug involved from the permitted STRENGTH.— registered importer involved, upon request of country not begin until the Secretary com- ‘‘(i) IN GENERAL.—A person who manufac- the importer. pletes review of the notice; and tures a drug approved under section 505(b) ‘‘(iii) REQUESTED LABELING.—The labeling ‘‘(II) promptly notify registered exporters, shall submit an application under section provided by the Secretary under clause (ii) registered importers, the Federal Trade 505(b) for approval of another drug that is shall— Commission, and the State attorneys general manufactured for distribution in a permitted ‘‘(I) include the established name, as de- of the order. country by or for the person that manufac- fined in section 502(e)(3), for each active in- ‘‘(iii) If the Secretary determines that such tures the drug approved under section 505(b) gredient in the qualifying drug; a supplemental application regarding the if— ‘‘(II) not include the proprietary name of U.S. label drug would not be approved, the ‘‘(I) there is no qualifying drug in commer- the U.S. label drug or any active ingredient Secretary shall— cial distribution in permitted countries thereof; whose combined population represents at ‘‘(I) order that the importation of the ‘‘(III) if required under paragraph least 50 percent of the total population of all qualifying drug involved from the permitted (2)(B)(vi)(III), a prominent advisory that the permitted countries with the same active in- country cease, or provide that an order qualifying drug is safe and effective but not gredient or ingredients, route of administra- under clause (ii), if any, remains in effect; bioequivalent to the U.S. label drug; and tion, dosage form, and strength as the drug ‘‘(II) notify the permitted country that ap- ‘‘(IV) if the inactive ingredients of the approved under section 505(b); and proved the qualifying drug for commercial qualifying drug are different from the inac- ‘‘(II) each active ingredient of the other distribution of the determination; and tive ingredients for the U.S. label drug, in- drug is related to an active ingredient of the ‘‘(III) promptly notify registered exporters, clude— drug approved under section 505(b), as de- registered importers, the Federal Trade ‘‘(aa) a prominent notice that the ingredi- fined in clause (v). ents of the qualifying drug differ from the in- Commission, and the State attorneys general ‘‘(ii) APPLICATION UNDER SECTION 505(b).— gredients of the U.S. label drug and that the of the determination. The application under section 505(b) required qualifying drug must be dispensed with an ‘‘(iv) If the Secretary determines that such under clause (i) shall— advisory to people with allergies about this a supplemental application regarding the ‘‘(I) request approval of the other drug for difference and a list of ingredients; and U.S. label drug would be approved, the Sec- the indication or indications for which the ‘‘(bb) a list of the ingredients of the quali- retary shall— drug approved under section 505(b) is labeled; fying drug as would be required under sec- ‘‘(I) vacate the order under clause (ii), if ‘‘(II) include the information that the per- tion 502(e). any; son submitted to the government of the per- ‘‘(B) IMPORTATION BY INDIVIDUAL.— ‘‘(II) consider the difference to be a vari- mitted country for purposes of obtaining ap- ‘‘(i) IN GENERAL.—In the case of a quali- ation provided for in the approved applica- proval for commercial distribution of the fying drug that is imported or offered for im- tion for the U.S. label drug; other drug in that country, which if in a lan- port by a registered exporter to an indi- ‘‘(III) permit importation of the qualifying guage other than English, shall be accom- vidual, such drug shall be considered to be in drug under subsection (a); and panied by an English translation verified to compliance with section 502 and the labeling ‘‘(IV) promptly notify registered exporters, be complete and accurate, with the name, requirements under the approved application registered importers, the Federal Trade address, and a brief statement of the quali- for the U.S. label drug if the packaging and Commission, and the State attorneys general fications of the person that made the trans- labeling of the qualifying drug complies with of the determination. lation; all applicable regulations promulgated under ‘‘(D) NOTICE; DRUG DIFFERENCE NOT REQUIR- ‘‘(III) include a right of reference to the ap- sections 3 and 4 of the Poison Prevention ING PRIOR APPROVAL.—In the case of a notice plication for the drug approved under section Packaging Act of 1970 (15 U.S.C. 1471 et seq.) under subparagraph (B)(i) that includes a dif- 505(b); and and the labeling of the qualifying drug in- ference that would, under section ‘‘(IV) include such additional information cludes— 506A(d)(3)(B)(ii), not require the approval of as the Secretary may require. ‘‘(I) directions for use by the consumer; a supplemental application before the dif- ‘‘(iii) TIMING OF SUBMISSION OF APPLICA- ‘‘(II) the lot number assigned by the manu- ference could be made to the U.S. label drug TION.—An application under section 505(b) re- facturer; the following shall occur: quired under clause (i) shall be submitted to ‘‘(III) the name and registration number of ‘‘(i) During the period in which the notice the Secretary not later than the day on the exporter; is being reviewed by the Secretary, the au- which the information referred to in clause ‘‘(IV) if required under paragraph thority under this subsection to import the (ii)(II) is submitted to the government of the (2)(B)(vi)(III), a prominent advisory that the qualifying drug involved continues in effect. permitted country. drug is safe and effective but not bioequiva- ‘‘(ii) If the Secretary determines that such ‘‘(iv) NOTICE OF DECISION ON APPLICATION.— lent to the U.S. label drug; a supplemental application regarding the The Secretary shall promptly notify reg- ‘‘(V) if the inactive ingredients of the drug U.S. label drug would not be approved, the istered exporters, registered importers, the are different from the inactive ingredients Secretary shall— Federal Trade Commission, and the State at- for the U.S. label drug— ‘‘(I) order that the importation of the torneys general of a determination to ap- ‘‘(aa) a prominent advisory that persons qualifying drug involved from the permitted prove or to disapprove an application under with an allergy should check the ingredient country cease; section 505(b) required under clause (i). list of the drug because the ingredients of

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8137 the drug differ from the ingredients of the ‘‘(J) If the drug is imported or offered for sent to the individual and to the exporter U.S. label drug; and import by a registered importer without sub- that informs the individual and the exporter ‘‘(bb) a list of the ingredients of the drug mission of a notice in accordance with sub- of such refusal and the reason for the refusal. as would be required under section 502(e); section (d)(4). ‘‘(j) MAINTENANCE OF RECORDS AND SAM- and ‘‘(K) If the drug is imported or offered for PLES.— ‘‘(VI) a copy of any special labeling that import from a registered exporter to an indi- ‘‘(1) IN GENERAL.—A registration condition would be required by the Secretary had the vidual and 1 or more of the following applies: is that the importer or exporter involved U.S. label drug been dispensed by a phar- ‘‘(i) The shipping container for such drug shall— macist in the United States, without regard does not bear the markings required under ‘‘(A) maintain records required under this to whether the special labeling bears any subsection (d)(2). section for not less than 2 years; and trademark involved. ‘‘(ii) The markings on the shipping con- ‘‘(B) maintain samples of each lot of a qualifying drug required under this section ‘‘(ii) PACKAGING.—A qualifying drug offered tainer appear to be counterfeit. for import to an individual by an exporter ‘‘(iii) The shipping container or markings for not more than 2 years. under this section that is packaged in a unit- appear to have been tampered with. ‘‘(2) PLACE OF RECORD MAINTENANCE.—The XPORTER LICENSURE IN PERMITTED records described under paragraph (1) shall of-use container (as those items are defined ‘‘(h) E COUNTRY.—A registration condition is that be maintained— in the United States Pharmacopeia and Na- the exporter involved agrees that a quali- ‘‘(A) in the case of an importer, at the tional Formulary) shall not be repackaged, fying drug will be exported to an individual place of business of the importer at which provided that— only if the Secretary has verified that— the importer initially receives the qualifying ‘‘(I) the packaging complies with all appli- ‘‘(1) the exporter is authorized under the drug after importation; or cable regulations under sections 3 and 4 of law of the permitted country in which the ‘‘(B) in the case of an exporter, at the facil- the Poison Prevention Packaging Act of 1970 exporter is located to dispense prescription ity from which the exporter ships the quali- (15 U.S.C. 1471 et seq.); or drugs; and fying drug to the United States. ‘‘(II) the consumer consents to waive the ‘‘(2) the exporter employs persons that are ‘‘(k) DRUG RECALLS.— requirements of such Act, after being in- licensed under the law of the permitted ‘‘(1) MANUFACTURERS.—A person that man- formed that the packaging does not comply country in which the exporter is located to ufactures a qualifying drug imported from a with such Act and that the exporter will pro- dispense prescription drugs in sufficient permitted country under this section shall vide the drug in packaging that is compliant number to dispense safely the drugs exported promptly inform the Secretary— at no additional cost. by the exporter to individuals, and the ex- ‘‘(A) if the drug is recalled or withdrawn ‘‘(iii) REQUEST FOR COPY OF SPECIAL LABEL- porter assigns to those persons responsibility from the market in a permitted country; ING AND INGREDIENT LIST.—The Secretary for dispensing such drugs to individuals. ‘‘(B) how the drug may be identified, in- shall provide to the registered exporter in- ‘‘(i) INDIVIDUALS; CONDITIONS FOR IMPORTA- cluding lot number; and volved a copy of the special labeling, the ad- TION.— ‘‘(C) the reason for the recall or with- visory, and the ingredient list described ‘‘(1) IN GENERAL.—For purposes of sub- drawal. under clause (i), upon request of the ex- section (a)(2)(B), the importation of a quali- ‘‘(2) SECRETARY.—With respect to each per- porter. fying drug by an individual is in accordance mitted country, the Secretary shall— ‘‘(iv) REQUESTED LABELING AND INGREDIENT with this subsection if the following condi- ‘‘(A) enter into an agreement with the gov- LIST.—The labeling and ingredient list pro- tions are met: ernment of the country to receive informa- vided by the Secretary under clause (iii) ‘‘(A) The drug is accompanied by a copy of tion about recalls and withdrawals of quali- shall— a prescription for the drug, which prescrip- fying drugs in the country; or ‘‘(I) include the established name, as de- tion— ‘‘(B) monitor recalls and withdrawals of fined in section 502(e)(3), for each active in- ‘‘(i) is valid under applicable Federal and qualifying drugs in the country using any in- gredient in the drug; and State laws; and formation that is available to the public in ‘‘(II) not include the proprietary name of ‘‘(ii) was issued by a practitioner who, any media. the U.S. label drug or any active ingredient under the law of a State of which the indi- ‘‘(3) NOTICE.—The Secretary may notify, as thereof. vidual is a resident, or in which the indi- appropriate, registered exporters, registered ‘‘(4) SECTION 501; ADULTERATION.—A quali- vidual receives care from the practitioner importers, wholesalers, pharmacies, or the fying drug that is imported or offered for im- who issues the prescription, is authorized to public of a recall or withdrawal of a quali- port under subsection (a) shall be considered administer prescription drugs. fying drug in a permitted country. to be in compliance with section 501 if the ‘‘(B) The drug is accompanied by a copy of ‘‘(l) DRUG LABELING AND PACKAGING.— drug is in compliance with subsection (c). the documentation that was required under ‘‘(1) IN GENERAL.—When a qualifying drug ‘‘(5) STANDARDS FOR REFUSING ADMISSION.— the law or regulations of the permitted coun- that is imported into the United States by A drug exported under subsection (a) from a try in which the exporter is located, as a an importer under subsection (a) is dispensed registered exporter or imported by a reg- condition of dispensing the drug to the indi- by a pharmacist to an individual, the phar- istered importer may be refused admission vidual. macist shall provide that the packaging and into the United States if 1 or more of the fol- ‘‘(C) The copies referred to in subpara- labeling of the drug complies with all appli- lowing applies: graphs (A)(i) and (B) are marked in a manner cable regulations promulgated under sec- ‘‘(A) The drug is not a qualifying drug. sufficient— tions 3 and 4 of the Poison Prevention Pack- ‘‘(B) A notice for the drug required under ‘‘(i) to indicate that the prescription, and aging Act of 1970 (15 U.S.C. 1471 et seq.) and paragraph (2)(B) has not been submitted to the equivalent document in the permitted shall include with any other labeling pro- the Secretary. country in which the exporter is located, vided to the individual the following: ‘‘(C) The Secretary has ordered that impor- have been filled; and ‘‘(A) The lot number assigned by the manu- tation of the drug from the permitted coun- ‘‘(ii) to prevent a duplicative filling by an- facturer. try cease under subparagraph (C) or (D) of other pharmacist. ‘‘(B) The name and registration number of paragraph (2). ‘‘(D) The individual has provided to the the importer. ‘‘(D) The drug does not comply with para- registered exporter a complete list of all ‘‘(C) If required under paragraph graph (3) or (4). drugs used by the individual for review by (2)(B)(vi)(III) of subsection (g), a prominent ‘‘(E) The shipping container appears dam- the individuals who dispense the drug. advisory that the drug is safe and effective aged in a way that may affect the strength, ‘‘(E) The quantity of the drug does not ex- but not bioequivalent to the U.S. label drug. quality, or purity of the drug. ceed a 90-day supply. ‘‘(D) If the inactive ingredients of the drug ‘‘(F) The Secretary becomes aware that— ‘‘(F) The drug is not an ineligible subpart are different from the inactive ingredients ‘‘(i) the drug may be counterfeit; H drug. For purposes of this section, a pre- for the U.S. label drug— ‘‘(ii) the drug may have been prepared, scription drug is an ‘ineligible subpart H ‘‘(i) a prominent advisory that persons packed, or held under insanitary conditions; drug’ if the drug was approved by the Sec- with allergies should check the ingredient or retary under subpart H of part 314 of title 21, list of the drug because the ingredients of ‘‘(iii) the methods used in, or the facilities Code of Federal Regulations (relating to ac- the drug differ from the ingredients of the or controls used for, the manufacturing, celerated approval), with restrictions under U.S. label drug; and processing, packing, or holding of the drug section 520 of such part to assure safe use, ‘‘(ii) a list of the ingredients of the drug as do not conform to good manufacturing prac- and the Secretary has published in the Fed- would be required under section 502(e). tice. eral Register a notice that the Secretary has ‘‘(2) PACKAGING.—A qualifying drug that is ‘‘(G) The Secretary has obtained an injunc- determined that good cause exists to pro- packaged in a unit-of-use container (as those tion under section 302 that prohibits the dis- hibit the drug from being imported pursuant terms are defined in the United States Phar- tribution of the drug in interstate com- to this subsection. macopeia and National Formulary) shall not merce. ‘‘(2) NOTICE REGARDING DRUG REFUSED AD- be repackaged, provided that— ‘‘(H) The Secretary has under section 505(e) MISSION.—If a registered exporter ships a ‘‘(A) the packaging complies with all appli- withdrawn approval of the drug. drug to an individual pursuant to subsection cable regulations under sections 3 and 4 of ‘‘(I) The manufacturer of the drug has in- (a)(2)(B) and the drug is refused admission to the Poison Prevention Packaging Act of 1970 stituted a recall of the drug. the United States, a written notice shall be (15 U.S.C. 1471 et seq.); or

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‘‘(B) the consumer consents to waive the factures the drug) between a prescription ‘‘(B) DISCOUNTS TO INSURERS, HEALTH requirements of such Act, after being in- drug for distribution in the United States PLANS, PHARMACY BENEFIT MANAGERS, AND formed that the packaging does not comply and the drug for distribution in a permitted COVERED ENTITIES.—Nothing in this sub- with such Act and that the pharmacist will country; section shall be construed to— provide the drug in packaging that is compli- ‘‘(H) refuse to allow an inspection author- ‘‘(i) prevent or restrict a manufacturer of a ant at no additional cost. ized under this section of an establishment prescription drug from providing discounts ‘‘(m) CHARITABLE CONTRIBUTIONS.—Not- that manufactures a qualifying drug that is, to an insurer, health plan, pharmacy benefit withstanding any other provision of this sec- or will be, introduced for commercial dis- manager in the United States, or covered en- tion, this section does not authorize the im- tribution in a permitted country; tity in the drug discount program under sec- portation into the United States of a quali- ‘‘(I) fail to conform to the methods used in, tion 340B of the Public Health Service Act fying drug donated or otherwise supplied for or the facilities used for, the manufacturing, (42 U.S.C. 256b) in return for inclusion of the free or at nominal cost by the manufacturer processing, packing, or holding of a quali- drug on a formulary; of the drug to a charitable or humanitarian fying drug that is, or will be, introduced for ‘‘(ii) require that such discounts be made organization, including the United Nations commercial distribution in a permitted available to other purchasers of the prescrip- and affiliates, or to a government of a for- country to good manufacturing practice tion drug; or eign country. under this Act; ‘‘(iii) prevent or restrict any other meas- ‘‘(n) UNFAIR AND DISCRIMINATORY ACTS AND ‘‘(J) become a party to a licensing agree- ures taken by an insurer, health plan, or PRACTICES.— ment or other agreement related to a quali- pharmacy benefit manager to encourage con- ‘‘(1) IN GENERAL.—It is unlawful for a man- fying drug that fails to provide for compli- sumption of such prescription drug. ufacturer, directly or indirectly (including ance with all requirements of this section ‘‘(C) CHARITABLE CONTRIBUTIONS.—Nothing by being a party to a licensing agreement or with respect to such drug; in this subsection shall be construed to— other agreement), to— ‘‘(K) enter into a contract that restricts, ‘‘(i) prevent a manufacturer from donating ‘‘(A) discriminate by charging a higher prohibits, or delays the importation of a a prescription drug, or supplying a prescrip- price for a prescription drug sold to a reg- qualifying drug under this section; tion drug at nominal cost, to a charitable or istered exporter or other person in a per- ‘‘(L) engage in any other action to restrict, humanitarian organization, including the mitted country that exports a qualifying prohibit, or delay the importation of a quali- United Nations and affiliates, or to a govern- drug to the United States under this section fying drug under this section; or ment of a foreign country; or than the price that is charged, inclusive of ‘‘(M) engage in any other action that the ‘‘(ii) apply to such donations or supplying rebates or other incentives to the permitted Federal Trade Commission determines to of a prescription drug. country or other person, to another person discriminate against a person that engages ‘‘(5) ENFORCEMENT.— that is in the same country and that does or attempts to engage in the importation of ‘‘(A) UNFAIR OR DECEPTIVE ACT OR PRAC- not export a qualifying drug into the United a qualifying drug under this section. TICE.—A violation of this subsection shall be States under this section; ‘‘(2) REFERRAL OF POTENTIAL VIOLATIONS.— treated as a violation of a rule defining an ‘‘(B) discriminate by charging a higher The Secretary shall promptly refer to the unfair or deceptive act or practice prescribed price for a prescription drug sold to a reg- Federal Trade Commission each potential under section 18(a)(1)(B) of the Federal Trade istered importer or other person that distrib- violation of subparagraph (E), (F), (G), (H), Commission Act (15 U.S.C. 57a(a)(1)(B)). utes, sells, or uses a qualifying drug im- or (I) of paragraph (1) that becomes known to ‘‘(B) ACTIONS BY THE COMMISSION.—The ported into the United States under this sec- the Secretary. Federal Trade Commission— tion than the price that is charged to an- ‘‘(3) AFFIRMATIVE DEFENSE.— ‘‘(i) shall enforce this subsection in the other person in the United States that does ‘‘(A) DISCRIMINATION.—It shall be an af- same manner, by the same means, and with not import a qualifying drug under this sec- firmative defense to a charge that a manu- the same jurisdiction, powers, and duties as tion, or that does not distribute, sell, or use facturer has discriminated under subpara- though all applicable terms and provisions of such a drug; graph (A), (B), (C), (D), or (M) of paragraph the Federal Trade Commission Act (15 U.S.C. ‘‘(C) discriminate by denying, restricting, (1) that the higher price charged for a pre- 41 et seq.) were incorporated into and made or delaying supplies of a prescription drug to scription drug sold to a person, the denial, a part of this section; and a registered exporter or other person in a restriction, or delay of supplies of a prescrip- ‘‘(ii) may seek monetary relief threefold permitted country that exports a qualifying tion drug to a person, the refusal to do busi- the damages sustained, in addition to any drug to the United States under this section ness with a person, or other discriminatory other remedy available to the Federal Trade or to a registered importer or other person activity against a person, is not based, in Commission under the Federal Trade Com- that distributes, sells, or uses a qualifying whole or in part, on— mission Act (15 U.S.C. 41 et seq.). drug imported into the United States under ‘‘(i) the person exporting or importing a ‘‘(6) ACTIONS BY STATES.— this section; qualifying drug into the United States under ‘‘(A) IN GENERAL.— ‘‘(D) discriminate by publicly, privately, or this section; or ‘‘(i) CIVIL ACTIONS.—In any case in which otherwise refusing to do business with a reg- ‘‘(ii) the person distributing, selling, or the attorney general of a State has reason to istered exporter or other person in a per- using a qualifying drug imported into the believe that an interest of the residents of mitted country that exports a qualifying United States under this section. that State have been adversely affected by drug to the United States under this section ‘‘(B) DRUG DIFFERENCES.—It shall be an af- any manufacturer that violates paragraph or with a registered importer or other person firmative defense to a charge that a manu- (1), the attorney general of a State may that distributes, sells, or uses a qualifying facturer has caused there to be a difference bring a civil action on behalf of the residents drug imported into the United States under described in subparagraph (G) of paragraph of the State, and persons doing business in this section; (1) that— the State, in a district court of the United ‘‘(E) knowingly fail to submit a notice ‘‘(i) the difference was required by the States of appropriate jurisdiction to— under subsection (g)(2)(B)(i), knowingly fail country in which the drug is distributed; ‘‘(I) enjoin that practice; to submit such a notice on or before the date ‘‘(ii) the Secretary has determined that the ‘‘(II) enforce compliance with this sub- specified in subsection (g)(2)(B)(v) or as oth- difference was necessary to improve the safe- section; erwise required under paragraphs (3), (4), and ty or effectiveness of the drug; ‘‘(III) obtain damages, restitution, or other (5) of section 504(e) of the Pharmaceutical ‘‘(iii) the person manufacturing the drug compensation on behalf of residents of the Market Access and Drug Safety Act of 2010, for distribution in the United States has State and persons doing business in the knowingly submit such a notice that makes given notice to the Secretary under sub- State, including threefold the damages; or a materially false, fictitious, or fraudulent section (g)(2)(B)(i) that the drug for distribu- ‘‘(IV) obtain such other relief as the court statement, or knowingly fail to provide tion in the United States is not different may consider to be appropriate. promptly any information requested by the from a drug for distribution in permitted ‘‘(ii) NOTICE.— Secretary to review such a notice; countries whose combined population rep- ‘‘(I) IN GENERAL.—Before filing an action ‘‘(F) knowingly fail to submit an applica- resents at least 50 percent of the total popu- under clause (i), the attorney general of the tion required under subsection (g)(2)(F), lation of all permitted countries; or State involved shall provide to the Federal knowingly fail to submit such an application ‘‘(iv) the difference was not caused, in Trade Commission— on or before the date specified in subsection whole or in part, for the purpose of restrict- ‘‘(aa) written notice of that action; and (g)(2)(F)(iii), knowingly submit such an ap- ing importation of the drug into the United ‘‘(bb) a copy of the complaint for that ac- plication that makes a materially false, fic- States under this section. tion. titious, or fraudulent statement, or know- ‘‘(4) EFFECT OF SUBSECTION.— ‘‘(II) EXEMPTION.—Subclause (I) shall not ingly fail to provide promptly any informa- ‘‘(A) SALES IN OTHER COUNTRIES.—This sub- apply with respect to the filing of an action tion requested by the Secretary to review section applies only to the sale or distribu- by an attorney general of a State under this such an application; tion of a prescription drug in a country if the paragraph, if the attorney general deter- ‘‘(G) cause there to be a difference (includ- manufacturer of the drug chooses to sell or mines that it is not feasible to provide the ing a difference in active ingredient, route of distribute the drug in the country. Nothing notice described in that subclause before fil- administration, dosage form, strength, for- in this subsection shall be construed to com- ing of the action. In such case, the attorney mulation, manufacturing establishment, pel the manufacturer of a drug to distribute general of a State shall provide notice and a manufacturing process, or person that manu- or sell the drug in a country. copy of the complaint to the Federal Trade

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Commission at the same time as the attor- chemical synthesis, or by a combination of (1) IN GENERAL.—Section 271 of title 35, ney general files the action. extraction and chemical synthesis; or United States Code, is amended— ‘‘(B) INTERVENTION.— ‘‘(B) the packaging, repackaging, labeling, (A) by redesignating subsections (h) and (i) ‘‘(i) IN GENERAL.—On receiving notice relabeling, or distribution of a prescription as (i) and (j), respectively; and under subparagraph (A)(ii), the Federal drug.’’. (B) by inserting after subsection (g) the Trade Commission shall have the right to in- (b) PROHIBITED ACTS.—The Federal Food, following: tervene in the action that is the subject of Drug, and Cosmetic Act is amended— ‘‘(h) It shall not be an act of infringement the notice. (1) in section 301 (21 U.S.C. 331), by striking to use, offer to sell, or sell within the United ‘‘(ii) EFFECT OF INTERVENTION.—If the Fed- paragraph (aa) and inserting the following: States or to import into the United States eral Trade Commission intervenes in an ac- ‘‘(aa)(1) The sale or trade by a pharmacist, any patented invention under section 804 of tion under subparagraph (A), it shall have or by a business organization of which the the Federal Food, Drug, and Cosmetic Act the right— pharmacist is a part, of a qualifying drug that was first sold abroad by or under au- ‘‘(I) to be heard with respect to any matter that under section 804(a)(2)(A) was imported thority of the owner or licensee of such pat- that arises in that action; and by the pharmacist, other than— ent.’’. ‘‘(II) to file a petition for appeal. ‘‘(A) a sale at retail made pursuant to dis- (2) RULE OF CONSTRUCTION.—Nothing in the ‘‘(C) CONSTRUCTION.—For purposes of bring- pensing the drug to a customer of the phar- amendment made by paragraph (1) shall be ing any civil action under subparagraph (A), macist or organization; or construed to affect the ability of a patent nothing in this subsection shall be construed ‘‘(B) a sale or trade of the drug to a phar- owner or licensee to enforce their patent, to prevent an attorney general of a State macy or a wholesaler registered to import subject to such amendment. from exercising the powers conferred on the drugs under section 804. (e) EFFECT OF SECTION 804.— attorney general by the laws of that State ‘‘(2) The sale or trade by an individual of a (1) IN GENERAL.—Section 804 of the Federal to— qualifying drug that under section Food, Drug, and Cosmetic Act, as added by ‘‘(i) conduct investigations; 804(a)(2)(B) was imported by the individual. subsection (a), shall permit the importation ‘‘(ii) administer oaths or affirmations; or ‘‘(3) The making of a materially false, fic- of qualifying drugs (as defined in such sec- ‘‘(iii) compel the attendance of witnesses titious, or fraudulent statement or represen- tion 804) into the United States without re- or the production of documentary and other tation, or a material omission, in a notice evidence. under clause (i) of section 804(g)(2)(B) or in gard to the status of the issuance of imple- menting regulations— ‘‘(D) ACTIONS BY THE COMMISSION.—In any an application required under section case in which an action is instituted by or on 804(g)(2)(F), or the failure to submit such a (A) from exporters registered under such behalf of the Federal Trade Commission for notice or application. section 804 on the date that is 90 days after a violation of paragraph (1), a State may not, ‘‘(4) The importation of a drug in violation the date of enactment of this Act; and during the pendency of that action, institute of a registration condition or other require- (B) from permitted countries, as defined in an action under subparagraph (A) for the ment under section 804, the falsification of such section 804, by importers registered same violation against any defendant named any record required to be maintained, or pro- under such section 804 on the date that is 1 in the complaint in that action. vided to the Secretary, under such section, year after the date of enactment of this Act. ‘‘(E) VENUE.—Any action brought under or the violation of any registration condition (2) REVIEW OF REGISTRATION BY CERTAIN EX- subparagraph (A) may be brought in the dis- or other requirement under such section.’’; PORTERS.— trict court of the United States that meets and (A) REVIEW PRIORITY.—In the review of reg- applicable requirements relating to venue (2) in section 303(a) (21 U.S.C. 333(a)), by istrations submitted under subsection (b) of under section 1391 of title 28, United States striking paragraph (6) and inserting the fol- such section 804, registrations submitted by Code. lowing: entities in Canada that are significant ex- ‘‘(F) SERVICE OF PROCESS.—In an action ‘‘(6) Notwithstanding subsection (a), any porters of prescription drugs to individuals brought under subparagraph (A), process person that knowingly violates section 301(i) in the United States as of the date of enact- may be served in any district in which the (2) or (3) or section 301(aa)(4) shall be impris- ment of this Act will have priority during defendant— oned not more than 10 years, or fined in ac- the 90 day period that begins on such date of ‘‘(i) is an inhabitant; or cordance with title 18, United States Code, enactment. ‘‘(ii) may be found. or both.’’. (B) PERIOD FOR REVIEW.—During such 90- ‘‘(G) MEASUREMENT OF DAMAGES.—In any (c) AMENDMENT OF CERTAIN PROVISIONS.— day period, the reference in subsection action under this paragraph to enforce a (1) IN GENERAL.—Section 801 of the Federal (b)(2)(A) of such section 804 to 90 days (relat- cause of action under this subsection in Food, Drug, and Cosmetic Act (21 U.S.C. 381) ing to approval or disapproval of registra- which there has been a determination that a is amended by striking subsection (g) and in- tions) is, as applied to such entities, deemed defendant has violated a provision of this serting the following: to be 30 days. subsection, damages may be proved and as- ‘‘(g) With respect to a prescription drug (C) LIMITATION.—That an exporter in Can- sessed in the aggregate by statistical or sam- that is imported or offered for import into ada exports, or has exported, prescription pling methods, by the computation of illegal the United States by an individual who is drugs to individuals in the United States on overcharges or by such other reasonable sys- not in the business of such importation, that or before the date that is 90 days after the tem of estimating aggregate damages as the is not shipped by a registered exporter under date of enactment of this Act shall not serve court in its discretion may permit without section 804, and that is refused admission as a basis, in whole or in part, for dis- the necessity of separately proving the indi- under subsection (a), the Secretary shall no- approving a registration under such section vidual claim of, or amount of damage to, per- tify the individual that— 804 from the exporter. sons on whose behalf the suit was brought. ‘‘(1) the drug has been refused admission (D) FIRST YEAR LIMIT ON NUMBER OF EX- ‘‘(H) EXCLUSION ON DUPLICATIVE RELIEF.— because the drug was not a lawful import PORTERS.—During the 1-year period begin- The district court shall exclude from the under section 804; ning on the date of enactment of this Act, amount of monetary relief awarded in an ac- ‘‘(2) the drug is not otherwise subject to a the Secretary of Health and Human Services tion under this paragraph brought by the at- waiver of the requirements of subsection (a); (referred to in this section as the ‘‘Sec- torney general of a State any amount of ‘‘(3) the individual may under section 804 retary’’) may limit the number of registered monetary relief which duplicates amounts lawfully import certain prescription drugs exporters under such section 804 to not less which have been awarded for the same in- from exporters registered with the Secretary than 50, so long as the Secretary gives pri- jury. under section 804; and ority to those exporters with demonstrated ‘‘(7) EFFECT ON ANTITRUST LAWS.—Nothing ‘‘(4) the individual can find information ability to process a high volume of ship- in this subsection shall be construed to mod- about such importation, including a list of ments of drugs to individuals in the United ify, impair, or supersede the operation of the registered exporters, on the Internet website States. antitrust laws. For the purpose of this sub- of the Food and Drug Administration or (E) SECOND YEAR LIMIT ON NUMBER OF EX- section, the term ‘antitrust laws’ has the through a toll-free telephone number re- PORTERS.—During the 1-year period begin- meaning given it in the first section of the quired under section 804.’’. ning on the date that is 1 year after the date Clayton Act, except that it includes section (2) ESTABLISHMENT REGISTRATION.—Section of enactment of this Act, the Secretary may 5 of the Federal Trade Commission Act to 510(i) of the Federal Food, Drug, and Cos- limit the number of registered exporters the extent that such section 5 applies to un- metic Act (21 U.S.C. 360(i)) is amended in under such section 804 to not less than 100, so fair methods of competition. paragraph (1) by inserting after ‘‘import into long as the Secretary gives priority to those ‘‘(8) MANUFACTURER.—In this subsection, the United States’’ the following: ‘‘, includ- exporters with demonstrated ability to proc- the term ‘manufacturer’ means any entity, ing a drug that is, or may be, imported or of- ess a high volume of shipments of drugs to including any affiliate or licensee of that en- fered for import into the United States under individuals in the United States. tity, that is engaged in— section 804,’’. (F) FURTHER LIMIT ON NUMBER OF EXPORT- ‘‘(A) the production, preparation, propaga- (3) EFFECTIVE DATE.—The amendments ERS.—During any 1-year period beginning on tion, compounding, conversion, or processing made by this subsection shall take effect on a date that is 2 or more years after the date of a prescription drug, either directly or in- the date that is 90 days after the date of en- of enactment of this Act, the Secretary may directly by extraction from substances of actment of this Act. limit the number of registered exporters natural origin, or independently by means of (d) EXHAUSTION.— under such section 804 to not less than 25

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more than the number of such exporters dur- (A) GUIDANCE ON SUBMISSION DATES.—The effect, registered importers shall report to ing the previous 1-year period, so long as the Secretary shall by guidance establish a se- the Secretary the total price and the total Secretary gives priority to those exporters ries of submission dates for the notices under volume of drugs imported to the United with demonstrated ability to process a high subsection (g)(2)(B)(i) of such section 804 States by the importer during the 4-month volume of shipments of drugs to individuals with respect to qualifying drugs introduced period from October 1 through January 31 of in the United States. for commercial distribution as of the date of such fiscal year. (3) LIMITS ON NUMBER OF IMPORTERS.— enactment of this Act and that are not re- (ii) REESTIMATE.—Notwithstanding sub- (A) FIRST YEAR LIMIT ON NUMBER OF IM- quired to be submitted under paragraph (4) section (e)(3)(C)(ii) of such section 804 or sub- PORTERS.—During the 1-year period begin- or (5). paragraph (B), the Secretary shall reesti- ning on the date that is 1 year after the date (B) CONSISTENT AND EFFICIENT USE OF RE- mate the total price of qualifying drugs im- of enactment of this Act, the Secretary may SOURCES.—The Secretary shall establish the ported under subsection (a) of such section limit the number of registered importers dates described under subparagraph (A) so 804 into the United States by registered im- under such section 804 to not less than 100 (of that such notices described under subpara- porters during the second fiscal year in which at least a significant number shall be graph (A) are submitted and reviewed at a which this title is in effect. Such reestimate groups of pharmacies, to the extent feasible rate that allows consistent and efficient use shall be equal to— given the applications submitted by such of the resources and staff available to the (I) the total price of qualifying drugs im- groups), so long as the Secretary gives pri- Secretary for such reviews. The Secretary ported by each importer as reported under ority to those importers with demonstrated may condition the requirement to submit clause (i); multiplied by such a notice, and the review of such a no- (II) 3. ability to process a high volume of ship- tice, on the submission by a registered ex- (iii) ADJUSTMENT.—The Secretary shall ad- ments of drugs imported into the United porter or a registered importer to the Sec- just the fee due on April 1 of the second fis- States. retary of a notice that such exporter or im- cal year in which this title is in effect, from (B) SECOND YEAR LIMIT ON NUMBER OF IM- porter intends to import such qualifying each importer so that the aggregate total of PORTERS.—During the 1-year period begin- drug to the United States under such section fees collected under subsection (e)(2) for such ning on the date that is 2 years after the 804. fiscal year does not exceed the total price of date of enactment of this Act, the Secretary (C) PRIORITY FOR DRUGS WITH HIGHER qualifying drugs imported under subsection may limit the number of registered import- SALES.—The Secretary shall establish the (a) of such section 804 into the United States ers under such section 804 to not less than dates described under subparagraph (A) so by registered importers during such fiscal 200 (of which at least a significant number that the Secretary reviews the notices de- year as reestimated under clause (ii). shall be groups of pharmacies, to the extent scribed under such subparagraph with re- (D) FAILURE TO PAY FEES.—Notwith- feasible given the applications submitted by spect to qualifying drugs with higher dollar standing any other provision of this section, such groups), so long as the Secretary gives volume of sales in the United States before the Secretary may prohibit a registered im- priority to those importers with dem- the notices with respect to drugs with lower porter or exporter that is required to pay onstrated ability to process a high volume of sales in the United States. user fees under subsection (e) or (f) of such shipments of drugs into the United States. (7) NOTICES FOR DRUGS APPROVED AFTER EF- section 804 and that fails to pay such fees (C) FURTHER LIMIT ON NUMBER OF IMPORT- FECTIVE DATE.—The notice required under within 30 days after the date on which it is ERS.—During any 1-year period beginning on subsection (g)(2)(B)(i) of such section 804 for due, from importing or offering for importa- a date that is 3 or more years after the date a qualifying drug first introduced for com- tion a qualifying drug under such section 804 of enactment of this Act, the Secretary may mercial distribution in a permitted country until such fee is paid. limit the number of registered importers (as defined in such section 804) after the date (E) ANNUAL REPORT.— under such section 804 to not less than 50 of enactment of this Act shall be submitted (i) FOOD AND DRUG ADMINISTRATION.—Not more (of which at least a significant number to and reviewed by the Secretary as provided later than 180 days after the end of each fis- shall be groups of pharmacies, to the extent under subsection (g)(2)(B) of such section 804, cal year during which fees are collected feasible given the applications submitted by without regard to paragraph (4), (5), or (6). under subsection (e), (f), or (g)(2)(B)(iv) of such groups) than the number of such im- (8) REPORT.—Beginning with the first full such section 804, the Secretary shall prepare porters during the previous 1-year period, so fiscal year after the date of enactment of and submit to the House of Representatives long as the Secretary gives priority to those this Act, not later than 90 days after the end and the Senate a report on the implementa- importers with demonstrated ability to proc- of each fiscal year during which the Sec- tion of the authority for such fees during ess a high volume of shipments of drugs to retary reviews a notice referred to in para- such fiscal year and the use, by the Food and the United States. graph (4), (5), or (6), the Secretary shall sub- Drug Administration, of the fees collected (4) NOTICES FOR DRUGS FOR IMPORT FROM mit a report to Congress concerning the for the fiscal year for which the report is CANADA.—The notice with respect to a quali- progress of the Food and Drug Administra- made and credited to the Food and Drug Ad- fying drug introduced for commercial dis- tion in reviewing the notices referred to in ministration. tribution in Canada as of the date of enact- paragraphs (4), (5), and (6). (ii) CUSTOMS AND BORDER PROTECTION.—Not ment of this Act that is required under sub- (9) USER FEES.— later than 180 days after the end of each fis- section (g)(2)(B)(i) of such section 804 shall (A) EXPORTERS.—When establishing an ag- cal year during which fees are collected be submitted to the Secretary not later than gregate total of fees to be collected from ex- under subsection (e) or (f) of such section 804, 30 days after the date of enactment of this porters under subsection (f)(2) of such sec- the Secretary of Homeland Security, in con- Act if— tion 804, the Secretary shall, under sub- sultation with the Secretary of the Treas- (A) the U.S. label drug (as defined in such section (f)(3)(C)(i) of such section 804, esti- ury, shall prepare and submit to the House of section 804) for the qualifying drug is 1 of the mate the total price of drugs imported under Representatives and the Senate a report on 100 prescription drugs with the highest dollar subsection (a) of such section 804 into the the use, by the Bureau of Customs and Bor- volume of sales in the United States based United States by registered exporters during der Protection, of the fees, if any, trans- on the 12 calendar month period most re- the first fiscal year in which this title takes ferred by the Secretary to the Bureau of Cus- cently completed before the date of enact- effect to be an amount equal to the amount toms and Border Protection for the fiscal ment of this Act; or which bears the same ratio to $1,000,000,000 as year for which the report is made. (B) the notice is a notice under subsection the number of days in such fiscal year during (10) SPECIAL RULE REGARDING IMPORTATION (g)(2)(B)(i)(II) of such section 804. which this title is effective bears to 365. BY INDIVIDUALS.— (5) NOTICE FOR DRUGS FOR IMPORT FROM (B) IMPORTERS.—When establishing an ag- (A) IN GENERAL.—Notwithstanding any pro- OTHER COUNTRIES.—The notice with respect gregate total of fees to be collected from im- vision of this title (or an amendment made to a qualifying drug introduced for commer- porters under subsection (e)(2) of such sec- by this title), the Secretary shall expedite cial distribution in a permitted country tion 804, the Secretary shall, under sub- the designation of any additional permitted other than Canada as of the date of enact- section (e)(3)(C)(i) of such section 804, esti- countries from which an individual may im- ment of this Act that is required under sub- mate the total price of drugs imported under port a qualifying drug into the United States section (g)(2)(B)(i) of such section 804 shall subsection (a) of such section 804 into the under such section 804 if any action imple- be submitted to the Secretary not later than United States by registered importers dur- mented by the Government of Canada has 180 days after the date of enactment of this ing— the effect of limiting or prohibiting the im- Act if— (i) the first fiscal year in which this title portation of qualifying drugs into the United (A) the U.S. label drug for the qualifying takes effect to be an amount equal to the States from Canada. drug is 1 of the 100 prescription drugs with amount which bears the same ratio to (B) TIMING AND CRITERIA.—The Secretary the highest dollar volume of sales in the $1,000,000,000 as the number of days in such shall designate such additional permitted United States based on the 12 calendar fiscal year during which this title is effective countries under subparagraph (A)— month period that is first completed on the bears to 365; and (i) not later than 6 months after the date of date that is 120 days after the date of enact- (ii) the second fiscal year in which this the action by the Government of Canada de- ment of this Act; or title is in effect to be $3,000,000,000. scribed under such subparagraph; and (B) the notice is a notice under subsection (C) SECOND YEAR ADJUSTMENT.— (ii) using the criteria described under sub- (g)(2)(B)(i)(II) of such section 804. (i) REPORTS.—Not later than February 20 of section (a)(4)(D)(i)(II) of such section 804. (6) NOTICE FOR OTHER DRUGS FOR IMPORT.— the second fiscal year in which this title is in (f) IMPLEMENTATION OF SECTION 804.—

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(1) INTERIM RULE.—The Secretary may pro- ‘‘(2)(A) the shipping container for such subparagraph (A) to the person that receives mulgate an interim rule for implementing drugs does not bear the markings required the drug pursuant to the export of the drug. section 804 of the Federal Food, Drug, and under section 804(d)(2); or ‘‘(C)(i) The Secretary shall by regulation Cosmetic Act, as added by subsection (a) of ‘‘(B) the Secretary has requested delivery establish requirements that supersede sub- this section. of such shipment of drugs. paragraph (A) (referred to in this subpara- (2) NO NOTICE OF PROPOSED RULEMAKING.— ‘‘(b) NO BOND OR EXPORT.—Section 801(b) graph as ‘alternative requirements’) to iden- The interim rule described under paragraph does not authorize the delivery to the owner tify the chain of custody of a drug subject to (1) may be developed and promulgated by the or consignee of drugs delivered to the Sec- subsection (b) from the manufacturer of the Secretary without providing general notice retary under subsection (a) pursuant to the drug throughout the wholesale distribution of proposed rulemaking. execution of a bond, and such drugs may not of the drug to a pharmacist who intends to (3) FINAL RULE.—Not later than 1 year after be exported. sell the drug at retail if the Secretary deter- the date on which the Secretary promulgates ‘‘(c) DESTRUCTION OF VIOLATIVE SHIP- mines that the alternative requirements, an interim rule under paragraph (1), the Sec- MENT.—The Secretary shall destroy a ship- which may include standardized anti-coun- retary shall, in accordance with procedures ment of drugs delivered by the Secretary of terfeiting or track-and-trace technologies, under section 553 of title 5, United States Homeland Security to the Secretary under will identify such chain of custody or the Code, promulgate a final rule for imple- subsection (a) if— identity of the discrete package of the drug menting such section 804, which may incor- ‘‘(1) in the case of drugs that are imported from which the drug is dispensed with equal porate by reference provisions of the interim or offered for import from a registered ex- or greater certainty to the requirements of rule provided for under paragraph (1), to the porter under section 804, the drugs are in vio- subparagraph (A), and that the alternative extent that such provisions are not modified. lation of any standard described in section requirements are economically and tech- (g) CONSUMER EDUCATION.—The Secretary 804(g)(5); or nically feasible. shall carry out activities that educate con- ‘‘(2) in the case of drugs that are not im- ‘‘(ii) When the Secretary promulgates a sumers— ported or offered for import from a reg- final rule to establish such alternative re- (1) with regard to the availability of quali- istered exporter under section 804, the drugs quirements, the final rule in addition shall, fying drugs for import for personal use from are in violation of a standard referred to in with respect to the registration condition es- an exporter registered with and approved by section 801(a) or 801(d)(1). tablished in clause (i) of section 804(c)(3)(B), the Food and Drug Administration under ‘‘(d) CERTAIN PROCEDURES.— establish a condition equivalent to the alter- section 804 of the Federal Food, Drug, and ‘‘(1) IN GENERAL.—The delivery and de- native requirements, and such equivalent Cosmetic Act, as added by this section, in- struction of drugs under this section may be condition may be met in lieu of the registra- cluding information on how to verify wheth- carried out without notice to the importer, tion condition established in such clause er an exporter is registered and approved by owner, or consignee of the drugs except as (i).’’; use of the Internet website of the Food and required by section 801(g) or section 804(i)(2). (2) in paragraph (2)(A), by adding at the Drug Administration and the toll-free tele- The issuance of receipts for the drugs, and end the following: ‘‘The preceding sentence phone number required by this title; recordkeeping activities regarding the drugs, may not be construed as having any applica- (2) that drugs that consumers attempt to may be carried out on a summary basis. bility with respect to a registered exporter import from an exporter that is not reg- ‘‘(2) OBJECTIVE OF PROCEDURES.—Proce- under section 804.’’; and istered with and approved by the Food and dures promulgated under paragraph (1) shall (3) in paragraph (3), by striking ‘‘and sub- Drug Administration can be seized by the be designed toward the objective of ensuring section (d)—’’ in the matter preceding sub- United States Customs Service and de- that, with respect to efficiently utilizing paragraph (A) and all that follows through stroyed, and that such drugs may be counter- Federal resources available for carrying out ‘‘the term ‘wholesale distribution’ means’’ in feit, unapproved, unsafe, or ineffective; this section, a substantial majority of ship- subparagraph (B) and inserting the fol- (3) with regard to the suspension and ter- ments of drugs subject to described in sub- lowing: ‘‘and subsection (d), the term ‘whole- mination of any registration of a registered section (c) are identified and destroyed. sale distribution’ means’’. (b) CONFORMING AMENDMENT.—Section importer or exporter under such section 804; ‘‘(e) EVIDENCE EXCEPTION.—Drugs may not 503(d) of the Federal Food, Drug, and Cos- and be destroyed under subsection (c) to the ex- metic Act (21 U.S.C. 353(d)) is amended by (4) with regard to the availability at do- tent that the Attorney General of the United adding at the end the following: mestic retail pharmacies of qualifying drugs States determines that the drugs should be preserved as evidence or potential evidence ‘‘(4) Each manufacturer of a drug subject imported under such section 804 by domestic to subsection (b) shall maintain at its cor- wholesalers and pharmacies registered with with respect to an offense against the United States. porate offices a current list of the authorized and approved by the Food and Drug Adminis- distributors of record of such drug. tration. ‘‘(f) RULE OF CONSTRUCTION.—This section may not be construed as having any legal ef- ‘‘(5) For purposes of this subsection, the (h) EFFECT ON ADMINISTRATION PRAC- fect on applicable law with respect to a ship- term ‘authorized distributors of record’ TICES.—Notwithstanding any provision of ment of drugs that is imported or offered for means those distributors with whom a manu- this title (and the amendments made by this facturer has established an ongoing relation- title), the practices and policies of the Food import into the United States and has a de- clared value equal to or greater than ship to distribute such manufacturer’s prod- and Drug Administration and Bureau of Cus- ucts.’’. toms and Border Protection, in effect on $10,000.’’. (b) PROCEDURES.—Procedures for carrying (c) EFFECTIVE DATE.— January 1, 2004, with respect to the importa- out section 810 of the Federal Food, Drug, (1) IN GENERAL.—The amendments made by tion of prescription drugs into the United and Cosmetic Act, as added by subsection paragraphs (1) and (3) of subsection (a) and States by an individual, on the person of (a), shall be established not later than 90 by subsection (b) shall take effect on Janu- such individual, for personal use, shall re- days after the date of the enactment of this ary 1, 2013. main in effect. Act. (2) DRUGS IMPORTED BY REGISTERED IMPORT- (i) REPORT TO CONGRESS.—The Federal (c) EFFECTIVE DATE.—The amendments ERS UNDER SECTION 804.—Notwithstanding Trade Commission shall, on an annual basis, made by this section shall take effect on the paragraph (1), the amendments made by submit to Congress a report that describes date that is 90 days after the date of enact- paragraphs (1) and (3) of subsection (a) and any action taken during the period for which ment of this Act. by subsection (b) shall take effect on the the report is being prepared to enforce the SEC. 506. WHOLESALE DISTRIBUTION OF DRUGS; date that is 90 days after the date of enact- provisions of section 804(n) of the Federal STATEMENTS REGARDING PRIOR ment of this Act with respect to qualifying Food, Drug, and Cosmetic Act (as added by SALE, PURCHASE, OR TRADE. drugs imported under section 804 of the Fed- this title), including any pending investiga- (a) STRIKING OF EXEMPTIONS; APPLICABILITY eral Food, Drug, and Cosmetic Act, as added tions or civil actions under such section. TO REGISTERED EXPORTERS.—Section 503(e) of by section 504. SEC. 505. DISPOSITION OF CERTAIN DRUGS DE- the Federal Food, Drug, and Cosmetic Act (3) EFFECT WITH RESPECT TO REGISTERED EX- NIED ADMISSION INTO UNITED (21 U.S.C. 353(e)) is amended— PORTERS.—The amendment made by sub- STATES. (1) in paragraph (1)— section (a)(2) shall take effect on the date (a) IN GENERAL.—Chapter VIII of the Fed- (A) by striking ‘‘and who is not the manu- that is 90 days after the date of enactment of eral Food, Drug, and Cosmetic Act (21 U.S.C. facturer or an authorized distributor of this Act. 381 et seq.), as amended by this Act, is fur- record of such drug’’; (4) ALTERNATIVE REQUIREMENTS.—The Sec- ther amended by adding at the end the fol- (B) by striking ‘‘to an authorized dis- retary shall issue regulations to establish lowing section: tributor of record or’’; and the alternative requirements, referred to in ‘‘SEC. 810. DISPOSITION OF CERTAIN DRUGS DE- (C) by striking subparagraph (B) and in- the amendment made by subsection (a)(1), NIED ADMISSION. serting the following: that take effect not later than January 1, ‘‘(a) IN GENERAL.—The Secretary of Home- ‘‘(B) The fact that a drug subject to sub- 2013. land Security shall deliver to the Secretary section (b) is exported from the United (5) INTERMEDIATE REQUIREMENTS.—The Sec- a shipment of drugs that is imported or of- States does not with respect to such drug ex- retary shall by regulation require the use of fered for import into the United States if— empt any person that is engaged in the busi- standardized anti-counterfeiting or track- ‘‘(1) the shipment has a declared value of ness of the wholesale distribution of the drug and-trace technologies on prescription drugs less than $10,000; and from providing the statement described in at the case and pallet level effective not

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00031 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8142 CONGRESSIONAL RECORD — SENATE November 19, 2010 later than 1 year after the date of enactment ‘‘(iii) The address and telephone number of ical presence of the patient as part of con- of this Act. each place of business of the person with re- ducting the evaluation, without regard to (6) ADDITIONAL REQUIREMENTS.— spect to sales of prescription drugs through whether portions of the evaluation are con- (A) IN GENERAL.—Notwithstanding any the Internet, other than a place of business ducted by other health professionals. other provision of this section, the Secretary that does not mail or ship prescription drugs ‘‘(C) COVERING PRACTITIONER.—With respect shall, not later than 18 months after the date to purchasers. to a patient, a practitioner is a covering of enactment of this Act, require that the ‘‘(iv) The name of each individual who practitioner for purposes of this section if packaging of any prescription drug incor- serves as a pharmacist for prescription drugs the practitioner conducts a medical evalua- porates— that are mailed or shipped pursuant to the tion of the patient at the request of a practi- (i) a standardized numerical identifier site, and each State in which the individual tioner who has conducted at least one in-per- unique to each package of such drug, applied is authorized by law to dispense prescription son medical evaluation of the patient and is at the point of manufacturing and repack- drugs. temporarily unavailable to conduct the eval- aging (in which case the numerical identifier ‘‘(v) If the person provides for medical con- uation of the patient. A practitioner is a cov- shall be linked to the numerical identifier sultations through the site for purposes of ering practitioner without regard to whether applied at the point of manufacturing); and providing prescriptions, the name of each in- the practitioner has conducted any in-person (ii)(I) overt optically variable counterfeit- dividual who provides such consultations; medical evaluation of the patient involved. resistant technologies that— each State in which the individual is li- ‘‘(4) RULES OF CONSTRUCTION.— (aa) are visible to the naked eye, providing censed or otherwise authorized by law to ‘‘(A) INDIVIDUALS REPRESENTED AS PRACTI- for visual identification of product authen- provide such consultations or practice medi- TIONERS.—A person who is not a practitioner ticity without the need for readers, micro- cine; and the type or types of health profes- (as defined in subsection (e)(1)) lacks legal scopes, lighting devices, or scanners; sions for which the individual holds such li- capacity under this section to have a quali- (bb) are similar to that used by the Bureau censes or other authorizations. fying medical relationship with any patient. of Engraving and Printing to secure United ‘‘(B) A link to which paragraph (1) applies ‘‘(B) STANDARD PRACTICE OF PHARMACY.— States currency; shall be displayed in a clear and prominent Paragraph (1) may not be construed as pro- (cc) are manufactured and distributed in a place and manner, and shall include in the hibiting any conduct that is a standard prac- highly secure, tightly controlled environ- caption for the link the words ‘licensing and tice in the practice of pharmacy. ment; and contact information’. ‘‘(C) APPLICABILITY OF REQUIREMENTS.— (dd) incorporate additional layers of non- ‘‘(b) INTERNET SALES WITHOUT APPRO- Paragraph (3) may not be construed as hav- PRIATE MEDICAL RELATIONSHIPS.— visible convert security features up to and ing any applicability beyond this section, ‘‘(1) IN GENERAL.—Except as provided in including forensic capability, as described in and does not affect any State law, or inter- paragraph (2), a person may not dispense a subparagraph (B); or pretation of State law, concerning the prac- prescription drug, or sell such a drug, if— (II) technologies that have a function of se- tice of medicine. curity comparable to that described in sub- ‘‘(A) for purposes of such dispensing or clause (I), as determined by the Secretary. sale, the purchaser communicated with the ‘‘(c) ACTIONS BY STATES.— (B) STANDARDS FOR PACKAGING.—For the person through the Internet; ‘‘(1) IN GENERAL.—Whenever an attorney purpose of making it more difficult to coun- ‘‘(B) the patient for whom the drug was general of any State has reason to believe terfeit the packaging of drugs subject to this dispensed or purchased did not, when such that the interests of the residents of that paragraph, the manufacturers of such drugs communications began, have a prescription State have been or are being threatened or shall incorporate the technologies described for the drug that is valid in the United adversely affected because any person has in subparagraph (A) into at least 1 additional States; engaged or is engaging in a pattern or prac- element of the physical packaging of the ‘‘(C) pursuant to such communications, the tice that violates section 301(l), the State drugs, including blister packs, shrink wrap, person provided for the involvement of a may bring a civil action on behalf of its resi- package labels, package seals, bottles, and practitioner, or an individual represented by dents in an appropriate district court of the boxes. the person as a practitioner, and the practi- United States to enjoin such practice, to en- SEC. 507. INTERNET SALES OF PRESCRIPTION tioner or such individual issued a prescrip- force compliance with such section (includ- DRUGS. tion for the drug that was purchased; ing a nationwide injunction), to obtain dam- (a) IN GENERAL.—Chapter V of the Federal ‘‘(D) the person knew, or had reason to ages, restitution, or other compensation on Food, Drug, and Cosmetic Act (21 U.S.C. 351 know, that the practitioner or the individual behalf of residents of such State, to obtain et seq.) is amended by inserting after section referred to in subparagraph (C) did not, when reasonable attorneys fees and costs if the 503B the following: issuing the prescription, have a qualifying State prevails in the civil action, or to ob- ‘‘SEC. 503C. INTERNET SALES OF PRESCRIPTION medical relationship with the patient; and tain such further and other relief as the DRUGS. ‘‘(E) the person received payment for the court may deem appropriate. ‘‘(a) REQUIREMENTS REGARDING INFORMA- dispensing or sale of the drug. ‘‘(2) NOTICE.—The State shall serve prior TION ON INTERNET SITE.— For purposes of subparagraph (E), payment written notice of any civil action under para- ‘‘(1) IN GENERAL.—A person may not dis- is received if money or other valuable con- graph (1) or (5)(B) upon the Secretary and pense a prescription drug pursuant to a sale sideration is received. provide the Secretary with a copy of its com- of the drug by such person if— ‘‘(2) EXCEPTIONS.—Paragraph (1) does not plaint, except that if it is not feasible for the ‘‘(A) the purchaser of the drug submitted apply to— State to provide such prior notice, the State the purchase order for the drug, or conducted ‘‘(A) the dispensing or selling of a prescrip- shall serve such notice immediately upon in- any other part of the sales transaction for tion drug pursuant to telemedicine practices stituting such action. Upon receiving a no- the drug, through an Internet site; sponsored by— tice respecting a civil action, the Secretary ‘‘(B) the person dispenses the drug to the ‘‘(i) a hospital that has in effect a provider shall have the right— purchaser by mailing or shipping the drug to agreement under title XVIII of the Social ‘‘(A) to intervene in such action; the purchaser; and Security Act (relating to the Medicare pro- ‘‘(B) upon so intervening, to be heard on all ‘‘(C) such site, or any other Internet site gram); or matters arising therein; and used by such person for purposes of sales of ‘‘(ii) a group practice that has not fewer ‘‘(C) to file petitions for appeal. a prescription drug, fails to meet each of the than 100 physicians who have in effect pro- ‘‘(3) CONSTRUCTION.—For purposes of bring- requirements specified in paragraph (2), vider agreements under such title; or ing any civil action under paragraph (1), other than a site or pages on a site that— ‘‘(B) the dispensing or selling of a prescrip- nothing in this chapter shall prevent an at- ‘‘(i) are not intended to be accessed by pur- tion drug pursuant to practices that promote torney general of a State from exercising the chasers or prospective purchasers; or the public health, as determined by the Sec- powers conferred on the attorney general by ‘‘(ii) provide an Internet information loca- retary by regulation. the laws of such State to conduct investiga- tion tool within the meaning of section ‘‘(3) QUALIFYING MEDICAL RELATIONSHIP.— tions or to administer oaths or affirmations 231(e)(5) of the Communications Act of 1934 ‘‘(A) IN GENERAL.—With respect to issuing or to compel the attendance of witnesses or (47 U.S.C. 231(e)(5)). a prescription for a drug for a patient, a the production of documentary and other ‘‘(2) REQUIREMENTS.—With respect to an practitioner has a qualifying medical rela- evidence. Internet site, the requirements referred to in tionship with the patient for purposes of this ‘‘(4) VENUE; SERVICE OF PROCESS.—Any civil subparagraph (C) of paragraph (1) for a per- section if— action brought under paragraph (1) in a dis- son to whom such paragraph applies are as ‘‘(i) at least one in-person medical evalua- trict court of the United States may be follows: tion of the patient has been conducted by the brought in the district in which the defend- ‘‘(A) Each page of the site shall include ei- practitioner; or ant is found, is an inhabitant, or transacts ther the following information or a link to a ‘‘(ii) the practitioner conducts a medical business or wherever venue is proper under page that provides the following informa- evaluation of the patient as a covering prac- section 1391 of title 28, United States Code. tion: titioner. Process in such an action may be served in ‘‘(i) The name of such person. ‘‘(B) IN-PERSON MEDICAL EVALUATION.—A any district in which the defendant is an in- ‘‘(ii) Each State in which the person is au- medical evaluation by a practitioner is an habitant or in which the defendant may be thorized by law to dispense prescription in-person medical evaluation for purposes of found. drugs. this section if the practitioner is in the phys- ‘‘(5) ACTIONS BY OTHER STATE OFFICIALS.—

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‘‘(A) Nothing contained in this section ‘‘(h) NO EFFECT ON OTHER REQUIREMENTS; ‘‘(2) PAYMENT SYSTEM.— shall prohibit an authorized State official COORDINATION.—The requirements of this ‘‘(A) IN GENERAL.—The term ‘payment sys- from proceeding in State court on the basis section are in addition to, and do not super- tem’ means a system used by a person de- of an alleged violation of any civil or crimi- sede, any requirements under the Controlled scribed in subparagraph (B) to effect a credit nal statute of such State. Substances Act or the Controlled Substances transaction, electronic fund transfer, or ‘‘(B) In addition to actions brought by an Import and Export Act (or any regulation money transmitting service that may be attorney general of a State under paragraph promulgated under either such Act) regard- used in connection with, or to facilitate, a (1), such an action may be brought by offi- ing Internet pharmacies and controlled sub- restricted transaction, and includes— cers of such State who are authorized by the stances. In promulgating regulations to ‘‘(i) a credit card system; State to bring actions in such State on be- carry out this section, the Secretary shall ‘‘(ii) an international, national, regional, half of its residents. coordinate with the Attorney General to en- or local network used to effect a credit ‘‘(d) EFFECT OF SECTION.—This section sure that such regulations do not duplicate transaction, an electronic fund transfer, or a shall not apply to a person that is a reg- or conflict with the requirements described money transmitting service; and istered exporter under section 804. in the previous sentence, and that such regu- ‘‘(iii) any other system that is centrally ‘‘(e) GENERAL DEFINITIONS.—For purposes lations and requirements coordinate to the managed and is primarily engaged in the of this section: extent practicable.’’. transmission and settlement of credit trans- ‘‘(1) The term ‘practitioner’ means a prac- (b) INCLUSION AS PROHIBITED ACT.—Section actions, electronic fund transfers, or money titioner referred to in section 503(b)(1) with 301 of the Federal Food, Drug, and Cosmetic transmitting services. respect to issuing a written or oral prescrip- Act (21 U.S.C. 331) is amended by inserting ‘‘(B) PERSONS DESCRIBED.—A person re- tion. after paragraph (k) the following: ferred to in subparagraph (A) is— ‘‘(2) The term ‘prescription drug’ means a ‘‘(l) The dispensing or selling of a prescrip- ‘‘(i) a creditor; drug that is described in section 503(b)(1). tion drug in violation of section 503C.’’. ‘‘(ii) a credit card issuer; ‘‘(3) The term ‘qualifying medical relation- (c) INTERNET SALES OF PRESCRIPTION ‘‘(iii) a financial institution; ship’, with respect to a practitioner and a pa- DRUGS; CONSIDERATION BY SECRETARY OF ‘‘(iv) an operator of a terminal at which an tient, has the meaning indicated for such PRACTICES AND PROCEDURES FOR CERTIFI- electronic fund transfer may be initiated; term in subsection (b). CATION OF LEGITIMATE BUSINESSES.—In car- ‘‘(v) a money transmitting business; or ‘‘(f) INTERNET-RELATED DEFINITIONS.— rying out section 503C of the Federal Food, ‘‘(vi) a participant in an international, na- ‘‘(1) IN GENERAL.—For purposes of this sec- Drug, and Cosmetic Act (as added by sub- tion: section (a) of this section), the Secretary of tional, regional, or local network used to ef- ‘‘(A) The term ‘Internet’ means collec- Health and Human Services shall take into fect a credit transaction, electronic fund tively the myriad of computer and tele- consideration the practices and procedures of transfer, or money transmitting service. communications facilities, including equip- public or private entities that certify that ‘‘(3) RESTRICTED TRANSACTION.—The term ment and operating software, which com- businesses selling prescription drugs through ‘restricted transaction’ means a transaction prise the interconnected world-wide network Internet sites are legitimate businesses, in- or transmittal, on behalf of an individual of networks that employ the transmission cluding practices and procedures regarding who places an unlawful drug importation re- control protocol/internet protocol, or any disclosure formats and verification pro- quest to any person engaged in the operation predecessor or successor protocols to such grams. of an unregistered foreign pharmacy, of— protocol, to communicate information of all (d) REPORTS REGARDING INTERNET-RELATED ‘‘(A) credit, or the proceeds of credit, ex- kinds by wire or radio. VIOLATIONS OF FEDERAL AND STATE LAWS ON tended to or on behalf of the individual for ‘‘(B) The term ‘link’, with respect to the DISPENSING OF DRUGS.— the purpose of the unlawful drug importation Internet, means one or more letters, words, (1) IN GENERAL.—The Secretary of Health request (including credit extended through numbers, symbols, or graphic items that ap- and Human Services (referred to in this sub- the use of a credit card); pear on a page of an Internet site for the pur- section as the ‘‘Secretary’’) shall, pursuant ‘‘(B) an electronic fund transfer or funds pose of serving, when activated, as a method to the submission of an application meeting transmitted by or through a money trans- for executing an electronic command— the criteria of the Secretary, make an award mitting business, or the proceeds of an elec- ‘‘(i) to move from viewing one portion of a of a grant or contract to the National Clear- tronic fund transfer or money transmitting page on such site to another portion of the inghouse on Internet Prescribing (operated service, from or on behalf of the individual page; by the Federation of State Medical Boards) for the purpose of the unlawful drug impor- ‘‘(ii) to move from viewing one page on for the purpose of— tation request; such site to another page on such site; or (A) identifying Internet sites that appear ‘‘(C) a check, draft, or similar instrument ‘‘(iii) to move from viewing a page on one to be in violation of Federal or State laws which is drawn by or on behalf of the indi- Internet site to a page on another Internet concerning the dispensing of drugs; vidual for the purpose of the unlawful drug site. (B) reporting such sites to State medical importation request and is drawn on or pay- ‘‘(C) The term ‘page’, with respect to the licensing boards and State pharmacy licens- able at or through any financial institution; Internet, means a document or other file ing boards, and to the Attorney General and or accessed at an Internet site. the Secretary, for further investigation; and ‘‘(D) the proceeds of any other form of fi- ‘‘(D)(i) The terms ‘site’ and ‘address’, with (C) submitting, for each fiscal year for nancial transaction (identified by the Board respect to the Internet, mean a specific loca- which the award under this subsection is by regulation) that involves a financial in- tion on the Internet that is determined by made, a report to the Secretary describing stitution as a payor or financial inter- Internet Protocol numbers. Such term in- investigations undertaken with respect to mediary on behalf of or for the benefit of the cludes the domain name, if any. violations described in subparagraph (A). individual for the purpose of the unlawful ‘‘(ii) The term ‘domain name’ means a (2) AUTHORIZATION OF APPROPRIATIONS.— drug importation request. method of representing an Internet address For the purpose of carrying out paragraph ‘‘(4) UNLAWFUL DRUG IMPORTATION RE- without direct reference to the Internet Pro- (1), there is authorized to be appropriated QUEST.—The term ‘unlawful drug importa- tocol numbers for the address, including $100,000 for each of the first 3 fiscal years in tion request’ means the request, or trans- methods that use designations such as which this section is in effect. mittal of a request, made to an unregistered ‘.com’, ‘.edu’, ‘.gov’, ‘.net’, or ‘.org’. (e) EFFECTIVE DATE.—The amendments foreign pharmacy for a prescription drug by ‘‘(iii) The term ‘Internet Protocol num- made by subsections (a) and (b) take effect 90 mail (including a private carrier), facsimile, bers’ includes any successor protocol for de- days after the date of enactment of this Act, phone, or electronic mail, or by a means that termining a specific location on the Inter- without regard to whether a final rule to im- involves the use, in whole or in part, of the net. plement such amendments has been promul- Internet. ‘‘(5) UNREGISTERED FOREIGN PHARMACY.— ‘‘(2) AUTHORITY OF SECRETARY.—The Sec- gated by the Secretary of Health and Human retary may by regulation modify any defini- Services under section 701(a) of the Federal The term ‘unregistered foreign pharmacy’ tion under paragraph (1) to take into ac- Food, Drug, and Cosmetic Act. The preceding means a person in a country other than the count changes in technology. sentence may not be construed as affecting United States that is not a registered ex- ‘‘(g) INTERACTIVE COMPUTER SERVICE; AD- the authority of such Secretary to promul- porter under section 804. VERTISING.—No provider of an interactive gate such a final rule. ‘‘(6) OTHER DEFINITIONS.— computer service, as defined in section SEC. 508. PROHIBITING PAYMENTS TO UNREGIS- ‘‘(A) CREDIT; CREDITOR; CREDIT CARD.—The 230(f)(2) of the Communications Act of 1934 TERED FOREIGN PHARMACIES. terms ‘credit’, ‘creditor’, and ‘credit card’ (47 U.S.C. 230(f)(2)), or of advertising services (a) IN GENERAL.—Section 303 of the Federal have the meanings given the terms in sec- shall be liable under this section for dis- Food, Drug, and Cosmetic Act (21 U.S.C. 333) tion 103 of the Truth in Lending Act (15 pensing or selling prescription drugs in vio- is amended by adding at the end the fol- U.S.C. 1602). lation of this section on account of another lowing: ‘‘(B) ACCESS DEVICE; ELECTRONIC FUND person’s selling or dispensing such drugs, ‘‘(h) RESTRICTED TRANSACTIONS.— TRANSFER.—The terms ‘access device’ and provided that the provider of the interactive ‘‘(1) IN GENERAL.—The introduction of re- ‘electronic fund transfer’— computer service or of advertising services stricted transactions into a payment system ‘‘(i) have the meaning given the term in does not own or exercise corporate control or the completion of restricted transactions section 903 of the Electronic Fund Transfer over such person. using a payment system is prohibited. Act (15 U.S.C. 1693a); and

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00033 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8144 CONGRESSIONAL RECORD — SENATE November 19, 2010 ‘‘(ii) the term ‘electronic fund transfer’ eral Trade Commission under applicable law 956(a)(2)) is amended by striking ‘‘not import also includes any fund transfer covered in the manner provided in section 505(a) of the controlled substance into the United under Article 4A of the Uniform Commercial the Gramm-Leach-Bliley Act (15 U.S.C. States in an amount that exceeds 50 dosage Code, as in effect in any State. 6805(a)). units of the controlled substance.’’ and in- ‘‘(C) FINANCIAL INSTITUTION.—The term ‘fi- ‘‘(ii) FACTORS TO BE CONSIDERED.—In con- serting ‘‘import into the United States not nancial institution’— sidering any enforcement action under this more than 10 dosage units combined of all ‘‘(i) has the meaning given the term in sec- subsection against a payment system or per- such controlled substances.’’. tion 903 of the Electronic Transfer Fund Act son described in paragraph (2)(B), the Fed- SEC. 510. SEVERABILITY. (15 U.S.C. 1693a); and eral functional regulators and the Federal If any provision of this title, an amend- ‘‘(ii) includes a financial institution (as de- Trade Commission shall consider the fol- ment by this title, or the application of such fined in section 509 of the Gramm-Leach-Bli- lowing factors: provision or amendment to any person or ley Act (15 U.S.C. 6809)). ‘‘(I) The extent to which the payment sys- circumstance is held to be unconstitutional, ‘‘(D) MONEY TRANSMITTING BUSINESS; MONEY tem or person knowingly permits restricted the remainder of this title, the amendments TRANSMITTING SERVICE.—The terms ‘money transactions. made by this title, and the application of the transmitting business’ and ‘money transmit- ‘‘(II) The history of the payment system or provisions of such to any person or cir- ting service’ have the meaning given the person in connection with permitting re- cumstance shall not affected thereby. terms in section 5330(d) of title 31, United stricted transactions. States Code. ‘‘(III) The extent to which the payment SA 4717. Mr. REID (for Mr. WYDEN) ‘‘(E) BOARD.—The term ‘Board’ means the system or person has established and is proposed an amendment to the bill S. Board of Governors of the Federal Reserve maintaining policies and procedures in com- System. 3650, to amend chapter 21 of title 5, pliance with regulations prescribed under United States Code, to provide that fa- ‘‘(7) POLICIES AND PROCEDURES REQUIRED TO this subsection. PREVENT RESTRICTED TRANSACTIONS.— ‘‘(8) TRANSACTIONS PERMITTED.—A payment thers of certain permanently disabled ‘‘(A) REGULATIONS.—The Board shall pro- system, or a person described in paragraph or deceased veterans shall be included mulgate regulations requiring— (2)(B) that is subject to a regulation issued with mothers of such veterans as pref- ‘‘(i) an operator of a credit card system; under this subsection, is authorized to en- erence eligibles for treatment in the ‘‘(ii) an operator of an international, na- gage in transactions with foreign pharmacies civil service; as follows: tional, regional, or local network used to ef- in connection with investigating violations fect a credit transaction, an electronic fund Strike section 1 and redesignate sections 2 or potential violations of any rule or require- and 3 as sections 1 and 2, respectively. transfer, or a money transmitting service; ment adopted by the payment system or per- ‘‘(iii) an operator of any other payment son in connection with complying with para- SA 4718. Mr. REID (for Mr. HATCH) system that is centrally managed and is pri- graph (7). A payment system, or such a per- marily engaged in the transmission and set- proposed an amendment to the bill son, and its agents and employees shall not H.R. 6198, to amend title 11 of the tlement of credit transactions, electronic be found to be in violation of, or liable transfers or money transmitting services under, any Federal, State or other law by United States Code to make technical where at least one party to the transaction virtue of engaging in any such transaction. corrections; and for related purposes; or transfer is an individual; and ‘‘(9) RELATION TO STATE LAWS.—No require- as follows: ‘‘(iv) any other person described in para- ment, prohibition, or liability may be im- On page 3, strike lines 1 through 5 and in- graph (2)(B) and specified by the Board in posed on a payment system, or a person de- sert the following: ‘‘and such regulations, scribed in paragraph (2)(B) that is subject to ‘‘(F) in paragraph (51D), by inserting ‘of to establish policies and procedures that are a regulation issued under this subsection, the filing’ after ‘date’ the 1st place it ap- reasonably designed to prevent the introduc- under the laws of any state with respect to pears,’’ tion of a restricted transaction into a pay- any payment transaction by an individual ment system or the completion of a re- because the payment transaction involves a SA 4719. Mr. REID (for Mr. BAUCUS) stricted transaction using a payment system payment to a foreign pharmacy. proposed an amendment to the bill ‘‘(B) REQUIREMENTS FOR POLICIES AND PRO- ‘‘(10) TIMING OF REQUIREMENTS.—A payment CEDURES.—In promulgating regulations H.R. 4783, may be cited as ‘‘The claims system, or a person described in paragraph under subparagraph (A), the Board shall— Resettlement Act of 2010’’, as follows: (2)(B) that is subject to a regulation issued ‘‘(i) identify types of policies and proce- Strike all after the enacting clause and in- under this subsection, must adopt policies dures, including nonexclusive examples, that sert the following: and procedures reasonably designed to com- shall be considered to be reasonably designed ply with any regulations required under SECTION 1. SHORT TITLE; TABLE OF CONTENTS. to prevent the introduction of restricted paragraph (7) within 60 days after such regu- (a) SHORT TITLE.—This Act may be cited as transactions into a payment system or the lations are issued in final form. the ‘‘Claims Resolution Act of 2010’’. completion of restricted transactions using a (b) TABLE OF CONTENTS.—The table of con- payment system; and ‘‘(11) COMPLIANCE.—A payment system, and any person described in paragraph (2)(B), tents of this Act is as follows: ‘‘(ii) to the extent practicable, permit any Sec. 1. Short title; table of contents. payment system, or person described in para- shall not be deemed to be in violation of graph (2)(B), as applicable, to choose among paragraph (1)— TITLE I—INDIVIDUAL INDIAN MONEY alternative means of preventing the intro- ‘‘(A)(i) if an alleged violation of paragraph ACCOUNT LITIGATION SETTLEMENT duction or completion of restricted trans- (1) occurs prior to the mandatory compliance Sec. 101. Individual Indian Money Account actions. date of the regulations issued under para- Litigation Settlement. graph (7); and ‘‘(C) NO LIABILITY FOR BLOCKING OR REFUS- TITLE II—FINAL SETTLEMENT OF ‘‘(ii) such entity has adopted or relied on ING TO HONOR RESTRICTED TRANSACTION.— CLAIMS FROM IN RE BLACK FARMERS policies and procedures that are reasonably ‘‘(i) IN GENERAL.—A payment system, or a DISCRIMINATION LITIGATION person described in paragraph (2)(B) that is designed to prevent the introduction of re- stricted transactions into a payment system Sec. 201. Appropriation of funds for final set- subject to a regulation issued under this sub- tlement of claims from In re section, and any participant in such pay- or the completion of restricted transactions using a payment system; or Black Farmers Discrimination ment system that prevents or otherwise re- Litigation. fuses to honor transactions in an effort to ‘‘(B)(i) if an alleged violation of paragraph TITLE III—WHITE MOUNTAIN APACHE implement the policies and procedures re- (1) occurs after the mandatory compliance TRIBE WATER RIGHTS QUANTIFICATION quired under this subsection or to otherwise date of such regulations; and comply with this subsection shall not be lia- ‘‘(ii) such entity is in compliance with such Sec. 301. Short title. ble to any party for such action. regulations.’’. Sec. 302. Purposes. (b) EFFECTIVE DATE.—The amendment Sec. 303. Definitions. ‘‘(ii) COMPLIANCE.—A person described in made by this section shall take effect on the Sec. 304. Approval of Agreement. paragraph (2)(B) meets the requirements of day that is 90 days after the date of enact- Sec. 305. Water rights. this subsection if the person relies on and ment of this Act. Sec. 306. Contract. complies with the policies and procedures of (c) IMPLEMENTATION.—The Board of Gov- Sec. 307. Authorization of WMAT rural a payment system of which the person is a ernors of the Federal Reserve System shall water system. member or in which the person is a partici- promulgate regulations as required by sub- Sec. 308. Satisfaction of claims. pant, and such policies and procedures of the section (h)(7) of section 303 of the Federal Sec. 309. Waivers and releases of claims. payment system comply with the require- Food, Drug, and Cosmetic Act (21 U.S.C. 333), Sec. 310. White Mountain Apache Tribe ments of the regulations promulgated under as added by subsection (a), not later than 90 Water Rights Settlement Sub- subparagraph (A). days after the date of enactment of this Act. account. ‘‘(D) ENFORCEMENT.— SEC. 509. IMPORTATION EXEMPTION UNDER CON- Sec. 311. Miscellaneous provisions. ‘‘(i) IN GENERAL.—This subsection, and the TROLLED SUBSTANCES IMPORT AND Sec. 312. Funding. regulations promulgated under this sub- EXPORT ACT. Sec. 313. Antideficiency. section, shall be enforced exclusively by the Section 1006(a)(2) of the Controlled Sub- Sec. 314. Compliance with environmental Federal functional regulators and the Fed- stances Import and Export Act (21 U.S.C. laws.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00034 Fmt 4637 Sfmt 0655 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8145 TITLE IV—CROW TRIBE WATER RIGHTS Sec. 822. Limitation on distributions relat- claims asserted in the Amended Complaint SETTLEMENT ing to repeal of continued for purposes of the Settlement. Sec. 401. Short title. dumping and subsidy offset. (2) CERTIFICATION OF TRUST ADMINISTRATION Sec. 402. Purposes. Subtitle D—Emergency Fund for Indian CLASS.— Sec. 403. Definitions. Safety and Health (A) IN GENERAL.—Notwithstanding the re- Sec. 404. Ratification of Compact. Sec. 831. Emergency Fund for Indian Safety quirements of the Federal Rules of Civil Pro- cedure, the court in the Litigation may cer- Sec. 405. Rehabilitation and improvement of and Health. Crow Irrigation Project. tify the Trust Administration Class. Sec. 406. Design and construction of MR&I Subtitle E—Rescission of Funds From WIC (B) TREATMENT.—On certification under System. Program subparagraph (A), the Trust Administration Sec. 407. Tribal water rights. Sec. 841. Rescission of funds from WIC pro- Class shall be treated as a class certified Sec. 408. Storage allocation from Bighorn gram. under rule 23(b)(3) of the Federal Rules of Lake. Subtitle F—Budgetary Effects Civil Procedure for purposes of the Settle- Sec. 409. Satisfaction of claims. Sec. 851. Budgetary effects. ment. Sec. 410. Waivers and releases of claims. (e) TRUST LAND CONSOLIDATION.— Sec. 411. Crow Settlement Fund. TITLE I—INDIVIDUAL INDIAN MONEY (1) TRUST LAND CONSOLIDATION FUND.— Sec. 412. Yellowtail Dam, Montana. ACCOUNT LITIGATION SETTLEMENT (A) ESTABLISHMENT.—On final approval of Sec. 413. Miscellaneous provisions. SEC. 101. INDIVIDUAL INDIAN MONEY ACCOUNT the Settlement, there shall be established in Sec. 414. Funding. LITIGATION SETTLEMENT. the Treasury of the United States a fund, to Sec. 415. Repeal on failure to meet enforce- (a) DEFINITIONS.—In this section: be known as the ‘‘Trust Land Consolidation ability date. (1) AGREEMENT ON ATTORNEYS’ FEES, EX- Fund’’. Sec. 416. Antideficiency. PENSES, AND COSTS.—The term ‘‘Agreement (B) AVAILABILITY OF AMOUNTS.—Amounts TITLE V—TAOS PUEBLO INDIAN WATER on Attorneys’ Fees, Expenses, and Costs’’ in the Trust Land Consolidation Fund shall RIGHTS means the agreement dated December 7, 2009, be made available to the Secretary during Sec. 501. Short title. between Class Counsel (as defined in the Set- the 10-year period beginning on the date of Sec. 502. Purposes. tlement) and the Defendants (as defined in final approval of the Settlement— Sec. 503. Definitions. the Settlement) relating to attorneys’ fees, (i) to conduct the Land Consolidation Pro- Sec. 504. Pueblo rights. expenses, and costs incurred by Class Coun- gram; and Sec. 505. Taos Pueblo Water Development sel in connection with the Litigation and im- (ii) for other costs specified in the Settle- Fund. plementation of the Settlement, as modified ment. Sec. 506. Marketing. by the parties to the Litigation. (C) DEPOSITS.— Sec. 507. Mutual-Benefit Projects. (2) AMENDED COMPLAINT.—The term (i) IN GENERAL.—On final approval of the Sec. 508. San Juan-Chama Project contracts. ‘‘Amended Complaint’’ means the Amended Settlement, the Secretary of the Treasury Sec. 509. Authorizations, ratifications, con- Complaint attached to the Settlement. shall deposit in the Trust Land Consolida- firmations, and conditions (3) FINAL APPROVAL.—The term ‘‘final ap- tion Fund $1,900,000,000 out of the amounts precedent. proval’’ has the meaning given the term in appropriated to pay final judgments, awards, Sec. 510. Waivers and releases of claims. the Settlement. and compromise settlements under section Sec. 511. Interpretation and enforcement. (4) LAND CONSOLIDATION PROGRAM.—The 1304 of title 31, United States Code. Sec. 512. Disclaimer. term ‘‘Land Consolidation Program’’ means (ii) CONDITIONS MET.—The conditions de- Sec. 513. Antideficiency. a program conducted in accordance with the scribed in section 1304 of title 31, United TITLE VI—AAMODT LITIGATION Settlement, the Indian Land Consolidation States Code, shall be deemed to be met for SETTLEMENT Act (25 U.S.C. 2201 et seq.), and subsection purposes of clause (i). Sec. 601. Short title. (e)(2) under which the Secretary may pur- (D) TRANSFERS.—In a manner designed to Sec. 602. Definitions. chase fractional interests in trust or re- encourage participation in the Land Consoli- Subtitle A—Pojoaque Basin Regional Water stricted land. dation Program, the Secretary may transfer, System (5) LITIGATION.—The term ‘‘Litigation’’ at the discretion of the Secretary, not more Sec. 611. Authorization of Regional Water means the case entitled Elouise Cobell et al. than $60,000,000 of amounts in the Trust Land System. v. Ken Salazar et al., United States District Consolidation Fund to the Indian Education Sec. 612. Operating Agreement. Court, District of Columbia, Civil Action No. Scholarship Holding Fund established under Sec. 613. Acquisition of Pueblo water supply 96–1285 (TFH). paragraph (3). for Regional Water System. (6) PLAINTIFF.—The term ‘‘Plaintiff’’ (2) OPERATION.—The Secretary shall con- Sec. 614. Delivery and allocation of Regional means a member of any class certified in the sult with Indian tribes to identify fractional Water System capacity and Litigation. interests within the respective jurisdictions water. (7) SECRETARY.—The term ‘‘Secretary’’ of the Indian tribes for purchase in a manner Sec. 615. Aamodt Settlement Pueblos’ Fund. means the Secretary of the Interior. that is consistent with the priorities of the Sec. 616. Environmental compliance. (8) SETTLEMENT.—The term ‘‘Settlement’’ Secretary. Sec. 617. Funding. means the Class Action Settlement Agree- (3) INDIAN EDUCATION SCHOLARSHIP HOLDING Subtitle B—Pojoaque Basin Indian Water ment dated December 7, 2009, in the Litiga- FUND.— Rights Settlement tion, as modified by the parties to the Liti- (A) ESTABLISHMENT.—On final approval of the Settlement, there shall be established in Sec. 621. Settlement Agreement and con- gation. the Treasury of the United States a fund, to tract approval. (9) TRUST ADMINISTRATION ADJUSTMENT be known as the ‘‘Indian Education Scholar- Sec. 622. Environmental compliance. FUND.—The term ‘‘Trust Administration Ad- ship Holding Fund’’. Sec. 623. Conditions precedent and enforce- justment Fund’’ means the $100,000,000 depos- (B) AVAILABILITY.—Notwithstanding any ment date. ited in the Settlement Account (as defined in Sec. 624. Waivers and releases of claims. the Settlement) pursuant to subsection (j)(1) other provision of law governing competi- Sec. 625. Effect. for use in making the adjustments author- tion, public notification, or Federal procure- Sec. 626. Antideficiency. ized by that subsection. ment or assistance, amounts in the Indian Education Scholarship Holding Fund shall be TITLE VII—RECLAMATION WATER (10) TRUST ADMINISTRATION CLASS.—The made available, without further appropria- SETTLEMENTS FUND term ‘‘Trust Administration Class’’ means the Trust Administration Class as defined in tion, to the Secretary to contribute to an In- Sec. 701. Mandatory appropriation. the Settlement. dian Education Scholarship Fund, as de- TITLE VIII—GENERAL PROVISIONS (b) PURPOSE.—The purpose of this section scribed in the Settlement, to provide schol- Subtitle A—Unemployment Compensation is to authorize the Settlement. arships for Native Americans. Program Integrity (c) AUTHORIZATION.— (4) ACQUISITION OF TRUST OR RESTRICTED Sec. 801. Collection of past-due, legally en- (1) IN GENERAL.—The Settlement is author- LAND.—The Secretary may acquire, at the forceable State debts. ized, ratified, and confirmed. discretion of the Secretary and in accord- Sec. 802. Reporting of first day of earnings (2) AMENDMENTS.—Any amendment to the ance with the Land Consolidation Program, to directory of new hires. Settlement is authorized, ratified, and con- any fractional interest in trust or restricted land. Subtitle B—TANF firmed, to the extent that such amendment is executed to make the Settlement con- (5) TREATMENT OF UNLOCATABLE PLAIN- Sec. 811. Extension of the Temporary Assist- sistent with this section. TIFFS.—A Plaintiff, the whereabouts of whom ance for Needy Families pro- (d) JURISDICTIONAL PROVISIONS.— are unknown and who, after reasonable ef- gram. (1) IN GENERAL.—Notwithstanding the limi- forts by the Secretary, cannot be located Sec. 812. Modifications to TANF data report- tation on the jurisdiction of the district during the 5-year period beginning on the ing. courts of the United States in section date of final approval of the Settlement, Subtitle C—Customs User Fees; Continued 1346(a)(2) of title 28, United States Code, the shall be considered to have accepted an offer Dumping and Subsidy Offset United States District Court for the District made pursuant to the Land Consolidation Sec. 821. Customs user fees. of Columbia shall have jurisdiction of the Program.

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(f) TAXATION AND OTHER BENEFITS.— Secretary of the Treasury shall deposit in section 14012(a)(3) of the Food, Conservation, (1) INTERNAL REVENUE CODE.—For purposes the Trust Administration Adjustment Fund and Energy Act of 2008 (Public Law 110–246; of the Internal Revenue Code of 1986, of the Settlement Account (as defined in the 122 Stat. 2210). amounts received by an individual Indian as Settlement) $100,000,000 out of the amounts (b) APPROPRIATION OF FUNDS.—There is ap- a lump sum or a periodic payment pursuant appropriated to pay final judgments, awards, propriated to the Secretary of Agriculture to the Settlement shall not be— and compromise settlements under section $1,150,000,000, to remain available until ex- (A) included in gross income; or 1304 of title 31, United States Code, to be al- pended, to carry out the terms of the Settle- (B) taken into consideration for purposes located and paid by the Claims Adminis- ment Agreement if the Settlement Agree- of applying any provision of the Internal trator (as defined in the Settlement and pur- ment is approved by a court order that is or Revenue Code that takes into account ex- suant to paragraph E.1.e of the Settlement) becomes final and nonappealable, and the cludable income in computing adjusted gross in accordance with this subsection. court finds that the Settlement Agreement income or modified adjusted gross income, (B) CONDITIONS MET.—The conditions de- is modified to incorporate the additional including section 86 of that Code (relating to scribed in section 1304 of title 31, United terms contained in subsection (g). The funds Social Security and tier 1 railroad retire- States Code, shall be deemed to be met for appropriated by this subsection are in addi- ment benefits). purposes of subparagraph (A). tion to the $100,000,000 of funds of the Com- (2) OTHER BENEFITS.—Notwithstanding any (2) ADJUSTMENT.— modity Credit Corporation made available other provision of law, for purposes of deter- (A) IN GENERAL.—After the calculation of by section 14012(i) of the Food, Conservation, mining initial eligibility, ongoing eligibility, the pro rata share in Section E.4.b of the and Energy Act of 2008 (Public Law 110–246; or level of benefits under any Federal or fed- Settlement, the Trust Administration Ad- 122 Stat. 2212) and shall be available for obli- erally assisted program, amounts received by justment Fund shall be used to increase the gation only after those Commodity Credit an individual Indian as a lump sum or a peri- minimum payment to each Trust Adminis- Corporation funds are fully obligated. If the odic payment pursuant to the Settlement tration Class Member whose pro rata share Settlement Agreement is not approved as shall not be treated for any household mem- is— provided in this subsection, the $100,000,000 of ber, during the 1-year period beginning on (i) zero; or funds of the Commodity Credit Corporation the date of receipt— (ii) greater than zero, but who would, after made available by section 14012(i) of the (A) as income for the month during which adjustment under this subparagraph, other- Food, Conservation, and Energy Act of 2008 the amounts were received; or wise receive a smaller Stage 2 payment than shall be the sole funding available for (B) as a resource. those Trust Administration Class Members Pigford claims. (g) INCENTIVE AWARDS AND AWARD OF AT- described in clause (i). (c) USE OF FUNDS.—The use of the funds ap- TORNEYS’ FEES, EXPENSES, AND COSTS UNDER (B) RESULT.—The amounts in the Trust Ad- propriated by subsection (b) shall be subject SETTLEMENT AGREEMENT.— ministration Adjustment Fund shall be ap- to the express terms of the Settlement (1) IN GENERAL.—Subject to paragraph (3), plied in such a manner as to ensure, to the Agreement. the court in the Litigation shall determine extent practicable (as determined by the (d) TREATMENT OF REMAINING FUNDS.—If the amount to which the Plaintiffs in the court in the Litigation), that each Trust Ad- any of the funds appropriated by subsection Litigation may be entitled for incentive ministration Class Member receiving (b) are not obligated and expended to carry awards and for attorneys’ fees, expenses, and amounts from the Trust Administration Ad- out the Settlement Agreement, the Sec- costs— justment Fund receives the same total pay- retary of Agriculture shall return the unused (A) in accordance with controlling law, in- ment under Stage 2 of the Settlement after funds to the Treasury and may not make the cluding, with respect to attorneys’ fees, ex- making the adjustments required by this unused funds available for any purpose re- penses, and costs, any applicable rule of law subsection. lated to section 14012 of the Food, Conserva- requiring counsel to produce contempora- (3) TIMING OF PAYMENTS.—The payments tion, and Energy Act of 2008, for any other neous time, expense, and cost records in sup- authorized by this subsection shall be in- settlement agreement executed in In re Black port of a motion for such fees, expenses, and cluded with the Stage 2 payments under Farmers Discrimination Litigation, No. 08–511 costs; and paragraph E.4. of the Settlement. (D.D.C.), or for any other purpose. (k) EFFECT OF ADJUSTMENT PROVISIONS.— (B) giving due consideration to the special (e) RULES OF CONSTRUCTION.—Nothing in Notwithstanding any provision of this sec- status of Class Members (as defined in the this section shall be construed as requiring tion, in the event that a court determines Settlement) as beneficiaries of a federally the United States, any of its officers or agen- that the application of subsection (j) is un- created and administered trust. cies, or any other party to enter into the fair to the Trust Administration Class— Settlement Agreement or any other settle- (2) NOTICE OF AGREEMENT ON ATTORNEYS’ (1) subsection (j) shall not go into effect; ment agreement. Nothing in this section FEES, EXPENSES, AND COSTS.—The description and of the request of Class Counsel for an shall be construed as creating the basis for a (2) on final approval of the Settlement, in amount of attorneys’ fees, expenses, and Pigford claim. addition to the amounts deposited into the (f) CONFORMING AMENDMENTS.—Section costs required under paragraph C.1.d. of the Trust Land Consolidation Fund pursuant to 14012 of the Food, Conservation, and Energy Settlement shall include a description of all subsection (e), the Secretary of the Treasury Act of 2008 (Public Law 110–246; 122 Stat. 2209) material provisions of the Agreement on At- shall deposit in that Fund $100,000,000 out of is amended— torneys’ Fees, Expenses, and Costs. amounts appropriated to pay final judg- (1) in subsection (c)(1)— (3) EFFECT ON AGREEMENT.—Nothing in this ments, awards, and compromise settlements (A) by striking ‘‘subsection (h)’’ and insert- subsection limits or otherwise affects the en- under section 1304 of title 31, United States ing ‘‘subsection (g)’’; and forceability of the Agreement on Attorneys’ Code (the conditions of which section shall (B) by striking ‘‘subsection (i)’’ and insert- Fees, Expenses, and Costs. be deemed to be met for purposes of this ing ‘‘subsection (h)’’; (h) SELECTION OF QUALIFYING BANK.—The United States District Court for the District paragraph) to be used by the Secretary in ac- (2) by striking subsection (e); of Columbia, in exercising the discretion of cordance with subsection (e). (3) in subsection (g), by striking ‘‘sub- the Court to approve the selection of any TITLE II—FINAL SETTLEMENT OF CLAIMS section (f)’’ and inserting ‘‘subsection (e)’’; proposed Qualifying Bank (as defined in the FROM IN RE BLACK FARMERS DISCRIMI- (4) in subsection (i)— Settlement) under paragraph A.1. of the Set- NATION LITIGATION (A) by striking ‘‘(1) IN GENERAL.—Of the tlement, may consider any factors or cir- SEC. 201. APPROPRIATION OF FUNDS FOR FINAL funds’’ and inserting ‘‘Of the funds’’; cumstances regarding the proposed Quali- SETTLEMENT OF CLAIMS FROM IN (B) by striking paragraph (2); and fying Bank that the Court determines to be RE BLACK FARMERS DISCRIMINA- (C) by striking ‘‘subsection (g)’’ and insert- appropriate to protect the rights and inter- TION LITIGATION. ing ‘‘subsection (f)’’; ests of Class Members (as defined in the Set- (a) DEFINITIONS.—In this section: (5) by striking subsection (j); and tlement) in the amounts to be deposited in (1) SETTLEMENT AGREEMENT.—The term (6) by redesignating subsections (f), (g), (h), the Settlement Account (as defined in the ‘‘Settlement Agreement’’ means the settle- (i), and (k) as subsections (e), (f), (g), (h), and Settlement). ment agreement dated February 18, 2010 (in- (i), respectively. (i) APPOINTEES TO SPECIAL BOARD OF cluding any modifications agreed to by the (g) ADDITIONAL SETTLEMENT TERMS.—For TRUSTEES.—The 2 members of the special parties and approved by the court under that the purposes of this section and funding for board of trustees to be selected by the Sec- agreement) between certain plaintiffs, by the Settlement Agreement, the following are retary under paragraph G.3. of the Settle- and through their counsel, and the Secretary additional terms: ment shall be selected only after consulta- of Agriculture to resolve, fully and forever, (1) DEFINITIONS.—In this subsection: tion with, and after considering the names of the claims raised or that could have been (A) SETTLEMENT AGREEMENT.—The term possible candidates timely offered by, feder- raised in the cases consolidated in In re Black ‘‘Settlement Agreement’’ means the settle- ally recognized Indian tribes. Farmers Discrimination Litigation, Misc. No. ment, including any modifications agreed to (j) TRUST ADMINISTRATION CLASS ADJUST- 08-mc-0511 (PLF), including Pigford claims by the parties and approved by the court, be- MENTS.— asserted under section 14012 of the Food, tween the Secretary of Agriculture and cer- (1) FUNDS.— Conservation, and Energy Act of 2008 (Public tain plaintiffs, by and through their counsel (A) IN GENERAL.—In addition to the Law 110–246; 122 Stat. 2209). in litigation titled Black Farmers Discrimi- amounts deposited pursuant to paragraph (2) PIGFORD CLAIM.—The term ‘‘Pigford nation Litigation, Misc. No. 08-mc-0511 E.2. of the Settlement, on final approval, the claim’’ has the meaning given that term in (PLF).

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(B) NEUTRAL ADJUDICATOR.— (2) USDA INSPECTOR GENERAL.— (7) CAP SUBCONTRACTOR.—The term ‘‘CAP (i) IN GENERAL.—The term ‘‘Neutral Adju- (A) PERFORMANCE AUDIT.—The Inspector subcontractor’’ means an individual or enti- dicator’’ means a Track A Neutral or a General of the Department of Agriculture ty that has entered into a long-term sub- Track B Neutral as those terms are defined shall, within 180 days of the initial adjudica- contract (as that term is used in the repay- in the Settlement Agreement, who have been tion of claims, and subsequently as appro- ment stipulation) with the United States and hired by Lead Class Counsel as that term is priate, perform a performance audit based on the District for the delivery of water defined in the Settlement Agreement. a statistical sampling of adjudicated claims. through the CAP system. (ii) REQUIREMENT.—The Track A and B (B) AUDIT RECIPIENTS.—The audits de- (8) CAP SYSTEM.—The term ‘‘CAP system’’ Neutrals called for in the Settlement Agree- scribed in clause (i) shall be provided to Sec- means— ment shall be approved by the Secretary of retary of Agriculture and the Attorney Gen- (A) the Mark Wilmer Pumping Plant; the United States Department of Agri- eral. (B) the Hayden-Rhodes Aqueduct; culture, the Attorney General, and the court. (C) the Fannin-McFarland Aqueduct; TITLE III—WHITE MOUNTAIN APACHE (2) OATH.—Every Neutral Adjudicator shall (D) the Tucson Aqueduct; TRIBE WATER RIGHTS QUANTIFICATION take an oath administered by the court prior (E) any pumping plant or appurtenant to hearing claims. SEC. 301. SHORT TITLE. works of a feature described in any of sub- (3) ADDITIONAL DOCUMENTATION OR EVI- This title may be cited as the ‘‘White paragraphs (A) through (D); and DENCE.—Any Neutral Adjudicator may, dur- Mountain Apache Tribe Water Rights Quan- (F) any extension of, addition to, or re- ing the course of hearing claims, require tification Act of 2010’’. placement for a feature described in any of claimants to provide additional documenta- SEC. 302. PURPOSES. subparagraphs (A) through (E). tion and evidence if, in the Neutral Adjudica- The purposes of this title are— (9) CAP WATER.—The term ‘‘CAP water’’ tor’s judgment, the additional documenta- (1) to authorize, ratify, and confirm the means ‘‘Project Water’’ (as that term is de- tion and evidence would be necessary or Agreement; fined in the repayment stipulation). helpful in deciding the merits of the claim, (2) to authorize and direct the Secretary to (10) CONTRACT.—The term ‘‘Contract’’ or if the adjudicator suspects fraud regarding execute the Agreement and take any other means— the claim. action necessary to carry out all obligations (A) the proposed contract between the (4) ATTORNEYS FEES, EXPENSES, AND of the Secretary under the Agreement in ac- Tribe and the United States attached as ex- COSTS.— cordance with this title; hibit 7.1 to the Agreement and numbered 08– (A) IN GENERAL.—Subject to subparagraph (3) to authorize the amounts necessary for XX–30–W0529; and (B) and the provisions of the Settlement the United States to meet the obligations of (B) any amendments to that contract. Agreement regarding attorneys’ fee caps and the United States under the Agreement and (11) DISTRICT.—The term ‘‘District’’ means maximum and minimum percentages for this title; and the Central Arizona Water Conservation Dis- awards of attorneys fees, the court shall (4) to permanently resolve certain damage trict, a political subdivision of the State make any determination as to the amount of claims and all water rights claims among— that is the contractor under the repayment attorneys’ fees, expenses, and costs in ac- (A) the Tribe and its members; contract. cordance with controlling law, including, (B) the United States, acting as trustee for (12) ENFORCEABILITY DATE.—The term ‘‘en- with respect to attorneys’ fees, expenses, and the Tribe and its members; forceability date’’ means the date described costs, any applicable rule of law requiring (C) the parties to the Agreement; and in section 309(d)(1). counsel to produce contemporaneous time, (13) INDIAN TRIBE.—The term ‘‘Indian (D) all other claimants seeking to deter- expenses, and cost records in support of a tribe’’ has the meaning given the term in mine the nature and extent of the water motion for such fees, expenses, and costs. section 4 of the Indian Self-Determination rights of the Tribe, its members, the United (B) EFFECT ON AGREEMENT.—Nothing in and Education Assistance Act (25 U.S.C. States, acting as trustee for the Tribe and this paragraph limits or otherwise affects 450b). its members, and other claimants in— the enforceability of provisions regarding at- (14) INJURY TO WATER RIGHTS.— (i) the consolidated civil action in the Su- torneys’ fees, expenses, and costs that may (A) IN GENERAL.—The term ‘‘injury to perior Court of the State of Arizona for the be contained in the Settlement Agreement. water rights’’ means an interference with, County of Maricopa styled In re the General (5) CERTIFICATION.—An attorney filing a diminution of, or deprivation of, a water Adjudication of All Rights To Use Water In claim on behalf of a claimant shall swear, right under Federal, State, or other law. The Gila River System and Source, W–1 under penalty of perjury, that: ‘‘to the best (B) INCLUSIONS.—The term ‘‘injury to of the attorney’s knowledge, information, (Salt), W–2 (Verde), W–3 (Upper Gila), W–4 water rights’’ includes— and belief formed after an inquiry reasonable (San Pedro); and (i) a change in the groundwater table; and under the circumstances, the claim is sup- (ii) the civil action pending in the Superior (ii) any effect of such a change. Court of the State of Arizona for the County ported by existing law and the factual con- (C) EXCLUSION.—The term ‘‘injury to water tentions have evidentiary support’’. of Apache styled In re the General Adjudica- rights’’ does not include any injury to water tion of All Rights to Use Water in the Little (6) DISTRIBUTION OF CLAIMS DETERMINA- quality. Colorado River System and Source and num- TIONS AND SETTLEMENT FUNDS.—In order to (15) LOWER COLORADO RIVER BASIN DEVELOP- ensure full transparency of the administra- bered CIV–6417. MENT FUND.—The term ‘‘Lower Colorado tion of claims under the Settlement Agree- SEC. 303. DEFINITIONS. River Basin Development Fund’’ means the ment, the Claims Administrator as that In this title: fund established by section 403 of the Colo- term is defined in the Settlement Agree- (1) AGREEMENT.—The term ‘‘Agreement’’ rado River Basin Project Act (43 U.S.C. 1543). ment, shall provide to the Secretary of Agri- means— (16) OFF-RESERVATION TRUST LAND.—The culture, the Inspector General of the Depart- (A) the WMAT Water Rights Quantifica- term ‘‘off-reservation trust land’’ means ment of Agriculture, the Attorney General, tion Agreement dated January 13, 2009; and land— and Lead Class Counsel as that term is de- (B) any amendment or exhibit (including (A) located outside the exterior boundaries fined in the Settlement Agreement, all infor- exhibit amendments) to that Agreement that of the reservation that is held in trust by the mation regarding Distribution of Claims De- are— United States for the benefit of the Tribe as terminations and Settlement Funds de- (i) made in accordance with this title; or of the enforceability date; and scribed in the Settlement Agreement. (ii) otherwise approved by the Secretary. (B) depicted on the map attached to the (h) REPORTS.— (2) BUREAU.—The term ‘‘Bureau’’ means Agreement as exhibit 2.57. (1) GOVERNMENT ACCOUNTABILITY OFFICE.— the Bureau of Reclamation. (17) OPERATING AGENCY.—The term ‘‘Oper- (A) IN GENERAL.—The Comptroller General (3) CAP.—The term ‘‘CAP’’ means the rec- ating Agency’’ means the 1 or more entities of the United States shall evaluate the inter- lamation project authorized and constructed authorized to assume responsibility for the nal controls (including internal controls con- by the United States in accordance with title care, operation, maintenance, and replace- cerning fraud and abuse) created to carry out III of the Colorado River Basin Project Act ment of the CAP system. the terms of the Settlement Agreement, and (43 U.S.C. 1521 et seq.). (18) REPAYMENT CONTRACT.—The term ‘‘re- report to the Congress at least 2 times (4) CAP CONTRACTOR.—The term ‘‘CAP con- payment contract’’ means— throughout the duration of the claims adju- tractor’’ means an individual or entity that (A) the contract between the United States dication process on the results of this eval- has entered into a long-term contract (as and the District for delivery of water and re- uation. that term is used in the repayment stipula- payment of the costs of the CAP, numbered (B) ACCESS TO INFORMATION.—Solely for tion) with the United States for delivery of 14–06–W–245 (Amendment No. 1), and dated purposes of conducting the evaluation under water through the CAP system. December 1, 1988; and subparagraph (A), the Comptroller General (5) CAP FIXED OM&R CHARGE.—The term (B) any amendment to, or revision of, that shall have access, upon request, to the ‘‘CAP fixed OM&R charge’’ has the meaning contract. claims administrator, the claims adjudica- given the term in the repayment stipulation. (19) REPAYMENT STIPULATION.—The term tors, and related officials, appointed in con- (6) CAP M&I PRIORITY WATER.—The term ‘‘repayment stipulation’’ means the stipu- nection with the aforementioned settlement, ‘‘CAP M&I priority water’’ means the CAP lated judgment and the stipulation for judg- and to any information and records gen- water having a municipal and industrial de- ment (including any exhibits to those docu- erated, used, or received by them, including livery priority under the repayment con- ments) entered on November 21, 2007, in the names and addresses. tract. United States District Court for the District

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of Arizona in the consolidated civil action approval pursuant to the Trade and Inter- (d) ALLOCATION AND REPAYMENT.—For the styled Central Arizona Water Conservation course Act (25 U.S.C. 177) or other applicable purpose of determining the allocation and District v. United States, et al., and num- Federal law (including regulations). repayment of costs of any stage of the CAP bered CIV 95–625–TUC–WDB (EHC) and CIV (c) NATIONAL ENVIRONMENTAL POLICY constructed after November 21, 2007, the 95–1720–PHX–EHC. ACT.— costs associated with the delivery of water (20) RESERVATION.— (1) ENVIRONMENTAL COMPLIANCE.—In imple- described in subsection (b), regardless of (A) IN GENERAL.—The term ‘‘reservation’’ menting the Agreement and carrying out whether the water is delivered for use by the means the land within the exterior boundary this title, the Secretary shall promptly com- Tribe or in accordance with any assignment, of the White Mountain Indian Reservation ply with all applicable requirements of— exchange, lease, option to lease, or other established by the Executive order dated No- (A) the National Environmental Policy Act agreement for the temporary disposition of vember 9, 1871, as modified by subsequent Ex- of 1969 (42 U.S.C. 4321 et seq.); water entered into by the Tribe, shall be— ecutive orders and Acts of Congress— (B) the Endangered Species Act of 1973 (16 (1) nonreimbursable; and (i) known on the date of enactment of this U.S.C. 1531 et seq.); (2) excluded from the repayment obligation Act as the ‘‘Fort Apache Reservation’’ pursu- (C) all other applicable Federal environ- of the District. ant to chapter 3 of the Act of June 7, 1897 (30 mental laws; and (e) WATER CODE.—Not later than 18 months Stat. 62); and (D) all regulations promulgated under the after the enforceability date, the Tribe shall enact a water code that— (ii) generally depicted on the map attached laws described in subparagraphs (A) through (1) governs the tribal water rights; and to the Agreement as exhibit 2.81. (C). (2) includes, at a minimum— (B) NO EFFECT ON DISPUTE OR AS ADMIS- (2) EXECUTION OF AGREEMENT.— (A) provisions requiring the measurement, SION.—The depiction of the reservation de- (A) IN GENERAL.—Execution of the Agree- calculation, and recording of all diversions scribed in subparagraph (A)(ii) shall not— ment by the Secretary under this section and depletions of water on the reservation (i) be used to affect any dispute between shall not constitute a major Federal action and on off-reservation trust land; the Tribe and the United States concerning under the National Environmental Policy (B) terms of a water conservation plan, in- the legal boundary of the reservation; or Act of 1969 (42 U.S.C. 4321 et seq.). cluding objectives, conservation measures, (ii) constitute an admission by the Tribe (B) ENVIRONMENTAL COMPLIANCE.—The Sec- and an implementation timeline; with regard to any dispute between the Tribe retary shall carry out all necessary environ- (C) provisions requiring the approval of the and the United States concerning the legal mental compliance activities required by Federal law in implementing the Agreement. Tribe for the severance and transfer of rights boundary of the reservation. (3) LEAD AGENCY.—The Bureau shall serve to the use of water from historically irri- (21) SECRETARY.—The term ‘‘Secretary’’ as the lead agency with respect to ensuring gated land identified in paragraph 11.3.2.1 of means the Secretary of the Interior. environmental compliance associated with the Agreement to diversions and depletions (22) STATE.—The term ‘‘State’’ means the the WMAT rural water system. on other non-historically irrigated land not State of Arizona. SEC. 305. WATER RIGHTS. located on the watershed of the same water (23) TRIBAL CAP WATER.—The term ‘‘tribal (a) TREATMENT OF TRIBAL WATER RIGHTS.— source; and CAP water’’ means the CAP water to which The tribal water rights— (D) provisions requiring the authorization the Tribe is entitled pursuant to the Con- (1) shall be held in trust by the United of the Tribe for all diversions of water on the tract. States on behalf of the Tribe; and reservation and on off-reservation trust land (24) TRIBAL WATER RIGHTS.—The term (2) shall not be subject to forfeiture or by any individual or entity other than the ‘‘tribal water rights’’ means the water rights abandonment. Tribe. of the Tribe described in paragraph 4.0 of the (b) REALLOCATION.— SEC. 306. CONTRACT. Agreement. (1) IN GENERAL.—In accordance with this (a) IN GENERAL.—The Secretary shall enter (25) TRIBE.—The term ‘‘Tribe’’ means the title and the Agreement, the Secretary shall into the Contract, in accordance with the White Mountain Apache Tribe organized reallocate to the Tribe, and offer to enter Agreement, to provide, among other things, under section 16 of the Act of June 18, 1934 into a contract with the Tribe for the deliv- that— (commonly known as the ‘‘Indian Reorga- ery in accordance with this section of— (1) the Tribe, on approval of the Secretary, nization Act’’) (25 U.S.C. 476). (A) an entitlement to 23,782 acre-feet per may— (26) WATER RIGHT.—The term ‘‘water right’’ year of CAP water that has a non-Indian ag- (A) enter into contracts or options to means any right in or to groundwater, sur- ricultural delivery priority (as defined in the lease, contracts to exchange, or options to face water, or effluent under Federal, State, Contract) in accordance with section exchange tribal CAP water in Maricopa, or other law. 104(a)(1)(A)(iii) of the Arizona Water Settle- Pinal, Pima, and Yavapai Counties in the (27) WMAT RURAL WATER SYSTEM.—The ments Act (Public Law 108–451; 118 Stat. State providing for the temporary delivery term ‘‘WMAT rural water system’’ means 3488), of which— to any individual or entity of any portion of the municipal, rural, and industrial water di- (i) 3,750 acre-feet per year shall be firmed the tribal CAP water, subject to the condi- version, storage, and delivery system de- by the United States for the benefit of the tion that— scribed in section 307. Tribe for the 100-year period beginning on (i) the term of the contract or option to (28) YEAR.—The term ‘‘year’’ means a cal- January 1, 2008, with priority equivalent to lease shall not be longer than 100 years; endar year. CAP M&I priority water, in accordance with (ii) the contracts or options to exchange SEC. 304. APPROVAL OF AGREEMENT. section 105(b)(1)(B) of that Act (118 Stat. shall be for the term provided in the con- (a) APPROVAL.— 3492); and tract or option; and (1) IN GENERAL.—Except to the extent that (ii) 3,750 acre-feet per year shall be firmed (iii) a lease or option to lease providing for any provision of the Agreement conflicts by the State for the benefit of the Tribe for the temporary delivery of tribal CAP water with a provision of this title, the Agreement the 100-year period beginning on January 1, shall require the lessee to pay to the Oper- is authorized, ratified, and confirmed. 2008, with priority equivalent to CAP M&I ating Agency all CAP fixed OM&R charges (2) AMENDMENTS.—Any amendment to the priority water, in accordance with section and all CAP pumping energy charges (as de- Agreement is authorized, ratified, and con- 105(b)(2)(B) of that Act (118 Stat. 3492); and fined in the repayment stipulation) associ- firmed, to the extent that such amendment (B) an entitlement to 1,218 acre-feet per ated with the leased water; and is executed to make the Agreement con- year of the water— (B) renegotiate any lease at any time dur- sistent with this title. (i) acquired by the Secretary through the ing the term of the lease, subject to the con- (b) EXECUTION OF AGREEMENT.— permanent relinquishment of the Harquahala dition that the term of the renegotiated (1) IN GENERAL.—To the extent that the Valley Irrigation District CAP subcontract lease shall not exceed 100 years; Agreement does not conflict with this title, entitlement in accordance with the contract (2) no portion of the tribal CAP water may the Secretary shall promptly— numbered 3–07–30–W0290 among the District, be permanently alienated; (A) execute the Agreement, including all Harquahala Valley Irrigation District, and (3)(A) the Tribe (and not the United States exhibits to the Agreement requiring the sig- the United States; and in any capacity) shall be entitled to all con- nature of the Secretary; and (ii) converted to CAP Indian Priority water sideration due to the Tribe under any con- (B) in accordance with the Agreement, exe- (as defined in the Contract) pursuant to the tract or option to lease or exchange tribal cute any amendment to the Agreement, in- Fort McDowell Indian Community Water CAP water entered into by the Tribe; and cluding any amendment to any exhibit to Rights Settlement Act of 1990 (Public Law (B) the United States (in any capacity) has the Agreement requiring the signature of the 101–628; 104 Stat. 4480). no trust or other obligation to monitor, ad- Secretary, that is not inconsistent with this (2) AUTHORITY OF TRIBE.—Subject to ap- minister, or account for, in any manner— title; and proval by the Secretary under section (i) any funds received by the Tribe as con- (2) DISCRETION OF THE SECRETARY.—The 306(a)(1), the Tribe shall have the sole au- sideration under a contract or option to Secretary may execute any other amend- thority to lease, distribute, exchange, or al- lease or exchange tribal CAP water; or ment to the Agreement, including any locate the tribal CAP water described in (ii) the expenditure of those funds; amendment to any exhibit to the Agreement paragraph (1). (4)(A) all tribal CAP water shall be deliv- requiring the signature of the Secretary, (c) WATER SERVICE CAPITAL CHARGES.—The ered through the CAP system; and that is not inconsistent with this title if the Tribe shall not be responsible for any water (B) if the delivery capacity of the CAP sys- amendment does not require congressional service capital charge for tribal CAP water. tem is significantly reduced or anticipated

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to be significantly reduced for an extended described in paragraph (1) consistent with (2) CONVEYANCE TO TRIBE.—The Secretary period of time, the Tribe shall have the same this title, those amendments are authorized, shall convey to the Tribe title to the WMAT CAP delivery rights as a CAP contractor or ratified, and confirmed. rural water system not later than 30 days CAP subcontractor that is allowed to take SEC. 307. AUTHORIZATION OF WMAT RURAL after the date on which the Secretary pub- delivery of water other than through the WATER SYSTEM. lishes in the Federal Register a statement of CAP system; (a) IN GENERAL.—Consistent with sub- findings that— (5) the Tribe may use tribal CAP water on sections (a) and (e) of section 312 and sub- (A) the operating criteria, standing oper- or off the reservation for any purpose; section (h) of this section, the Secretary, ating procedures, emergency action plan, (6) as authorized by subsection (f)(2)(A) of acting through the Bureau, shall plan, de- and first filling and monitoring criteria of section 403 of the Colorado River Basin sign, and construct the WMAT rural water the designers have been established and are Project Act (43 U.S.C. 1543) and to the extent system to divert, store, and distribute water in place; that funds are available in the Lower Colo- from the North Fork of the White River to (B) the WMAT rural water system has op- rado River Basin Development Fund estab- the Tribe that shall consist of— erated under the standing operating proce- lished by subsection (a) of that section, the (1) a dam and storage reservoir, pumping dures of the designers, with the participation United States shall pay to the Operating plant, and treatment facilities located along of the Tribe, for a period of 3 years; Agency the CAP fixed OM&R charges associ- the North Fork of the White River near the (C) the Secretary has provided the Tribe ated with the delivery of tribal CAP water community of Whiteriver; with technical assistance on the manner by (except in the case of tribal CAP water (2) a distribution system consisting of pipe- which to operate and maintain the WMAT leased by any individual or entity); lines extending from the treatment facilities rural water system; (7) the Secretary shall waive the right of to existing water distribution systems serv- (D) the funds made available under section the Secretary to capture all return flow from ing the communities of Whiteriver, Fort 312(b)(3)(B) have been deposited in the project exchange water flowing from the ex- Apache, Canyon Day, Cedar Creek, Carrizo, WMAT Maintenance Fund; and terior boundary of the reservation; and and Cibecue; (E) the WMAT rural water system— (8) no CAP water service capital charge (3) connections to existing distribution fa- (i) is substantially complete, as deter- shall be due or payable for the tribal CAP cilities for the communities described in mined by the Secretary; and water, regardless of whether the water is de- paragraph (2), but not including any up- (ii) satisfies the requirement that— livered for use by the Tribe or pursuant to a grades of, or improvements to, existing or fu- (I) the infrastructure constructed is capa- contract or option to lease or exchange trib- ture public water systems for the commu- ble of storing, diverting, treating, transmit- al CAP water entered into by the Tribe. nities described in paragraph (2) that may be ting, and distributing a supply of water as (b) REQUIREMENTS.—The Contract shall necessary to accommodate increased demand set forth in the final project design described be— and flow rates (and any associated changes in subsection (c); and (1) for permanent service (within the in water quality); (II) the Secretary has consulted with the meaning of section 5 of the Boulder Canyon (4) connections to additional communities Tribe regarding the proposed finding that Project Act (43 U.S.C. 617d)); and along the pipeline, provided that the addi- the WMAT rural water system is substan- (2) without limit as to term. tional connections may be added to the dis- tially complete. (c) RATIFICATION.— tribution system described in paragraph (2) (e) ALIENATION AND TAXATION.— (1) IN GENERAL.—Except to the extent that at the expense of the Tribe; (1) IN GENERAL.—Conveyance of title to the any provision of the Contract conflicts with (5) appurtenant buildings and access roads; Tribe pursuant to subsection (d) does not a provision of this title, the Contract is au- (6) electrical power transmission and dis- waive or alter any applicable Federal law thorized, ratified, and confirmed. tribution facilities necessary for operation of (including regulations) prohibiting alien- (2) AMENDMENTS.—Any amendment to the the project; and ation or taxation of the WMAT rural water Contract is authorized, ratified, and con- (7) any other project components that the system or the underlying reservation land. firmed, to the extent that such amendment Secretary, in consultation with the Tribe, (2) ALIENATION OF WMAT RURAL WATER SYS- is executed to make the Contract consistent determines to be necessary. TEM.—The WMAT rural water system, in- with this title. (b) MODIFICATIONS.—The Secretary and the cluding the components of the WMAT rural (d) EXECUTION OF CONTRACT.—To the extent Tribe— water system, shall not be alienated, encum- that the Contract does not conflict with this (1) may modify the components of the bered, or conveyed in any manner by the title, the Secretary shall execute the Con- WMAT rural water system described in sub- Tribe, unless a reconveyance is authorized tract. section (a) by mutual agreement; and by an Act of Congress enacted after the date (e) PAYMENT OF CHARGES.—The Tribe, and (2) shall make all modifications required of enactment of this Act. any recipient of tribal CAP water through a under subsection (c)(2). (f) OPERATION AND MAINTENANCE.— contract or option to lease or exchange, shall (c) FINAL PROJECT DESIGN.— (1) IN GENERAL.—Consistent with sub- not be obligated to pay a water service cap- (1) IN GENERAL.—The Secretary shall issue sections (d) and (e) of section 312, the Sec- ital charge or any other charge, payment, or a final project design of the WMAT rural retary, acting through the Bureau and in co- fee for CAP water, except as provided in an water system, including the dam, pumping operation with the Tribe, shall operate, applicable lease or exchange agreement. plants, pipeline, and treatment plant, that is maintain, and replace the WMAT rural water (f) PROHIBITIONS.— generally consistent with the project exten- system until the date on which title to the (1) USE OUTSIDE STATE.—No tribal CAP water may be leased, exchanged, forborne, or sion report dated February 2007 after the WMAT rural water system is transferred to otherwise transferred by the Tribe in any completion of— the Tribe pursuant to subsection (d)(2). way for use directly or indirectly outside the (A) any appropriate environmental compli- (2) LIMITATION.— State. ance activity; and (A) IN GENERAL.—Beginning on the date on (2) USE OFF RESERVATION.—Except as au- (B) the review process described in para- which title to the WMAT rural water system thorized by this section and paragraph 4.7 of graph (2). is transferred to the Tribe pursuant to sub- the Agreement, no tribal water rights under (2) REVIEW.— section (d)(2), the United States shall have this title may be sold, leased, transferred, or (A) IN GENERAL.—The Secretary shall re- no obligation to pay for the operation, main- used outside the boundaries of the reserva- view the proposed design of the WMAT rural tenance, or replacement costs of the WMAT tion or off-reservation trust land other than water system and perform value engineering rural water system. pursuant to an exchange. analyses. (B) LIMITATION ON LIABILITY.—Effective on (3) AGREEMENTS WITH ARIZONA WATER BANK- (B) RESULTS.—Taking into consideration the date on which the Secretary publishes a ING AUTHORITY.—Nothing in this title or the the review under subparagraph (A), the Sec- statement of findings in the Federal Register Agreement limits the right of the Tribe to retary, in consultation with the Tribe, shall pursuant to subsection (d)(2), the United enter into an agreement with the Arizona require appropriate changes to the design, so States shall not be held liable by any court Water Banking Authority (or any successor that the final design— for damages arising out of any act, omission, entity) established by section 45–2421 of the (i) meets Bureau of Reclamation design or occurrence relating to the land or facili- Arizona Revised Statutes in accordance with standards; ties conveyed, other than damages caused by State law. (ii) to the maximum extent practicable, in- any intentional act or act of negligence com- (g) LEASES.— corporates any changes that would improve mitted by the United States, or by employ- (1) IN GENERAL.—To the extent that the the cost-effectiveness of the delivery of ees or agents of the United States, prior to leases of tribal CAP Water by the Tribe to water through the WMAT rural water sys- the date on which the Secretary publishes a the District and to any of the cities in the tem; and statement of findings in the Federal Register State, attached as exhibits to the Agree- (iii) may be constructed for the amounts pursuant to subsection (d)(2). ment, are not in conflict with the provisions made available under section 312. (g) RIGHT TO REVIEW.— of this title— (d) CONVEYANCE OF TITLE.— (1) IN GENERAL.—The statement of findings (A) those leases are authorized, ratified, (1) IN GENERAL.—Title to the WMAT rural published by the Secretary pursuant to sub- and confirmed; and water system shall be held by the United section (d)(2) shall be considered to be a final (B) the Secretary shall execute the leases. States until title to the WMAT rural water agency action subject to judicial review (2) AMENDMENTS.—To the extent that system is conveyed by the Secretary to the under sections 701 through 706 of title 5, amendments are executed to make the leases Tribe pursuant to paragraph (2). United States Code.

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(2) EFFECT OF TITLE.—Nothing in this title under the Agreement, are authorized to exe- water, water rights, land, or other resources gives the Tribe or any other party the right cute a waiver and release of any claims due to loss of water or water rights (includ- to judicial review of the determination by against the State (or any agency or political ing damages, losses, or injuries to hunting, the Secretary under subsection (d) except subdivision of the State), or any other per- fishing, gathering, or cultural rights due to under subchapter II of chapter 5, and chapter son, entity, corporation, or municipal cor- loss of water or water rights, claims relating 7, of title 5, United States Code (commonly poration under Federal, State, or other law to interference with, diversion, or taking of known as the ‘‘Administrative Procedure for all— water, or claims relating to failure to pro- Act’’). (A)(i) past, present, and future claims for tect, acquire, or develop water, water rights, (h) APPLICABILITY OF ISDEAA.— water rights for the reservation and off-res- or water infrastructure) within the reserva- (1) AGREEMENT FOR SPECIFIC ACTIVITIES.— ervation trust land arising from time imme- tion and off-reservation trust land that first On receipt of a request of the Tribe, and in morial and, thereafter, forever; and accrued at any time prior to the enforce- accordance with the Indian Self-Determina- (ii) past, present, and future claims for ability date; tion and Education Assistance Act (25 U.S.C. water rights arising from time immemorial (ii) past, present, and future claims for in- 450 et seq.), the Secretary shall enter into 1 and, thereafter, forever, that are based on jury to water rights arising from time imme- or more agreements with the Tribe to carry aboriginal occupancy of land by the Tribe, morial and, thereafter, forever that are out the activities authorized by this section. its members, or their predecessors; based on aboriginal occupancy of land by the (2) CONTRACTS.—Any contract entered into (B)(i) past and present claims for injury to Tribe, its members, or their predecessors; pursuant to the Indian Self-Determination water rights for the reservation and off-res- and and Education Assistance Act (25 U.S.C. 450 ervation trust land arising from time imme- (iii) claims for injury to water rights aris- et seq.) for the purpose of carrying out any morial through the enforceability date; ing after the enforceability date for the res- provision of this title shall incorporate such (ii) past, present, and future claims for in- ervation and off-reservation trust land re- provisions regarding periodic payment of jury to water rights arising from time imme- sulting from the off-reservation diversion or funds, timing for use of funds, transparency, morial and, thereafter, forever, that are use of water in a manner that is not in viola- oversight, reporting, and accountability as based on aboriginal occupancy of land by the tion of the Agreement or applicable law; the Secretary determines to be necessary (at Tribe, its members, or their predecessors; (C) past, present, and future claims arising the sole discretion of the Secretary) to en- and out of, or relating in any manner to, the ne- sure appropriate stewardship of Federal (iii) claims for injury to water rights aris- gotiation, execution, or adoption of the funds. ing after the enforceability date for the res- Agreement, an applicable settlement judg- (i) FINAL DESIGNS; PROJECT CONSTRUC- ervation and off-reservation trust land re- ment or decree, or this title; TION.— sulting from off-reservation diversion or use (D) past and present claims relating in any (1) FINAL DESIGNS.—All designs for the of water in a manner that is not in violation manner to pending litigation of claims relat- WMAT rural water system shall— of the Agreement or State law; and ing to the water rights of the Tribe for the (A) conform to Bureau design standards; (C) past, present, and future claims arising reservation and off-reservation trust land; and out of, or relating in any manner to, the ne- (E) past and present claims relating to the (B) be subject to review and approval by gotiation, execution, or adoption of the operation, maintenance, and replacement of the Secretary. Agreement, an applicable settlement judge- existing irrigation systems on the reserva- ment or decree, or this title. tion constructed prior to the enforceability (2) PROJECT CONSTRUCTION.—Each project component of the WMAT rural water system (2) CLAIMS AGAINST TRIBE.—Except for the date that first accrued at any time prior to shall be constructed pursuant to designs and specifically retained claims described in sub- the enforceability date, which waiver shall specifications approved by the Secretary, section (b)(3), the United States, in all ca- only become effective on the full appropria- and all construction work shall be subject to pacities (except as trustee for an Indian tribe tion and payment to the Tribe of $4,950,000 of other than the Tribe), as part of the perform- inspection and approval by the Secretary. the amounts made available under section ance of its obligations under the Agreement, 312(b)(2)(B); (j) CONDITION.—As a condition of construc- tion of the facilities authorized by this sec- is authorized to execute a waiver and release (F) any claims relating to operation, main- of any and all claims against the Tribe, its tenance, and replacement of the WMAT rural tion, the Tribe shall provide, at no cost to members, or any agency, official, or em- water system, which waiver shall only be- the Secretary, all land or interests in land ployee of the Tribe, under Federal, State, or come effective on the date on which funds that the Secretary identifies as necessary for any other law for all— are made available under section 312(b)(3)(B) the construction, operation, and mainte- (A) past and present claims for injury to and deposited in the WMAT Maintenance nance of those facilities. water rights resulting from the diversion or Fund; SEC. 308. SATISFACTION OF CLAIMS. use of water on the reservation and on off- (G) past and present breach of trust and (a) IN GENERAL.—Except as set forth in the reservation trust land arising from time im- negligence claims for damage to the land and Agreement, the benefits realized by the memorial through the enforceability date; natural resources of the Tribe caused by ri- Tribe and its members under this title shall (B) claims for injury to water rights aris- parian and other vegetative manipulation by be in full satisfaction of all claims of the ing after the enforceability date resulting the United States for the purpose of increas- Tribe, its members, and the United States, from the diversion or use of water on the res- ing water runoff from the reservation that acting as trustee for the benefit of the Tribe ervation and on off-reservation trust land in first accrued at any time prior to the en- and its members, for water rights and injury a manner that is not in violation of the forceability date; and to water rights under Federal, State, or Agreement; and (H) past and present claims for trespass, other law with respect to the reservation and (C) past, present, and future claims arising use, and occupancy of the reservation in, on, off-reservation trust land. out of or related in any manner to the nego- and along the Black River that first accrued (b) USES OF WATER.—All uses of water on tiation, execution, or adoption of the Agree- at any time prior to the enforceability date. land outside of the reservation, if and when ment, an applicable settlement judgement or (4) EFFECT ON BOUNDARY CLAIMS.—Nothing that land is subsequently and finally deter- decree, or this title. in this title expands, diminishes, or impacts mined to be part of the reservation through (3) CLAIMS AGAINST UNITED STATES.—Except any claims the Tribe may assert, or any de- resolution of any dispute between the Tribe for the specifically retained claims described fense the United States may assert, con- and the United States over the location of in subsection (b)(2), the Tribe, on behalf of cerning title to land outside the most cur- the reservation boundary, and any fee land itself and its members, as part of the per- rent survey, as of the date of enactment of within the reservation placed into trust and formance of the obligations of the Tribe this Act, of the northern boundary of the res- made part of the reservation, shall be subject under the Agreement, is authorized to exe- ervation. to the maximum annual diversion amounts cute a waiver and release of any claim (b) RESERVATION OF RIGHTS AND RETENTION and the maximum annual depletion amounts against the United States, including agen- OF CLAIMS.— specified in the Agreement. cies, officials, or employees of the United (1) RESERVATION OF RIGHTS AND RETENTION (c) NO RECOGNITION OF WATER RIGHTS.— States (except in the capacity of the United OF CLAIMS BY TRIBE AND UNITED STATES.— Notwithstanding subsection (a), nothing in States as trustee for other Indian tribes), (A) IN GENERAL.—Notwithstanding the this title recognizes or establishes any right under Federal, State, or other law for any waiver and release of claims authorized of a member of the Tribe to water on the res- and all— under subsection (a)(1), the Tribe, on behalf ervation. (A)(i) past, present, and future claims for of itself and its members, and the United SEC. 309. WAIVERS AND RELEASES OF CLAIMS. water rights for the reservation and off-res- States, acting as trustee for the Tribe and (a) IN GENERAL.—– ervation trust land arising from time imme- its members, shall retain any right— (1) CLAIMS AGAINST THE STATE AND OTH- morial and, thereafter, forever; and (i) subject to subparagraph 16.9 of the ERS.—Except for the specifically retained (ii) past, present, and future claims for Agreement, to assert claims for injuries to, claims described in subsection (b)(1), the water rights arising from time immemorial and seek enforcement of, the rights of the Tribe, on behalf of itself and its members, and, thereafter, forever that are based on ab- Tribe and its members under the Agreement and the United States, acting in its capacity original occupancy of land by the Tribe, its or this title in any Federal or State court of as trustee for the Tribe and its members, as members, or their predecessors; competent jurisdiction; part of the performance of the respective ob- (B)(i) past and present claims relating in (ii) to assert claims for injuries to, and ligations of the United States and the Tribe any manner to damages, losses, or injuries to seek enforcement of, the rights of the Tribe

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8151 under the judgment and decree entered by against any other Indian tribe, Indian com- Settlement Subaccount (including any the court in the Gila River adjudication pro- munity or nation, or dependent Indian com- amounts paid by the State in accordance ceedings; munity, or the United States on behalf of with the Agreement), together with any in- (iii) to assert claims for injuries to, and such a tribe, community, or nation; terest accrued on those amounts, shall im- seek enforcement of, the rights of the Tribe (F) to assert claims arising after the en- mediately be returned to the respective under the judgment and decree entered by forceability date for injury to water rights sources of those funds; and the court in the Little Colorado River adju- resulting from the pumping of water from (D) the Tribe and its members, and the dication proceedings; land located within national forest land as of United States, acting as trustee for the Tribe (iv) to object to any claims by or for any the date of the Agreement in the south 1⁄2 of and its members, shall retain the right to as- other Indian tribe, Indian community or na- T. 9 N., R. 24 E., the south 1⁄2 of T. 9 N., R. sert past, present, and future water rights tion, or dependent Indian community, or the 25 E., the north 1⁄2 of T. 8 N., R. 24 E., or the claims and claims for injury to water rights United States on behalf of such a tribe, com- north 1⁄2 of T. 8 N., R. 25 E., if water from for the reservation and off-reservation trust munity, or nation; that land is used on the land or is trans- land. (v) to participate in the Gila River adju- ported off the land for municipal, commer- (3) NO ADDITIONAL RIGHTS TO WATER.—Be- dication proceedings and the Little Colorado cial, or industrial use; ginning on the enforceability date, all land River adjudication proceedings to the extent (G) to assert any claims arising after the held by the United States in trust for the provided in subparagraph 14.1 of the Agree- enforceability date for injury to water rights Tribe and its members shall have no rights ment; not specifically waived under this section; to water other than those specifically quan- (vi) to assert any claims arising after the (H) to seek remedies and to assert any tified for the Tribe and the United States, enforceability date for injury to water rights other claims not specifically waived under acting as trustee for the Tribe and its mem- not specifically waived under this section; this section; and bers, for the reservation and off-reservation (vii) to assert any past, present, or future (I) to assert any claim arising after the en- trust land pursuant to paragraph 4.0 of the claim for injury to water rights against any forceability date for a future taking by the Agreement. other Indian tribe, Indian community or na- United States of reservation land, off-res- (e) UNITED STATES ENFORCEMENT AUTHOR- tion, dependent Indian community, allottee, ervation trust land, or any property rights ITY.—Nothing in this title or the Agreement or the United States on behalf of such a appurtenant to that land, including any affects any right of the United States to tribe, community, nation, or allottee; water rights set forth in paragraph 4.0 of the take any action, including environmental (viii) to assert any past, present, or future Agreement. actions, under any laws (including regula- claim for trespass, use, and occupancy of the (3) RESERVATION OF RIGHTS AND RETENTION tions and the common law) relating to reservation in, on, or along the Black River OF CLAIMS BY UNITED STATES.—Notwith- human health, safety, or the environment. against Freeport-McMoRan Copper & Gold, standing the waiver and release of claims au- (f) NO EFFECT ON WATER RIGHTS.—Except Inc., Phelps Dodge Corporation, or Phelps thorized under subsection (a)(2), the United as provided in paragraphs (1)(A)(ii), (1)(B)(ii), Dodge Morenci, Inc. (or a predecessor or suc- States shall retain any right to assert any (3)(A)(ii), and (3)(B)(ii) of subsection (a), cessor of those entities), including all sub- claim not specifically waived in that sub- nothing in this title affects any rights to sidiaries and affiliates of those entities; and section. water of the Tribe, its members, or the (ix) to assert claims arising after the en- (c) EFFECTIVENESS OF WAIVER AND RE- United States, acting as trustee for the Tribe forceability date for injury to water rights LEASES.—Except as otherwise specifically and its members, for land outside the bound- resulting from the pumping of water from provided in subparagraphs (E) and (F) of sub- aries of the reservation or the off-reservation land located within national forest land as of section (a)(3), the waivers and releases under trust land. the date of the Agreement in the south 1⁄2 of subsection (a) shall become effective on the (g) ENTITLEMENTS.—Any entitlement to T. 9 N., R. 24 E., the south 1⁄2 of T. 9 N., R. enforceability date. water of the Tribe, its members, or the 1 (d) ENFORCEABILITY DATE.— 25 E., the north ⁄2 of T. 8 N., R. 24 E., or the United States, acting as trustee for the Tribe 1 (1) IN GENERAL.—This section takes effect north ⁄2 of T. 8 N., R. 25 E., if water from the and its members, relating to the reservation land is used on the land or is transported off on the date on which the Secretary publishes or off-reservation trust land shall be satis- the land for municipal, commercial, or in- in the Federal Register a statement of find- fied from the water resources granted, quan- dustrial use. ings that— tified, confirmed, or recognized with respect (B) AGREEMENT.—On terms acceptable to (A)(i) to the extent that the Agreement to the Tribe, its members, and the United the Tribe and the United States, the Tribe conflicts with this title, the Agreement has States by the Agreement and this title. and the United States are authorized to been revised through an amendment to (h) OBJECTION PROHIBITED.—Except as pro- enter into an agreement with Freeport- eliminate the conflict; and vided in paragraphs (1)(A)(ix) and (2)(F) of McMoRan Copper & Gold, Inc., Phelps Dodge (ii) the Agreement, as so revised, has been subsection (b), the Tribe and the United Corporation, or Phelps Dodge Morenci, Inc. executed by the Secretary, the Tribe, and States, acting as trustee for the Tribe shall (or a predecessor or successor of those enti- the Governor of the State; not— ties), including all subsidiaries and affiliates (B) the Secretary has fulfilled the require- (1) object to the use of any well located of those entities, to resolve the claims of the ments of sections 305 and 306; outside the boundaries of the reservation or Tribe relating to the trespass, use, and occu- (C) the amount made available under sec- the off-reservation trust land in existence on pancy of the reservation in, on, and along tion 312(a) has been deposited in the White the enforceability date; or the Black River. Mountain Apache Tribe Water Rights Settle- (2) object to, dispute, or challenge after the (2) RESERVATION OF RIGHTS AND RETENTION ment Subaccount; enforceability date the drilling of any well OF CLAIMS BY TRIBE AGAINST UNITED STATES.— (D) the State funds described in subpara- or the withdrawal and use of water from any Notwithstanding the waiver and release of graph 13.3 of the Agreement have been depos- well in the Little Colorado River adjudica- claims authorized under subsection (a)(3), ited in the White Mountain Apache Tribe tion proceedings, the Gila River adjudication the Tribe, on behalf of itself and its mem- Water Rights Settlement Subaccount; proceedings, or any other judicial or admin- bers, shall retain any right— (E) the Secretary has issued a record of de- istrative proceeding. (A) subject to subparagraph 16.9 of the cision approving the construction of the SEC. 310. WHITE MOUNTAIN APACHE TRIBE Agreement, to assert claims for injuries to, WMAT rural water system in a configuration WATER RIGHTS SETTLEMENT SUB- and seek enforcement of, the rights of the substantially similar to that described in ACCOUNT. Tribe and its members under the Agreement section 307; (a) ESTABLISHMENT.—There is established or this title, in any Federal or State court of (F) the judgments and decrees substan- in the Lower Colorado River Basin Develop- competent jurisdiction; tially in the form of those attached to the ment Fund a subaccount to be known as the (B) to assert claims for injuries to, and Agreement as exhibits 12.9.6.1 and 12.9.6.2 ‘‘White Mountain Apache Tribe Water Rights seek enforcement of, the rights of the Tribe have been approved by the respective trial Settlement Subaccount’’, consisting of— and members under the judgment and decree courts; and (1) the amounts deposited in the sub- entered by the court in the Gila River adju- (G) the waivers and releases authorized and account pursuant to section 312(a); and dication proceedings; set forth in subsection (a) have been exe- (2) such other amounts as are available, in- (C) to assert claims for injuries to, and cuted by the Tribe and the Secretary. cluding the amounts provided in subpara- seek enforcement of, the rights of the Tribe (2) FAILURE OF ENFORCEABILITY DATE TO graph 13.3 of the Agreement. and members under the judgment and decree OCCUR.—If the Secretary does not publish a (b) USE OF FUNDS.— entered by the court in the Little Colorado statement of findings under paragraph (1) by (1) IN GENERAL.—Subject to paragraph (2), River adjudication proceedings; April 30, 2021— the Secretary shall use amounts from the (D) to object to any claims by or for any (A) this title is repealed effective May 1, White Mountain Apache Tribe Water Rights other Indian tribe, Indian community or na- 2021, and any activity by the Secretary to Settlement Subaccount for the planning, de- tion, or dependent Indian community, or the carry out this title shall cease; sign, and construction of the WMAT rural United States on behalf of such a tribe, com- (B) any amounts made available under sec- water system, in accordance with section munity, or nation; tion 312 shall immediately revert to the gen- 307(a). (E) to assert past, present, or future claims eral fund of the Treasury; (2) REQUIREMENTS.—In carrying out the ac- for injury to water rights or any other (C) any other amounts deposited in the tivities described in paragraph (1), the Sec- claims other than a claim to water rights, White Mountain Apache Tribe Water Rights retary shall use such sums as are necessary

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00041 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8152 CONGRESSIONAL RECORD — SENATE November 19, 2010 from the White Mountain Apache Tribe (ii) names as a party the United States or tion of any reservation boundary dispute be- Water Rights Settlement Subaccount— the Tribe. tween the Tribe and the United States, or (A) to provide the Bureau with amounts (b) EFFECT OF TITLE.—Nothing in this title any fee simple land within the reservation sufficient to carry out oversight of the plan- quantifies or otherwise affects any water that is placed into trust, shall have water ning, design, and construction of the WMAT right or claim or entitlement to water of any rights pursuant to section 308(b). rural water system; Indian tribe, band, or community other than (3) ACCEPTANCE OF LAND IN TRUST STATUS.— (B) to repay to the Treasury (or the United the Tribe. (A) IN GENERAL.—If the Tribe acquires States) any outstanding balance on the loan (c) LIMITATION ON LIABILITY OF UNITED legal fee title to land that is located within authorized by the White Mountain Apache STATES.— the exterior boundaries of the reservation, Tribe Rural Water System Loan Authoriza- (1) IN GENERAL.—The United States shall the Secretary shall accept the land in trust tion Act (Public Law 110–390; 122 Stat. 4191), have no trust or other obligation— status for the benefit of the Tribe in accord- after which repayment, the Tribe shall have (A) to monitor, administer, or account for, ance with applicable Federal law (including no further liability for the balance on that in any manner, any amount paid to the Tribe regulations) for such real estate acquisi- loan; and by any party to the Agreement other than tions. (C) to carry out all required environmental the United States; or (B) RESERVATION STATUS.—Land held in compliance activities associated with the (B) to review or approve the expenditure of trust by the Secretary under subparagraph those funds. planning, design, and construction of the (A), or restored to the reservation as a result (2) INDEMNIFICATION.—The Tribe shall in- WMAT rural water system. of resolution of a boundary dispute between demnify the United States, and hold the (c) ISDEAA CONTRACT.— the Tribe and the United States, shall be United States harmless, with respect to any (1) IN GENERAL.—If the Tribe so requests, deemed to be part of the reservation. claim (including claims for takings or breach the planning, design, and construction of the (h) CONFORMING AMENDMENT.—Section of trust) arising out of the receipt or expend- WMAT rural water system shall be carried 3(b)(2) of the White Mountain Apache Tribe iture of funds described in paragraph (1)(A). out pursuant to the terms of an agreement Rural Water System Loan Authorization Act (d) APPLICABILITY OF RECLAMATION REFORM or agreements entered into under section (Public Law 110–390; 122 Stat. 4191) is amend- ACT.—The Reclamation Reform Act of 1982 ed by striking ‘‘January 1, 2013’’ and insert- 307(h). (43 U.S.C. 390aa et seq.) and any other acre- ing ‘‘May 1, 2021’’. (2) ENFORCEMENT.—The Secretary may pur- age limitation or full-cost pricing provision sue any judicial remedies and carry out any SEC. 312. FUNDING. under Federal law shall not apply to any in- (a) RURAL WATER SYSTEM.— administrative actions that are necessary to dividual, entity, or land solely on the basis enforce an agreement described in paragraph (1) MANDATORY APPROPRIATIONS.—Subject of— to paragraph (2), out of any funds in the (1) to ensure that amounts in the White (1) receipt of any benefit under this title; Treasury not otherwise appropriated, the Mountain Apache Tribe Water Rights Settle- (2) the execution or performance of the Secretary of the Treasury shall transfer to ment Subaccount are used in accordance Agreement; or the Secretary to carry out the planning, en- with this section. (3) the use, storage, delivery, lease, or ex- gineering, design, environmental compli- (d) PROHIBITION ON PER CAPITA DISTRIBU- change of CAP water. ance, and construction of the WMAT rural TIONS.—No amount of the principal, or the (e) SECRETARIAL POWER SITES.—The por- water system $126,193,000. interest or income accruing on the principal, tions of the following named secretarial (2) INCLUSIONS.—The amount made avail- of the White Mountain Apache Tribe Water power site reserves that are located on the able under paragraph (1) shall include such Rights Settlement Subaccount shall be dis- Fort Apache Indian Reservation or the San sums as are necessary, but not to exceed 4 Carlos Apache Reservation, as applicable, tributed to any member of the Tribe on a per percent of the construction contract costs, shall be transferred and restored into the capita basis. for the Bureau to carry out oversight of ac- name of the Tribe or the San Carlos Apache (e) AVAILABILITY OF FUNDS.— tivities for planning, design, environmental Tribe, respectively: (1) IN GENERAL.—Amounts in the White compliance, and construction of the rural (1) Lower Black River (T. 3 N., R. 26 E.; T. Mountain Apache Tribe Water Rights Settle- water system. 3 N., R. 27 E.). ment Subaccount shall not be available for (b) WMAT SETTLEMENT AND MAINTENANCE (2) Black River Pumps (T. 2 N., R. 25 E.; T. expenditure by the Secretary until the en- FUNDS.— 2 N., R. 26 E.; T. 3 N., R. 26 E.). forceability date. (1) DEFINITION OF FUNDS.—In this sub- (2) INVESTMENT.—The Secretary shall in- (3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 section, the term ‘‘Funds’’ means— 1 1 vest the amounts in the White Mountain E.; T. 4 ⁄2 N., R. 19 E.; T. 4 ⁄2 N., R. 20 E.; T. (A) the WMAT Settlement Fund estab- 41⁄2 N., R. 21 E.; T. 5 N., R. 19 E.). Apache Tribe Water Rights Settlement Sub- lished by paragraph (2)(A); and (4) Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 E.). account in accordance with section 403(f)(4) (B) the WMAT Maintenance Fund estab- (5) Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., of the Colorado River Basin Project Act (43 lished by paragraph (3)(A). R. 18 E.). U.S.C. 1543(f)(4)). (2) WMAT SETTLEMENT FUND.— (6) Gleason Flat (T. 41⁄2 N., R. 16 E.; T. 5 N., (3) USE OF INTEREST.—The interest accrued (A) ESTABLISHMENT.—There is established R. 16 E.). on amounts invested under paragraph (2) in the Treasury of the United States a fund (f) NO EFFECT ON FUTURE ALLOCATIONS.— shall not be available for expenditure or to be known as the ‘‘WMAT Settlement withdrawal until the enforceability date. Water received under a lease or exchange of tribal CAP water under this title shall not Fund’’, to be administered by the Secretary, SEC. 311. MISCELLANEOUS PROVISIONS. affect any future allocation or reallocation consisting of the amounts deposited in the (a) LIMITED WAIVER OF SOVEREIGN IMMU- of CAP water by the Secretary. fund under subparagraph (B), together with NITY.— (g) AFTER-ACQUIRED TRUST LAND.— any interest accrued on those amounts, for (1) IN GENERAL.—In the case of a civil ac- (1) REQUIREMENT OF ACT OF CONGRESS.— use by the Tribe in accordance with subpara- tion described in paragraph (2)— (A) LEGAL TITLE.—Subject to subparagraph graph (C). (A) the United States or the Tribe, or both, (B), after the enforceability date, if the Tribe (B) TRANSFERS TO FUND.— may be joined in the civil action; and seeks to have legal title to additional land in (i) IN GENERAL.—There are authorized to be (B) any claim by the United States or the the State located outside the exterior bound- appropriated to the Secretary for deposit in Tribe to sovereign immunity from the civil aries of the reservation taken into trust by the WMAT Settlement Fund— action is waived for the sole purpose of re- the United States for the benefit of the (I) $78,500,000; and solving any issue regarding the interpreta- Tribe, the Tribe may do so only pursuant to (II) any additional amounts described in tion or enforcement of this title or the an Act of Congress specifically authorizing clause (ii), if applicable. Agreement. the transfer for the benefit of the Tribe. (ii) AUTHORIZATION OF ADDITIONAL (2) DESCRIPTION OF CIVIL ACTION.—A civil (B) EXCEPTIONS.—Subparagraph (A) shall AMOUNTS.—In accordance with subsection action referred to in paragraph (1) is a civil not apply to— (e)(4)(B), if the WMAT rural water system is action filed— (i) the restoration of land to the reserva- conveyed to the Tribe before the date on (A) by any party to the Agreement or sig- tion subsequently and finally determined to which the $35,000,000 described in subsection natory to an exhibit to the Agreement in a be part of the reservation through resolution (e)(2) is completely made available, there is United States or State court that— of any dispute between the Tribe and the authorized to be appropriated to the Sec- (i) relates solely and directly to the inter- United States over the location of the res- retary, for deposit in the WMAT Settlement pretation or enforcement of this title or the ervation boundary, unless required by Fed- Fund, any remaining amounts that would Agreement; and eral law; or otherwise have been made available for ex- (ii) names as a party the United States or (ii) off-reservation trust land acquired penditure from the Cost Overrun Sub- the Tribe; or prior to January 1, 2008. account. (B) by a landowner or water user in the (2) WATER RIGHTS.— (C) USE OF FUNDS.— Gila River basin or Little Colorado River (A) IN GENERAL.—After-acquired trust land (i) IN GENERAL.—The Tribe shall use basin in the State that— that is located outside the reservation shall amounts in the WMAT Settlement Fund for (i) relates solely and directly to the inter- not include federally reserved rights to sur- any of the following purposes: pretation or enforcement of section 309 of face water or groundwater. (I) Fish production, including hatcheries. this title and paragraph 12.0 of the Agree- (B) RESTORED LAND.—Land that is restored (II) Rehabilitation of recreational lakes ment; and to the reservation as the result of the resolu- and existing irrigation systems.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00042 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8153 (III) Water-related economic development termines that the plan is reasonable and con- WMAT rural water system is conveyed to the projects. sistent with this title and the Agreement. Tribe shall be— (IV) Protection, restoration, and economic (iv) ANNUAL REPORT.—For each of the (i) returned to the general fund of the development of forest and watershed health. Funds, the Tribe shall submit to the Sec- Treasury; and (ii) EXISTING IRRIGATION SYSTEMS.—Of the retary an annual report that describes all ex- (ii) on an appropriation pursuant to sub- amounts deposited in the Fund under sub- penditures from the Fund during the year section (b)(2)(B)(ii), deposited in the WMAT paragraph (B), not less than $4,950,000 shall covered by the report. Settlement Fund and made available to the be used for the rehabilitation of existing irri- (C) CERTAIN PER CAPITA DISTRIBUTIONS PRO- Tribe for use in accordance with subsection gation systems. HIBITED.—No amount in the Funds shall be (b)(2)(C). (3) WMAT MAINTENANCE FUND.— distributed to any member of the Tribe on a (f) CONDITIONS.—The amounts made avail- (A) ESTABLISHMENT.—There is established per capita basis. able to the Secretary for deposit in the in the Treasury of the United States a fund (c) COST INDEXING.—All amounts made WMAT Maintenance Fund, together with to be known as the ‘‘WMAT Maintenance available under subsections (a), (b), and (e) any interest accrued on those amounts under Fund’’, to be administered by the Secretary, shall be adjusted as necessary to reflect the subsection (b)(3) and any interest accruing consisting of the amounts deposited in the changes since October 1, 2007, in the con- on the WMAT Settlement Fund under sub- fund under subparagraph (B), together with struction cost indices applicable to the types section (b)(2), shall not be available for ex- any interest accrued on those amounts, for of construction involved in the construction penditure or withdrawal until the WMAT use by the Tribe in accordance with subpara- of the WMAT rural water supply system, the rural water system is transferred to the graph (C). maintenance of the rural water supply sys- Tribe under section 307(d)(2). (B) MANDATORY APPROPRIATIONS.—Out of tem, and the construction or rehabilitation (g) RECEIPT AND ACCEPTANCE.—The Sec- any funds in the Treasury not otherwise ap- of the other development projects described retary shall be entitled to receive, shall ac- propriated, the Secretary of the Treasury in subsection (b)(2)(C). cept, and shall use to carry out this title the shall transfer to the Secretary $50,000,000 for (d) OPERATION, MAINTENANCE, AND RE- funds transferred under subsections (a), (b), deposit in the WMAT Maintenance Fund. PLACEMENT.—Out of any funds in the Treas- (d), and (e), without further appropriation, to (C) USE OF FUNDS.—The Tribe shall use ury not otherwise appropriated, the Sec- remain available until expended. amounts in the WMAT Maintenance Fund retary of the Treasury shall transfer to the SEC. 313. ANTIDEFICIENCY. only for the operation, maintenance, and re- Secretary $2,500,000 for the operation, main- The United States shall not be liable for placement costs associated with the delivery tenance, and replacement costs of the WMAT failure to carry out any obligation or activ- of water through the WMAT rural water sys- rural water system, to remain available ity authorized to be carried out under this tem. until the conditions described in section title (including any such obligation or activ- (4) ADMINISTRATION.—The Secretary shall ity under the Agreement) if adequate appro- manage the Funds in accordance with the 307(f) have been met. priations are not provided by Congress ex- American Indian Trust Fund Management (e) COST OVERRUN SUBACCOUNT.— Reform Act of 1994 (25 U.S.C. 4001 et seq.), in- (1) ESTABLISHMENT.—There is established pressly to carry out the purposes of this cluding by investing amounts in the Funds in the Lower Colorado River Basin Develop- title. in accordance with— ment Fund a subaccount to be known as the SEC. 314. COMPLIANCE WITH ENVIRONMENTAL (A) the Act of April 1, 1880 (25 U.S.C. 161); ‘‘WMAT Cost Overrun Subaccount’’, to be LAWS. and administered by the Secretary, consisting of In implementing the Agreement and car- (B) the first section of the Act of June 24, the amounts deposited in the subaccount rying out this title, the Secretary shall 1938 (25 U.S.C. 162a). under paragraph (2), together with any inter- promptly comply with all applicable require- (5) AVAILABILITY OF AMOUNTS FROM est accrued on those amounts, for use by the ments of— FUNDS.—Amounts in the Funds shall be Secretary in accordance with paragraph (4). (1) the National Environmental Policy Act available for expenditure or withdrawal only (2) MANDATORY APPROPRIATIONS; AUTHOR- of 1969 (42 U.S.C. 4321 et seq.); after the enforceability date and in accord- IZATION OF APPROPRIATIONS.— (2) the Endangered Species Act of 1973 (16 ance with subsection (f). (A) MANDATORY APPROPRIATIONS.—Out of U.S.C. 1531 et seq.); (6) EXPENDITURE AND WITHDRAWAL.— any funds in the Treasury not otherwise ap- (3) all other applicable Federal environ- (A) TRIBAL MANAGEMENT PLAN.— propriated, the Secretary of the Treasury mental laws; and (i) IN GENERAL.—The Tribe may withdraw shall transfer to the Secretary $24,000,000 for (4) all regulations promulgated under the all or part of the amounts in the Funds on deposit in the WMAT Cost Overrun Sub- laws described in paragraphs (1) through (3). approval by the Secretary of a tribal man- account. TITLE IV—CROW TRIBE WATER RIGHTS agement plan, as described in the American (B) AUTHORIZATION OF APPROPRIATIONS.— SETTLEMENT There is authorized to be appropriated for Indian Trust Fund Management Reform Act SEC. 401. SHORT TITLE. of 1994 (25 U.S.C. 4001 et seq.). deposit in the WMAT Cost Overrun Sub- This title may be cited as the ‘‘Crow Tribe (ii) REQUIREMENTS.—In addition to the re- account $11,000,000. Water Rights Settlement Act of 2010’’. quirements under the American Indian Trust (3) AVAILABILITY OF FUNDS.— Fund Management Reform Act of 1994 (25 (A) IN GENERAL.—Amounts in the WMAT SEC. 402. PURPOSES. U.S.C. 4001 et seq.), a tribal management Cost Overrun Subaccount shall not be avail- The purposes of this title are— plan under this subparagraph shall require able for expenditure by the Secretary until (1) to achieve a fair, equitable, and final the Tribe to use any amounts withdrawn the enforceability date. settlement of claims to water rights in the from the Funds in accordance with para- (B) INVESTMENT.—The Secretary shall in- State of Montana for— graph (2)(C) or (3)(C), as applicable. vest the amounts in the WMAT Cost Overrun (A) the Crow Tribe; and (iii) ENFORCEMENT.—The Secretary may Subaccount in accordance with section (B) the United States for the benefit of the take judicial or administrative action to en- 403(f)(4) of the Colorado River Basin Project Tribe and allottees; force the provisions of a tribal management Act (43 U.S.C. 1543(f)(4)). (2) to authorize, ratify, and confirm the plan described in clause (i) to ensure that (C) USE OF INTEREST.—The interest accrued Crow Tribe-Montana Water Rights Compact any amounts withdrawn from the Funds on the amounts invested under subparagraph entered into by the Tribe and the State of under the tribal management plan are used (B) shall not be available for expenditure or Montana on June 22, 1999; in accordance with this title and the Agree- withdrawal until the enforceability date. (3) to authorize and direct the Secretary of ment. (4) USE OF COST OVERRUN SUBACCOUNT.— the Interior— (iv) LIABILITY.—If the Tribe exercises the (A) INITIAL USE.—The Secretary shall use (A) to execute the Crow Tribe-Montana right to withdraw amounts from the Funds, the amounts in the WMAT Cost Overrun Water Rights Compact; and neither the Secretary nor the Secretary of Subaccount to complete the WMAT rural (B) to take any other action necessary to the Treasury shall retain any liability for water system or to carry out activities relat- carry out the Compact in accordance with the expenditure or investment of the ing to the operation, maintenance, or re- this title; and amounts. placement of facilities of the WMAT rural (4) to ensure the availability of funds nec- (B) EXPENDITURE PLAN.— water system, as applicable, if the Secretary essary for the implementation of the Com- (i) IN GENERAL.—The Tribe shall submit to determines that the amounts made available pact and this title. the Secretary for approval an expenditure under subsections (a) and (d) will be insuffi- SEC. 403. DEFINITIONS. plan for any portion of the amounts in the cient in the period before title to the WMAT In this title: Funds that the Tribe does not withdraw rural water system is conveyed to the (1) ALLOTTEE.—The term ‘‘allottee’’ means under the tribal management plan. Tribe— any individual who holds a beneficial real (ii) DESCRIPTION.—The expenditure plan (i) to complete the WMAT rural water sys- property interest in an allotment of Indian shall describe the manner in which, and the tem; or land that is— purposes for which, amounts remaining in (ii) to operate and maintain the WMAT (A) located within the Reservation or the the Funds will be used. rural water system. ceded strip; and (iii) APPROVAL.—On receipt of an expendi- (B) TRANSFER OF FUNDS.—All unobligated (B) held in trust by the United States. ture plan under clause (i), the Secretary amounts remaining in the Cost Overrun Sub- (2) CEDED STRIP.—The term ‘‘ceded strip’’ shall approve the plan, if the Secretary de- account on the date on which title to the means the area identified as the ceded strip

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00043 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8154 CONGRESSIONAL RECORD — SENATE November 19, 2010 on the map included in appendix 5 of the tions, pressure-reducing valves, electrical 4321 et seq.), the Endangered Species Act of Compact. transmission facilities, and other items (in- 1973 (16 U.S.C. 1531 et seq.), and all other ap- (3) CIP OM&R.—The term ‘‘CIP OM&R’’ cluding real property and easements nec- plicable environmental Acts and regulations. means— essary to deliver potable water to the Res- (2) EXECUTION OF THE COMPACT.— (A) any recurring or ongoing activity asso- ervation) appurtenant to the system de- (A) IN GENERAL.—Execution of the Compact ciated with the day-to-day operation of the scribed in subparagraph (A); and by the Secretary under this section shall not Crow Irrigation Project; (ii) in descending order of construction pri- constitute a major Federal action under the (B) any activity relating to scheduled or ority— National Environmental Policy Act of 1969 unscheduled maintenance of the Crow Irriga- (I) the Bighorn River Valley Subsystem; (42 U.S.C. 4321 et seq.). tion Project; and (II) the Little Bighorn River Valley Sub- (B) COMPLIANCE.—The Secretary shall (C) any activity relating to replacement of system; and carry out all Federal compliance activities a feature of the Crow Irrigation Project. (III) Pryor Extension. necessary to implement the Compact. (4) COMPACT.—The term ‘‘Compact’’ means (12) MR&I SYSTEM OM&R.—The term ‘‘MR&I SEC. 405. REHABILITATION AND IMPROVEMENT the water rights compact between the Tribe System OM&R’’ means— OF CROW IRRIGATION PROJECT. and the State of Montana contained in sec- (A) any recurring or ongoing activity asso- (a) IN GENERAL.—Notwithstanding any tion 85-20-901 of the Montana Code Annotated ciated with the day-to-day operation of the other provision of law, and without altering (2009) (including any exhibit, part, or amend- MR&I System; applicable law (including regulations) under ment to the Compact). (B) any activity relating to scheduled or which the Bureau of Indian Affairs collects (5) CROW IRRIGATION PROJECT.— unscheduled maintenance of the MR&I Sys- assessments and carries out CIP OM&R, (A) IN GENERAL.—The term ‘‘Crow Irriga- tem; and other than the rehabilitation and improve- tion Project’’ means the irrigation project— (C) any activity relating to replacement of ment carried out under this section, the Sec- (i) authorized by section 31 of the Act of project features of the MR&I System. retary, acting through the Commissioner of Reclamation, shall carry out such activities March 3, 1891 (26 Stat. 1040); (13) RESERVATION.—The term ‘‘Reserva- as are necessary to rehabilitate and improve (ii) managed by the Secretary (acting tion’’ means the area identified as the Res- the water diversion and delivery features of through the Bureau of Indian Affairs); and ervation on the map in appendix 4 of the the Crow Irrigation Project, in accordance (iii) consisting of the project units of— Compact. with an agreement to be negotiated between (I) Agency; (14) SECRETARY.—The term ‘‘Secretary’’ the Secretary and the Tribe. (II) Bighorn; means the Secretary of the Interior. (III) Forty Mile; (b) LEAD AGENCY.—The Bureau of Reclama- (15) TRIBAL COMPACT ADMINISTRATION.—The tion shall serve as the lead agency with re- (IV) Lodge Grass #1; term ‘‘Tribal Compact Administration’’ (V) Lodge Grass #2; spect to any activity to rehabilitate or im- means any activity relating to— prove the water diversion or delivery fea- (VI) Pryor; (A) the development or enactment by the (VII) Reno; tures of the Crow Irrigation Project. Tribe of the tribal water code; (c) SCOPE.— (VIII) Soap Creek; and (B) establishment by the Tribe of a water (1) IN GENERAL.—The scope of the rehabili- (IX) Upper Little Horn. resources department; and tation and improvement under this section NCLUSION.—The term ‘‘Crow Irrigation (B) I (C) the operation by the Tribe of that Project’’ includes land held in trust by the shall be as generally described in the docu- water resources department (or a successor United States for the Tribe and the allottees ment entitled ‘‘Engineering Evaluation of agency) during the 10-year period beginning in the Bozeman Trail and Two Leggins irri- Existing Conditions, Crow Agency Rehabili- on the date of establishment of the depart- gation districts. tation Study’’ prepared by DOWL HKM, and ment. dated August 2007 and updated in a status re- (6) ENFORCEABILITY DATE.—The term ‘‘en- (16) TRIBAL WATER CODE.—The term ‘‘tribal forceability date’’ means the date on which port dated December 2009 by DOWL HKM, on water code’’ means a water code adopted by the Secretary publishes in the Federal Reg- the condition that prior to beginning con- the Tribe in accordance with section 407(f). ister the statement of findings described in struction activities, the Secretary shall re- (17) TRIBAL WATER RIGHTS.—The term section 410(e). view the design of the proposed rehabilita- ‘‘tribal water rights’’ means— tion or improvement and perform value engi- (7) FINAL.—The term ‘‘final’’ with ref- erence to approval of the decree described in (A) the water rights of the Tribe described neering analyses. EGOTIATION WITH TRIBE.—On the basis section 410(e)(1)(A), means— in article III of the Compact; and (2) N of the review described in paragraph (1), the (A) completion of any direct appeal to the (B) the water rights provided to the Tribe Secretary shall negotiate with the Tribe ap- Montana Supreme Court of a decree by the under section 408. propriate changes to the final design so that Montana Water Court pursuant to section 85- (18) TRIBE.—The term ‘‘Tribe’’ means the the final design meets applicable industry 2-235 of the Montana Code Annotated (2009), Crow Tribe of Indians of the State of Mon- including the expiration of time for filing of tana on behalf of itself and its members (but standards, as well as changes, if any, that any such appeal; or not its members in their capacities as would improve the cost-effectiveness of the (B) completion of any appeal to the appro- allottees). delivery of irrigation water and take into priate United States Court of Appeals, in- SEC. 404. RATIFICATION OF COMPACT. consideration the equitable distribution of cluding the expiration of time in which a pe- (a) RATIFICATION OF COMPACT.— water to allottees. (d) NONREIMBURSABILITY OF COSTS.—All tition for certiorari may be filed in the (1) IN GENERAL.—Except as modified by this costs incurred by the Secretary in carrying United States Supreme Court, denial of such title, and to the extent the Compact does not out this section shall be nonreimbursable. petition, or issuance of a final judgment of conflict with this title, the Compact is au- (e) FUNDING.—The total amount of obliga- the United States Supreme Court, whichever thorized, ratified, and confirmed. tions incurred by the Secretary in carrying occurs last. (2) AMENDMENTS TO COMPACT.—If amend- out this section shall not exceed $131,843,000, (8) FUND.—The term ‘‘Fund’’ means the ments are executed to make the Compact except that the total amount of $131,843,000 Crow Settlement Fund established by sec- consistent with this title, those amendments shall be increased or decreased, as appro- tion 411. are also authorized, ratified, and confirmed priate, based on ordinary fluctuations from (9) INDIAN TRIBE.—The term ‘‘Indian tribe’’ to the extent such amendments are con- May 1, 2008, in construction cost indices ap- has the meaning given the term in section 4 sistent with this title. plicable to the types of construction in- of the Indian Self-Determination and Edu- (b) EXECUTION OF COMPACT.— volved in the rehabilitation and improve- cation Assistance Act (25 U.S.C. 450b). (1) IN GENERAL.—To the extent that the ment. (10) JOINT STIPULATION OF SETTLEMENT.— Compact does not conflict with this title, the (f) TRIBAL IMPLEMENTATION AGREEMENT.— The term ‘‘joint stipulation of settlement’’ Secretary is directed to and shall promptly (1) IN GENERAL.—At the request of the means the joint stipulation of settlement re- execute the Compact, including all exhibits Tribe, in accordance with applicable Federal lating to the civil action styled Crow Tribe to or parts of the Compact requiring the sig- law, the Secretary shall enter into 1 or more of Indians v. Norton, No. 02–284 (D.D.C. 2006). nature of the Secretary. agreements with the Tribe to implement the (11) MR&I SYSTEM.— (2) MODIFICATIONS.—Nothing in this title provisions of this section by which the Tribe (A) IN GENERAL.—The term ‘‘MR&I Sys- precludes the Secretary from approving shall plan, design, and construct any or all of tem’’ means the municipal, rural, and indus- modifications to appendices or exhibits to the rehabilitation and improvement required trial water system of the Reservation, gen- the Compact not inconsistent with this title, by this section. erally described in the document entitled to the extent such modifications do not oth- (2) OVERSIGHT COSTS.—The Bureau of Rec- ‘‘Crow Indian Reservation Municipal, Rural erwise require Congressional approval pursu- lamation and the Tribe shall negotiate the and Industrial Water System Engineering ant to section 2116 of the Revised Statutes cost of any oversight activities carried out Report’’ prepared by DOWL HKM, and dated (25 U.S.C. 177) or other applicable Federal by the Bureau of Reclamation for each July 2008 and updated in a status report pre- law. agreement under this section, provided that pared by DOWL HKM dated December 2009. (c) ENVIRONMENTAL COMPLIANCE.— the total cost for that oversight shall not ex- (B) INCLUSIONS.—The term ‘‘MR&I Sys- (1) IN GENERAL.—In implementing the Com- ceed 4 percent of the total project costs. tem’’ includes— pact, the Secretary shall promptly comply (g) ACQUISITION OF LAND.— (i) the raw water intake, water treatment with all applicable aspects of the National (1) TRIBAL EASEMENTS AND RIGHTS-OF- plant, pipelines, storage tanks, pumping sta- Environmental Policy Act of 1969 (42 U.S.C. WAY.—

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(A) IN GENERAL.—Upon request, and in par- (d) NONREIMBURSABILITY OF COSTS.—All such MR&I System facility or section of a tial consideration for the funding provided costs incurred by the Secretary in carrying MR&I System facility. under section 414(a), the Tribe shall consent out this section shall be nonreimbursable. (4) MR&I SYSTEM OM&R OBLIGATION OF THE to the grant of such easements and rights-of- (e) FUNDING.—The total amount of obliga- FEDERAL GOVERNMENT AFTER CONVEYANCE.— way over tribal land as may be necessary for tions incurred by the Secretary in carrying The Federal Government shall have no obli- the rehabilitation and improvement of the out this section shall not exceed $246,381,000, gation to pay for the operation, mainte- Crow Irrigation Project authorized by this except that the total amount of $246,381,000 nance, or replacement costs of the MR&I section at no cost to the United States. shall be increased or decreased, as appro- System beginning on the date on which— (B) JURISDICTION.—The Tribe shall retain priate, based on ordinary fluctuations from (A) title to any MR&I System facility or criminal and civil jurisdiction over any May 1, 2008, in construction cost indices ap- section of a MR&I System facility under this lands that were subject to tribal jurisdiction plicable to the types of construction in- subsection is conveyed to the Tribe; and prior to the granting of an easement or volved in the design and construction of the (B) the amounts required to be deposited in right-of-way in connection with the rehabili- MR&I System. the MR&I System OM&R Account pursuant (f) TRIBAL IMPLEMENTATION AGREEMENT.— tation and improvement of the Crow Irriga- to section 411 have been deposited in that ac- (1) IN GENERAL.—At the request of the tion Project. count. Tribe, in accordance with applicable Federal (2) USER EASEMENTS AND RIGHTS-OF-WAY.— (i) AUTHORITY OF TRIBE.—Upon transfer of law, the Secretary shall enter into 1 or more In partial consideration of the rehabilitation title to the MR&I System or any section of agreements with the Tribe to implement the and improvement of the Crow Irrigation a MR&I System facility to the Tribe in ac- provisions of this section by which the Tribe Project authorized by this section and as a cordance with subsection (h), the Tribe is au- shall plan, design, and construct any or all of condition of continued service from the Crow thorized to collect water use charges from the rehabilitation and improvement required Irrigation Project after the enforceability customers of the MR&I System to cover— by this section. date, any water user of the Crow Irrigation (1) MR&I System OM&R costs; and (2) OVERSIGHT COSTS.—The Bureau of Rec- Project shall consent to the grant of such (2) any other costs relating to the con- lamation and the Tribe shall negotiate the easements and rights-of-way as may be nec- struction and operation of the MR&I Sys- cost of any oversight activities carried out essary for the rehabilitation and improve- tem. by the Bureau of Reclamation for each ments authorized under this section at no (j) ALIENATION AND TAXATION.—Conveyance agreement under this section, provided that cost to the Secretary. of title to the Tribe pursuant to subsection the total cost for that oversight shall not ex- (3) LAND ACQUIRED BY THE UNITED STATES.— (h) does not waive or alter any applicable ceed 4 percent of the total project costs. Land acquired by the United States in con- Federal law prohibiting alienation or tax- (g) ACQUISITION OF LAND.— nection with rehabilitation and improve- ation of the MR&I System or the underlying (1) TRIBAL EASEMENTS AND RIGHTS-OF- ment of the Crow Irrigation Project author- Reservation land. WAY.— ized by this section shall be held in trust by (k) TECHNICAL ASSISTANCE.—The Secretary (A) IN GENERAL.—Upon request, and in par- shall provide technical assistance to prepare the United States on behalf of the Tribe as tial consideration for the funding provided the Tribe for operation of the MR&I System, part of the Reservation of the Tribe. under section 414(b), the Tribe shall consent including operation and management train- (h) PROJECT MANAGEMENT COMMITTEE.— to the grant of such easements and rights-of- ing. The Secretary shall facilitate the formation way over tribal land as may be necessary for (l) PROJECT MANAGEMENT COMMITTEE.—The of a project management committee com- the construction of the MR&I System au- Secretary shall facilitate the formation of a posed of representatives from the Bureau of thorized by this section at no cost to the project management committee composed of Reclamation, the Bureau of Indian Affairs, United States. representatives from the Bureau of Reclama- and the Tribe— (B) JURISDICTION.—The Tribe shall retain tion, the Bureau of Indian Affairs, and the (1) to review cost factors and budgets for criminal and civil jurisdiction over any Tribe— construction, operation, and maintenance lands that were subject to tribal jurisdiction (1) to review cost factors and budgets for activities relating to the Crow Irrigation prior to the granting of an easement or construction, operation and maintenance ac- Project; right-of-way in connection with the con- tivities for the MR&I System; (2) to improve management of inherently struction of the MR&I System. (2) to improve management of inherently governmental activities through enhanced (2) LAND ACQUIRED BY THE UNITED STATES.— governmental activities through enhanced communication; and Land acquired by the United States in con- communication; and (3) to seek additional ways to reduce over- nection with the construction of the MR&I (3) to seek additional ways to reduce over- all costs for the rehabilitation and improve- System authorized by this section shall be all costs for the MR&I System. ment of the Crow Irrigation Project. held in trust by the United States on behalf (m) NON-FEDERAL CONTRIBUTION.— SEC. 406. DESIGN AND CONSTRUCTION OF MR&I of the Tribe as part of the Reservation of the (1) IN GENERAL.—Prior to completion of the SYSTEM. Tribe. final design of the MR&I System required by (h) CONVEYANCE OF TITLE TO MR&I SYSTEM subsection (c), the Secretary shall consult (a) IN GENERAL.—The Secretary, acting FACILITIES.—— with the Tribe, the State of Montana, and through the Commissioner of Reclamation, (1) IN GENERAL.—The Secretary shall con- other affected non-Federal parties to discuss shall plan, design, and construct the water vey title to each MR&I System facility or the possibility of receiving non-Federal con- diversion and delivery features of the MR&I section of a MR&I System facility author- tributions to the cost of the MR&I System. System, in accordance with 1 or more agree- ized under subsection (a) to the Tribe after (2) NEGOTIATIONS.—If, based on the extent ments between the Secretary and the Tribe. completion of construction of a MR&I Sys- to which non-Federal parties are expected to (b) LEAD AGENCY.—The Bureau of Reclama- tem facility or a section of a MR&I System use the MR&I System, a non-Federal con- tion shall serve as the lead agency with re- facility that is operating and delivering tribution to the MR&I System is determined spect to any activity to design and construct water. by the parties described in paragraph (1) to the water diversion and delivery features of (2) LIABILITY.— be appropriate, the Secretary shall initiate the MR&I System. (A) IN GENERAL.—Effective on the date of negotiations for an agreement on the means (c) SCOPE.— the conveyance authorized by this sub- by which such contributions may be pro- (1) IN GENERAL.—The scope of the design section, the United States shall not be held vided. and construction under this section shall be liable by any court for damages of any kind SEC. 407. TRIBAL WATER RIGHTS. as generally described in the document enti- arising out of any act, omission, or occur- (a) INTENT OF CONGRESS.—It is the intent of tled ‘‘Crow Indian Reservation Municipal, rence relating to the land, buildings, or fa- Congress to provide to each allottee benefits Rural and Industrial Water System Engi- cilities conveyed under this subsection, that are equivalent to or exceed the benefits neering Report’’ prepared by DOWL HKM, other than damages caused by acts of neg- allottees possess as of the date of enactment and dated July 2008 and updated in a status ligence committed by the United States, or of this Act, taking into consideration— report dated December 2009 by DOWL HKM, by employees or agents of the United States, (1) the potential risks, cost, and time delay on the condition that prior to beginning con- prior to the date of conveyance. associated with litigation that would be re- struction activities, the Secretary shall re- (B) TORT CLAIMS.—Nothing in this section solved by the Compact and this title; view the design of the proposed MR&I Sys- increases the liability of the United States (2) the availability of funding under this tem and perform value engineering analyses. beyond the liability provided in chapter 171 title and from other sources; (2) NEGOTIATION WITH TRIBE.—On the basis of title 28, United States Code (commonly (3) the availability of water from the tribal of the review described in paragraph (1), the known as the ‘‘Federal Tort Claims Act’’). water rights; and Secretary shall negotiate with the Tribe ap- (3) NOTICE OF PROPOSED CONVEYANCE.—Not (4) the applicability of section 7 of the Act propriate changes to the final design so that later than 45 days before the date of a pro- of February 8, 1887 (25 U.S.C. 381) and this the final design meets applicable industry posed conveyance of title to any MR&I Sys- title to protect the interests of allottees. standards, as well as changes, if any, that tem facility, the Secretary shall submit to (b) CONFIRMATION OF TRIBAL WATER would improve the cost-effectiveness of the the Committee on Natural Resources of the RIGHTS.— delivery of MR&I System water and take House of Representatives and to the Com- (1) IN GENERAL.—The tribal water rights into consideration the equitable distribution mittee on Energy and Natural Resources of are ratified, confirmed, and declared to be of water to allottees. the Senate notice of the conveyance of each valid.

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(2) USE.—Use of the tribal water rights poses on allotted land, including a process (1) IN GENERAL.—As a condition of receiv- shall be subject to the terms and conditions for— ing an allocation under this section, the established by the Compact. (i) appeal and adjudication of any denied or Tribe shall enter into an allocation agree- (c) HOLDING IN TRUST.—The tribal water disputed distribution of water; and ment with the Secretary to establish the rights— (ii) resolution of any contested administra- terms and conditions of the allocation, in ac- (1) shall be held in trust by the United tive decision; and cordance with the terms and conditions of States for the use and benefit of the Tribe (E) there is a requirement that any allot- the Compact and this title. and the allottees in accordance with this sec- tee with a claim relating to the enforcement (2) INCLUSIONS.—The allocation agreement tion; and of rights of the allottee under the tribal under paragraph (1) shall include, among (2) shall not be subject to forfeiture or water code or relating to the amount of other things, a provision that— abandonment. water allocated to land of the allottee must (A) the agreement is without limit as to (d) ALLOTTEES.— first exhaust remedies available to the allot- term; (1) APPLICABILITY OF ACT OF FEBRUARY 8, tee under tribal law and the tribal water (B) the Tribe, and not the United States, 1887.—The provisions of section 7 of the Act of code before initiating an action against the shall be entitled to all consideration due to February 8, 1887 (25 U.S.C. 381), relating to United States or petitioning the Secretary the Tribe under any lease, contract, or the use of water for irrigation purposes shall pursuant to subsection (d)(6). agreement the Tribe may enter into pursu- apply to the tribal water rights. (3) ACTION BY SECRETARY.— ant to the authority in subsection (c); (2) ENTITLEMENT TO WATER.—Any entitle- (A) IN GENERAL.—The Secretary shall ad- (C) the United States shall have no trust ment to water of an allottee under Federal minister the tribal water rights until the obligation or other obligation to monitor, law shall be satisfied from the tribal water tribal water code is enacted in accordance administer, or account for— rights. with paragraph (1) and those provisions re- (i) any funds received by the Tribe as con- quiring approval pursuant to paragraph (2). (3) ALLOCATIONS.—Allottees shall be enti- sideration under any lease, contract, or tled to a just and equitable allocation of (B) APPROVAL.—The tribal water code shall agreement the Tribe may enter into pursu- water for irrigation purposes. not be valid unless— ant to the authority in subsection (c); or (i) the provisions of the tribal water code (4) EXHAUSTION OF REMEDIES.—Before as- (ii) the expenditure of such funds; serting any claim against the United States required by paragraph (2) are approved by (D) if the facilities at Yellowtail Dam are the Secretary; and under section 7 of the Act of February 8, 1887 significantly reduced or are anticipated to be (ii) each amendment to the tribal water (25 U.S.C. 381), or any other applicable law, significantly reduced for an extended period code that affects a right of an allottee is ap- an allottee shall exhaust remedies available of time, the Tribe shall have the same stor- proved by the Secretary. under the tribal water code or other applica- age rights as other storage contractors with (C) APPROVAL PERIOD.—The Secretary shall ble tribal law. respect to the allocation under this section; approve or disapprove the tribal water code (5) CLAIMS.—Following exhaustion of rem- (E) the costs associated with the construc- within a reasonable period of time after the edies available under the tribal water code or tion of the storage facilities at Yellowtail date on which the Tribe submits it to the other applicable tribal law, an allottee may Dam allocable to the Tribe— Secretary. (i) shall be nonreimbursable; and seek relief under section 7 of the Act of Feb- (g) EFFECT.—Except as otherwise specifi- (ii) shall be excluded from any repayment ruary 8, 1887 (25 U.S.C. 381), or other applica- cally provided in this section, nothing in this ble law. title— obligation of the Tribe; (6) AUTHORITY.—The Secretary shall have (1) authorizes any action by an allottee (F) no water service capital charges shall the authority to protect the rights of against any individual or entity, or against be due or payable for any water allocated to allottees as specified in this section. the Tribe, under Federal, State, tribal, or the Tribe pursuant to this title and the allo- (e) AUTHORITY OF TRIBE.— local law; or cation agreement, regardless of whether that (1) IN GENERAL.—Except as provided in (2) alters or affects the status of any action water is delivered for use by the Tribe or is paragraph (2), the Tribe shall have authority pursuant to section 1491(a) of title 28, United delivered under any leases, contracts, or to allocate, distribute, and lease the tribal States Code. agreements the Tribe may enter into pursu- ant to the authority in subsection (c); water rights— SEC. 408. STORAGE ALLOCATION FROM BIGHORN (A) in accordance with the Compact; and LAKE. (G) the Tribe shall not be required to make (B) subject to approval of the Secretary of (a) STORAGE ALLOCATION TO TRIBE.— payments to the United States for any water the tribal water code under subsection (1) IN GENERAL.—As described in and sub- allocated to the Tribe pursuant to this title (f)(3)(B). ject to article III(A)(1)(b) of the Compact, and the allocation agreement except for each (2) LEASES BY ALLOTTEES.—Notwith- the Secretary shall allocate to the Tribe acre-foot of stored water leased or sold for standing paragraph (1), an allottee may lease 300,000 acre-feet per year of water stored in industrial purposes; and any interest in land held by the allottee, to- Bighorn Lake, Yellowtail Unit, Lower Big- (H) for each acre-foot of stored water gether with any water right determined to horn Division, Pick Sloan Missouri Basin leased or sold by the Tribe for industrial pur- be appurtenant to the interest in land. Program, Montana, under a water right held poses— (f) TRIBAL WATER CODE.— by the United States and managed by the (i) the Tribe shall pay annually to the (1) IN GENERAL.—Notwithstanding the time Bureau of Reclamation, as measured at the United States an amount to cover the pro- period set forth in article IV(A)(2)(b) of the outlet works of Yellowtail Dam, including— portionate share of the annual operation, Compact, not later than 3 years after the (A) not more than 150,000 acre-feet per year maintenance, and replacement costs for the date on which the Tribe ratifies the Compact of the allocation, which may be used in addi- Yellowtail Unit allocable to the amount of as set forth in section 410(e)(1)(E), the Tribe tion to the natural flow right described in water for industrial purposes leased or sold shall enact a tribal water code, that provides article III(A)(1)(a) of the Compact; and by the Tribe; and for— (B) 150,000 acre-feet per year of the alloca- (ii) the annual payments of the Tribe shall (A) the management, regulation, and gov- tion, which may be used only as supple- be reviewed and adjusted, as appropriate, to ernance of all uses of the tribal water rights mental water for the natural flow right de- reflect the actual operation, maintenance, in accordance with the Compact; and scribed in article III(A)(1)(a) of the Compact and replacement costs for the Yellowtail (B) establishment by the Tribe of condi- for use in times of natural flow shortage. Unit. tions, permit requirements, and other limi- (2) TREATMENT.— (c) TEMPORARY TRANSFER FOR USE OFF tations relating to the storage, recovery, and (A) IN GENERAL.—The allocation under RESERVATION.— use of the tribal water rights in accordance paragraph (1) shall be considered to be part (1) IN GENERAL.—Notwithstanding any with the Compact. of the tribal water rights. other provision of statutory or common law (2) INCLUSIONS.—Subject to the approval of (B) PRIORITY DATE.—The priority date of and subject to paragraph (2), on approval of the Secretary, the tribal water code shall the allocation under paragraph (1) shall be the Secretary and subject to the terms and provide that— the priority date of the water right held by conditions of the Compact, the Tribe may (A) tribal allocations of water to allottees the Bureau of Reclamation. enter into a service contract, lease, ex- shall be satisfied with water from the tribal (C) ADMINISTRATION.— change, or other agreement providing for the water rights; (i) IN GENERAL.—The Tribe shall admin- temporary delivery, use, or transfer of not (B) charges for delivery of water for irriga- ister the water allocated under paragraph (1) more than 50,000 acre-feet per year of water tion purposes for allottees shall be assessed in accordance with the Compact. allocated under subsection (a)(1)(A) for use on a just and equitable basis; (ii) TEMPORARY TRANSFER.—In accordance off the Reservation. (C) there is a process by which an allottee with subsection (c), the Tribe may tempo- (2) REQUIREMENT.—An agreement under may request that the Tribe provide water for rarily transfer by service contract, lease, ex- paragraph (1) shall not permanently alienate irrigation use in accordance with this title; change, or other agreement, not more than any portion of the water allocated under sub- (D) there is a due process system for the 50,000 acre-feet of water allocated under section (a)(1)(A). consideration and determination by the paragraph (1)(A) off the Reservation, subject (d) REMAINING STORAGE.— Tribe of any request by an allottee, or any to the approval of the Secretary and the re- (1) IN GENERAL.—As of the date of enact- successor in interest to an allottee, for an al- quirements of the Compact. ment of this Act, water in Bighorn Lake location of such water for irrigation pur- (b) ALLOCATION AGREEMENT.— shall be considered to be fully allocated and

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00046 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8157 no further storage allocations shall be made and release of all claims for water rights (i) the failure to recognize or enforce the by the Secretary. within the State of Montana that the Tribe, claim of the Tribe of title to land created by (2) EFFECT OF SUBSECTION.—Nothing in this or the United States acting as trustee for the the movement of the Bighorn River; and subsection prevents the Secretary from— Tribe, asserted, or could have asserted, in (ii) the failure to make productive use of (A) renewing the storage contract with any proceeding, including the State of Mon- that land created by the movement of the Pennsylvania Power and Light Company tana stream adjudication, prior to and in- Bighorn River to which the Tribe has consistent with the allocation to Pennsyl- cluding the enforceability date, except to the claimed title; vania Power and Light Company in existence extent that such rights are recognized in the (F) all claims against the United States on the date of enactment of this Act; or Compact or this title. that first accrued at any time prior to and (B) entering into future agreements with (2) WAIVER AND RELEASE OF CLAIMS BY THE including the enforceability date arising either the Northern Cheyenne Tribe or the UNITED STATES ACTING IN ITS CAPACITY AS from the taking or acquisition of the land of Crow Tribe facilitating either tribe’s use of TRUSTEE FOR ALLOTTEES.—Subject to the re- the Tribe or resources for the construction of its respective allocation of water from Big- tention of rights set forth in subsection (c), the Yellowtail Dam; horn Lake. in return for recognition of the water rights (G) all claims against the United States SEC. 409. SATISFACTION OF CLAIMS. of the Tribe and other benefits as set forth in that first accrued at any time prior to and (a) IN GENERAL.— the Compact and this title, the United including the enforceability date relating to (1) SATISFACTION OF TRIBAL CLAIMS.—The States, acting as trustee for allottees, is au- the construction and operation of Yellowtail benefits realized by the Tribe under this title thorized and directed to execute a waiver Dam and the management of Bighorn Lake; shall be in complete replacement of and sub- and release of all claims for water rights and stitution for, and full satisfaction of, all within the Reservation and the ceded strip (H) all claims that first accrued at any claims of the Tribe against the United States that the United States, acting as trustee for time prior to and including the enforce- under paragraphs (1) and (3) of section 410(a). the allottees, asserted, or could have as- ability date relating to the generation, or (2) SATISFACTION OF ALLOTTEE CLAIMS.—The serted, in any proceeding, including the the lack thereof, of power from Yellowtail benefits realized by the allottees under this State of Montana stream adjudication, prior Dam. title shall be in complete replacement of and to and including the enforceability date, ex- (b) EFFECTIVENESS OF WAIVERS AND RE- substitution for, and full satisfaction of— cept to the extent that such rights are recog- LEASES.—The waivers under subsection (a) (A) all claims waived and released under nized in the Compact or this title. shall take effect on the enforceability date. section 410(a)(2); and (3) WAIVER AND RELEASE OF CLAIMS BY THE (c) RESERVATION OF RIGHTS AND RETENTION (B) any claims of the allottees against the TRIBE AGAINST THE UNITED STATES.—Subject OF CLAIMS.—Notwithstanding the waivers United States that the allottees have or to the retention of rights set forth in sub- and releases authorized in this title, the could have asserted that are similar in na- section (c), the Tribe, on behalf of itself and Tribe on behalf of itself and the members of ture to those described in section 410(a)(3). the members of the Tribe (but not Tribal the Tribe and the United States, acting as (b) SATISFACTION OF CLAIMS RELATING TO members in their capacities as allottees), is trustee for the Tribe and allottees, retain— CROW IRRIGATION PROJECT.— authorized to execute a waiver and release (1) all claims for enforcement of the Com- (1) IN GENERAL.—Subject to paragraph (3), of— pact, any final decree, or this title; the funds made available under subsections (A) all claims against the United States, (2) all rights to use and protect water (a) and (f) of section 414 shall be used to sat- including the agencies and employees of the rights acquired after the date of enactment isfy any claim of the Tribe or the allottees United States, relating to claims for water of this Act; with respect to the appropriation of funds for rights within the State of Montana that the (3) all claims relating to activities affect- the rehabilitation, expansion, improvement, United States, acting as trustee for the ing the quality of water, including any repair, operation, or maintenance of the Tribe, asserted, or could have asserted, in claims the Tribe may have under— Crow Irrigation Project. any proceeding, including the State of Mon- (A) the Comprehensive Environmental Re- (2) SATISFACTION OF CLAIMS.—Upon com- tana stream adjudication, except to the ex- sponse, Compensation, and Liability Act of plete transfer of the funds described in sub- tent that such rights are recognized as tribal 1980 (42 U.S.C. 9601 et seq.), including for sections (a) and (f) of section 414 any claim of water rights in this title, including all damages to natural resources; the Tribe or the allottees with respect to the claims relating in any manner to the claims (B) the Safe Drinking Water Act (42 U.S.C. transfer of funds for the rehabilitation, ex- reserved against the United States or agen- 300f et seq.); pansion, improvement, repair, operation, or cies or employees of the United States in (C) the Federal Water Pollution Control maintenance of the Crow Irrigation Project section 4(e) of the joint stipulation of settle- Act (33 U.S.C. 1251 et seq.); and shall be deemed to have been satisfied. ment; (D) any regulations implementing the Acts (3) EFFECT.—Except as provided in section (B) all claims against the United States, described in subparagraphs (A) through (C); 405, nothing in this title affects any applica- including the agencies and employees of the (4) all claims relating to damages, losses, ble law (including regulations) under which United States, relating to damages, losses, or injuries to land or natural resources not the United States collects irrigation assess- or injuries to water, water rights, land, or due to loss of water or water rights (includ- ments from— natural resources due to loss of water or ing hunting, fishing, gathering, or cultural (A) non-Indian users of the Crow Irrigation water rights (including damages, losses, or rights); Project; and injuries to hunting, fishing, gathering, or (5) all rights, remedies, privileges, immuni- (B) the Tribe, tribal entities and instru- cultural rights due to loss of water or water ties, and powers not specifically waived and mentalities, tribal members, allottees, and rights, claims relating to interference with, released pursuant to this title or article entities owned by the Tribe, tribal members, diversion or taking of water, or claims relat- VII(E) of the Compact; or allottees, to the extent that annual irriga- ing to failure to protect, acquire, replace, or (6) all claims against any person or entity tion assessments on such tribal water users develop water, water rights, or water infra- other than the United States, including exceed the amount of funds available under structure) within the State of Montana that claims for monetary damages, with respect section 411(e)(3)(D) for costs relating to CIP first accrued at any time prior to and includ- to— OM&R. ing the enforceability date, including all (A) the claim of the Tribe of title to land (c) NO RECOGNITION OF WATER RIGHTS.— claims relating to the failure to establish or created by the movement of the Bighorn Notwithstanding subsection (a) and except as provide a municipal rural or industrial water River; and provided in section 407, nothing in this title delivery system on the Reservation and all (B) the productive use of that land created recognizes or establishes any right of a mem- claims relating to the failure to provide for, by the movement of the Bighorn River to ber of the Tribe or an allottee to water with- operate, or maintain the Crow Irrigation which the Tribe has claimed title; and in the Reservation or the ceded strip. Project, or any other irrigation system or ir- (7) all claims that first accrued after the SEC. 410. WAIVERS AND RELEASES OF CLAIMS. rigation project on the Reservation; enforceability date with respect to claims (a) IN GENERAL.— (C) all claims against the United States, otherwise waived in accordance with sub- (1) WAIVER AND RELEASE OF CLAIMS BY THE including the agencies and employees of the paragraphs (B) and (E) through (H) of sub- TRIBE AND THE UNITED STATES ACTING IN ITS United States, relating to the pending litiga- section (a)(3). CAPACITY AS TRUSTEE FOR THE TRIBE.—Sub- tion of claims relating to the water rights of (d) EFFECT OF COMPACT AND TITLE.—Noth- ject to the retention of rights set forth in the Tribe in the State of Montana; ing in the Compact or this title— subsection (c), in return for recognition of (D) all claims against the United States, (1) affects the ability of the United States, the tribal water rights and other benefits as including the agencies and employees of the acting as sovereign, to take actions author- set forth in the Compact and this title, the United States, relating to the negotiation, ized by law, including any laws relating to Tribe, on behalf of itself and the members of execution, or the adoption of the Compact health, safety, or the environment, includ- the Tribe (but not tribal members in their (including exhibits) or this title; ing— capacities as allottees), and the United (E) subject to the retention of rights set (A) the Comprehensive Environmental Re- States, acting as trustee for the Tribe and forth in subsection (c), all claims for mone- sponse, Compensation, and Liability Act of the members of the Tribe (but not tribal tary damages against the United States that 1980 (42 U.S.C. 9601 et seq.); members in their capacities as allottees), are first accrued at any time prior to and includ- (B) the Safe Drinking Water Act (42 U.S.C. authorized and directed to execute a waiver ing the enforceability date with respect to— 300f et seq.);

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00047 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8158 CONGRESSIONAL RECORD — SENATE November 19, 2010 (C) the Federal Water Pollution Control (1) the United States’ approval of the Com- (ii) bonds and other obligations of the Ten- Act (33 U.S.C. 1251 et seq.); and pact under section 404 shall no longer be ef- nessee Valley Authority described in section (D) any regulations implementing the Acts fective; 15d of the Tennessee Valley Authority Act of described in subparagraphs (A) through (C); (2) any unexpended Federal funds appro- 1933 (16 U.S.C. 831n-4); (2) affects the ability of the United States priated or made available to carry out the (iii) mortgages, obligations, and other se- to take actions acting as trustee for any activities authorized in this Act, together curities of the Federal Home Loan Mortgage other Indian tribe or allottee of any other with any interest earned on those funds, and Corporation described in section 303 of the Indian tribe; any water rights or contracts to use water Federal Home Loan Mortgage Corporation (3) confers jurisdiction on any State and title to other property acquired or con- Act (12 U.S.C. 1452); and court— structed with Federal funds appropriated or (iv) bonds, notes, and debentures of the (A) to interpret Federal law regarding made available to carry out the activities Commodity Credit Corporation described in health, safety, or the environment; authorized in this Act shall be returned to section 4 of the Act of March 8, 1938 (15 (B) to determine the duties of the United the Federal Government, unless otherwise U.S.C. 713a–4). States or other parties pursuant to Federal agreed to by the Tribe and the United States (3) DISTRIBUTIONS FROM CROW SETTLEMENT law regarding health, safety, or the environ- and approved by Congress; and FUND.— ment; or (3) except for Federal funds used to acquire (A) IN GENERAL.—Amounts from the Fund (C) to conduct judicial review of Federal or develop property that is returned to the shall be used for each purpose described in agency action; Federal Government under paragraph (2), the subparagraphs (B) through (E). (4) waives any claim of a member of the United States shall be entitled to set off any (B) TRIBAL COMPACT ADMINISTRATION AC- Tribe in an individual capacity that does not Federal funds appropriated or made avail- COUNT.—The Tribal Compact Administration derive from a right of the Tribe; or able to carry out the activities authorized in account shall be used for expenditures by the (5) revives any claims waived by the Tribe this Act that were expended or withdrawn, Tribe for Tribal Compact Administration. in the joint stipulation of settlement. together with any interest accrued, against (C) ENERGY DEVELOPMENT PROJECTS AC- COUNT.—The Energy Development Projects (e) ENFORCEABILITY DATE.— any claims against the United States relat- ing to water rights in the State of Montana account shall be used for expenditures by the (1) IN GENERAL.—The enforceability date Tribe for the following types of energy devel- shall be the date on which the Secretary asserted by the Tribe or in any future settle- ment of the water rights of the Crow Tribe. opment on the Reservation, the ceded strip, publishes in the Federal Register a state- and land owned by the Tribe: SEC. 411. CROW SETTLEMENT FUND. ment of findings that— (i) Development and marketing of power (A)(i) the Montana Water Court has issued (a) ESTABLISHMENT.—There is established generation on the Yellowtail Afterbay Dam a final judgment and decree approving the in the Treasury of the United States a fund authorized in section 412(b). Compact; or to be known as ‘‘the Crow Settlement Fund’’, (ii) Development of clean coal conversion (ii) if the Montana Water Court is found to to be administered by the Secretary for the projects. lack jurisdiction, the district court of juris- purpose of carrying out this title. (iii) Renewable energy projects other than diction has approved the Compact as a con- (b) TRANSFERS TO FUND.—The Fund shall the project described in clause (i). sent decree and such approval is final; consist of such amounts as are deposited in (D) CIP OM&R ACCOUNT.— (B) all of the funds made available under the Fund under subsections (c) through (h) of (i) IN GENERAL.—Amounts in the CIP subsections (c) through (f) of section 414 have section 414. OM&R Account shall be used for CIP OM&R been deposited in the Fund; (c) ACCOUNTS OF CROW SETTLEMENT FUND.— costs. (C) the Secretary has executed the agree- The Secretary shall establish in the Fund (ii) REDUCTION OF COSTS TO TRIBAL WATER ments with the Tribe required by sections the following accounts: USERS.— 405(a) and 406(a); (1) The Tribal Compact Administration ac- (I) IN GENERAL.—Subject to subclause (II), (D) the State of Montana has appropriated count, consisting of amounts made available the funds described in clause (i) shall be used and paid into an interest-bearing escrow ac- pursuant to section 414(c). to reduce the CIP OM&R costs to all tribal count any payments due as of the date of en- (2) The Energy Development Projects ac- water users on a proportional basis for a actment of this Act to the Tribe under the count, consisting of amounts made available given year. Compact; pursuant to section 414(d). (II) LIMITATION ON USE OF FUNDS.—Funds in (E)(i) the Tribe has ratified the Compact (3) The MR&I System OM&R Account, con- the CIP OM&R Account shall be used to pay by submitting this title and the Compact to sisting of amounts made available pursuant irrigation assessments only for the Tribe, a vote by the tribal membership for approval to section 414(e). tribal entities and instrumentalities, tribal or disapproval; and (4) The CIP OM&R Account, consisting of members, allottees, and entities owned by (ii) the tribal membership has voted to ap- amounts made available pursuant to section the Tribe, tribal members, or allottees. prove this title and the Compact by a major- 414(f). (E) MR&I SYSTEM OM&R ACCOUNT.—Funds ity of votes cast on the day of the vote, as (d) DEPOSITS TO CROW SETTLEMENT FUND.— from the MR&I System OM&R Account shall certified by the Secretary and the Tribe; (1) IN GENERAL.—The Secretary of the be used to assist the Tribe in paying MR&I (F) the Secretary has fulfilled the require- Treasury shall promptly deposit in the Fund System OM&R costs. ments of section 408(a); and any amounts appropriated for that purpose. (4) WITHDRAWALS BY TRIBE.— (G) the waivers and releases authorized and (2) PRIORITY OF DEPOSITS TO ACCOUNTS.—Of (A) IN GENERAL.—The Tribe may withdraw set forth in subsection (a) have been exe- the amounts appropriated for deposit in the any portion of amounts in the Fund on ap- cuted by the Tribe and the Secretary. Fund, the Secretary of the Treasury shall de- proval by the Secretary of a tribal manage- posit amounts in the accounts listed in sub- ment plan in accordance with the American (f) TOLLING OF CLAIMS.— section (c)— Indian Trust Fund Management Reform Act (1) IN GENERAL.—Each applicable period of limitation and time-based equitable defense (A) in full; and of 1994 (25 U.S.C. 4001 et seq.). relating to a claim described in this section (B) in the order listed in subsection (c). (B) REQUIREMENTS.— shall be tolled for the period beginning on (e) MANAGEMENT.— (i) IN GENERAL.—In addition to the require- the date of enactment of this Act and ending (1) IN GENERAL.—The Secretary shall man- ments under the American Indian Trust on the date on which the amounts made age the Fund, make investments from the Fund Management Reform Act of 1994 (25 available to carry out this title are trans- Fund, and make amounts available from the U.S.C. 4001 et seq.), the tribal management ferred to the Secretary. Fund for distribution to the Tribe consistent plan of the Tribe under subparagraph (A) with the American Indian Trust Fund Man- shall require that the Tribe spend any (2) EFFECT OF SUBSECTION.—Nothing in this subsection revives any claim or tolls any pe- agement Reform Act of 1994 (25 U.S.C. 4001 et amounts withdrawn from the Fund in ac- riod of limitation or time-based equitable de- seq.). cordance with this title. fense that expired before the date of enact- (2) INVESTMENT OF CROW SETTLEMENT (ii) ENFORCEMENT.—The Secretary may ment of this Act. FUND.—Beginning on the enforceability date, carry out such judicial or administrative ac- the Secretary shall invest amounts in the tions as the Secretary determines to be nec- (g) EXPIRATION AND TOLLING.—In the event Fund in accordance with— essary to enforce a tribal management plan that all appropriations authorized by this (A) the Act of April 1, 1880 (25 U.S.C. 161); to ensure that amounts withdrawn by the Act have not been made available to the Sec- (B) the first section of the Act of June 24, Tribe from the Fund under this paragraph retary by June 30, 2030— 1938 (25 U.S.C. 162a); and are used in accordance with this title. (1) the waivers authorized in this section (C) the obligations of Federal corporations (C) LIABILITY.—The Secretary and the Sec- shall expire and be of no further force or ef- and Federal Government-sponsored entities, retary of the Treasury shall not be liable for fect; and the charter documents of which provide that the expenditure or investment of amounts (2) all statutes of limitations applicable to the obligations of the entities are lawful in- withdrawn from the Fund by the Tribe under any claim otherwise waived shall be tolled vestments for federally managed funds, in- this paragraph. until June 30, 2030. cluding— (D) EXPENDITURE PLAN.— (h) VOIDING OF WAIVERS.—If the waivers (i) the obligations of the United States (i) IN GENERAL.—For each fiscal year, the pursuant to this section are void under sub- Postal Service described in section 2005 of Tribe shall submit to the Secretary for ap- section (g)— title 39, United States Code; proval an expenditure plan for any portion of

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00048 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8159 the amounts described in subparagraph (A) Level Management Plan, any requirement in power generated by a project under this sub- that the Tribe elects not to withdraw under the Streamflow and Lake Level Management section. this paragraph during the fiscal year. Plan that the Tribe dedicate a specified per- (6) LIABILITY OF UNITED STATES.—The (ii) INCLUSION.—An expenditure plan under centage, portion, or number of acre-feet of United States shall have no trust obligation clause (i) shall include a description of the water per year of the tribal water rights to to monitor, administer, or account for— manner in which, and the purposes for instream flow means (and is limited in (A) the revenues received by the Tribe which, amounts of the Tribe remaining in meaning and effect to) an obligation on the under this subsection; or the Fund will be used during subsequent fis- part of the Tribe to withhold from develop- (B) the expenditure of the revenues re- cal years. ment or otherwise refrain from diverting or ceived by the Tribe under this subsection. (iii) APPROVAL.—On receipt of an expendi- removing from the Bighorn River the speci- (c) CONSULTATION WITH TRIBE.—The Bureau ture plan under clause (i), the Secretary fied quantity of water for the duration, at of Reclamation shall consult with the Tribe shall approve the plan if the Secretary deter- the locations, and under the conditions set on at least a quarterly basis on all issues re- mines that the plan is— forth in the applicable requirement. lating to the management of Yellowtail Dam by the Bureau of Reclamation. (I) reasonable; and (b) POWER GENERATION.— (d) AMENDMENTS TO COMPACT AND PLAN.— (II) consistent with this title. (1) IN GENERAL.—Notwithstanding any The provisions of subsection (a) apply to any (5) ANNUAL REPORTS.—The Tribe shall sub- other provision of law, the Tribe shall have amendment to— mit to the Secretary annual reports describ- the exclusive right to develop and market (1) the Compact; or ing each expenditure by the Tribe of power generation on the Yellowtail Afterbay (2) the Streamflow and Lake Level Man- amounts in the Fund during the preceding Dam, provided that this exclusive right shall agement Plan. calendar year. expire 15 years after the date of enactment of (6) CERTAIN PER CAPITA DISTRIBUTIONS PRO- this Act if construction has not been sub- SEC. 413. MISCELLANEOUS PROVISIONS. (a) WAIVER OF SOVEREIGN IMMUNITY BY THE HIBITED.—No amount in the Fund shall be stantially completed on the power genera- UNITED STATES.—Except as provided in sub- distributed to any member of the Tribe on a tion project of the Tribe. sections (a) through (c) of section 208 of the per capita basis. (2) BUREAU OF RECLAMATION COOPERATION.— Department of Justice Appropriation Act, (f) AVAILABILITY.— The Bureau of Reclamation shall cooperate 1953 (43 U.S.C. 666), nothing in this title (1) IN GENERAL.—Except as provided in with the Tribe on the development of any waives the sovereign immunity of the United paragraph (2), the amounts in the Fund shall power generation project under this sub- States. be available for use by the Secretary and section. (b) OTHER TRIBES NOT ADVERSELY AF- withdrawal by the Tribe beginning on the en- (3) AGREEMENT.—Before construction of a forceability date. FECTED.—Nothing in this title quantifies or power generation project under this sub- diminishes any land or water right, or any (2) EXCEPTION.—The amounts made avail- section, the Tribe shall enter into an agree- able under section 414(c) shall be available claim or entitlement to land or water, of an ment with the Bureau of Reclamation that Indian tribe, band, or community other than for use by the Secretary and withdrawal by contains provisions that— the Tribe beginning on the date on which the the Tribe. (A) allocate the responsibilities for the de- (c) LIMITATION ON CLAIMS FOR REIMBURSE- Tribe ratifies the Compact as provided in sign, construction, and operations of the MENT.—With respect to Indian land within section 410(e)(1)(E). project; the Reservation or the ceded strip— (g) STATE CONTRIBUTION.—The State of (B) assure the compatibility of the power (1) the United States shall not submit Montana contribution to the Fund shall be generation project with the operations of the against any Indian-owned land located with- provided in accordance with article VI(A) of Yellowtail Unit and the Yellowtail Afterbay in the Reservation or the ceded strip any the Compact. Dam, which shall include entering into claim for reimbursement of the cost to the (h) SEPARATE APPROPRIATIONS ACCOUNT.— agreements— United States of carrying out this title and Section 1105(a) of title 31, United States (i) regarding operating criteria and emer- the Compact; and Code, is amended— gency procedures, as they relate to dam safe- (2) no assessment of any Indian-owned land (1) by redesignating paragraphs (35) and ty; and located within the Reservation or the ceded (36) as paragraphs (36) and (37), respectively; (ii) under which, should the Tribe propose strip shall be made regarding that cost. (2) by redesignating the second paragraph any modifications to facilities owned by the (d) LIMITATION ON LIABILITY OF UNITED (33) (relating to obligational authority and Bureau of Reclamation, the proposed modi- STATES.— outlays requested for homeland security) as fications shall be subject to review and ap- (1) IN GENERAL.—The United States has no paragraph (35); and proval by the Secretary, acting through the trust or other obligation— (3) by adding at the end the following: Bureau of Reclamation; (A) to monitor, administer, or account for, ‘‘(38) a separate statement for the Crow (C) beginning 10 years after the date on in any manner, any funds provided to the Settlement Fund established under section which the Tribe begins marketing power gen- Tribe by any party to the Compact other 411 of the Crow Tribe Water Rights Settle- erated from the Yellowtail Afterbay Dam, than the United States; or ment Act of 2010, which shall include the es- the Tribe shall make annual payments for (B) to review or approve any expenditure of timated amount of deposits into the Fund, operation, maintenance, and replacement those funds. obligations, and outlays from the Fund.’’. costs in amounts determined in accordance (2) INDEMNIFICATION.—The Tribe shall in- SEC. 412. YELLOWTAIL DAM, MONTANA. with the guidelines and methods of the Bu- demnify the United States, and hold the (a) STREAMFLOW AND LAKE LEVEL MANAGE- reau of Reclamation for assessing operation, United States harmless, with respect to all MENT PLAN.— maintenance, and replacement charges, pro- claims (including claims for takings or (1) IN GENERAL.—Nothing in this title, the vided that such annual payments shall not breach of trust) arising from the receipt or Compact, or the Streamflow and Lake Level exceed 3 percent of gross annual revenue pro- expenditure of amounts described in para- Management Plan referred to in article duced by the sale of electricity generated by graph (1)(A). III(A)(7) of the Compact— such project; and (e) EFFECT ON CURRENT LAW.—Nothing in (A) limits the discretion of the Secretary (D) the Secretary— this section affects any provision of law (in- under the section 4F of that plan; or (i) shall review the charges established in cluding regulations) in effect on the day be- (B) requires the Secretary to give priority the agreement on the date that is 5 years fore the date of enactment of this Act with to any factor described in section 4F of that after the date on which the Tribe makes the respect to preenforcement review of any Fed- plan over any other factor described in that first payment described in subparagraph (C) eral environmental enforcement action. section. to the Secretary under the agreement and at (f) LIMITATIONS ON EFFECT.— (2) BIGHORN LAKE MANAGEMENT.—Bighorn 5 year intervals thereafter; and (1) IN GENERAL.—Nothing in this title, the Lake water management, including the (ii) may increase or decrease the charges in Compact, or the Streamflow and Lake Level Streamflow and Lake Level Management proportion to the amount of any increase or Management Plan referred to in article Plan, is a Federal activity, and the review decrease in the costs of operation, mainte- III(A)(7) of the Compact— and enforcement of any water management nance, and replacement for the Yellowtail (A) limits, expands, alters, or otherwise af- decisions relating to Bighorn Lake shall be Afterbay Dam, provided that any increase in fects— as provided by Federal law. operation, maintenance, and replacement (i) the meaning, interpretation, implemen- (3) APPLICABILITY OF PARAGRAPHS (1) AND costs assessed to the Tribe may not exceed— tation, application, or effect of any article, (2).—The Streamflow and Lake Level Man- (I) 5 percent in any 5 year period; and provision, or term of the Yellowstone River agement Plan referred to in and part of the (II) 3 percent of the gross annual revenue Compact; Compact shall be interpreted to clearly re- produced by the sale of electricity generated (ii) any right, requirement, or obligation flect paragraphs (1) and (2). by such project. under the Yellowstone River Compact; (4) APPLICABILITY OF INSTREAM FLOW RE- (4) USE OF POWER BY TRIBE.—Any hydro- (iii) any allocation (or manner of deter- QUIREMENTS IN PLAN.—Notwithstanding any electric power generated in accordance with mining any allocation) of water under the term (including any defined term) or provi- this subsection shall be used or marketed by Yellowstone River Compact; or sion in the Streamflow and Lake Level Man- the Tribe. (iv) any present or future claim, defense, or agement Plan, for purposes of this title, the (5) REVENUES.—The Tribe shall retain any other position asserted in any legal, adminis- Compact, and the Streamflow and Lake revenues from the sale of hydroelectric trative, or other proceeding arising under or

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00049 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8160 CONGRESSIONAL RECORD — SENATE November 19, 2010 relating to the Yellowstone River Compact and construction of the MR&I System authority provided under any provision of (including the original proceeding between $100,381,000, adjusted to reflect changes since this title shall be void; the State of Montana and the State of Wyo- May 1, 2008, in construction cost indices ap- (3) any amounts made available under sec- ming pending as of the date of enactment of plicable to the types of construction in- tion 414, together with any interest on those this Act before the United States Supreme volved in the design and construction of the amounts, shall immediately revert to the Court); MR&I System. general fund of the Treasury; (B) makes an allocation or apportionment (c) TRIBAL COMPACT ADMINISTRATION.—Out (4) any amounts made available under sec- of water between or among States; of any funds in the Treasury not otherwise tion 414 that remain unexpended shall imme- (C) addresses or implies whether, how, or appropriated, the Secretary of the Treasury diately revert to the general fund of the to what extent (if any)— shall transfer to the Secretary $4,776,000, ad- Treasury; and (i) the tribal water rights, or any portion justed to reflect changes in appropriate cost (5) the United States shall be entitled to of the tribal water rights, should be ac- indices during the period beginning on the set off against any claims asserted by the counted for as part of or otherwise charged date of enactment of this Act and ending on Tribe against the United States relating to against any allocation of water made to a the date of the transfer, for Tribal Compact water rights— State under the provisions of the Yellow- Administration. (A) any funds expended or withdrawn from stone River Compact; or (d) ENERGY DEVELOPMENT PROJECTS.—Out the amounts made available pursuant to this (ii) the Yellowstone River Compact in- of any funds in the Treasury not otherwise title; and appropriated, the Secretary of the Treasury cludes the tribal water rights or the water (B) any funds made available to carry out shall transfer to the Secretary $20,000,000, ad- right of any Indian tribe as part of any allo- the activities authorized in this title from justed to reflect changes in appropriate cost cation or other disposition of water under other authorized sources. indices during the period beginning on the that compact; or date of enactment of this Act and ending on SEC. 416. ANTIDEFICIENCY. (D) waives the sovereign immunity from the date of the transfer, for Energy Develop- The United States shall not be liable for suit of any State under the Eleventh Amend- ment Projects as set forth in section any failure to carry out any obligation or ac- ment to the Constitution of the United 411(e)(3)(C). tivity authorized by this title (including any States, except as expressly authorized in Ar- (e) MR&I SYSTEM OM&R.—Out of any such obligation or activity under the Settle- ticle IV(F)(8) of the Compact. funds in the Treasury not otherwise appro- ment Agreement) if adequate appropriations (2) EFFECT OF CERTAIN PROVISIONS IN COM- priated, the Secretary of the Treasury shall are not provided expressly by Congress to PACT.—The provisions in paragraphs (1) and transfer to the Secretary $47,000,000, adjusted carry out the purposes of this title in the (2) of article III (A)(6)(a), paragraphs (1) and to reflect changes in appropriate cost indices Reclamation Water Settlements Fund estab- (2) of article III(B)(6)(a), paragraphs (1) and during the period beginning on the date of lished under section 10501 of Public Law 111– (2) of article III(E)(6)(a), and paragraphs (1) enactment of this Act and ending on the date 11 or the ‘‘Emergency Fund for Indian Safety and (2) of article III (F)(6)(a) of the Compact of the transfer, for MR&I System OM&R. and Health’’ established by section 601(a) of that provide protections to certain water (f) CIP OM&R.—Out of any funds in the the Tom Lantos and Henry J. Hyde United rights recognized under the laws of the State Treasury not otherwise appropriated, the States Global Leadership Against HIV/AIDS, of Montana do not affect in any way, either Secretary of the Treasury shall transfer to Tuberculosis, and Malaria Reauthorization directly or indirectly, existing or future the Secretary $10,000,000, adjusted to reflect Act of 2008 (25 U.S.C. 443c(a)). water rights (including the exercise of any changes in appropriate cost indices during TITLE V—TAOS PUEBLO INDIAN WATER such rights) outside of the State of Montana. the period beginning on the date of enact- RIGHTS (g) EFFECT ON RECLAMATION LAW.—The ac- ment of this Act and ending on the date of tivities carried out by the Bureau of Rec- the transfer, for CIP OM&R. SEC. 501. SHORT TITLE. lamation under this title shall not establish (g) USE.—In addition to the uses authorized This title may be cited as the ‘‘Taos Pueb- a precedent or impact the authority provided under subsections (a) and (b), such amounts lo Indian Water Rights Settlement Act’’. under any other provision of Federal rec- as may be necessary of the amounts made SEC. 502. PURPOSES. lamation law, including— available under those subsections may be The purposes of this title are— (1) the Rural Supply Act of 2006 (Public used to carry out related activities necessary (1) to approve, ratify, and confirm the Taos Law 109–451; 120 Stat. 3345); and to comply with Federal environmental and Pueblo Indian Water Rights Settlement (2) the Omnibus Public Land Management cultural resource laws. Agreement; (h) ACCOUNT TRANSFERS.— Act of 2009 (Public Law 111-11; 123 Stat. 991). (2) to authorize and direct the Secretary to (1) IN GENERAL.—The Secretary may trans- execute the Settlement Agreement and to SEC. 414. FUNDING. fer from the amounts made available under perform all obligations of the Secretary (a) REHABILITATION AND IMPROVEMENT OF subsection (a) such amounts as the Sec- under the Settlement Agreement and this CROW IRRIGATION PROJECT.— retary, with the concurrence of the Tribe, title; and (1) MANDATORY APPROPRIATION.—Out of any determines to be necessary to supplement (3) to authorize all actions and appropria- funds in the Treasury not otherwise appro- the amounts made available under sub- tions necessary for the United States to priated, the Secretary of the Treasury shall section (b), on a determination of the Sec- meet its obligations under the Settlement transfer to the Secretary $73,843,000, adjusted retary, in consultation with the Tribe, that Agreement and this title. to reflect changes since May 1, 2008, in con- such a transfer is in the best interest of the struction cost indices applicable to the types Tribe. SEC. 503. DEFINITIONS. of construction involved in the rehabilita- (2) OTHER APPROVED TRANSFERS.—The Sec- In this title: tion and improvement of the Crow Irrigation retary may transfer from the amounts made (1) ELIGIBLE NON-PUEBLO ENTITIES.—The Project, for the rehabilitation and improve- available under subsection (b) such amounts term ‘‘Eligible Non-Pueblo Entities’’ means ment of the Crow Irrigation Project. as the Secretary, with the concurrence of the the Town of Taos, the El Prado Water and (2) AUTHORIZATION OF APPROPRIATIONS.—In Tribe, determines to be necessary to supple- Sanitation District, and the New Mexico De- addition to the amount made available under ment the amounts made available under sub- partment of Finance and Administration paragraph (1), there is authorized to be ap- section (a), on a determination of the Sec- Local Government Division on behalf of the propriated to the Secretary for the rehabili- retary, in consultation with the Tribe, that Acequia Madre del Rio Lucero y del Arroyo tation and improvement of the Crow Irriga- such a transfer is in the best interest of the Seco, the Acequia Madre del Prado, the tion Project $58,000,000, adjusted to reflect Tribe. Acequia del Monte, the Acequia Madre del changes since May 1, 2008, in construction (i) RECEIPT AND ACCEPTANCE.—The Sec- Rio Chiquito, the Upper Ranchitos Mutual cost indices applicable to the types of con- retary shall be entitled to receive, shall ac- Domestic Water Consumers Association, the struction involved in the rehabilitation and cept, and shall use to carry out this section Upper Arroyo Hondo Mutual Domestic Water improvement of the Crow Irrigation Project. the funds transferred under subsections (a) Consumers Association, and the Llano (b) DESIGN AND CONSTRUCTION OF MR&I through (f), without further appropriation. Quemado Mutual Domestic Water Consumers SYSTEM.— SEC. 415. REPEAL ON FAILURE TO MEET EN- Association. (1) MANDATORY APPROPRIATION.—Out of any FORCEABILITY DATE. (2) ENFORCEMENT DATE.—The term ‘‘En- funds in the Treasury not otherwise appro- If the Secretary does not publish a state- forcement Date’’ means the date upon which priated, the Secretary of the Treasury shall ment of findings under section 410(e) not the Secretary publishes the notice required transfer to the Secretary $146,000,000, ad- later than March 31, 2016, or the extended by section 509(f)(1). justed to reflect changes since May 1, 2008, in date agreed to by the Tribe and the Sec- (3) MUTUAL-BENEFIT PROJECTS.—The term construction cost indices applicable to the retary, after reasonable notice to the State ‘‘Mutual-Benefit Projects’’ means the types of construction involved in the design of Montana, as applicable— projects described and identified in articles 6 and construction of the MR&I System, for (1) this title is repealed effective April 1, and 10.1 of the Settlement Agreement. the design and construction of the MR&I 2016, or the day after the extended date (4) PARTIAL FINAL DECREE.—The term ‘‘Par- System. agreed to by the Tribe and the Secretary tial Final Decree’’ means the Decree entered (2) AUTHORIZATION OF APPROPRIATIONS.—In after reasonable notice to the State of Mon- in New Mexico v. Abeyta and New Mexico v. addition to the amount made available under tana, whichever is later; Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) paragraph (1), there is authorized to be ap- (2) any action taken by the Secretary and and 7939–BB (U.S. D.N.M.) (consolidated), for propriated to the Secretary for the design any contract or agreement pursuant to the the resolution of the Pueblo’s water right

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00050 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8161 claims and which is substantially in the community welfare and economic develop- funding under subsection (a), or costs related form agreed to by the Parties and attached ment, and costs related to the negotiation, to the negotiation, authorization, and imple- to the Settlement Agreement as Attachment authorization, and implementation of the mentation of the Settlement Agreement, 5. Settlement Agreement. provided that such funds may be expended (5) PARTIES.—The term ‘‘Parties’’ means (b) MANAGEMENT OF FUND.—The Secretary prior to the Enforcement Date only for ac- the Parties to the Settlement Agreement, as shall manage the Fund, invest amounts in tivities which are determined by the Sec- identified in article 1 of the Settlement the Fund, and make monies available from retary to be more cost effective when imple- Agreement. the Fund for distribution to the Pueblo con- mented as early as possible; and (6) PUEBLO.—The term ‘‘Pueblo’’ means the sistent with the American Indian Trust Fund (2) shall be distributed by the Secretary to Taos Pueblo, a sovereign Indian tribe duly Management Reform Act of 1994 (25 U.S.C. the Pueblo on receipt by the Secretary from recognized by the United States of America. 4001 et seq.) (hereinafter, ‘‘Trust Fund Re- the Pueblo of a written notice and a Tribal (7) PUEBLO LANDS.—The term ‘‘Pueblo form Act’’), this title, and the Settlement Council resolution that describes the pur- lands’’ means those lands located within the Agreement. poses under paragraph (1) for which the mon- Taos Valley to which the Pueblo, or the (c) INVESTMENT OF FUND.—Upon the En- ies will be used after a cost-effectiveness de- United States in its capacity as trustee for forcement Date, the Secretary shall invest termination by the Secretary has been made the Pueblo, holds title subject to Federal law amounts in the Fund in accordance with— as described in paragraph (1). The Secretary limitations on alienation. Such lands include (1) the Act of April 1, 1880 (21 Stat. 70, ch. shall make the determination described in Tracts A, B, and C, the Pueblo’s land grant, 41, 25 U.S.C. 161); paragraph (1) within a reasonable period of the Blue Lake Wilderness Area, and the (2) the first section of the Act of June 24, time after receipt of the notice and resolu- Tenorio and Karavas Tracts and are gen- 1938 (52 Stat. 1037, ch. 648, 25 U.S.C. 162a); and tion. erally depicted in Attachment 2 to the Set- (3) the American Indian Trust Fund Man- (g) NO PER CAPITA DISTRIBUTIONS.—No por- tlement Agreement. agement Reform Act of 1994 (25 U.S.C. 4001 et tion of the Fund shall be distributed on a per (8) SAN JUAN-CHAMA PROJECT.—The term seq.). capita basis to members of the Pueblo. ‘‘San Juan-Chama Project’’ means the (d) AVAILABILITY OF AMOUNTS FROM SEC. 506. MARKETING. UND Project authorized by section 8 of the Act of F .—Upon the Enforcement Date, all mon- (a) PUEBLO WATER RIGHTS.—Subject to the June 13, 1962 (76 Stat. 96 and 97), and the Act ies deposited in the Fund pursuant to section approval of the Secretary in accordance with of April 11, 1956 (70 Stat. 105). 509(c)(1) or made available from other au- subsection (e), the Pueblo may market water (9) SECRETARY.—The term ‘‘Secretary’’ thorized sources shall be available to the rights secured to it under the Settlement means the Secretary of the Interior. Pueblo for expenditure or withdrawal after Agreement and Partial Final Decree, pro- (10) SETTLEMENT AGREEMENT.—The term the requirements of subsection (e) have been vided that such marketing is in accordance ‘‘Settlement Agreement’’ means the con- met. with this section. XPENDITURES AND ITHDRAWAL tract dated March 31, 2006, between and (e) E W .— (b) PUEBLO CONTRACT RIGHTS TO SAN JUAN- among— (1) TRIBAL MANAGEMENT PLAN.— CHAMA PROJECT WATER.—Subject to the ap- (A) the United States, acting solely in its (A) IN GENERAL.—The Pueblo may with- proval of the Secretary in accordance with capacity as trustee for Taos Pueblo; draw all or part of the Fund on approval by subsection (e), the Pueblo may subcontract (B) the Taos Pueblo, on its own behalf; the Secretary of a tribal management plan water made available to the Pueblo under (C) the State of New Mexico; as described in the Trust Fund Reform Act. the contract authorized under section (D) the Taos Valley Acequia Association (B) REQUIREMENTS.—In addition to the re- 508(b)(1)(A) to third parties to supply water and its 55 member ditches; quirements under the Trust Fund Reform for use within or without the Taos Valley, (E) the Town of Taos; Act, the tribal management plan shall re- provided that the delivery obligations under (F) the El Prado Water and Sanitation Dis- quire that the Pueblo spend any funds in ac- such subcontract are not inconsistent with trict; and cordance with the purposes described in sub- the Secretary’s existing San Juan-Chama (G) the 12 Taos area Mutual Domestic section (a). Project obligations and such subcontract is Water Consumers Associations, as amended (2) ENFORCEMENT.—The Secretary may in accordance with this section. to conform with this title. take judicial or administrative action to en- (c) LIMITATION.— (11) STATE ENGINEER.—The term ‘‘State En- force the requirement that monies with- (1) IN GENERAL.—Diversion or use of water gineer’’ means the New Mexico State Engi- drawn from the Fund are used for the pur- off Pueblo lands pursuant to Pueblo water neer. poses specified in subsection (a). rights or Pueblo contract rights to San (12) TAOS VALLEY.—The term ‘‘Taos Val- (3) LIABILITY.—If the Pueblo exercises the Juan-Chama Project water shall be subject ley’’ means the geographic area depicted in right to withdraw monies from the Fund, to and not inconsistent with the same re- Attachment 4 of the Settlement Agreement. neither the Secretary nor the Secretary of quirements and conditions of State law, any the Treasury shall retain any liability for SEC. 504. PUEBLO RIGHTS. applicable Federal law, and any applicable the expenditure or investment of the monies (a) IN GENERAL.—Those rights to which the interstate compact as apply to the exercise Pueblo is entitled under the Partial Final withdrawn. of water rights or contract rights to San Decree shall be held in trust by the United (4) EXPENDITURE PLAN.— Juan-Chama Project water held by non-Fed- States on behalf of the Pueblo and shall not (A) IN GENERAL.—The Pueblo shall submit eral, non-Indian entities, including all appli- be subject to forfeiture, abandonment, or to the Secretary for approval an expenditure cable State Engineer permitting and report- permanent alienation. plan for any portions of the funds made ing requirements. (b) SUBSEQUENT ACT OF CONGRESS.—The available under this title that the Pueblo (2) EFFECT ON WATER RIGHTS.—Such diver- Pueblo shall not be denied all or any part of does not withdraw under paragraph (1)(A). sion or use off Pueblo lands under paragraph its rights held in trust absent its consent un- (B) DESCRIPTION.—The expenditure plan (1) shall not impair water rights or increase less such rights are explicitly abrogated by shall describe the manner in which, and the surface water depletions within the Taos an Act of Congress hereafter enacted. purposes for which, amounts remaining in Valley. SEC. 505. TAOS PUEBLO WATER DEVELOPMENT the Fund will be used. (d) MAXIMUM TERM.— FUND. (C) APPROVAL.—On receipt of an expendi- (1) IN GENERAL.—The maximum term of (a) ESTABLISHMENT.—There is established ture plan under subparagraph (A), the Sec- any water use lease or subcontract, includ- in the Treasury of the United States a fund retary shall approve the plan if the Sec- ing all renewals, shall not exceed 99 years in to be known as the ‘‘Taos Pueblo Water De- retary determines that the plan is reason- duration. velopment Fund’’ (referred to in this section able and consistent with this title. (2) ALIENATION OF RIGHTS.—The Pueblo as the ‘‘Fund’’) to be used to pay or reim- (5) ANNUAL REPORT.—The Pueblo shall sub- shall not permanently alienate any rights it burse costs incurred by the Pueblo for— mit to the Secretary an annual report that has under the Settlement Agreement, the (1) acquiring water rights; describes all expenditures from the Fund Partial Final Decree, and this title. (2) planning, permitting, designing, engi- during the year covered by the report. (e) APPROVAL OF SECRETARY.—The Sec- neering, constructing, reconstructing, re- (f) AMOUNTS AVAILABLE ON APPROPRIA- retary shall approve or disapprove any lease placing, rehabilitating, operating, or repair- TION.—Notwithstanding subsection (d), or subcontract submitted by the Pueblo for ing water production, treatment or delivery $15,000,000 of the monies deposited in the approval within a reasonable period of time infrastructure, on-farm improvements, or Fund— after submission, provided that no Secre- wastewater infrastructure; (1) shall be available upon appropriation or tarial approval shall be required for any (3) restoring, preserving and protecting the availability of the funds from other author- water use lease for less than 10 acre-feet per Buffalo Pasture, including planning, permit- ized sources for the Pueblo’s acquisition of year with a term of less than 7 years, includ- ting, designing, engineering, constructing, water rights pursuant to Article 5.1.1.2.3 of ing all renewals. operating, managing and replacing the Buf- the Settlement Agreement, the Buffalo Pas- (f) NO FORFEITURE OR ABANDONMENT.—The falo Pasture Recharge Project; ture Recharge Project, implementation of nonuse by a lessee or subcontractor of the (4) administering the Pueblo’s water rights the Pueblo’s water rights acquisition pro- Pueblo of any right to which the Pueblo is acquisition program and water management gram and water management and adminis- entitled under the Partial Final Decree shall and administration system; and tration system, the design, planning, engi- in no event result in a forfeiture, abandon- (5) watershed protection and enhancement, neering, permitting or construction of water ment, relinquishment, or other loss of all or support of agriculture, water-related Pueblo or wastewater infrastructure eligible for any part of those rights.

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(g) NO PREEMPTION.— set forth in section 509(f)(2) have not been priated, the Secretary of the Treasury shall (1) IN GENERAL.—The approval authority of fulfilled by March 31, 2017, the contract shall transfer to the Secretary to provide grants the Secretary provided under subsection (e) expire on that date. pursuant to section 507 $16,000,000 for the pe- shall not amend, construe, supersede, or pre- (3) APPLICABLE LAW.—Public Law 87–483 (76 riod of fiscal years 2011 through 2016. empt any State or Federal law, interstate Stat. 97) applies to the contracts entered (ii) AUTHORIZATION OF APPROPRIATIONS.—In compact, or international treaty that per- into under paragraph (1) and no preference addition to the amount made available under tains to the Colorado River, the Rio Grande, shall be applied as a result of section 504(a) clause (i), there is authorized to be appro- or any of their tributaries, including the ap- with regard to the delivery or distribution of priated to the Secretary to provide grants propriation, use, development, storage, regu- San Juan-Chama Project water or the man- pursuant to section 507 $20,000,000 for the pe- lation, allocation, conservation, exportation, agement or operation of the San Juan- riod of fiscal years 2011 through 2016. or quantity of those waters. Chama Project. (B) DEPOSIT IN FUND.—The Secretary shall (2) APPLICABLE LAW.—The provisions of (c) WAIVER.—With respect to the contract deposit the funds made available pursuant to section 2116 of the Revised Statutes (25 authorized and required by subsection subparagraph (A) into a noninterest-bearing U.S.C. 177) shall not apply to any water made (b)(1)(A) and notwithstanding the provisions fund, to be known as the ‘‘Taos Settlement available under the Settlement Agreement. of Public Law 87–483 (76 Stat. 96) or any other Fund’’, to be established in the Treasury of (h) NO PREJUDICE.—Nothing in this title provision of law— the United States so that such funds may be shall be construed to establish, address, prej- (1) the Secretary shall waive the entirety made available on the Enforcement Date as udice, or prevent any party from litigating of the Pueblo’s share of the construction set forth in section 507(a). whether or to what extent any applicable costs, both principal and the interest, for the (3) RECEIPT AND ACCEPTANCE.—The Sec- State law, Federal law, or interstate com- San Juan-Chama Project and pursuant to retary shall be entitled to receive, shall ac- pact does or does not permit, govern, or that waiver, the Pueblo’s share of all con- cept, and shall use to carry out this title the apply to the use of the Pueblo’s water out- struction costs for the San Juan-Chama funds transferred under paragraphs (1)(A) side of New Mexico. Project, inclusive of both principal and in- and (2)(A)(i), without further appropriation, to remain available until expended. SEC. 507. MUTUAL-BENEFIT PROJECTS. terest shall be nonreimbursable; and (2) the Secretary’s waiver of the Pueblo’s (d) AUTHORITY OF SECRETARY.—The Sec- (a) IN GENERAL.—Upon the Enforcement share of the construction costs for the San retary is authorized to enter into such agree- Date, the Secretary, acting through the ments and to take such measures as the Sec- Commissioner of Reclamation, shall provide Juan-Chama Project will not result in an in- crease in the pro rata shares of other San retary may deem necessary or appropriate to financial assistance in the form of grants on fulfill the intent of the Settlement Agree- a nonreimbursable basis to Eligible Non- Juan-Chama Project water contractors, but such costs shall be absorbed by the United ment and this title. Pueblo Entities to plan, permit, design, engi- (e) ENVIRONMENTAL COMPLIANCE.— neer, and construct the Mutual-Benefit States Treasury or otherwise appropriated to the Department of the Interior. (1) EFFECT OF EXECUTION OF SETTLEMENT Projects in accordance with the Settlement AGREEMENT.—The Secretary’s execution of SEC. 509. AUTHORIZATIONS, RATIFICATIONS, Agreement— the Settlement Agreement shall not con- (1) to minimize adverse impacts on the CONFIRMATIONS, AND CONDITIONS PRECEDENT. stitute a major Federal action under the Na- Pueblo’s water resources by moving future (a) RATIFICATION.— tional Environmental Policy Act of 1969 (42 non-Indian ground water pumping away from (1) IN GENERAL.—Except to the extent that U.S.C. 4321 et seq.). the Pueblo’s Buffalo Pasture; and any provision of the Settlement Agreement (2) COMPLIANCE WITH ENVIRONMENTAL (2) to implement the resolution of a dis- conflicts with any provision of this title, the LAWS.—In carrying out this title, the Sec- pute over the allocation of certain surface Settlement Agreement is authorized, rati- retary shall comply with each law of the water flows between the Pueblo and non-In- fied, and confirmed. Federal Government relating to the protec- dian irrigation water right owners in the (2) AMENDMENTS.—To the extent amend- tion of the environment, including— community of Arroyo Seco Arriba. ments are executed to make the Settlement (A) the National Environmental Policy Act OST-SHARING.— (b) C Agreement consistent with this title, such of 1969 (42 U.S.C. 4321 et seq.); and (1) FEDERAL SHARE.—The Federal share of amendments are also authorized, ratified, (B) the Endangered Species Act of 1973 (16 the total cost of planning, designing, and and confirmed. U.S.C. 1531 et seq.). constructing the Mutual-Benefit Projects (b) EXECUTION OF SETTLEMENT AGREE- (f) CONDITIONS PRECEDENT AND SECRE- authorized in subsection (a) shall be 75 per- MENT.—To the extent that the Settlement TARIAL FINDING.— cent and shall be nonreimbursable. Agreement does not conflict with this title, (1) IN GENERAL.—Upon the fulfillment of (2) NON-FEDERAL SHARE.—The non-Federal the Secretary shall execute the Settlement the conditions precedent described in para- share of the total cost of planning, design- Agreement, including all exhibits to the Set- graph (2), the Secretary shall publish in the ing, and constructing the Mutual-Benefit tlement Agreement requiring the signature Federal Register a statement of finding that Projects shall be 25 percent and may be in of the Secretary and any amendments nec- the conditions have been fulfilled. the form of in-kind contributions, including essary to make the Settlement Agreement (2) CONDITIONS.—The conditions precedent the contribution of any valuable asset or consistent with this title, after the Pueblo referred to in paragraph (1) are the following: service that the Secretary determines would has executed the Settlement Agreement and (A) The President has signed into law the substantially contribute to completing the any such amendments. Taos Pueblo Indian Water Rights Settlement Mutual-Benefit Projects. (c) FUNDING.— Act. (3) ADDITIONAL STATE CONTRIBUTION.—As a (1) TAOS PUEBLO WATER DEVELOPMENT (B) To the extent that the Settlement condition of expenditure by the Secretary of FUND.— Agreement conflicts with this title, the Set- the funds made available under section (A) MANDATORY APPROPRIATION.—Out of tlement Agreement has been revised to con- 509(c)(2), the State shall— any funds in the Treasury not otherwise ap- form with this title. (A) appropriate and make available the propriated, the Secretary of the Treasury (C) The Settlement Agreement, so revised, non-Federal share described in paragraph (2); shall transfer to the Secretary for deposit in including waivers and releases pursuant to and the Taos Pueblo Water Development Fund section 510, has been executed by the Parties (B) agree to provide additional funding as- established by section 505(a), for the period and the Secretary prior to the Parties’ mo- sociated with the Mutual-Benefit Projects as of fiscal years 2011 through 2016, $50,000,000, tion for entry of the Partial Final Decree. described in paragraph 10 of the Settlement as adjusted by such amounts as may be re- (D) Congress has fully appropriated or the Agreement. quired due to increases since April 1, 2007, in Secretary has provided from other author- SEC. 508. SAN JUAN-CHAMA PROJECT CON- construction costs, as indicated by engineer- ized sources all funds made available under TRACTS. ing cost indices applicable to the types of paragraphs (1) and (2) of subsection (c). (a) IN GENERAL.—Contracts issued under construction or rehabilitation involved. (E) The Legislature of the State of New this section shall be in accordance with this (B) AUTHORIZATION OF APPROPRIATIONS.—In Mexico has fully appropriated the funds for title and the Settlement Agreement. addition to the amount made available under the State contributions as specified in the (b) CONTRACTS FOR SAN JUAN-CHAMA subparagraph (A), there is authorized to be Settlement Agreement, and those funds have PROJECT WATER.— appropriated to the Secretary for deposit in been deposited in appropriate accounts. (1) IN GENERAL.—The Secretary shall enter the Taos Pueblo Water Development Fund (F) The State of New Mexico has enacted into 3 repayment contracts within a reason- established by section 505(a) $38,000,000, as legislation that amends NMSA 1978, section able period after the date of enactment of adjusted by such amounts as may be re- 72–6–3 to state that a water use due under a this Act, for the delivery of San Juan-Chama quired due to increases since April 1, 2007, in water right secured to the Pueblo under the Project water in the following amounts: construction costs, as indicated by engineer- Settlement Agreement or the Partial Final (A) 2,215 acre-feet/annum to the Pueblo. ing cost indices applicable to the types of Decree may be leased for a term, including (B) 366 acre-feet/annum to the Town of construction or rehabilitation involved, for all renewals, not to exceed 99 years, provided Taos. the period of fiscal years 2011 through 2016. that this condition shall not be construed to (C) 40 acre-feet/annum to the El Prado (2) MUTUAL-BENEFIT PROJECTS FUNDING.— require that said amendment state that any Water and Sanitation District. (A) FUNDING.— State law based water rights acquired by the (2) REQUIREMENTS.—Each such contract (i) MANDATORY APPROPRIATION.—Out of any Pueblo or by the United States on behalf of shall provide that if the conditions precedent funds in the Treasury not otherwise appro- the Pueblo may be leased for said term.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00052 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8163 (G) A Partial Final Decree that sets forth Pueblo, asserted, or could have asserted, in (5) all claims against the United States, its the water rights and contract rights to water any proceeding, including but not limited to agencies, or employees relating to the nego- to which the Pueblo is entitled under the in New Mexico v. Abeyta and New Mexico v. tiation, Execution or the adoption of the Settlement Agreement and this title and Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) Settlement Agreement, exhibits thereto, the that substantially conforms to the Settle- and 7939–BB (U.S. D.N.M.) (consolidated), up Final Decree, or this title. ment Agreement and Attachment 5 thereto to and including the Enforcement Date, ex- (c) RESERVATION OF RIGHTS AND RETENTION has been approved by the Court and has be- cept to the extent that such rights are recog- OF CLAIMS.—Notwithstanding the waivers come final and nonappealable. nized in the Settlement Agreement or this and releases authorized in this title, the (g) ENFORCEMENT DATE.—The Settlement title; Pueblo on behalf of itself and its members Agreement shall become enforceable, and the (2) all claims for water rights, whether for and the United States acting in its capacity waivers and releases executed pursuant to consumptive or nonconsumptive use, in the as trustee for the Pueblo retain— section 510 and the limited waiver of sov- Rio Grande mainstream or its tributaries (1) all claims for enforcement of the Settle- ereign immunity set forth in section 511(a) that the Pueblo, or the United States acting ment Agreement, the Final Decree, includ- shall become effective, as of the date that in its capacity as trustee for the Pueblo, as- ing the Partial Final Decree, the San Juan- the Secretary publishes the notice required serted or could assert in any water rights ad- Chama Project contract between the Pueblo by subsection (f)(1). judication proceedings except those claims and the United States, or this title; (h) EXPIRATION DATE.— based on Pueblo or United States ownership (2) all claims against persons other than (1) IN GENERAL.—If all of the conditions of lands or water rights acquired after the the Parties to the Settlement Agreement for precedent described in section (f)(2) have not Enforcement Date, provided that nothing in damages, losses or injuries to water rights or been fulfilled by March 31, 2017, the Settle- this paragraph shall prevent the Pueblo or claims of interference with, diversion or tak- ment Agreement shall be null and void, the the United States from fully participating in ing of water rights (including but not limited waivers and releases executed pursuant to the inter se phase of any such water rights to claims for injury to lands resulting from section 510 and the sovereign immunity adjudication proceedings; such damages, losses, injuries, interference waivers in section 511(a) shall not become ef- (3) all claims for damages, losses or inju- with, diversion, or taking of water rights) within the Taos Valley arising out of activi- fective, and any unexpended Federal funds, ries to water rights or claims of interference ties occurring outside the Taos Valley or the together with any income earned thereon, with, diversion or taking of water (including Taos Valley Stream System; and title to any property acquired or con- but not limited to claims for injury to lands (3) all rights to use and protect water structed with expended Federal funds, shall resulting from such damages, losses, inju- rights acquired after the date of enactment be returned to the Federal Government, un- ries, interference with, diversion, or taking) of this Act; less otherwise agreed to by the Parties in in the Rio Grande mainstream or its tribu- (4) all rights to use and protect water writing and approved by Congress. taries or for lands within the Taos Valley that accrued at any time up to and including rights acquired pursuant to State law, to the (2) EXCEPTION.—Notwithstanding sub- extent not inconsistent with the Partial section (h)(1) or any other provision of law, the Enforcement Date; and Final Decree and the Settlement Agreement except as provided in subsection (i), title to (4) all claims against the State of New (including water rights for the land the any property acquired or constructed with Mexico, its agencies, or employees relating Pueblo owns in Questa, New Mexico); expended Federal funds made available under to the negotiation or the adoption of the Settlement Agreement. (5) all claims relating to activities affect- section 505(f) shall be retained by the Pueblo. (b) CLAIMS BY THE PUEBLO AGAINST THE ing the quality of water including but not (i) RIGHT TO SET-OFF.—If the conditions UNITED STATES.—The Pueblo, on behalf of limited to any claims the Pueblo might have precedent described in subsection (f)(2) have itself and its members, is authorized to exe- under the Comprehensive Environmental Re- not been fulfilled by March 31, 2017, and the cute a waiver and release of— sponse, Compensation, and Liability Act of Settlement Agreement is null and void under (1) all claims against the United States, its 1980 (42 U.S.C. 9601 et seq.) (including but not subsection (h)(1)— agencies, or employees relating to claims for limited to claims for damages to natural re- (1) the United States shall be entitled to water rights in or water of the Taos Valley sources), the Safe Drinking Water Act (42 set off any Federal funds made available that the United States acting in its capacity U.S.C. 300f et seq.), the Federal Water Pollu- under section 505(f) that were used for pur- as trustee for the Pueblo asserted, or could tion Control Act (33 U.S.C. 1251 et seq.), and poses other than the purchase of water rights have asserted, in any proceeding, including the regulations implementing those Acts; against any claim of the Pueblo against the but not limited to in New Mexico v. Abeyta (6) all claims relating to damages, losses, United States described in section 510(b) (but and New Mexico v. Arellano, Civil Nos. 7896– or injuries to land or natural resources not excluding any claim retained under section BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) due to loss of water or water rights (includ- 510(c)); and (consolidated); ing but not limited to hunting, fishing, gath- (2) the Pueblo shall have the option ei- (2) all claims against the United States, its ering, or cultural rights); and ther— agencies, or employees relating to damages, (7) all rights, remedies, privileges, immuni- (A) to accept an equitable credit for any losses, or injuries to water, water rights, ties, powers, and claims not specifically water rights acquired with funds made avail- land, or natural resources due to loss of waived and released pursuant to this title able under section 505(f) against any water water or water rights (including but not lim- and the Settlement Agreement. rights secured for the Pueblo by the Pueblo, ited to damages, losses or injuries to hunt- (d) EFFECT.—Nothing in the Settlement or by the United States on behalf of the ing, fishing, gathering, or cultural rights due Agreement or this title— Pueblo, in any litigation or future settle- to loss of water or water rights, claims relat- (1) affects the ability of the United States ment of the case styled New Mexico v. ing to interference with, diversion or taking acting in its sovereign capacity to take ac- Abeyta and New Mexico v. Arellano, Civil of water or water rights, or claims relating tions authorized by law, including but not Nos. 7896-BB (U.S.6 D.N.M.) and 7939-BB (U.S. to failure to protect, acquire, replace, or de- limited to any laws relating to health, safe- D.N.M.) (consolidated); or velop water, water rights or water infra- ty, or the environment, including but not (B) to convey to the United States any structure) in the Rio Grande mainstream or limited to the Federal Water Pollution Con- water rights acquired with funds made avail- its tributaries or within the Taos Valley trol Act (33 U.S.C. 1251 et seq.), the Safe able under section 505(f). that first accrued at any time up to and in- Drinking Water Act (42 U.S.C. 300f et seq.), (j) EXTENSION.—The dates in subsections cluding the Enforcement Date; the Comprehensive Environmental Response, (h) and (i) and section 510(e) may be extended (3) all claims against the United States, its Compensation, and Liability Act of 1980 (42 if the Parties agree that an extension is rea- agencies, or employees for an accounting of U.S.C. 9601 et seq.), the Solid Waste Disposal sonably necessary. funds appropriated by the Act of March 4, Act (42 U.S.C. 6901 et seq.), and the regula- SEC. 510. WAIVERS AND RELEASES OF CLAIMS. 1929 (45 Stat. 1562), the Act of March 4, 1931 tions implementing such Acts; (a) CLAIMS BY THE PUEBLO AND THE UNITED (46 Stat. 1552), the Act of June 22, 1936 (49 (2) affects the ability of the United States STATES.—In return for recognition of the Stat. 1757), the Act of August 9, 1937 (50 Stat. to take actions acting in its capacity as Pueblo’s water rights and other benefits, in- 564), and the Act of May 9, 1938 (52 Stat. 291), trustee for any other Indian tribe or allottee; cluding but not limited to the commitments as authorized by the Pueblo Lands Act of (3) confers jurisdiction on any State court by non-Pueblo parties, as set forth in the June 7, 1924 (43 Stat. 636), and the Pueblo to— Settlement Agreement and this title, the Lands Act of May 31, 1933 (48 Stat. 108), and (A) interpret Federal law regarding health, Pueblo, on behalf of itself and its members, for breach of trust relating to funds for safety, or the environment or determine the and the United States acting in its capacity water replacement appropriated by said Acts duties of the United States or other parties as trustee for the Pueblo are authorized to that first accrued before the date of enact- pursuant to such Federal law; or execute a waiver and release of claims ment of this Act; (B) conduct judicial review of Federal against the parties to New Mexico v. Abeyta (4) all claims against the United States, its agency action; or and New Mexico v. Arellano, Civil Nos. 7896– agencies, or employees relating to the pend- (4) waives any claim of a member of the BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) ing litigation of claims relating to the Pueb- Pueblo in an individual capacity that does (consolidated) from— lo’s water rights in New Mexico v. Abeyta not derive from a right of the Pueblo. (1) all claims for water rights in the Taos and New Mexico v. Arellano, Civil Nos. 7896– (e) TOLLING OF CLAIMS.— Valley that the Pueblo, or the United States BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) (1) IN GENERAL.—Each applicable period of acting in its capacity as trustee for the (consolidated); and limitation and time-based equitable defense

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relating to a claim described in this section (3) AUTHORITY.—The term ‘‘Authority’’ Reservation recognized by section 8 of Public shall be tolled for the period beginning on means the Pojoaque Basin Regional Water Law 87–231 (75 Stat. 505). the date of enactment of this Act and ending Authority described in section 9.5 of the Set- (14) PUEBLO.—The term ‘‘Pueblo’’ means on the earlier of— tlement Agreement or an alternate entity each of the pueblos of Nambe, Pojoaque, San (A) March 31, 2017; or acceptable to the Pueblos and the County to Ildefonso, or Tesuque. (B) the Enforcement Date. operate and maintain the diversion and (15) PUEBLOS.—The term ‘‘Pueblos’’ means (2) EFFECT OF SUBSECTION.—Nothing in this treatment facilities, certain transmission collectively the Pueblos of Nambe, Pojoaque, subsection revives any claim or tolls any pe- pipelines, and other facilities of the Regional San Ildefonso, and Tesuque. riod of limitation or time-based equitable de- Water System. (16) PUEBLO LAND.—The term ‘‘Pueblo fense that expired before the date of enact- (4) CITY.—The term ‘‘City’’ means the city land’’ means any real property that is— ment of this Act. of Santa Fe, New Mexico. (A) held by the United States in trust for (3) LIMITATION.—Nothing in this subsection (5) COST-SHARING AND SYSTEM INTEGRATION a Pueblo within the Pojoaque Basin; precludes the tolling of any period of limita- AGREEMENT.—The term ‘‘Cost-Sharing and (B)(i) owned by a Pueblo within the tions or any time-based equitable defense System Integration Agreement’’ means the Pojoaque Basin before the date on which a under any other applicable law. agreement, dated August 27, 2009, to be exe- court approves the Settlement Agreement; SEC. 511. INTERPRETATION AND ENFORCEMENT. cuted by the United States, the State, the or (a) LIMITED WAIVER OF SOVEREIGN IMMU- Pueblos, the County, and the City that— (ii) acquired by a Pueblo on or after the NITY.—Upon and after the Enforcement Date, (A) describes the location, capacity, and date on which a court approves the Settle- if any Party to the Settlement Agreement management (including the distribution of ment Agreement, if the real property is lo- brings an action in any court of competent water to customers) of the Regional Water cated— jurisdiction over the subject matter relating System; and (I) within the exterior boundaries of the only and directly to the interpretation or en- (B) allocates the costs of the Regional Pueblo, as recognized and conformed by a forcement of the Settlement Agreement or Water System with respect to— patent issued under the Act of December 22, this title, and names the United States or (i) the construction, operation, mainte- 1858 (11 Stat. 374, chapter V); or the Pueblo as a party, then the United nance, and repair of the Regional Water Sys- (II) within the exterior boundaries of any States, the Pueblo, or both may be added as tem; territory set aside for the Pueblo by law, ex- a party to any such action, and any claim by (ii) rights-of-way for the Regional Water ecutive order, or court decree; the United States or the Pueblo to sovereign System; and (C) owned by a Pueblo or held by the immunity from the action is waived, but (iii) the acquisition of water rights. United States in trust for the benefit of a only for the limited and sole purpose of such (6) COUNTY.—The term ‘‘County’’ means Pueblo outside the Pojoaque Basin that is lo- interpretation or enforcement, and no waiver Santa Fe County, New Mexico. cated within the exterior boundaries of the of sovereign immunity is made for any ac- (7) COUNTY DISTRIBUTION SYSTEM.—The Pueblo as recognized and confirmed by a pat- tion against the United States or the Pueblo term ‘‘County Distribution System’’ means ent issued under the Act of December 22, 1858 that seeks money damages. the portion of the Regional Water System (11 Stat. 374, chapter V); or (b) SUBJECT MATTER JURISDICTION NOT AF- that serves water customers on non-Pueblo (D) within the exterior boundaries of any FECTED.—Nothing in this title shall be land in the Pojoaque Basin. real property located outside the Pojoaque deemed as conferring, restricting, enlarging, (8) COUNTY WATER UTILITY.—The term Basin set aside for a Pueblo by law, execu- or determining the subject matter jurisdic- ‘‘County Water Utility’’ means the water tive order, or court decree, if the land is tion of any court, including the jurisdiction utility organized by the County to— within or contiguous to land held by the of the court that enters the Partial Final De- (A) receive water distributed by the Au- United States in trust for the Pueblo as of cree adjudicating the Pueblo’s water rights. thority; and January 1, 2005. (c) REGULATORY AUTHORITY NOT AF- (B) provide the water received under sub- (17) PUEBLO WATER FACILITY.— FECTED.—Nothing in this title shall be paragraph (A) to customers on non-Pueblo (A) IN GENERAL.—The term ‘‘Pueblo Water deemed to determine or limit any authority land in the Pojoaque Basin. Facility’’ means— of the State or the Pueblo to regulate or ad- (9) ENGINEERING REPORT.—The term ‘‘Engi- (i) a portion of the Regional Water System minister waters or water rights now or in the neering Report’’ means the report entitled that serves only water customers on Pueblo future. ‘‘Pojoaque Regional Water System Engineer- land; and ing Report’’ dated September 2008 and any (ii) portions of a Pueblo water system in SEC. 512. DISCLAIMER. Nothing in the Settlement Agreement or amendments thereto, including any modi- existence on the date of enactment of this this title shall be construed in any way to fications which may be required by section Act that serve water customers on non-Pueb- 611(d)(2). lo land, also in existence on the date of en- quantify or otherwise adversely affect the (10) FUND.—The term ‘‘Fund’’ means the actment of this Act, or their successors, that land and water rights, claims, or entitle- Aamodt Settlement Pueblos’ Fund estab- are— ments to water of any other Indian tribe. lished by section 615(a). (I) depicted in the final project design, as SEC. 513. ANTIDEFICIENCY. (11) OPERATING AGREEMENT.—The term modified by the drawings reflecting the com- The United States shall not be liable for ‘‘Operating Agreement’’ means the agree- pleted Regional Water System; and failure to carry out any obligation or activ- ment between the Pueblos and the County (II) described in the Operating Agreement. ity authorized to be carried out under this executed under section 612(a). (B) INCLUSIONS.—The term ‘‘Pueblo Water title (including any such obligation or activ- (12) OPERATIONS, MAINTENANCE, AND RE- Facility’’ includes— ity under the Agreement) if adequate appro- PLACEMENT COSTS.— (i) the barrier dam and infiltration project priations are not provided expressly to carry (A) IN GENERAL.—The term ‘‘operations, on the Rio Pojoaque described in the Engi- out the purposes of this title by Congress or maintenance, and replacement costs’’ means neering Report; and there are not enough monies available to all costs for the operation of the Regional (ii) the Tesuque Pueblo infiltration pond carry out the purposes of this title in the Water System that are necessary for the described in the Engineering Report. Reclamation Water Settlements Fund estab- safe, efficient, and continued functioning of (18) REGIONAL WATER SYSTEM.— lished under section 10501 of Public Law 111– the Regional Water System to produce the (A) IN GENERAL.—The term ‘‘Regional 11 or the ‘‘Emergency Fund for Indian Safety benefits described in the Settlement Agree- Water System’’ means the Regional Water and Health’’ established by section 601(a) of ment. System described in section 611(a). the Tom Lantos and Henry J. Hyde United (B) EXCLUSION.—The term ‘‘operations, (B) EXCLUSIONS.—The term ‘‘Regional States Global Leadership Against HIV/AIDS, maintenance, and replacement costs’’ does Water System’’ does not include the County Tuberculosis, and Malaria Reauthorization not include construction costs or costs re- or Pueblo water supply delivered through the Act of 2008 (25 U.S.C. 443c(a)). lated to construction design and planning. Regional Water System. TITLE VI—AAMODT LITIGATION (13) POJOAQUE BASIN.— (19) SAN JUAN-CHAMA PROJECT.—The term SETTLEMENT (A) IN GENERAL.—The term ‘‘Pojoaque ‘‘San Juan-Chama Project’’ means the SEC. 601. SHORT TITLE. Basin’’ means the geographic area limited by Project authorized by section 8 of the Act of This title may be cited as the ‘‘Aamodt a surface water divide (which can be drawn June 13, 1962 (76 Stat. 96, 97), and the Act of Litigation Settlement Act’’. on a topographic map), within which area April 11, 1956 (70 Stat. 105). SEC. 602. DEFINITIONS. rainfall and runoff flow into arroyos, drain- (20) SAN JUAN-CHAMA PROJECT ACT.—The In this title: ages, and named tributaries that eventually term ‘‘San Juan-Chama Project Act’’ means (1) AAMODT CASE.—The term ‘‘Aamodt drain to— sections 8 through 18 of the Act of June 13, Case’’ means the civil action entitled State (i) the Rio Pojoaque; or 1962 (76 Stat. 96, 97). of New Mexico, ex rel. State Engineer and (ii) the 2 unnamed arroyos immediately (21) SECRETARY.—The term ‘‘Secretary’’ United States of America, Pueblo de Nambe, south; and means the Secretary of the Interior. Pueblo de Pojoaque, Pueblo de San Ildefonso, (iii) 2 arroyos (including the Arroyo (22) SETTLEMENT AGREEMENT.—The term and Pueblo de Tesuque v. R. Lee Aamodt, et Alamo) that are north of the confluence of ‘‘Settlement Agreement’’ means the agree- al., No. 66 CV 6639 MV/LCS (D.N.M.). the Rio Pojoaque and the Rio Grande. ment among the State, the Pueblos, the (2) ACRE-FEET.—The term ‘‘acre-feet’’ (B) INCLUSION.—The term ‘‘Pojoaque United States, the County, and the City means acre-feet of water per year. Basin’’ includes the San Ildefonso Eastern dated January 19, 2006, and signed by all of

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May 3, 2006, as amended in conformity with set forth in the Cost-Sharing and System In- (3) SUBSEQUENT CONVEYANCE.—On convey- this title. tegration Agreement. ance by the Secretary under paragraph (1), (23) STATE.—The term ‘‘State’’ means the (e) APPLICABLE LAW.—The Indian Self-De- the Pueblos, the County, and the Authority State of New Mexico. termination and Education Assistance Act shall not reconvey any portion of the Re- Subtitle A—Pojoaque Basin Regional Water (25 U.S.C. 450 et seq.) shall not apply to the gional Water System conveyed to the Pueb- design and construction of the Regional System los, the County, and the Authority, respec- Water System. tively, unless the reconveyance is authorized SEC. 611. AUTHORIZATION OF REGIONAL WATER (f) CONSTRUCTION COSTS.— SYSTEM. by an Act of Congress enacted after the date (1) PUEBLO WATER FACILITIES.— of enactment of this Act. (a) IN GENERAL.—The Secretary, acting (A) IN GENERAL.—Except as provided in through the Commissioner of Reclamation, (4) INTEREST OF THE UNITED STATES.—On subparagraph (B), the expenditures of the conveyance of a portion of the Regional shall plan, design, and construct a regional Secretary to construct the Pueblo Water Fa- water system in accordance with the Settle- Water System under paragraph (1), the cilities under this section shall not exceed United States shall have no further right, ment Agreement, to be known as the ‘‘Re- $106,400,000. gional Water System’’— title, or interest in and to the portion of the (B) EXCEPTION.—The amount described in Regional Water System conveyed. (1) to divert and distribute water to the subparagraph (A) shall be increased or de- (5) ADDITIONAL CONSTRUCTION.—On convey- Pueblos and to the County Water Utility, in creased, as appropriate, based on ordinary ance of a portion of the Regional Water Sys- accordance with the Engineering Report; and fluctuations in construction costs since Oc- tem under paragraph (1), the Pueblos, Coun- (2) that consists of— tober 1, 2006, as determined using applicable ty, or the Authority, as applicable, may, at (A) surface water diversion facilities at engineering cost indices. the expense of the Pueblos, County, or the San Ildefonso Pueblo on the Rio Grande; and (2) COSTS TO PUEBLO.—The costs incurred Authority, construct any additional infra- (B) any treatment, transmission, storage by the Secretary in carrying out activities structure that is necessary to fully use the and distribution facilities and wellfields for to construct the Pueblo Water Facilities water delivered by the Regional Water Sys- the County Distribution System and Pueblo under this section shall not be reimbursable tem. Water Facilities that are necessary to supply to the United States. (6) TAXATION.—Conveyance of title to any 4,000 acre-feet of water within the Pojoaque (3) COUNTY DISTRIBUTION SYSTEM.—As a portion of the Regional Water System, the Basin, unless modified in accordance with condition of the Secretary using the funds Pueblo Water Facilities, or the County Dis- subsection (d)(2). made available pursuant to section 617(a)(1), tribution System under paragraph (1) does (b) FINAL PROJECT DESIGN.—The Secretary the costs of constructing the County Dis- not waive or alter any applicable Federal law shall issue a final project design within 90 tribution System shall be a State and local prohibiting taxation of such facilities or the days of completion of the environmental expense pursuant to the Cost-Sharing and underlying land. compliance described in section 616 for the System Integration Agreement. (7) LIABILITY.— Regional Water System that— (g) INITIATION OF DISCUSSIONS.— (A) IN GENERAL.—Effective on the date of (1) is consistent with the Engineering Re- (1) IN GENERAL.—If the Secretary deter- port; and mines that the cost of constructing the Re- conveyance of any land or facility under this (2) includes a description of any Pueblo gional Water System exceed the amounts de- section, the United States shall not be held Water Facilities. scribed in the Cost-Sharing and System Inte- liable by any court for damages of any kind (c) ACQUISITION OF LAND; WATER RIGHTS.— gration Agreement for construction of the arising out of any act, omission, or occur- (1) ACQUISITION OF LAND.—Upon request, Regional Water System and would neces- rence relating to the land and facilities con- and in exchange for the funding which shall sitate funds in excess of the amount made veyed, other than damages caused by acts of be provided in section 617(c), the Pueblos available pursuant to section 617(a)(1), the negligence by the United States, or by em- shall consent to the grant of such easements Secretary shall initiate negotiations with ployees or agents of the United States, prior and rights-of-way as may be necessary for the parties to the Cost-Sharing and System to the date of conveyance. the construction of the Regional Water Sys- Integration Agreement for an agreement re- (B) TORT CLAIMS.—Nothing in this section tem at no cost to the Secretary. To the ex- garding non-Federal contributions to ensure increases the liability of the United States tent that the State or County own easements that the Regional Water System can be com- beyond the liability provided in chapter 171 or rights-of-way that may be used for con- pleted as required by section 623(e). of title 28, United States Code (commonly known as the ‘‘Federal Tort Claims Act’’). struction of the Regional Water System, the (2) JOINT RESPONSIBILITIES.—The United State or County shall provide that land or States shall not bear the entire amount of (8) EFFECT.—Nothing in any transfer of interest in land as necessary for construc- any cost overrun, nor shall the State be re- ownership provided or any conveyance there- tion at no cost to the Secretary. The Sec- sponsible to pay any amounts in addition to to as provided in this section shall extin- retary shall acquire any other land or inter- the amounts specified in the Cost-Sharing guish the right of any Pueblo, the County, or est in land that is necessary for the con- and System Integration Agreement. the Regional Water Authority to the contin- struction of the Regional Water System. (h) CONVEYANCE OF REGIONAL WATER SYS- uous use and benefit of each easement or (2) WATER RIGHTS.—The Secretary shall not TEM FACILITIES.— right of way for the use, operation, mainte- condemn water rights for purposes of the Re- (1) IN GENERAL.—Subject to paragraph (2), nance, repair, and replacement of Pueblo gional Water System. on completion of the construction of the Re- Water Facilities, the County Distribution (d) CONDITIONS FOR CONSTRUCTION.— gional Water System as defined in section System or the Regional Water System or for (1) IN GENERAL.—The Secretary shall not 623(e), the Secretary, in accordance with the wastewater purposes as provided in the Cost- begin construction of the Regional Water Operating Agreement, shall convey to— Sharing and System Integration Agreement. System facilities until the date on which— (A) each Pueblo the portion of any Pueblo SEC. 612. OPERATING AGREEMENT. (A) the Secretary executes— Water Facility that is located within the (a) IN GENERAL.—The Pueblos and the (i) the Settlement Agreement; and boundaries of the Pueblo, including any land County shall submit to the Secretary an exe- (ii) the Cost-Sharing and System Integra- or interest in land located within the bound- cuted Operating Agreement for the Regional tion Agreement; and aries of the Pueblo that is acquired by the Water System that is consistent with this (B) the State and the County have entered United States for the construction of the title, the Settlement Agreement, and the into an agreement with the Secretary to Pueblo Water Facility; Cost-Sharing and System Integration Agree- contribute the non-Federal share of the costs (B) the County the County Distribution ment not later than 180 days after the later of the construction in accordance with the System, including any land or interest in of— Cost-Sharing and System Integration Agree- land acquired by the United States for the (1) the date of completion of environ- ment. construction of the County Distribution Sys- mental compliance and permitting; or (2) MODIFICATIONS TO REGIONAL WATER SYS- tem; and (2) the date of issuance of a final project TEM.— (C) the Authority any portions of the Re- design for the Regional Water System under (A) IN GENERAL.—The State and the Coun- gional Water System that remain after mak- section 611(b). ty, in agreement with the Pueblos, the City, ing the conveyances under subparagraphs (A) (b) APPROVAL.—The Secretary shall ap- and other signatories to the Cost-Sharing and (B), including any land or interest in prove or disapprove the Operating Agree- and System Integration Agreement, may land acquired by the United States for the ment within a reasonable period of time modify the extent, size, and capacity of the construction of the portions of the Regional after the Pueblos and the County submit the County Distribution System as set forth in Water System. Operating Agreement described in subsection the Cost-Sharing and System Integration (2) CONDITIONS FOR CONVEYANCE.—The Sec- (a) and upon making a determination that Agreement. retary shall not convey any portion of the the Operating Agreement is consistent with (B) EFFECT.—A modification under sub- Regional Water System facilities under para- this title, the Settlement Agreement, and paragraph (A)— graph (1) until the date on which— the Cost-Sharing and System Integration (i) shall not affect implementation of the (A) construction of the Regional Water Agreement. Settlement Agreement so long as the provi- System is substantially complete, as defined (c) CONTENTS.—The Operating Agreement sions in section 623 are satisfied; and in section 623(e); and shall include—

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(1) provisions consistent with the Settle- SEC. 613. ACQUISITION OF PUEBLO WATER SUP- (f) LIMITATION.—The Secretary shall use ment Agreement and the Cost-Sharing and PLY FOR REGIONAL WATER SYSTEM. the water supply secured under subsection System Integration Agreement and nec- (a) IN GENERAL.—For the purpose of pro- (a) only for the purposes described in the essary to implement the intended benefits of viding a reliable firm supply of water from Settlement Agreement. the Regional Water System described in the Regional Water System for the Pueblos (g) FULFILLMENT OF WATER SUPPLY ACQUI- those documents; in accordance with the Settlement Agree- SITION OBLIGATIONS.—Compliance with sub- (2) provisions for— ment, the Secretary, on behalf of the Pueb- sections (a) through (f) shall satisfy any and los, shall— (A) the distribution of water conveyed all obligations of the Secretary to acquire or (1) acquire water rights to— through the Regional Water System, includ- secure a water supply for the Pueblos pursu- (A) 302 acre-feet of Nambe reserved water ing a delineation of— ant to the Settlement Agreement. described in section 2.6.2 of the Settlement (i) distribution lines for the County Dis- (h) RIGHTS OF PUEBLOS IN SETTLEMENT Agreement; and AGREEMENT UNAFFECTED.—Notwithstanding tribution System; (B) 1141 acre-feet from water acquired by the provisions of subsections (a) through (g), (ii) distribution lines for the Pueblo Water the County for water rights commonly re- the Pueblos, the County or the Regional Facilities; and ferred to as ‘‘Top of the World’’ rights in the Water Authority may acquire any additional (iii) distribution lines that serve both— Aamodt Case; (I) the County Distribution System; and (2) enter into a contract with the Pueblos water rights to ensure all parties to the Set- (II) the Pueblo Water Facilities; for 1,079 acre-feet in accordance with section tlement Agreement receive the full alloca- (B) the allocation of the Regional Water 11 of the San Juan-Chama Project Act; and tion of water provided by the Settlement System capacity; (3) by application to the State Engineer, Agreement and nothing in this title amends (C) the terms of use of unused water capac- seek approval to divert the water acquired or modifies the quantities of water allocated ity in the Regional Water System; and made available under paragraphs (1) and to the Pueblos thereunder. (D) terms of interim use of County unused (2) at the points of diversion for the Regional SEC. 614. DELIVERY AND ALLOCATION OF RE- capacity, in accordance with section 614(d); Water System, consistent with the Settle- GIONAL WATER SYSTEM CAPACITY (E) the construction of additional infra- ment Agreement and the Cost-Sharing and AND WATER. structure and the acquisition of associated System Integration Agreement. (a) ALLOCATION OF REGIONAL WATER SYS- rights-of-way or easements necessary to en- (b) FORFEITURE.—The nonuse of the water TEM CAPACITY.— able any of the Pueblos or the County to supply secured by the Secretary for the (1) IN GENERAL.—The Regional Water Sys- fully use water allocated to the Pueblos or Pueblos under subsection (a) shall in no tem shall have the capacity to divert from the County from the Regional Water System, event result in forfeiture, abandonment, re- the Rio Grande a quantity of water sufficient including provisions addressing when the linquishment, or other loss thereof. to provide— construction of such additional infrastruc- (c) TRUST.—The Pueblo water rights se- (A) up to 4,000 acre-feet of consumptive use ture requires approval by the Authority; cured under subsection (a) shall be held by of water; and (F) the allocation and payment of annual the United States in trust for the Pueblos. (B) the requisite peaking capacity de- (d) APPLICABLE LAW.—The water supply operation, maintenance, and replacement scribed in— made available pursuant to subsection (a)(2) costs for the Regional Water System, includ- (i) the Engineering Report; and shall be subject to the San Juan-Chama ing the portions of the Regional Water Sys- (ii) the final project design. Project Act, and no preference shall be pro- tem that are used to treat, transmit, and dis- (2) ALLOCATION TO THE PUEBLOS AND COUNTY vided to the Pueblos as a result of subsection WATER UTILITY.—Of the capacity described in tribute water to both the Pueblo Water Fa- (c) with regard to the delivery or distribu- cilities and the County Water Utility; paragraph (1)— tion of San Juan-Chama Project water or the (A) there shall be allocated to the Pueb- (G) the operation of wellfields located on management or operation of the San Juan- Pueblo land; los— Chama Project. (i) sufficient capacity for the conveyance (H) the transfer of any water rights nec- (e) CONTRACT FOR SAN JUAN-CHAMA of 2,500 acre-feet consumptive use; and essary to provide the Pueblo water supply PROJECT WATER SUPPLY.—With respect to described in section 613(a); the contract for the water supply required by (ii) the requisite peaking capacity for the (I) the operation of the Regional Water subsection (a)(2), such San Juan-Chama quantity of water described in clause (i); and System with respect to the water supply, in- Project contract shall be pursuant to the fol- (B) there shall be allocated to the County cluding the allocation of the water supply in lowing terms: Water Utility— accordance with section 3.1.8.4.2 of the Set- (1) WAIVERS.—Notwithstanding the provi- (i) sufficient capacity for the conveyance tlement Agreement so that, in the event of a sions of the San Juan-Chama Project Act, or of up to 1,500 acre-feet consumptive use; and shortage of supply to the Regional Water any other provision of law— (ii) the requisite peaking capacity for the System, the supply to each of the Pueblos’ (A) the Secretary shall waive the entirety quantity of water described in clause (i). and to the County’s distribution system of the Pueblos’ share of the construction (3) APPLICABLE LAW.—Water shall be allo- shall be reduced on a pro rata basis, in pro- costs for the San Juan-Chama Project, and cated to the Pueblos and the County Water portion to each distribution system’s most pursuant to that waiver, the Pueblos’ share Utility under this subsection in accordance current annual use; and of all construction costs for the San Juan- with— (J) dispute resolution; and Chama Project, inclusive of both principal (A) this subtitle; (3) provisions for operating and maintain- and interest, due from 1972 to the execution (B) the Settlement Agreement; and ing the Regional Water System facilities be- of the contract required by subsection (a)(2), (C) the Operating Agreement. fore and after conveyance under section shall be nonreimbursable; (b) DELIVERY OF REGIONAL WATER SYSTEM 611(h), including provisions to— (B) the Secretary’s waiver of each Pueblo’s WATER.—The Authority shall deliver water (A) ensure that— share of the construction costs for the San from the Regional Water System— (i) the operation of, and the diversion and Juan-Chama Project will not result in an in- (1) to the Pueblos water in a quantity suffi- conveyance of water by, the Regional Water crease in the pro rata shares of other San cient to allow full consumptive use of up to System is in accordance with the Settlement Juan-Chama Project water contractors, but 2,500 acre-feet per year of water rights by the Agreement; such costs shall be absorbed by the United Pueblos in accordance with— (ii) the wells in the Regional Water System States Treasury or otherwise appropriated to (A) the Settlement Agreement; are used in conjunction with the surface the Department of the Interior; and (B) the Operating Agreement; and water supply of the Regional Water System (C) the construction costs associated with (C) this subtitle; and to ensure a reliable firm supply of water to any water made available from the San (2) to the County water in a quantity suffi- all users of the Regional Water System, con- Juan-Chama Project which were determined cient to allow full consumptive use of up to sistent with the intent of the Settlement nonreimbursable and nonreturnable pursu- 1,500 acre-feet per year of water rights by the Agreement that surface supplies will be used ant to Public Law No. 88–293, 78 Stat. 171 County Water Utility in accordance with— to the maximum extent feasible; (March 26, 1964), shall remain nonreimburs- (A) the Settlement Agreement; (iii) the respective obligations regarding able and nonreturnable. (B) the Operating Agreement; and delivery, payment, operation, and manage- (2) TERMINATION.—The contract shall pro- (C) this subtitle. ment are enforceable; and vide that it shall terminate only on— (c) ADDITIONAL USE OF ALLOCATION QUAN- (iv) the County has the right to serve any (A) failure of the United States District TITY AND UNUSED CAPACITY.—The Regional new water users located on non-Pueblo land Court for the District of New Mexico to enter Water System may be used to— in the Pojoaque Basin; and a final decree for the Aamodt Case by the ex- (1) provide for use of return flow credits to (B) allow for any aquifer storage and recov- piration date described in section 623(b), or allow for full consumptive use of the water ery projects that are approved by the Office within the time period of any extension of allocated in the Settlement Agreement to of the New Mexico State Engineer. that deadline granted by the court; or each of the Pueblos and to the County; and (B) entry of an order by the United States (2) convey water allocated to one of the (d) EFFECT.—Nothing in this title precludes District Court for the District of New Mexico Pueblos or the County Water Utility for the the Operating Agreement from authorizing voiding the final decree and Settlement benefit of another Pueblo or the County phased or interim operations if the Regional Agreement for the Aamodt Case pursuant to Water Utility or allow use of unused capac- Water System is constructed in phases. section 10.3 of the Settlement Agreement. ity by each other through the Regional

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Water System in accordance with an inter- (4) LIABILITY.—If a Pueblo or the Pueblos not to exceed $56,400,000, as adjusted under governmental agreement between the Pueb- exercise the right to withdraw amounts from paragraph (4), for the period of fiscal years los, or between a Pueblo and County Water the Fund, neither the Secretary nor the Sec- 2011 through 2016, to remain available until Utility, as applicable, if— retary of the Treasury shall retain any li- expended. (A) such intergovernmental agreements ability for the expenditure or investment of (B) AUTHORIZATION OF APPROPRIATIONS.—In are consistent with the Operating Agree- the amounts withdrawn. addition to the amount made available under ment, the Settlement Agreement, and this (5) EXPENDITURE PLAN.— subparagraph (A), there is authorized to be title; (A) IN GENERAL.—The Pueblos shall submit appropriated to the Secretary for the plan- (B) capacity is available without reducing to the Secretary for approval an expenditure ning, design, and construction of the Re- water delivery to any Pueblo or the County plan for any portion of the amounts in the gional Water System and the conduct of en- Water Utility in accordance with the Settle- Fund that the Pueblos do not withdraw vironmental compliance activities under sec- ment Agreement, unless the County Water under this subsection. tion 616 $50,000,000, as adjusted under para- Utility or Pueblo contracts for a reduction (B) DESCRIPTION.—The expenditure plan graph (4), for the period of fiscal years 2011 in water delivery or Regional Water System shall describe the manner in which, and the through 2024. capacity; purposes for which, amounts remaining in (2) RECEIPT AND ACCEPTANCE.—The Sec- (C) the Pueblo or County Water Utility the Fund will be used. retary shall be entitled to receive, shall ac- contracting for use of the unused capacity or (C) APPROVAL.—On receipt of an expendi- cept, and shall use to carry out this title the water has the right to use the water under ture plan under subparagraph (A), the Sec- funds transferred under paragraph (1)(A), applicable law; and retary shall approve the plan if the Sec- without further appropriation, to remain (D) any agreement for the use of unused retary determines that the plan is reason- available until expended. capacity or water provides for payment of able and consistent with this title, the Set- (3) PRIORITY OF FUNDING.—Of the amounts the operation, maintenance, and replace- tlement Agreement, and the Cost-Sharing made available under paragraph (1), the Sec- ment costs associated with the use of capac- and System Integration Agreement. retary shall give priority to funding— ity or water. (D) ANNUAL REPORT.—The Pueblos shall (A) the construction of the San Ildefonso (d) INTERIM USE OF COUNTY CAPACITY.—In submit to the Secretary an annual report portion of the Regional Water System, con- accordance with section 9.6.4 of the Settle- that describes all expenditures from the sisting of— ment Agreement, the County may use un- Fund during the year covered by the report. (i) the surface water diversion, treatment, used capacity and water rights of the County (6) NO PER CAPITA PAYMENTS.—No part of and transmission facilities at San Ildefonso Water Utility to supply water within the the principal of the Fund, or the interest or Pueblo; and County outside of the Pojoaque Basin— income accruing on the principal shall be (ii) the San Ildefonso Pueblo portion of the (1) on approval by the State and the Au- distributed to any member of a Pueblo on a Pueblo Water Facilities; and thority; and per capita basis. (B) that part of the Regional Water System (2) subject to the issuance of a permit by (7) AVAILABILITY OF AMOUNTS FROM THE providing 475 acre-feet to Pojoaque Pueblo the New Mexico State Engineer. FUND.— pursuant to section 2.2 of the Settlement SEC. 615. AAMODT SETTLEMENT PUEBLOS’ FUND. (A) APPROVAL OF SETTLEMENT AGREE- Agreement. (a) ESTABLISHMENT OF THE AAMODT SETTLE- MENT.— (4) ADJUSTMENT.—The amounts made avail- MENT PUEBLOS’ FUND.—There is established (i) IN GENERAL.—Except as provided in able under paragraph (1) shall be adjusted in the Treasury of the United States a fund, clause (ii), amounts made available under annually to account for increases in con- to be known as the ‘‘Aamodt Settlement section 617(c)(1), or from other authorized struction costs since October 1, 2006, as de- Pueblos’ Fund,’’ consisting of— sources, shall be available for expenditure or termined using applicable engineering cost (1) such amounts as are made available to withdrawal only after the publication of the indices. the Fund under section 617(c) or other au- statement of findings required by section (5) LIMITATIONS.— thorized sources; and 623(a)(1). (A) IN GENERAL.—No amounts shall be (2) any interest earned from investment of (ii) EXCEPTION.—Notwithstanding clause made available under paragraph (1) for the amounts in the Fund under subsection (b). (i), the amounts described in that clause may construction of the Regional Water System (b) MANAGEMENT OF THE FUND.—The Sec- be expended before the date of publication of until the date on which the United States retary shall manage the Fund, invest the statement of findings under section District Court for the District of New Mexico amounts in the Fund, and make amounts 623(a)(1) for any activity that is more cost-ef- issues an order approving the Settlement available from the Fund for distribution to fective when implemented in conjunction Agreement. the Pueblos in accordance with— with the construction of the Regional Water (B) RECORD OF DECISION.—No amounts (1) the American Indian Trust Fund Man- System, as determined by the Secretary. made available under paragraph (1) shall be agement Reform Act of 1994 (25 U.S.C. 4001 et (B) COMPLETION OF CERTAIN PORTIONS OF RE- expended for construction unless the record seq.); and GIONAL WATER SYSTEM.—Amounts made of decision issued by the Secretary after (2) this title. available under section 617(c)(1) or from completion of an environmental impact (c) INVESTMENT OF THE FUND.—On the date other authorized sources shall be available statement provides for a preferred alter- on which the waivers become effective as set for expenditure or withdrawal only after native that is in substantial compliance with forth in section 623(d), the Secretary shall those portions of the Regional Water System the proposed Regional Water System, as de- invest amounts in the Fund in accordance described in section 1.5.24 of the Settlement fined in the Engineering Report. with— Agreement have been declared substantially (b) ACQUISITION OF WATER RIGHTS.— (1) the Act of April 1, 1880 (25 U.S.C. 161); complete by the Secretary. (1) IN GENERAL.—Out of any funds in the (2) the first section of the Act of June 24, SEC. 616. ENVIRONMENTAL COMPLIANCE. Treasury not otherwise appropriated, the 1938 (25 U.S.C. 162a); and (a) IN GENERAL.—In carrying out this sub- Secretary of the Treasury shall transfer to (3) the American Indian Trust Fund Man- title, the Secretary shall comply with each the Secretary for the acquisition of the agement Reform Act of 1994 (25 U.S.C. 4001 et law of the Federal Government relating to water rights under section 613(a)(1)(B) seq.). the protection of the environment, includ- $5,400,000. (d) TRIBAL MANAGEMENT PLAN.— ing— (2) RECEIPT AND ACCEPTANCE.—The Sec- (1) IN GENERAL.—A Pueblo may withdraw (1) the National Environmental Policy Act retary shall be entitled to receive, shall ac- all or part of the Pueblo’s portion of the of 1969 (42 U.S.C. 4321 et seq.); and cept, and shall use to carry out this title the Fund on approval by the Secretary of a trib- (2) the Endangered Species Act of 1973 (16 funds transferred under paragraph (1), with- al management plan as described in the U.S.C. 1531 et seq.). out further appropriation, to remain avail- American Indian Trust Fund Management (b) NATIONAL ENVIRONMENTAL POLICY able until expended. Reform Act of 1994 (25 U.S.C. 4001 et seq.). ACT.—Nothing in this title affects the out- (c) AAMODT SETTLEMENT PUEBLOS’ FUND.— (2) REQUIREMENTS.—In addition to the re- come of any analysis conducted by the Sec- (1) FUNDING.— quirements under the American Indian Trust retary or any other Federal official under (A) MANDATORY APPROPRIATIONS.—Out of Fund Management Reform Act of 1994 (25 the National Environmental Policy Act of any funds in the Treasury not otherwise ap- U.S.C. 4001 et seq.), the tribal management 1969 (42 U.S.C. 4321 et seq.). propriated, the Secretary of the Treasury plan shall require that a Pueblo spend any SEC. 617. FUNDING. shall transfer to the Secretary the following amounts withdrawn from the Fund in ac- (a) REGIONAL WATER SYSTEM.— amounts for the period of fiscal years 2011 cordance with the purposes described in sec- (1) FUNDING.— through 2015: tion 617(c). (A) MANDATORY APPROPRIATION.—Subject (i) $15,000,000, as adjusted according to the (3) ENFORCEMENT.—The Secretary may to paragraph (5), out of any funds in the CPI Urban Index beginning on October 1, take judicial or administrative action to en- Treasury not otherwise appropriated, the 2006, which shall be allocated to the Pueblos, force the provisions of any tribal manage- Secretary of the Treasury shall transfer to in accordance with section 2.7.1 of the Settle- ment plan to ensure that any amounts with- the Secretary for the planning, design, and ment Agreement, for the rehabilitation, im- drawn from the Fund under an approved trib- construction of the Regional Water System provement, operation, maintenance, and re- al management plan are used in accordance and the conduct of environmental compli- placement of the agricultural delivery facili- with this subtitle. ance activities under section 616 an amount ties, waste water systems, and other water-

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related infrastructure of the applicable (1) IN GENERAL.—Each of the Pueblos may acre-feet by the Pueblos as part of the water Pueblo. enter into leases or contracts to exchange supply for the Regional Water System, sub- (ii) $5,000,000, as adjusted according to the water rights or to forebear undertaking new ject to the conditions that— CPI Urban Index beginning on January 1, or expanded water uses for water rights rec- (i) the permits shall be free of any condi- 2011, and any interest on that amount, which ognized in section 2.1 of the Settlement tion that materially adversely affects the shall be allocated to the Pueblo of Nambe Agreement for use within the Pojoaque ability of the Pueblos or the Regional Water only for the acquisition land, other real Basin, in accordance with the other limita- Authority to divert or use the Pueblo water property interests, or economic development tions of section 2.1.5 of the Settlement supply described in section 613(a), including for the Nambe reserved water rights in ac- Agreement, provided that section 2.1.5 is water rights acquired in addition to those cordance with section 613(a)(1)(A). amended accordingly. described in section 613(a), in accordance (B) AUTHORIZATION OF APPROPRIATIONS.—In (2) APPROVAL BY SECRETARY.—Consistent with section 613(g); and addition to the amounts made available with the Settlement Agreement, the Sec- (ii) the Settlement Agreement shall estab- under clauses (i) and (ii) of subparagraph (A), retary shall approve or disapprove a lease or lish the means to address any permit condi- respectively, there are authorized to be ap- contract entered into under paragraph (1). tions to ensure the ability of the Pueblos to propriated to the Secretary for the period of (3) PROHIBITION ON PERMANENT ALIEN- fully divert and consume at least 2,381 acre- fiscal years 2011 through 2024, $37,500,000 to ATION.—No lease or contract under paragraph feet as part of the water supply for the Re- assist the Pueblos in paying the Pueblos’ (1) shall be for a term exceeding 99 years, nor gional Water System, including defining the share of the cost of operating, maintaining, shall any such lease or contract provide for conditions that will not constitute a mate- and replacing the Pueblo Water Facilities permanent alienation of any portion of the rial adverse affect; and the Regional Water System. water rights made available to the Pueblos (F) the State has enacted any necessary (2) OPERATION, MAINTENANCE, AND REPLACE- under the Settlement Agreement. legislation and provided any funding that MENT COSTS.— (4) APPLICABLE LAW.—Section 2116 of the may be required under the Settlement (A) IN GENERAL.—Prior to conveyance of Revised Statutes (25 U.S.C. 177) shall not Agreement; the Regional Water System pursuant to sec- apply to any lease or contract entered into (G) a partial final decree that sets forth tion 611, the Secretary is authorized to and under paragraph (1). the water rights and other rights to water to shall pay any operation, maintenance, and (5) LEASING OR MARKETING OF WATER SUP- which the Pueblos are entitled under the replacement costs associated with the Pueb- PLY.—The water supply provided on behalf of Settlement Agreement and this subtitle and lo Water Facilities or the Regional Water the Pueblos pursuant to section 613(a)(1) may that substantially conforms to the Settle- System, up to the amount made available only be leased or marketed by any of the ment Agreement has been approved by the under subparagraph (B). Pueblos pursuant to the intergovernmental United States District Court for the District (B) AUTHORIZATION OF APPROPRIATIONS.— agreements described in section 614(c)(2). of New Mexico; There is authorized to be appropriated to the (d) AMENDMENTS TO CONTRACTS.—The Sec- (H) a final decree that sets forth the water Secretary to carry out subparagraph (A) retary shall amend the contracts relating to rights for all parties to the Aamodt Case and $5,000,000. the Nambe Falls Dam and Reservoir that are that substantially conforms to the Settle- (C) OBLIGATION OF FEDERAL GOVERNMENT necessary to use water supplied from the ment Agreement has been approved by the AFTER COMPLETION.—After the date on which Nambe Falls Dam and Reservoir in accord- United States District Court for the District construction of the Regional Water System ance with the Settlement Agreement. of New Mexico; and is completed and the amounts required to be SEC. 622. ENVIRONMENTAL COMPLIANCE. (I) the waivers and releases described in deposited in the Aamodt Settlement Pueb- (a) EFFECT OF EXECUTION OF SETTLEMENT section 624 have been executed. (b) EXPIRATION DATE.—If all the conditions los’ Fund pursuant to paragraph (1) have AGREEMENT.—The execution of the Settle- been deposited by the Federal Government— ment Agreement under section 611(b) shall precedent described in subsection (a)(2) have not been fulfilled by September 15, 2017— (i) the Federal Government shall have no not constitute a major Federal action under (1) the Settlement Agreement shall no obligation to pay for the operation, mainte- the National Environmental Policy Act of longer be effective; nance, and replacement costs associated 1969 (42 U.S.C. 4321 et seq.). (2) the waivers and releases described in with the Pueblo Water Facilities or the Re- (b) COMPLIANCE WITH ENVIRONMENTAL the Settlement Agreement and section 624 gional Water System; and LAWS.—In carrying out this title, the Sec- (ii) the authorization for the Secretary to retary shall comply with each law of the shall not be effective; expend funds for the operation, maintenance, Federal Government relating to the protec- (3) any unexpended Federal funds appro- and replacement costs of those systems tion of the environment, including— priated or made available to carry out the under subparagraph (A) shall expire. (1) the National Environmental Policy Act activities authorized by this title, together (3) RECEIPT AND ACCEPTANCE.—The Sec- of 1969 (42 U.S.C. 4321 et seq.); and with any interest earned on those funds, any retary shall be entitled to receive, shall ac- (2) the Endangered Species Act of 1973 (16 water rights or contracts to use water, and cept, and shall use to carry out this title the U.S.C. 1531 et seq.). title to other property acquired or con- funds transferred under paragraphs (1)(A), structed with Federal funds appropriated or SEC. 623. CONDITIONS PRECEDENT AND EN- made available to carry out the activities without further appropriation, to remain FORCEMENT DATE. authorized by this title shall be returned to available until expended or until the author- (a) CONDITIONS PRECEDENT.— the Federal Government, unless otherwise ization for the Secretary to expend funds (1) IN GENERAL.—Upon the fulfillment of agreed to by the Pueblos and the United pursuant to paragraph (2) expires. the conditions precedent described in para- States and approved by Congress; and Subtitle B—Pojoaque Basin Indian Water graph (2), the Secretary shall publish in the (4) except for Federal funds used to acquire Rights Settlement Federal Register by September 15, 2017, a or develop property that is returned to the statement of findings that the conditions SEC. 621. SETTLEMENT AGREEMENT AND CON- Federal Government under paragraph (3), the have been fulfilled. TRACT APPROVAL. United States shall be entitled to set off any (2) REQUIREMENTS.—The conditions prece- (a) APPROVAL.—To the extent the Settle- Federal funds appropriated or made avail- dent referred to in paragraph (1) are the con- ment Agreement and the Cost-Sharing and able to carry out the activities authorized by ditions that— System Integration Agreement do not con- this title that were expended or withdrawn, (A) to the extent that the Settlement flict with this title, the Settlement Agree- together with any interest accrued on those Agreement conflicts with this subtitle, the ment and the Cost-Sharing and System Inte- funds, against any claims against the United Settlement Agreement has been revised to gration Agreement (including any amend- States— conform with this subtitle; ments to the Settlement Agreement and the (A) relating to water rights in the (B) the Settlement Agreement, so revised, Cost-Sharing and System Integration Agree- Pojoaque Basin asserted by any Pueblo that including waivers and releases pursuant to ment that are executed to make the Settle- benefitted from the use of expended or with- section 624, has been executed by the appro- ment Agreement or the Cost-Sharing and drawn Federal funds; or priate parties and the Secretary; System Integration Agreement consistent (B) in any future settlement of the Aamodt (C) Congress has fully appropriated, or the with this title) are authorized, ratified, and Case. Secretary has provided from other author- confirmed. (c) ENFORCEMENT DATE.—The Settlement (b) EXECUTION.—To the extent the Settle- ized sources, all funds authorized by section Agreement shall become enforceable begin- ment Agreement and the Cost-Sharing and 617, with the exception of subsection (a)(1) of ning on the date on which the United States System Integration Agreement do not con- that section; District Court for the District of New Mexico flict with this title, the Secretary shall exe- (D) the Secretary has acquired and entered enters a partial final decree pursuant to sub- cute the Settlement Agreement and the into appropriate contracts for the water section (a)(2)(G) and an Interim Administra- Cost-Sharing and System Integration Agree- rights described in section 613(a); tive Order consistent with the Settlement ment (including any amendments that are (E) for purposes of section 613(a), permits Agreement. necessary to make the Settlement Agree- have been issued by the New Mexico State (d) EFFECTIVENESS OF WAIVERS.—The waiv- ment or the Cost-Sharing and System Inte- Engineer to the Regional Water Authority to ers and releases executed pursuant to section gration Agreement consistent with this change the points of diversion to the 624 shall become effective as of the date that title). mainstem of the Rio Grande for the diver- the Secretary publishes the notice required (c) AUTHORITIES OF THE PUEBLOS.— sion and consumptive use of at least 2,381 by subsection (a)(1).

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(e) REQUIREMENTS FOR DETERMINATION OF (f) VOIDING OF WAIVERS.—If the Final De- (6) all pending and future inter se chal- SUBSTANTIAL COMPLETION OF THE REGIONAL cree is void under subsection (e)(5)— lenges against other parties to the Settle- WATER SYSTEM.— (1) the Settlement Agreement shall no ment Agreement; (1) CRITERIA FOR SUBSTANTIAL COMPLETION longer be effective; (7) all claims for damages, losses, or inju- OF REGIONAL WATER SYSTEM.—Subject to the (2) the waivers and releases executed pur- ries to water rights or claims of interference provisions in section 611(d) concerning the suant to section 624 shall no longer be effec- with, diversion or taking of water (including extent, size, and capacity of the County Dis- tive; claims for injury to land resulting from such tribution System, the Regional Water Sys- (3) any unexpended Federal funds appro- damages, losses, injuries, interference with, tem shall be determined to be substantially priated or made available to carry out the diversion, or taking of water) attributable to completed if the infrastructure has been con- activities authorized by this title, together City of Santa Fe pumping of groundwater structed capable of— with any interest earned on those funds, any that has effects on the ground and surface (A) diverting, treating, transmitting, and water rights or contracts to use water, and water supplies of the Pojoaque Basin, pro- distributing a supply of 2,500 acre-feet of title to other property acquired or con- vided that this waiver shall not be effective water to the Pueblos; and structed with Federal funds appropriated or by the Pueblo of Tesuque unless there is a made available to carry out the activities (B) diverting, treating, and transmitting water resources agreement executed between authorized by this title shall be returned to the quantity of water specified in the Engi- the Pueblo of Tesuque and the City of Santa the Federal Government, unless otherwise neering Report to the County Distribution Fe; and agreed to by the Pueblos and the United System. (8) all claims for damages, losses, or inju- States and approved by Congress; and (2) CONSULTATION.—On or after June 30, ries to water rights or claims of interference (4) except for Federal funds used to acquire 2021, at the request of 1 or more of the Pueb- with, diversion or taking of water (including or develop property that is returned to the los, the Secretary shall consult with the claims for injury to land resulting from such Federal Government under paragraph (3), the Pueblos and confer with the County and the damages, losses, injuries, interference with, United States shall be entitled to set off any State on whether the criteria in paragraph diversion, or taking of water) attributable to Federal funds appropriated or made avail- (1) for substantial completion of the Re- County of Santa Fe pumping of groundwater able to carry out the activities authorized by gional Water System have been met or will that has effects on the ground and surface this title that were expended or withdrawn, water supplies of the Pojoaque Basin. be met by June 30, 2024. together with any interest accrued on those (b) CLAIMS BY THE PUEBLOS AGAINST THE (3) WRITTEN DETERMINATION BY SEC- funds, against any claims against the United UNITED STATES.—The Pueblos, on behalf of RETARY.—Not earlier than June 30, 2021, at States— themselves and their members, are author- the request of 1 or more of the Pueblos and (A) relating to water rights in the ized to execute a waiver and release of— after the consultation required by paragraph Pojoaque Basin asserted by any Pueblo that (1) all claims against the United States, its (2), the Secretary shall— benefitted from the use of expended or with- agencies, or employees, relating to claims (A) determine whether the Regional Water drawn Federal funds; or for water rights in or water of the Pojoaque System has been substantially completed (B) in any future settlement of the Aamodt Basin or for rights to use water in the based on the criteria described in paragraph Case. Pojoaque Basin that the United States act- (1); and (g) EXTENSION.—The dates in subsections (B) submit a written notice of the deter- (a)(1) and (b) may be extended if the parties ing in its capacity as trustee for the Pueblos mination under subparagraph (A) to— to the Cost-Sharing and System Integration asserted, or could have asserted, in any pro- (i) the Pueblos; Agreement agree that an extension is rea- ceeding, including the Aamodt Case; (ii) the County; and sonably necessary. (2) all claims against the United States, its (iii) the State. SEC. 624. WAIVERS AND RELEASES OF CLAIMS. agencies, or employees relating to damages, (4) RIGHT TO REVIEW.— (a) CLAIMS BY THE PUEBLOS AND THE UNITED losses, or injuries to water, water rights, (A) IN GENERAL.—A determination by the STATES.—In return for recognition of the land, or natural resources due to loss of Secretary under paragraph (3)(A) shall be Pueblos’ water rights and other benefits, in- water or water rights (including damages, considered to be a final agency action sub- cluding waivers and releases by non-Pueblo losses or injuries to hunting, fishing, gath- ject to judicial review by the Decree Court parties, as set forth in the Settlement Agree- ering or cultural rights due to loss of water under sections 701 through 706 of title 5, ment and this title, the Pueblos, on behalf of or water rights; claims relating to inter- United States Code. themselves and their members, and the ference with, diversion or taking of water or (B) FAILURE TO MAKE TIMELY DETERMINA- United States acting in its capacity as trust- water rights; or claims relating to failure to TION.— ee for the Pueblos are authorized to execute protect, acquire, replace, or develop water, (i) IN GENERAL.—If a Pueblo requests a a waiver and release of— water rights or water infrastructure) within written determination under paragraph (3) (1) all claims for water rights in the the Pojoaque Basin that first accrued at any and the Secretary fails to make such a writ- Pojoaque Basin that the Pueblos, or the time up to and including the waiver effec- ten determination by the date described in United States acting in its capacity as trust- tiveness date identified in section 623(d); clause (ii), there shall be a rebuttable pre- ee for the Pueblos, asserted, or could have (3) all claims against the United States, its sumption that the failure constitutes agency asserted, in any proceeding, including the agencies, or employees for an accounting of action unlawfully withheld or unreasonably Aamodt Case, up to and including the waiver funds appropriated by Acts, including the delayed under section 706 of title 5, United effectiveness date identified in section 623(d), Act of December 22, 1927 (45 Stat. 2), the Act States Code. except to the extent that such rights are rec- of March 4, 1929 (45 Stat. 1562), the Act of (ii) DATE.—The date referred to in clause ognized in the Settlement Agreement or this March 26, 1930 (46 Stat. 90), the Act of Feb- (i) is the date that is the later of— title; ruary 14, 1931 (46 Stat. 1115), the Act of (I) the date that is 180 days after the date (2) all claims for water rights for lands in March 4, 1931 (46 Stat. 1552), the Act of July of receipt by the Secretary of the request by the Pojoaque Basin and for rights to use 1, 1932 (47 Stat. 525), the Act of June 22, 1936 the Pueblo; and water in the Pojoaque Basin that the Pueb- (49 Stat. 1757), the Act of August 9, 1937 (50 (II) June 30, 2023. los, or the United States acting in its capac- Stat. 564), and the Act of May 9, 1938 (52 Stat. (C) EFFECT OF TITLE.—Nothing in this title ity as trustee for the Pueblos, might be able 291), as authorized by the Pueblo Lands Act gives any Pueblo or Settlement Party the to otherwise assert in any proceeding not of June 7, 1924 (43 Stat. 636), and the Pueblo right to judicial review of a determination of initiated on or before the date of enactment Lands Act of May 31, 1933 (48 Stat. 108), and the Secretary regarding whether the Re- of this Act, except to the extent that such for breach of Trust relating to funds for gional Water System has been substantially rights are recognized in the Settlement water replacement appropriated by said Acts completed except under subchapter II of Agreement or this title; that first accrued before the date of enact- chapter 5, and chapter 7, of title 5, United (3) all claims for damages, losses or inju- ment of this Act; States Code (commonly known as the ‘‘Ad- ries to water rights or claims of interference (4) all claims against the United States, its ministrative Procedure Act’’). with, diversion or taking of water (including agencies, or employees relating to the pend- (5) RIGHT TO VOID FINAL DECREE.— claims for injury to land resulting from such ing litigation of claims relating to the Pueb- (A) IN GENERAL.—Not later than June 30, damages, losses, injuries, interference with, los’ water rights in the Aamodt Case; and 2024, on a determination by the Secretary, diversion, or taking) for land within the (5) all claims against the United States, its after consultation with the Pueblos, that the Pojoaque Basin that accrued at any time up agencies, or employees relating to the nego- Regional Water System is not substantially to and including the waiver effectiveness tiation, Execution or the adoption of the complete, 1 or more of the Pueblos, or the date identified in section 623(d); Settlement Agreement, exhibits thereto, the United States acting on behalf of a Pueblo, (4) their defenses in the Aamodt Case to Partial Final Decree, the Final Decree, or shall have the right to notify the Decree the claims previously asserted therein by this title. Court of the determination. other parties to the Settlement Agreement; (c) RESERVATION OF RIGHTS AND RETENTION (B) EFFECT.—The Final Decree shall have (5) all pending and future inter se chal- OF CLAIMS.—Notwithstanding the waivers no force or effect on a finding by the Decree lenges to the quantification and priority of and releases authorized in this title, the Court that a Pueblo, or the United States water rights of non-Pueblo wells in the Pueblos on behalf of themselves and their acting on behalf of a Pueblo, has submitted Pojoaque Basin, except as provided by sec- members and the United States acting in its proper notification under subparagraph (A). tion 2.8 of the Settlement Agreement; capacity as trustee for the Pueblos retain—

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(1) all claims for enforcement of the Settle- (3) LIMITATION.—Nothing in this section U.S.C. 653a(b)(1)(A)) is amended by inserting ment Agreement, the Cost-Sharing and Sys- precludes the tolling of any period of limita- ‘‘the date services for remuneration were tem Integration Agreement, the Final De- tions or any time-based equitable defense first performed by the employee,’’ after ‘‘of cree, including the Partial Final Decree, the under any other applicable law. the employee,’’. San Juan-Chama Project contract between SEC. 625. EFFECT. (b) CONFORMING AMENDMENT REGARDING the Pueblos and the United States or this Nothing in this title or the Settlement REPORTING FORMAT AND METHOD.—Section title; Agreement affects the land and water rights, 453A(c) of the Social Security Act (42 U.S.C. (2) all rights to use and protect water claims, or entitlements to water of any In- 653a(c)) is amended by inserting ‘‘, to the ex- rights acquired after the date of enactment dian tribe, pueblo, or community other than tent practicable,’’ after ‘‘Each report re- quired by subsection (b) shall’’. of this Act; the Pueblos. (3) all rights to use and protect water (c) EFFECTIVE DATE.— SEC. 626. ANTIDEFICIENCY. (1) IN GENERAL.—Subject to paragraph (2), rights acquired pursuant to state law to the The United States shall not be liable for extent not inconsistent with the Partial the amendments made by this section shall any failure to carry out any obligation or ac- Final Decree, Final Decree, and the Settle- take effect 6 months after the date of the en- tivity authorized by this title (including any ment Agreement; actment of this Act. such obligation or activity under the Settle- (4) all claims against persons other than (2) COMPLIANCE TRANSITION PERIOD.—If the ment Agreement) if adequate appropriations Parties to the Settlement Agreement for Secretary of Health and Human Services de- are not provided expressly by Congress to damages, losses or injuries to water rights or termines that State legislation (other than carry out the purposes of this title in the claims of interference with, diversion or tak- legislation appropriating funds) is required Reclamation Water Settlements Fund estab- ing of water (including claims for injury to in order for a State plan under part D of title lished under section 10501 of Public Law 111– lands resulting from such damages, losses, IV of the Social Security Act to meet the ad- 11 or the ‘‘Emergency Fund for Indian Safety injuries, interference with, diversion, or tak- ditional requirements imposed by the ing of water) within the Pojoaque Basin aris- and Health’’ established by section 601(a) of amendment made by subsection (a), the plan ing out of activities occurring outside the the Tom Lantos and Henry J. Hyde United shall not be regarded as failing to meet such Pojoaque Basin; States Global Leadership Against HIV/AIDS, requirements before the first day of the sec- (5) all claims relating to activities affect- Tuberculosis, and Malaria Reauthorization ond calendar quarter beginning after the ing the quality of water including any claims Act of 2008 (25 U.S.C. 443c(a)). close of the first regular session of the State the Pueblos may have under the Comprehen- TITLE VII—RECLAMATION WATER legislature that begins after the effective sive Environmental Response, Compensa- SETTLEMENTS FUND date of such amendment. If the State has a tion, and Liability Act of 1980 (42 U.S.C. 9601 SEC. 701. MANDATORY APPROPRIATION. 2-year legislative session, each year of the et seq.) (including claims for damages to nat- (a) IN GENERAL.—Notwithstanding any session is deemed to be a separate regular ural resources), the Safe Drinking Water Act other provision of law, out of any funds in session of the State legislature. (42 U.S.C. 300f et seq.), the Federal Water the Treasury not otherwise appropriated, for Subtitle B—TANF Pollution Control Act (33 U.S.C. 1251 et seq.), each of fiscal years 2012 through 2014, the SEC. 811. EXTENSION OF THE TEMPORARY AS- and the regulations implementing those Secretary of the Treasury shall transfer to SISTANCE FOR NEEDY FAMILIES laws; the Secretary of the Interior $60,000,000 for PROGRAM. (6) all claims against the United States re- deposit in the Reclamation Water Settle- (a) IN GENERAL.—Activities authorized by lating to damages, losses, or injuries to land ments Fund established in section 10501 of part A of title IV and section 1108(b) of the or natural resources not due to loss of water Public Law 111–11. Social Security Act (other than the Emer- or water rights (including hunting, fishing, (b) RECEIPT AND ACCEPTANCE.—Starting in gency Contingency Fund for State Tem- gathering or cultural rights); fiscal year 2012, the Secretary of the Interior porary Assistance for Needy Families Pro- (7) all claims for water rights from water shall be entitled to receive, shall accept, and grams established under subsection (c) of sources outside the Pojoaque Basin for land shall use to carry out subtitle B of title X of section 403 of such Act) shall continue outside the Pojoaque Basin owned by a Pueb- Public Law 111–11 the funds transferred through September 30, 2011, in the manner lo or held by the United States for the ben- under subsection (a), without further appro- authorized for fiscal year 2010, and out of any efit of any of the Pueblos; and priation, to remain available until expended. money in the Treasury of the United States (8) all rights, remedies, privileges, immuni- not otherwise appropriated, there are hereby TITLE VIII—GENERAL PROVISIONS ties, powers and claims not specifically appropriated such sums as may be necessary waived and released pursuant to this title or Subtitle A—Unemployment Compensation for such purpose. Grants and payments may the Settlement Agreement. Program Integrity be made pursuant to this authority on a (d) EFFECT.—Nothing in the Settlement SEC. 801. COLLECTION OF PAST-DUE, LEGALLY quarterly basis through fiscal year 2011 at Agreement or this title— ENFORCEABLE STATE DEBTS. the level provided for such activities for the (1) affects the ability of the United States (a) UNEMPLOYMENT COMPENSATION DEBTS.— corresponding quarter of fiscal year 2010, ex- acting in its sovereign capacity to take ac- Section 6402(f) of the Internal Revenue Code cept that— tions authorized by law, including any laws of 1986 is amended— (1) in the case of healthy marriage pro- relating to health, safety, or the environ- (1) in the heading, by striking ‘‘RESULTING motion and responsible fatherhood grants ment, including the Comprehensive Environ- FROM FRAUD’’; under section 403(a)(2) of such Act, such mental Response, Compensation, and Liabil- (2) by striking paragraphs (3) and (8) and grants and payments shall be made in ac- ity Act of 1980 (42 U.S.C. 9601 et seq.), the redesignating paragraphs (4) through (7) as cordance with the amendments made by sub- Safe Drinking Water Act (42 U.S.C. 300f et paragraphs (3) through (6), respectively; section (b) of this section; seq.), the Federal Water Pollution Control (3) in paragraph (3), as so redesignated— (2) in the case of supplemental grants Act (33 U.S.C. 1251 et seq.), the Solid Waste (A) in subparagraph (A), by striking ‘‘by under section 403(a)(3) of such Act— Disposal Act (42 U.S.C. 6901 et seq.), and the certified mail with return receipt’’; (A) such grants and payments for the pe- regulations implementing those laws; (B) in subparagraph (B), by striking ‘‘due riod beginning on October 1, 2010, and ending (2) affects the ability of the United States to fraud’’ and inserting ‘‘is not a covered un- on December 3, 2010, shall not exceed the to take actions acting in its capacity as employment compensation debt’’; level provided for such grants and payments trustee for any other Indian tribe or allottee; (C) in subparagraph (C), by striking ‘‘due under the Continuing Appropriations Act, or to fraud’’ and inserting ‘‘ is not a covered un- 2011; and (3) confers jurisdiction on any State court employment compensation debt’’; and (B) such grants and payments for the pe- to— (4) in paragraph (4), as so redesignated— riod beginning on December 4, 2010, and end- (A) interpret Federal law regarding health, (A) in subparagraph (A)— ing on June 30, 2011, shall not exceed the safety, or the environment or determine the (i) by inserting ‘‘or the person’s failure to amount equal to the difference between duties of the United States or other parties report earnings’’ after ‘‘due to fraud’’; and $490,000,000 and such sums as are necessary pursuant to such Federal law; or (ii) by striking ‘‘for not more than 10 for amounts obligated under section 403(b) of (B) conduct judicial review of Federal years’’; and the Social Security Act on or after October agency action. (B) in subparagraph (B)— 1, 2010, and before the date of enactment of (e) TOLLING OF CLAIMS.— (i) by striking ‘‘due to fraud’’; and this Act; and (1) IN GENERAL.—Each applicable period of (ii) by striking ‘‘for not more than 10 (3) in the case of the Contingency Fund for limitation and time-based equitable defense years’’. State Welfare Programs established under relating to a claim described in this section (b) EFFECTIVE DATE.—The amendments section 403(b) of such Act, grants and pay- shall be tolled for the period beginning on made by this section shall apply to refunds ments may be made in the manner author- the date of enactment of this Act and ending payable under section 6402 of the Internal ized for fiscal year 2010 through fiscal year on June 30, 2021. Revenue Code of 1986 on or after the date of 2012, in accordance with the amendments (2) EFFECT OF SUBSECTION.—Nothing in this the enactment of this Act. made by subsection (c) of this section. subsection revives any claim or tolls any pe- SEC. 802. REPORTING OF FIRST DAY OF EARN- (b) HEALTHY MARRIAGE PROMOTION AND RE- riod of limitation or time-based equitable de- INGS TO DIRECTORY OF NEW HIRES. SPONSIBLE FATHERHOOD GRANTS.—Section fense that expired before the date of enact- (a) ADDITION OF REQUIREMENT.—Section 403(a)(2) of the Social Security Act (42 U.S.C. ment of this Act. 453A(b)(1)(A) of the Social Security Act (42 603(a)(2)) is amended—

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(1) in subparagraph (A)— ‘‘(1) STATE REPORTING REQUIREMENTS.— measures of total engagement in work ac- (A) in clause (i), by striking ‘‘and (C)’’ and ‘‘(A) REPORTING PERIODS AND DEADLINES.— tivities from what was (or will be) reported inserting ‘‘, (C), and (E)’’; Each eligible State shall submit to the Sec- by the State in the quarterly report sub- (B) in clause (ii), in the matter preceding retary the following reports: mitted under subsection (a) for the com- subclause (I), by inserting ‘‘(or, in the case of ‘‘(i) MARCH 2011 REPORT.—Not later than parable period; and an entity seeking funding to carry out May 31, 2011, a report for the period that be- ‘‘(C) a narrative describing the most com- healthy marriage promotion activities and gins on March 1, 2011, and ends on March 31, mon activities contained in the report that activities promoting responsible fatherhood, 2011, that contains the information specified are not countable toward the State partici- a combined application that contains assur- in subparagraphs (B) and (C). pation rates under section 407. ances that the entity will carry out such ac- ‘‘(ii) APRIL-JUNE, 2011 REPORT.—Not later ‘‘(3) APPLICATION OF AUTHORITY TO USE SAM- tivities under separate programs and shall than August 31, 2011, a report for the period PLING.—Subparagraph (B) of subsection (a)(1) not combine any funds awarded to carry out that begins on April 1, 2011, and ends on June shall apply to the reports required under either such activities)’’ after ‘‘an applica- 30, 2011, that contains with respect to the 3 paragraph (1) of this subsection in the same tion’’; and months that occur during that period— manner as subparagraph (B) of subsection (C) in clause (iii), by striking subclause ‘‘(I) the average monthly numbers for the (a)(1) applies to reports required under sub- (III) and inserting the following: information specified in subparagraph (B); paragraph (A) of subsection (a)(1). ‘‘(III) Marriage education, marriage skills, and ‘‘(4) SECRETARIAL REPORTS TO CONGRESS.— and relationship skills programs, that may ‘‘(II) the information specified in subpara- ‘‘(A) MARCH 2011 REPORT.—Not later than include parenting skills, financial manage- graph (C). June 30, 2011, the Secretary shall submit to ment, conflict resolution, and job and career ‘‘(B) ENGAGEMENT IN ADDITIONAL WORK AC- Congress a report on the information sub- advancement.’’; TIVITIES.— mitted by eligible States for the March 2011 (2) in subparagraph (C)(i), by striking ‘‘(i) With respect to each work-eligible in- reporting period under paragraph (1)(A)(i). ‘‘$50,000,000’’ and inserting ‘‘$75,000,000’’; dividual in a family receiving assistance dur- The report shall include a State-by-State (3) by striking subparagraph (D) and in- ing a reporting period specified in subpara- summary and analysis of such information, serting the following: graph (A), whether the individual engages in identification of any States with missing or ‘‘(D) APPROPRIATION.—Out of any money in any activities directed toward attaining self- the Treasury of the United States not other- sufficiency during a month occurring in a re- incomplete reports, and recommendations wise appropriated, there are appropriated for porting period, and if so, the specific activi- for such administrative or legislative fiscal year 2011 for expenditure in accordance ties— changes as the Secretary determines are nec- with this paragraph— ‘‘(I) that do not qualify as a work activity essary to require eligible States to report ‘‘(i) $75,000,000 for awarding funds for the under section 407(d) but that are otherwise the information on a recurring basis. purpose of carrying out healthy marriage reasonably calculated to help the family ‘‘(B) APRIL-JUNE, 2011 REPORT.—Not later promotion activities; and move toward self-sufficiency; or than September 30, 2011, the Secretary shall ‘‘(ii) $75,000,000 for awarding funds for the ‘‘(II) that are of a type that would be submit to Congress a report on the informa- purpose of carrying out activities promoting counted toward the State participation rates tion submitted by eligible States for the responsible fatherhood. under section 407 but for the fact that— April-June 2011 reporting period under para- graph (1)(A)(ii). The report shall include a If the Secretary makes an award under sub- ‘‘(aa) the work-eligible individual did not engage in sufficient hours of the activity; State-by-State summary and analysis of paragraph (B)(i) for fiscal year 2011, the ‘‘(bb) the work-eligible individual has such information, identification of any funds for such award shall be taken in equal reached the maximum time limit allowed for States with missing or incomplete reports, portion from the amounts appropriated having participation in the activity counted and recommendations for such administra- under clauses (i) and (ii).’’; and toward the State’s work participation rate; tive or legislative changes as the Secretary (4) by adding at the end the following: or determines are necessary to require eligible ‘‘(E) PREFERENCE.—In awarding funds ‘‘(cc) the number of work-eligible individ- States to report the information on a recur- under this paragraph for fiscal year 2011, the uals engaged in such activity exceeds a limi- ring basis. Secretary shall give preference to entities tation under such section. that were awarded funds under this para- ‘‘(5) AUTHORITY FOR EXPEDITIOUS IMPLEMEN- ‘‘(ii) Any other information that the Sec- graph for any prior fiscal year and that have TATION.—The requirements of chapter 5 of retary determines appropriate with respect title 5, United States Code (commonly re- demonstrated the ability to successfully to the information required under clause (i), carry out the programs funded under this ferred to as the ‘Administrative Procedure including if the individual has no hours of Act’) or any other law relating to rule- paragraph.’’. participation, the principal reason or reasons (c) CONTINGENCY FUND.—Section 403(b)(2) of making or publication in the Federal Reg- for such non-participation. the Social Security Act (42 U.S.C. 603(b)(2)), ister shall not apply to the issuance of guid- ‘‘(C) EXPENDITURES ON OTHER BENEFITS AND as amended by section 131(b)(2)(A) of the ance or instructions by the Secretary with SERVICES.— Continuing Appropriations Act, 2011, is respect to the implementation of this sub- ‘‘(i) Detailed, disaggregated information amended— section to the extent the Secretary deter- regarding the types of, and amounts of, ex- (1) by striking ‘‘$506,000,000’’ and inserting mines that compliance with any such re- penditures made by the State during a re- ‘‘such sums as are necessary for amounts ob- quirement would impede the expeditious im- porting period specified in subparagraph (A) ligated on or after October 1, 2010, and before plementation of this subsection.’’. using— the date of enactment of the Claims Resolu- ‘‘(I) Federal funds provided under section (b) APPLICATION OF PENALTY FOR FAILURE tion Act of 2010,’’; and 403 that are (or will be) reported by the State TO FILE REPORT.— (2) by striking ‘‘, reduced’’ and all that fol- on Form ACF-196 (or any successor form) (1) IN GENERAL.—Section 409(a)(2) of such lows up to the period. under the category of other expenditures or Act (42 U.S.C. 609(a)(2)) is amended— (d) CONFORMING AMENDMENTS.—Section 403(a)(3) of the Social Security Act (42 U.S.C. the category of benefits or services provided (A) by redesignating subparagraphs (A) and 603(a)(3)), as amended by section 131(b)(1) of in accordance with the authority provided (B) as clauses (i) and (ii), respectively, the Continuing Appropriations Act, 2011, is under section 404(a)(2); or (B) by inserting before clause (i) (as redes- amended— ‘‘(II) State funds expended to meet the re- ignated by paragraph (1)), the following: (1) in subparagraph (F)— quirements of section 409(a)(7) and reported ‘‘(A) QUARTERLY REPORTS.—’’; (A) by inserting ‘‘(or portion of a fiscal by the State in the category of other expend- (C) in clause (ii) of subparagraph (A) (as re- year)’’ after ‘‘a fiscal year’’; and itures on Form ACF-196 (or any successor designated by paragraphs (1) and (2)), by (B) by inserting ‘‘(or portion of the fiscal form). striking ‘‘subparagraph (A)’’ and inserting year)’’ after ‘‘the fiscal year’’ each place it ‘‘(ii) Any other information that the Sec- ‘‘clause (i)’’; and appears; and retary determines appropriate with respect (D) by adding at the end the following: (2) by striking clause (ii) of subparagraph to the information required under clause (i). ‘‘(B) REPORT ON ENGAGEMENT IN ADDITIONAL (H) and inserting the following: ‘‘(2) PUBLICATION OF SUMMARY AND ANAL- WORK ACTIVITIES AND EXPENDITURES FOR ‘‘(ii) subparagraph (G) shall be applied as if YSIS OF ENGAGEMENT IN ADDITIONAL ACTIVI- OTHER BENEFITS AND SERVICES.— ‘fiscal year 2011’ were substituted for ‘fiscal TIES.—Concurrent with the submission of ‘‘(i) IN GENERAL.—If the Secretary deter- year 2001’;’’. each report required under paragraph (1)(A), mines that a State has not submitted the re- SEC. 812. MODIFICATIONS TO TANF DATA RE- an eligible State shall publish on an Internet port required by section 411(c)(1)(A)(i) by PORTING. website maintained by the State agency re- May 31, 2011, or the report required by sec- (a) IN GENERAL.—Section 411 of the Social sponsible for administering the State pro- tion 411(c)(1)(A)(ii) by August 31, 2011, the Security Act (42 U.S.C. 611) is amended by gram funded under this part (or such State- Secretary shall reduce the grant payable to adding at the end the following new sub- maintained website as the Secretary may ap- the State under section 403(a)(1) for the im- section: prove)— mediately succeeding fiscal year by an ‘‘(c) PRE-REAUTHORIZATION STATE-BY-STATE ‘‘(A) a summary of the information sub- amount equal to not more than 4 percent of REPORTS ON ENGAGEMENT IN ADDITIONAL mitted in the report: the State family assistance grant. WORK ACTIVITIES AND EXPENDITURES FOR ‘‘(B) an analysis statement regarding the ‘‘(ii) RESCISSION OF PENALTY.—The Sec- OTHER BENEFITS AND SERVICES.— extent to which the information changes retary shall rescind a penalty imposed on a

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00061 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8172 CONGRESSIONAL RECORD — SENATE November 19, 2010 State under clause (i) with respect to a re- Subtitle D—Emergency Fund for Indian ACCELERATING INCOME TAX BEN- port required by section 411(c)(1)(A) if the Safety and Health EFITS FOR CHARITABLE CASH State submits the report not later than— CONTRIBUTIONS FOR EARTH- ‘‘(I) in the case of the report required SEC. 831. EMERGENCY FUND FOR INDIAN SAFETY under section 411(c)(1)(A)(i), June 15, 2011; AND HEALTH. QUAKE RELIEF IN CHILE AND and Section 601 of the Tom Lantos and Henry HAITI ‘‘(II) in the case of the report required J. Hyde United States Global Leadership Mr. REID. Mr. President, I ask unan- under section 411(c)(1)(A)(ii), September 15, Against HIV/ AIDS, Tuberculosis, and Ma- imous consent that the Finance Com- 2011. laria Reauthorization Act of 2008 (25 U.S.C. mittee be discharged from further con- ‘‘(iii) PENALTY BASED ON SEVERITY OF FAIL- 443c) is amended— URE.—The Secretary shall impose a reduc- sideration of H.R. 4783 and the Senate tion under clause (i) with respect to a fiscal (1) in subsection (b)(1), by striking proceed to it immediately. year based on the degree of noncompliance.’’. ‘‘$2,000,000,000’’ and inserting ‘‘$1,602,619,000’’; The PRESIDING OFFICER. Without (2) APPLICATION OF REASONABLE CAUSE EX- and objection, it is so ordered. CEPTION.—Section 409(b)(2) of such Act (42 (2) in subsection (f)(2)(B), by striking ‘‘50 The clerk will report the bill by title. percent’’ and inserting ‘‘not more than U.S.C. 609(b)(2)) is amended by inserting be- The legislative clerk read as follows: fore the period the following: ‘‘and, with re- $602,619,000’’. A bill (H.R. 4783) to accelerate the income spect to the penalty under paragraph (2)(B) Subtitle E—Rescission of Funds From WIC of subsection (a), shall only apply to the ex- tax benefits for charitable cash contribu- Program tent the Secretary determines that the rea- tions for the relief of victims of the earth- quake in Chile, and to extend the period sonable cause for failure to comply with a re- SEC. 841. RESCISSION OF FUNDS FROM WIC PRO- quirement of that paragraph is as a result of GRAM. from which such contributions for the relief a one-time, unexpected event, such as a of victims of the earthquake in Haiti may be Notwithstanding any other provision of widespread data system failure or a natural accelerated. or man-made disaster’’. law, of the amounts made available in appro- There being no objection, the Senate (3) NONAPPLICATION OF CORRECTIVE COMPLI- priations Acts to provide grants to States proceeded to consider the bill. ANCE PLAN PROVISIONS.—Section 409(c)(4) of under the special supplemental nutrition Mr. REID. It is my understanding program for women, infants, and children es- such Act (42 U.S.C. 609(c)(4)) is amended by that there is a substitute amendment inserting ‘‘(2)(B),’’ after ‘‘paragraph’’. tablished by section 17 of the Child Nutrition at the desk. I ask unanimous consent Act of 1966 (42 U.S.C. 1786), $562,000,000 is re- Subtitle C—Customs User Fees; Continued that that substitute be considered and Dumping and Subsidy Offset scinded. agreed to; that the bill, as amended, be SEC. 821. CUSTOMS USER FEES. Section 13031(j)(3) of the Consolidated Om- Subtitle F—Budgetary Effects read a third time and passed, after the pay-go statement has been read into nibus Budget Reconciliation Act of 1985 (19 SEC. 851. BUDGETARY EFFECTS. U.S.C. 58c(j)(3)) is amended— the RECORD; that the motion to recon- (1) in subparagraph (A), by striking ‘‘De- The budgetary effects of this Act, for the sider be laid on the table; that the title cember 10, 2018’’ and inserting ‘‘September purpose of complying with the Statutory amendment which is at the desk be 30, 2019’’; and Pay-As-You-Go-Act of 2010, shall be deter- considered and agreed to; and the mo- (2) in subparagraph (B)(i), by striking ‘‘No- mined by reference to the latest statement tion to reconsider be laid on the table. vember 30, 2018’’ and inserting ‘‘September titled ‘‘Budgetary Effects of PAYGO Legisla- 30, 2019’’. The PRESIDING OFFICER. The tion’’ for this Act, submitted for printing in clerk will read the pay-go statement. SEC. 822. LIMITATION ON DISTRIBUTIONS RELAT- the Congressional Record by the Chairman of ING TO REPEAL OF CONTINUED The legislative clerk read as follows: the Senate Budget Committee, provided that DUMPING AND SUBSIDY OFFSET. Mr. Conrad: This is the Statement of Budg- such statement has been submitted prior to Notwithstanding section 1701(b) of the Def- etary Effects of PAYGO Legislation for H.R. icit Reduction Act of 2005 (Public Law 109– the vote on passage. 4783, as amended. 171; 120 Stat. 154 (19 U.S.C. 1675c note)) or any other provision of law, no payments shall be Total Budgetary Effects of H.R. 4783 for the distributed under section 754 of the Tariff SA 4720. Mr. REID (for Mr. BAUCUS 5-year Statutory PAYGO Scorecard: net in- crease in the deficit of $1.453 billion. Act of 1930, as in effect on the day before the (for himself and Mr. DORGAN)) proposed Total Budgetary Effects of H.R. 4783 for the date of the enactment of such section 1701, an amendment to the bill H.R. 4783, with respect to the entries of any goods that 10-year Statutory PAYGO Scorecard: net de- are, on the date of the enactment of this may be cited as ‘‘The Claims Resettle- crease in the deficit of $1 million. Act— ment Act of 2010’’; as follows: Also submitted for the RECORD as part of (1) unliquidated; and this statement is a table prepared by the Amend the title so as to read: (2)(A) not in litigation; or Congressional Budget Office, which provides (B) not under an order of liquidation from This Act may be cited as ‘‘The Claims Re- additional information on the budgetary ef- the Department of Commerce. settlement Act of 2010’’. fects of this Act, as follows: ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS FOR A SENATE PROPOSAL, THE CLAIMS RESOLUTIONS ACT OF 2010 (AS TRANSMITTED TO CBO ON NOVEMBER 18, 2010) [Millions of dollars, by fiscal year]

Preliminary 2011– 2011– 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2015 2020

Net Increase or Decrease (¥) in the Deficit Statutory Pay-As-You-Go Impact ...... 2,057 ¥729 ¥442 206 362 411 282 102 ¥2,055 ¥193 1,453 ¥1 Sources: Congressional Budget Office and the staff of the Joint Committee on Taxation. Note: Components may not sum to totals because of rounding.

The amendment (No. 4719) was agreed Mr. LEAHY. Mr President, I rise heard that these water rights bills were to. today to express my support for pas- being added to Pigford I assumed they (The amendment is printed in today’s sage of the Pigford and Cobell Settle- simply contained agreements to settle RECORD under ‘‘Text of Amendments.’’) ments. But before I address the need to long delayed disputes over water The amendment (No. 4720) was agreed pass this legislation, I would like to claims with American Indian tribes. to, as follows: take a few minutes to congratulate the And if that were indeed the case, I other side of the aisle for keeping their would offer no objection and encourage Amend the title so as to read: self imposed earmark ban for all of the speedy adoption of this package. This Act may be cited as ‘‘The Claims Re- four days. But unfortunately that is only half settlement Act of 2010’’. Much like Captain Renault in Casa- the story. The reality is that these Mr. REID. I ask unanimous consent blanca I am sure that my colleagues bills are laden down with pork, to use that any statements relating to this will be shocked, just shocked to know a phrase I know is a favorite of a few matter be printed in the RECORD. that there are earmarks embedded in my colleagues. In fact, to single out The PRESIDING OFFICER. Without the extraneous provisions that have one project in particular, this package objection, it is so ordered. been added to this bill. When I first of bills will send hundreds of millions

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00062 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8173 of dollars to one tribe in Arizona to priations Committee has to work with Approximately 61,000 petitions were help them make snow at their ski re- each year. I am confident that the filed after the original October 12, 1999, sort, improve water flow to their ca- Vermont projects I have helped secure deadline, but on or before the Sep- sino and build fish hatcheries to im- have improved our State’s infrastruc- tember 15, 2000, ‘‘late-filing’’ deadline. prove local fish production. ture, economy and quality of life. Of these, only around 2,500 were per- Now I am not an expert on the spe- I am proud of that work and stand by mitted to proceed to a determination cifics of water rights claims in the each and every project I have brought on the merits. Over 25,000 additional West or what it costs to build a drink- back to Vermont. But I cannot remain petitions were filed after the Sep- ing water system in east central Ari- quiet as the other side of the aisle tember 15, 2000 late-filing deadline and zona. To my knowledge I have never demagogues this work when it helps before the May 22, 2008, enactment of met any of the 15,000 members of the one area of the country and then works the 2008 farm bill. White Mountain Apache Tribe, which behind the scenes to slip an earmark of On November 18, 2004, the Sub- would benefit from this funding, and I their own through the Senate. committee on the Constitution of the hold nothing against them. Perhaps It is my hope that before the next Committee on the Judiciary of the these projects are all crucial to helping Congress a measure of sanity returns House of Representatives received provide economic opportunities for the to discussion of the Federal budget. No sworn testimony highlighting the inad- tribe. one is claiming that changes to the equate notice provided to those who But as a long time member of the Ap- budget should not be made. But the had viable claims of discrimination propriations Committee, I do know an empty rhetoric blaming earmarks as against the USDA of the claims resolu- earmark when I see it. And this, my the cause of the current budget deficits tion process set out in the Consent De- friends, is an earmark. What I find par- obscures the real issues that need to be cree. Because of this inadequate notice, ticularly fascinating about this ear- addressed. many potential claimants were denied Mr. GRASSLEY. Mr. President, I mark is that it goes to the very state participation in the Pigford claims res- want to first start off by thanking my whose Members of the House and Sen- olution process as ‘‘late-filers.’’ Senate colleagues and in particular the ate have been the loudest voices in op- Secretary Vilsack has reached a set- Senate Agriculture Committee for ad- posing this type of spending. Over the tlement agreement with the claimants dressing a new cause of action in Fed- last few months, and particularly in who filed claims after the deadline set eral court for those African-American the days since the election, Members of by the court who were denied a deter- farmers who may have been discrimi- mination of the merits of their Pigford the other side of the aisle have been nated against and who were denied tripping over themselves to take a claims. The government has an obliga- entry in the Pigford v. Glickman Con- tion to fund this settlement which is stronger position in opposition of ear- sent Decree. The Food, Conservation, marks. As I noted previously, just this subject to court approval and Congress and Energy Act of 2008 included a pro- must act to provide relief for these week the Senate Republican caucus vision titled Determination on Merits took a position to support a complete claimants quickly. of Pigford Claims. It gave these farm- Today we have the opportunity to ban on pursuing earmarks. ers a chance to have their claims make right these past wrongs by the Now that the Senate is considering heard. Department and give each individual directing millions of dollars to the For those that don’t know, in 1997 a claimant the right to tell their side of needs of their constituents, they are lawsuit was filed in the United States the story. nowhere to be found. And I am just District Court for the District of Co- This second Pigford round is not the having the hardest time understanding lumbia against the United States De- same as the claims adjudicated in why. Because I also recall a report that partment of Agriculture, USDA, Pigford 1. We’ve made changes to the two of our colleagues put together this Pigford v. Glickman, alleging that the settlement agreement that will en- past August on what they believed to USDA had violated the Equal Credit hance the Department’s ability to fight be wasteful spending from the Recov- Opportunity Act and the Administra- fraud. We require the adjudicators to ery Act. tive Procedure Act by maintaining a be a truly neutral party. We allow that In fact I have a vivid memory of how pattern and practice of discrimination neutral adjudicator to ask the claim- this report criticized an economic de- against African-American farmers. ant for additional documentation if he velopment project in Vermont that Such pattern and practice delayed, de- or she suspects any fraud. We require gave a loan for improvements at a ski nied, or otherwise frustrated the ef- the claimants’ attorneys to certify area that needed to make upgrades to forts of African-American farmers to that there is evidentiary support for attract new business. I believe this re- obtain loan assistance and to engage in the claims. And we require the Office of port also took to task projects that the vocation of farming. Inspector General and the Government supported economic activities related Because of the persistent practice of Accountability Office to evaluate the to casinos in Connecticut, Pennsyl- discrimination, Congress, in October Department’s internal controls and vania, and Mississippi. 1998, passed a law tolling the statute of audit the process in adjudicating the I bring this up not to rehash whether limitations under the Equal Credit Op- claims. these projects are a good use of Federal portunity Act for an additional 2 years I also thank John Boyd, president of funds, though I strongly support the for African-American farmers who had the National Black Farmers Associa- Vermont project. I do so to recall the been discriminated against between tion, NBFA, for his help in getting us outrage of my colleagues over this 1981 and 1996 and had filed complaints where we are today. Without his dedi- spending on ski resorts and casinos and with USDA prior to July 1, 1997, so that cation to this issue, I don’t think we ask, where are they now? they could file a civil action against would be passing this legislation today. Where are the so called budget hawks USDA. My hope is that the Department will who rail against what they see as On April 14, 1999, the U.S. District work with groups like NBFA to con- wasteful spending now that their col- Court for the District of Columbia ap- duct outreach to the black community leagues are pushing for an earmark for proved a settlement and assigned four and claimants. No one wants to see this same purpose? entities to facilitate implementation of fraud in the administration of these Where are the voices of those who the claims resolution process set out in claims and stakeholder groups such as have spoken so strongly against tar- the Consent Decree. To participate in John’s can be a valuable resource to geted spending in other States, but this process, eligible farmers initially getting that message out. clearly have no problem with this were required to submit completed All these steps will help deter fraud spending now that it benefits their own claims packages to the Consent Decree and better protect taxpayer dollars. constituents? Facilitator by October 12, 1999. This Other provisions are included in this The hypocrisy of the situation before deadline was subsequently extended by package including the Cobell settle- us would be unbelievable if was not so the Court to September 15, 2000, upon a ment and four Native American tribal predictable. I often advocate for showing of ‘‘extraordinary cir- water agreements. In a fiscally respon- projects that benefit Vermont within cumstances beyond [the claimant’s] sible manner, we have fully offset the the budget framework that the Appro- control.’’ entire package.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00063 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8174 CONGRESSIONAL RECORD — SENATE November 19, 2010 The farm bill we passed 2 years ago marketplace intense. Tens of thou- tice, which represented the USDA, and does one thing right. It focuses a con- sands of Black farmers have had to face lawyers for the farmers, a settlement siderable amount of resources on new all those normal challenges. Trag- was finally reached in February 2010. and beginning farmers and ranchers. ically, they have had to deal with a The Pigford II settlement agreement Well, many of the Pigford claimants challenge that was unique to them will provide $1.25 billion, which is con- were in that same boat 20 years ago. based solely on race. The U.S. Depart- tingent on appropriation by Congress, It’s time to rectify that. We know ment of Agriculture was discrimi- to African-American farmers who can USDA has admitted that the discrimi- nating against them. show they suffered racial discrimina- nation occurred, and now we are obli- More than 12 years ago Black farmers tion in USDA farm loan programs. gated to do our best in getting those across America brought a class action Once the money is appropriated farm- that deserve it, some relief. It is time suit against the U.S. Department of ers can pursue their individual claims to make these claimants right and Agriculture, USDA, for racial discrimi- through the same nonjudicial process move forward into a new era of civil nation. The history of that discrimina- used in the first case. rights at the Department of Agri- tion is a sad one, and it is well docu- To address this funding need, Presi- culture. mented. dent Obama included $1.15 billion in ad- Mr. ENZI. Mr. President, the Senate Farmers, as do all businesses, need ditional funding for his fiscal year 2010 is close to passing legislation that in- access to loans. They need to borrow and fiscal year 2011 budget. cludes three water settlements as well money for expensive equipment and Both Chambers of Congress have as funding to settle the Cobell and they need funding to help them when worked to pass appropriations to fulfill Pigford claims. I want to briefly dis- droughts strike or when markets col- the settlement agreement since Feb- cuss the Crow Tribe Water Rights Set- lapse. The Congress has recognized this ruary. The House of Representatives tlement Act, which is included in the need for decades, and we have estab- has passed funding language for the larger bill. lished special loan programs in the Pigford case twice; once as part of the The Crow Tribe has water related USDA to support these special needs. war supplemental and the other on a claims against the United States and Tragically, tens of thousands of tax extenders bill. those claims need to be settled. While I Black farmers were the victims of sys- I thank my colleagues for working believe it is necessary to solve legiti- temic discrimination. During the 1980s together and reaching a settlement on mate water claims, I want to make and 1990s, the average processing time this important issue. We have provided clear that I do not support backdoor ef- for a loan application by White farmers our fellow Americans with redress for forts to steal water from my home was 30 days, while the average time for an injustice that occurred. state of Wyoming. a loan application by Black farmers The amendments were ordered to be In the West, we know that water is was 387 days. That is more than 12 engrossed and the bill to be read a worth fighting for. It is a precious com- times longer if you are a Black farmer. third time. modity, and there isn’t enough of it to This discrimination earned the USDA The bill (H.R. 4783), as amended, was meet all of our State’s needs. Just as the regrettable nickname ‘‘the Last read the third time and passed, as fol- other Western members work hard to Plantation.’’ lows: protect their state’s water rights, Sen- Black farmers finally sought justice H.R. 4783 ator BARRASSO and I work to protect through a class action lawsuit in 1997. Resolved, That the bill from the House of Wyoming’s water rights. Some have More than 20,000 farmers initiated Representatives (H.R. 4783) entitled ‘‘An Act suggested that Wyoming water users claims citing racial discrimination in to accelerate the income tax benefits for will be harmed by this bill. That is not the USDA farm loan programs. charitable cash contributions for the relief of the intention of the legislation. It is in Two years after the action was initi- victims of the earthquake in Chile, and to place to settle water claims from the ated, the U.S. District Court for the extend the period from which such contribu- Crow Tribe. It is not intended to be a District of Columbia entered a consent tions for the relief of victims of the earth- quake in Haiti may be accelerated.’’, do pass hidden effort to harm Wyoming water decree approving a class action settle- with the following amendments: users. ment to compensate these farmers for Strike all after the enacting clause and in- Senator BARRASSO worked closely years of racial discrimination by the sert the following: with the Wyoming Attorney General’s USDA. Each farmer who could prove SECTION 1. SHORT TITLE; TABLE OF CONTENTS. Office and the Wyoming State engineer discrimination was entitled to dam- (a) SHORT TITLE.—This Act may be cited as to negotiate substantial changes to ages. Out of the initial 20,000 farmers, the ‘‘Claims Resolution Act of 2010’’. this bill to guard against unreasonable 15,000 were meritorious in the claims (b) TABLE OF CONTENTS.—The table of con- takings of Wyoming’s water. My staff they brought. As the legal process con- tents of this Act is as follows: participated in some of the meetings tinued, additional farmers began to Sec. 1. Short title; table of contents. where those changes were made, and join the class action and file their own TITLE I—INDIVIDUAL INDIAN MONEY after numerous discussions with water claims. Approximately 80,000 farmers ACCOUNT LITIGATION SETTLEMENT experts in Wyoming and here in Wash- eventually brought claims. Sec. 101. Individual Indian Money Account ington, I am convinced that this legis- Unfortunately, many of these farm- Litigation Settlement. lation will hold Wyoming’s water users ers did not know about the class action TITLE II—FINAL SETTLEMENT OF harmless. suit, and by the time they learned of CLAIMS FROM IN RE BLACK FARMERS While I remain concerned about the its existence, the filing deadline had DISCRIMINATION LITIGATION cost of this legislation and the fact passed. Sec. 201. Appropriation of funds for final set- that the proponents have bundled to- In 2008, Congress—recognizing the in- tlement of claims from In re gether distinctly different bills, on the justice of stopping 80 percent or more Black Farmers Discrimination Litigation. specific issue of protecting Wyoming’s of the farmers who potentially suffered water rights, there are numerous pro- at the hand of discrimination by our TITLE III—WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS QUANTIFICATION tections in the bill to ensure Wyo- government—decided to take action ming’s water users will not be harmed and created a new cause of action for Sec. 301. Short title. Sec. 302. Purposes. if this bill becomes law. Because of farmers previously denied access to Sec. 303. Definitions. that, I am not objecting to the bill justice. Sec. 304. Approval of Agreement. today. In the 2008 farm bill, with bipartisan Sec. 305. Water rights. Mr. CARDIN. Mr. President, I rise support, Congress included $100 million Sec. 306. Contract. today to talk about the Pigford II set- for payments and debt relief as a down- Sec. 307. Authorization of WMAT rural tlement pending full action by the U.S. payment to satisfy the claims filed by water system. Senate. deserving claimants denied participa- Sec. 308. Satisfaction of claims. Sec. 309. Waivers and releases of claims. We all know that farming is a dif- tion in the original settlement because Sec. 310. White Mountain Apache Tribe ficult occupation. The hours are long, of timeliness issues. Water Rights Settlement Sub- the weather unpredictable and the After years of litigation and negotia- account. challenge of competing in a global tion between the Department of Jus- Sec. 311. Miscellaneous provisions.

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Sec. 312. Funding. Sec. 812. Modifications to TANF data report- (1) IN GENERAL.—Notwithstanding the limi- Sec. 313. Antideficiency. ing. tation on the jurisdiction of the district Sec. 314. Compliance with environmental Subtitle C—Customs User Fees; Continued courts of the United States in section laws. Dumping and Subsidy Offset 1346(a)(2) of title 28, United States Code, the United States District Court for the District TITLE IV—CROW TRIBE WATER RIGHTS Sec. 821. Customs user fees. SETTLEMENT Sec. 822. Limitation on distributions relat- of Columbia shall have jurisdiction of the Sec. 401. Short title. ing to repeal of continued claims asserted in the Amended Complaint Sec. 402. Purposes. dumping and subsidy offset. for purposes of the Settlement. Sec. 403. Definitions. (2) CERTIFICATION OF TRUST ADMINISTRATION Subtitle D—Emergency Fund for Indian CLASS.— Sec. 404. Ratification of Compact. Safety and Health Sec. 405. Rehabilitation and improvement of (A) IN GENERAL.—Notwithstanding the re- Crow Irrigation Project. Sec. 831. Emergency Fund for Indian Safety quirements of the Federal Rules of Civil Pro- Sec. 406. Design and construction of MR&I and Health. cedure, the court in the Litigation may cer- System. Subtitle E—Rescission of Funds From WIC tify the Trust Administration Class. Sec. 407. Tribal water rights. Program (B) TREATMENT.—On certification under Sec. 408. Storage allocation from Bighorn Sec. 841. Rescission of funds from WIC pro- subparagraph (A), the Trust Administration Lake. gram. Class shall be treated as a class certified Sec. 409. Satisfaction of claims. under rule 23(b)(3) of the Federal Rules of Sec. 410. Waivers and releases of claims. Subtitle F—Budgetary Effects Civil Procedure for purposes of the Settle- Sec. 411. Crow Settlement Fund. Sec. 851. Budgetary effects. ment. Sec. 412. Yellowtail Dam, Montana. TITLE I—INDIVIDUAL INDIAN MONEY (e) TRUST LAND CONSOLIDATION.— Sec. 413. Miscellaneous provisions. ACCOUNT LITIGATION SETTLEMENT (1) TRUST LAND CONSOLIDATION FUND.— Sec. 414. Funding. SEC. 101. INDIVIDUAL INDIAN MONEY ACCOUNT (A) ESTABLISHMENT.—On final approval of Sec. 415. Repeal on failure to meet enforce- LITIGATION SETTLEMENT. the Settlement, there shall be established in ability date. (a) DEFINITIONS.—In this section: the Treasury of the United States a fund, to Sec. 416. Antideficiency. (1) AGREEMENT ON ATTORNEYS’ FEES, EX- be known as the ‘‘Trust Land Consolidation TITLE V—TAOS PUEBLO INDIAN WATER PENSES, AND COSTS.—The term ‘‘Agreement Fund’’. RIGHTS on Attorneys’ Fees, Expenses, and Costs’’ (B) AVAILABILITY OF AMOUNTS.—Amounts Sec. 501. Short title. means the agreement dated December 7, 2009, in the Trust Land Consolidation Fund shall Sec. 502. Purposes. between Class Counsel (as defined in the Set- be made available to the Secretary during Sec. 503. Definitions. tlement) and the Defendants (as defined in the 10-year period beginning on the date of Sec. 504. Pueblo rights. the Settlement) relating to attorneys’ fees, final approval of the Settlement— Sec. 505. Taos Pueblo Water Development expenses, and costs incurred by Class Coun- (i) to conduct the Land Consolidation Pro- Fund. sel in connection with the Litigation and im- gram; and Sec. 506. Marketing. plementation of the Settlement, as modified (ii) for other costs specified in the Settle- Sec. 507. Mutual-Benefit Projects. by the parties to the Litigation. ment. Sec. 508. San Juan-Chama Project contracts. (2) AMENDED COMPLAINT.—The term (C) DEPOSITS.— Sec. 509. Authorizations, ratifications, con- ‘‘Amended Complaint’’ means the Amended (i) IN GENERAL.—On final approval of the firmations, and conditions Complaint attached to the Settlement. Settlement, the Secretary of the Treasury precedent. (3) FINAL APPROVAL.—The term ‘‘final ap- shall deposit in the Trust Land Consolida- Sec. 510. Waivers and releases of claims. proval’’ has the meaning given the term in tion Fund $1,900,000,000 out of the amounts Sec. 511. Interpretation and enforcement. the Settlement. appropriated to pay final judgments, awards, Sec. 512. Disclaimer. (4) LAND CONSOLIDATION PROGRAM.—The and compromise settlements under section Sec. 513. Antideficiency. term ‘‘Land Consolidation Program’’ means 1304 of title 31, United States Code. TITLE VI—AAMODT LITIGATION a program conducted in accordance with the (ii) CONDITIONS MET.—The conditions de- SETTLEMENT Settlement, the Indian Land Consolidation scribed in section 1304 of title 31, United Sec. 601. Short title. Act (25 U.S.C. 2201 et seq.), and subsection States Code, shall be deemed to be met for Sec. 602. Definitions. (e)(2) under which the Secretary may pur- purposes of clause (i). Subtitle A—Pojoaque Basin Regional Water chase fractional interests in trust or re- (D) TRANSFERS.—In a manner designed to System stricted land. encourage participation in the Land Consoli- Sec. 611. Authorization of Regional Water (5) LITIGATION.—The term ‘‘Litigation’’ dation Program, the Secretary may transfer, System. means the case entitled Elouise Cobell et al. at the discretion of the Secretary, not more Sec. 612. Operating Agreement. v. Ken Salazar et al., United States District than $60,000,000 of amounts in the Trust Land Sec. 613. Acquisition of Pueblo water supply Court, District of Columbia, Civil Action No. Consolidation Fund to the Indian Education for Regional Water System. 96–1285 (TFH). Scholarship Holding Fund established under Sec. 614. Delivery and allocation of Regional (6) PLAINTIFF.—The term ‘‘Plaintiff’’ paragraph (3). Water System capacity and means a member of any class certified in the (2) OPERATION.—The Secretary shall con- water. Litigation. sult with Indian tribes to identify fractional Sec. 615. Aamodt Settlement Pueblos’ Fund. (7) SECRETARY.—The term ‘‘Secretary’’ interests within the respective jurisdictions Sec. 616. Environmental compliance. means the Secretary of the Interior. of the Indian tribes for purchase in a manner Sec. 617. Funding. (8) SETTLEMENT.—The term ‘‘Settlement’’ that is consistent with the priorities of the Subtitle B—Pojoaque Basin Indian Water means the Class Action Settlement Agree- Secretary. Rights Settlement ment dated December 7, 2009, in the Litiga- (3) INDIAN EDUCATION SCHOLARSHIP HOLDING tion, as modified by the parties to the Liti- FUND.— Sec. 621. Settlement Agreement and con- gation. (A) ESTABLISHMENT.—On final approval of tract approval. (9) TRUST ADMINISTRATION ADJUSTMENT the Settlement, there shall be established in Sec. 622. Environmental compliance. FUND.—The term ‘‘Trust Administration Ad- the Treasury of the United States a fund, to Sec. 623. Conditions precedent and enforce- justment Fund’’ means the $100,000,000 depos- be known as the ‘‘Indian Education Scholar- ment date. ited in the Settlement Account (as defined in ship Holding Fund’’. Sec. 624. Waivers and releases of claims. the Settlement) pursuant to subsection (j)(1) (B) AVAILABILITY.—Notwithstanding any Sec. 625. Effect. other provision of law governing competi- Sec. 626. Antideficiency. for use in making the adjustments author- ized by that subsection. tion, public notification, or Federal procure- TITLE VII—RECLAMATION WATER (10) TRUST ADMINISTRATION CLASS.—The ment or assistance, amounts in the Indian SETTLEMENTS FUND term ‘‘Trust Administration Class’’ means Education Scholarship Holding Fund shall be Sec. 701. Mandatory appropriation. the Trust Administration Class as defined in made available, without further appropria- TITLE VIII—GENERAL PROVISIONS the Settlement. tion, to the Secretary to contribute to an In- Subtitle A—Unemployment Compensation (b) PURPOSE.—The purpose of this section dian Education Scholarship Fund, as de- Program Integrity is to authorize the Settlement. scribed in the Settlement, to provide schol- (c) AUTHORIZATION.— arships for Native Americans. Sec. 801. Collection of past-due, legally en- (1) IN GENERAL.—The Settlement is author- (4) ACQUISITION OF TRUST OR RESTRICTED forceable State debts. ized, ratified, and confirmed. LAND.—The Secretary may acquire, at the Sec. 802. Reporting of first day of earnings (2) AMENDMENTS.—Any amendment to the discretion of the Secretary and in accord- to directory of new hires. Settlement is authorized, ratified, and con- ance with the Land Consolidation Program, Subtitle B—TANF firmed, to the extent that such amendment any fractional interest in trust or restricted Sec. 811. Extension of the Temporary Assist- is executed to make the Settlement con- land. ance for Needy Families pro- sistent with this section. (5) TREATMENT OF UNLOCATABLE PLAIN- gram. (d) JURISDICTIONAL PROVISIONS.— TIFFS.—A Plaintiff, the whereabouts of whom

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00065 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8176 CONGRESSIONAL RECORD — SENATE November 19, 2010 are unknown and who, after reasonable ef- possible candidates timely offered by, feder- the claims raised or that could have been forts by the Secretary, cannot be located ally recognized Indian tribes. raised in the cases consolidated in In re Black during the 5-year period beginning on the (j) TRUST ADMINISTRATION CLASS ADJUST- Farmers Discrimination Litigation, Misc. No. date of final approval of the Settlement, MENTS.— 08–mc–0511 (PLF), including Pigford claims shall be considered to have accepted an offer (1) FUNDS.— asserted under section 14012 of the Food, made pursuant to the Land Consolidation (A) IN GENERAL.—In addition to the Conservation, and Energy Act of 2008 (Public Program. amounts deposited pursuant to paragraph Law 110–246; 122 Stat. 2209). (f) TAXATION AND OTHER BENEFITS.— E.2. of the Settlement, on final approval, the (2) PIGFORD CLAIM.—The term ‘‘Pigford (1) INTERNAL REVENUE CODE.—For purposes Secretary of the Treasury shall deposit in claim’’ has the meaning given that term in of the Internal Revenue Code of 1986, the Trust Administration Adjustment Fund section 14012(a)(3) of the Food, Conservation, amounts received by an individual Indian as of the Settlement Account (as defined in the and Energy Act of 2008 (Public Law 110–246; a lump sum or a periodic payment pursuant Settlement) $100,000,000 out of the amounts 122 Stat. 2210). to the Settlement shall not be— appropriated to pay final judgments, awards, (b) APPROPRIATION OF FUNDS.—There is ap- (A) included in gross income; or and compromise settlements under section propriated to the Secretary of Agriculture (B) taken into consideration for purposes 1304 of title 31, United States Code, to be al- $1,150,000,000, to remain available until ex- of applying any provision of the Internal located and paid by the Claims Adminis- pended, to carry out the terms of the Settle- Revenue Code that takes into account ex- trator (as defined in the Settlement and pur- ment Agreement if the Settlement Agree- cludable income in computing adjusted gross suant to paragraph E.1.e of the Settlement) ment is approved by a court order that is or income or modified adjusted gross income, in accordance with this subsection. becomes final and nonappealable, and the including section 86 of that Code (relating to (B) CONDITIONS MET.—The conditions de- court finds that the Settlement Agreement Social Security and tier 1 railroad retire- scribed in section 1304 of title 31, United is modified to incorporate the additional ment benefits). States Code, shall be deemed to be met for terms contained in subsection (g). The funds (2) OTHER BENEFITS.—Notwithstanding any purposes of subparagraph (A). appropriated by this subsection are in addi- other provision of law, for purposes of deter- (2) ADJUSTMENT.— tion to the $100,000,000 of funds of the Com- mining initial eligibility, ongoing eligibility, (A) IN GENERAL.—After the calculation of modity Credit Corporation made available or level of benefits under any Federal or fed- the pro rata share in Section E.4.b of the by section 14012(i) of the Food, Conservation, erally assisted program, amounts received by Settlement, the Trust Administration Ad- and Energy Act of 2008 (Public Law 110–246; an individual Indian as a lump sum or a peri- justment Fund shall be used to increase the 122 Stat. 2212) and shall be available for obli- odic payment pursuant to the Settlement minimum payment to each Trust Adminis- gation only after those Commodity Credit shall not be treated for any household mem- tration Class Member whose pro rata share Corporation funds are fully obligated. If the ber, during the 1-year period beginning on is— Settlement Agreement is not approved as the date of receipt— (i) zero; or provided in this subsection, the $100,000,000 of (A) as income for the month during which (ii) greater than zero, but who would, after funds of the Commodity Credit Corporation the amounts were received; or adjustment under this subparagraph, other- made available by section 14012(i) of the (B) as a resource. wise receive a smaller Stage 2 payment than Food, Conservation, and Energy Act of 2008 shall be the sole funding available for (g) INCENTIVE AWARDS AND AWARD OF AT- those Trust Administration Class Members Pigford claims. TORNEYS’ FEES, EXPENSES, AND COSTS UNDER described in clause (i). (c) USE OF FUNDS.—The use of the funds ap- SETTLEMENT AGREEMENT.— (B) RESULT.—The amounts in the Trust Ad- propriated by subsection (b) shall be subject (1) IN GENERAL.—Subject to paragraph (3), ministration Adjustment Fund shall be ap- to the express terms of the Settlement the court in the Litigation shall determine plied in such a manner as to ensure, to the Agreement. the amount to which the Plaintiffs in the extent practicable (as determined by the (d) TREATMENT OF REMAINING FUNDS.—If court in the Litigation), that each Trust Ad- Litigation may be entitled for incentive any of the funds appropriated by subsection ministration Class Member receiving awards and for attorneys’ fees, expenses, and (b) are not obligated and expended to carry amounts from the Trust Administration Ad- costs— out the Settlement Agreement, the Sec- justment Fund receives the same total pay- (A) in accordance with controlling law, in- retary of Agriculture shall return the unused ment under Stage 2 of the Settlement after cluding, with respect to attorneys’ fees, ex- funds to the Treasury and may not make the making the adjustments required by this penses, and costs, any applicable rule of law unused funds available for any purpose re- subsection. requiring counsel to produce contempora- lated to section 14012 of the Food, Conserva- (3) TIMING OF PAYMENTS.—The payments neous time, expense, and cost records in sup- tion, and Energy Act of 2008, for any other authorized by this subsection shall be in- port of a motion for such fees, expenses, and settlement agreement executed in In re Black cluded with the Stage 2 payments under costs; and Farmers Discrimination Litigation, No. 08–511 paragraph E.4. of the Settlement. (B) giving due consideration to the special (D.D.C.), or for any other purpose. (k) EFFECT OF ADJUSTMENT PROVISIONS.— status of Class Members (as defined in the (e) RULES OF CONSTRUCTION.—Nothing in Notwithstanding any provision of this sec- Settlement) as beneficiaries of a federally this section shall be construed as requiring tion, in the event that a court determines created and administered trust. the United States, any of its officers or agen- that the application of subsection (j) is un- (2) NOTICE OF AGREEMENT ON ATTORNEYS’ cies, or any other party to enter into the fair to the Trust Administration Class— FEES, EXPENSES, AND COSTS.—The description Settlement Agreement or any other settle- (1) subsection (j) shall not go into effect; of the request of Class Counsel for an ment agreement. Nothing in this section and amount of attorneys’ fees, expenses, and shall be construed as creating the basis for a (2) on final approval of the Settlement, in costs required under paragraph C.1.d. of the Pigford claim. Settlement shall include a description of all addition to the amounts deposited into the (f) CONFORMING AMENDMENTS.—Section material provisions of the Agreement on At- Trust Land Consolidation Fund pursuant to 14012 of the Food, Conservation, and Energy torneys’ Fees, Expenses, and Costs. subsection (e), the Secretary of the Treasury Act of 2008 (Public Law 110–246; 122 Stat. 2209) (3) EFFECT ON AGREEMENT.—Nothing in this shall deposit in that Fund $100,000,000 out of is amended— subsection limits or otherwise affects the en- amounts appropriated to pay final judg- (1) in subsection (c)(1)— forceability of the Agreement on Attorneys’ ments, awards, and compromise settlements (A) by striking ‘‘subsection (h)’’ and insert- Fees, Expenses, and Costs. under section 1304 of title 31, United States ing ‘‘subsection (g)’’; and (h) SELECTION OF QUALIFYING BANK.—The Code (the conditions of which section shall (B) by striking ‘‘subsection (i)’’ and insert- United States District Court for the District be deemed to be met for purposes of this ing ‘‘subsection (h)’’; of Columbia, in exercising the discretion of paragraph) to be used by the Secretary in ac- (2) by striking subsection (e); the Court to approve the selection of any cordance with subsection (e). (3) in subsection (g), by striking ‘‘sub- proposed Qualifying Bank (as defined in the TITLE II—FINAL SETTLEMENT OF CLAIMS section (f)’’ and inserting ‘‘subsection (e)’’; Settlement) under paragraph A.1. of the Set- FROM IN RE BLACK FARMERS DISCRIMI- (4) in subsection (i)— tlement, may consider any factors or cir- NATION LITIGATION (A) by striking ‘‘(1) IN GENERAL.—Of the cumstances regarding the proposed Quali- SEC. 201. APPROPRIATION OF FUNDS FOR FINAL funds’’ and inserting ‘‘Of the funds’’; fying Bank that the Court determines to be SETTLEMENT OF CLAIMS FROM IN (B) by striking paragraph (2); and appropriate to protect the rights and inter- RE BLACK FARMERS DISCRIMINA- (C) by striking ‘‘subsection (g)’’ and insert- ests of Class Members (as defined in the Set- TION LITIGATION. ing ‘‘subsection (f)’’; tlement) in the amounts to be deposited in (a) DEFINITIONS.—In this section: (5) by striking subsection (j); and the Settlement Account (as defined in the (1) SETTLEMENT AGREEMENT.—The term (6) by redesignating subsections (f), (g), (h), Settlement). ‘‘Settlement Agreement’’ means the settle- (i), and (k) as subsections (e), (f), (g), (h), and (i) APPOINTEES TO SPECIAL BOARD OF ment agreement dated February 18, 2010 (in- (i), respectively. TRUSTEES.—The 2 members of the special cluding any modifications agreed to by the (g) ADDITIONAL SETTLEMENT TERMS.—For board of trustees to be selected by the Sec- parties and approved by the court under that the purposes of this section and funding for retary under paragraph G.3. of the Settle- agreement) between certain plaintiffs, by the Settlement Agreement, the following are ment shall be selected only after consulta- and through their counsel, and the Secretary additional terms: tion with, and after considering the names of of Agriculture to resolve, fully and forever, (1) DEFINITIONS.—In this subsection:

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(A) SETTLEMENT AGREEMENT.—The term (B) ACCESS TO INFORMATION.—Solely for tion) with the United States for delivery of ‘‘Settlement Agreement’’ means the settle- purposes of conducting the evaluation under water through the CAP system. ment, including any modifications agreed to subparagraph (A), the Comptroller General (5) CAP FIXED OM&R CHARGE.—The term by the parties and approved by the court, be- shall have access, upon request, to the ‘‘CAP fixed OM&R charge’’ has the meaning tween the Secretary of Agriculture and cer- claims administrator, the claims adjudica- given the term in the repayment stipulation. tain plaintiffs, by and through their counsel tors, and related officials, appointed in con- (6) CAP M&I PRIORITY WATER.—The term in litigation titled Black Farmers Discrimi- nection with the aforementioned settlement, ‘‘CAP M&I priority water’’ means the CAP nation Litigation, Misc. No. 08–mc–0511 and to any information and records gen- water having a municipal and industrial de- (PLF). erated, used, or received by them, including livery priority under the repayment con- (B) NEUTRAL ADJUDICATOR.— names and addresses. tract. (i) IN GENERAL.—The term ‘‘Neutral Adju- (2) USDA INSPECTOR GENERAL.— (7) CAP SUBCONTRACTOR.—The term ‘‘CAP dicator’’ means a Track A Neutral or a (A) PERFORMANCE AUDIT.—The Inspector subcontractor’’ means an individual or enti- Track B Neutral as those terms are defined General of the Department of Agriculture ty that has entered into a long-term sub- in the Settlement Agreement, who have been shall, within 180 days of the initial adjudica- contract (as that term is used in the repay- hired by Lead Class Counsel as that term is tion of claims, and subsequently as appro- ment stipulation) with the United States and defined in the Settlement Agreement. priate, perform a performance audit based on the District for the delivery of water (ii) REQUIREMENT.—The Track A and B a statistical sampling of adjudicated claims. through the CAP system. Neutrals called for in the Settlement Agree- (B) AUDIT RECIPIENTS.—The audits de- (8) CAP SYSTEM.—The term ‘‘CAP system’’ ment shall be approved by the Secretary of scribed in clause (i) shall be provided to Sec- means— the United States Department of Agri- retary of Agriculture and the Attorney Gen- (A) the Mark Wilmer Pumping Plant; culture, the Attorney General, and the court. eral. (B) the Hayden-Rhodes Aqueduct; (2) OATH.—Every Neutral Adjudicator shall (C) the Fannin-McFarland Aqueduct; TITLE III—WHITE MOUNTAIN APACHE (D) the Tucson Aqueduct; take an oath administered by the court prior TRIBE WATER RIGHTS QUANTIFICATION to hearing claims. (E) any pumping plant or appurtenant SEC. 301. SHORT TITLE. (3) ADDITIONAL DOCUMENTATION OR EVI- works of a feature described in any of sub- DENCE.—Any Neutral Adjudicator may, dur- This title may be cited as the ‘‘White paragraphs (A) through (D); and ing the course of hearing claims, require Mountain Apache Tribe Water Rights Quan- (F) any extension of, addition to, or re- claimants to provide additional documenta- tification Act of 2010’’. placement for a feature described in any of tion and evidence if, in the Neutral Adjudica- SEC. 302. PURPOSES. subparagraphs (A) through (E). tor’s judgment, the additional documenta- The purposes of this title are— (9) CAP WATER.—The term ‘‘CAP water’’ tion and evidence would be necessary or (1) to authorize, ratify, and confirm the means ‘‘Project Water’’ (as that term is de- helpful in deciding the merits of the claim, Agreement; fined in the repayment stipulation). or if the adjudicator suspects fraud regarding (2) to authorize and direct the Secretary to (10) CONTRACT.—The term ‘‘Contract’’ the claim. execute the Agreement and take any other means— (A) the proposed contract between the (4) ATTORNEYS FEES, EXPENSES, AND action necessary to carry out all obligations Tribe and the United States attached as ex- COSTS.— of the Secretary under the Agreement in ac- hibit 7.1 to the Agreement and numbered 08– (A) IN GENERAL.—Subject to subparagraph cordance with this title; XX–30–W0529; and (B) and the provisions of the Settlement (3) to authorize the amounts necessary for (B) any amendments to that contract. Agreement regarding attorneys’ fee caps and the United States to meet the obligations of (11) DISTRICT.—The term ‘‘District’’ means maximum and minimum percentages for the United States under the Agreement and the Central Arizona Water Conservation Dis- awards of attorneys fees, the court shall this title; and trict, a political subdivision of the State make any determination as to the amount of (4) to permanently resolve certain damage that is the contractor under the repayment attorneys’ fees, expenses, and costs in ac- claims and all water rights claims among— contract. cordance with controlling law, including, (A) the Tribe and its members; (12) ENFORCEABILITY DATE.—The term ‘‘en- (B) the United States, acting as trustee for with respect to attorneys’ fees, expenses, and forceability date’’ means the date described the Tribe and its members; costs, any applicable rule of law requiring in section 309(d)(1). counsel to produce contemporaneous time, (C) the parties to the Agreement; and (13) INDIAN TRIBE.—The term ‘‘Indian expenses, and cost records in support of a (D) all other claimants seeking to deter- tribe’’ has the meaning given the term in motion for such fees, expenses, and costs. mine the nature and extent of the water section 4 of the Indian Self-Determination (B) EFFECT ON AGREEMENT.—Nothing in rights of the Tribe, its members, the United and Education Assistance Act (25 U.S.C. this paragraph limits or otherwise affects States, acting as trustee for the Tribe and 450b). its members, and other claimants in— the enforceability of provisions regarding at- (14) INJURY TO WATER RIGHTS.— torneys’ fees, expenses, and costs that may (i) the consolidated civil action in the Su- (A) IN GENERAL.—The term ‘‘injury to be contained in the Settlement Agreement. perior Court of the State of Arizona for the water rights’’ means an interference with, (5) CERTIFICATION.—An attorney filing a County of Maricopa styled In re the General diminution of, or deprivation of, a water claim on behalf of a claimant shall swear, Adjudication of All Rights To Use Water In right under Federal, State, or other law. under penalty of perjury, that: ‘‘to the best The Gila River System and Source, W–1 (B) INCLUSIONS.—The term ‘‘injury to of the attorney’s knowledge, information, (Salt), W–2 (Verde), W–3 (Upper Gila), W–4 water rights’’ includes— and belief formed after an inquiry reasonable (San Pedro); and (i) a change in the groundwater table; and under the circumstances, the claim is sup- (ii) the civil action pending in the Superior (ii) any effect of such a change. ported by existing law and the factual con- Court of the State of Arizona for the County (C) EXCLUSION.—The term ‘‘injury to water tentions have evidentiary support’’. of Apache styled In re the General Adjudica- rights’’ does not include any injury to water (6) DISTRIBUTION OF CLAIMS DETERMINA- tion of All Rights to Use Water in the Little quality. TIONS AND SETTLEMENT FUNDS.—In order to Colorado River System and Source and num- (15) LOWER COLORADO RIVER BASIN DEVELOP- ensure full transparency of the administra- bered CIV–6417. MENT FUND.—The term ‘‘Lower Colorado tion of claims under the Settlement Agree- SEC. 303. DEFINITIONS. River Basin Development Fund’’ means the ment, the Claims Administrator as that In this title: fund established by section 403 of the Colo- term is defined in the Settlement Agree- (1) AGREEMENT.—The term ‘‘Agreement’’ rado River Basin Project Act (43 U.S.C. 1543). ment, shall provide to the Secretary of Agri- means— (16) OFF-RESERVATION TRUST LAND.—The culture, the Inspector General of the Depart- (A) the WMAT Water Rights Quantifica- term ‘‘off-reservation trust land’’ means ment of Agriculture, the Attorney General, tion Agreement dated January 13, 2009; and land— and Lead Class Counsel as that term is de- (B) any amendment or exhibit (including (A) located outside the exterior boundaries fined in the Settlement Agreement, all infor- exhibit amendments) to that Agreement that of the reservation that is held in trust by the mation regarding Distribution of Claims De- are— United States for the benefit of the Tribe as terminations and Settlement Funds de- (i) made in accordance with this title; or of the enforceability date; and scribed in the Settlement Agreement. (ii) otherwise approved by the Secretary. (B) depicted on the map attached to the (h) REPORTS.— (2) BUREAU.—The term ‘‘Bureau’’ means Agreement as exhibit 2.57. (1) GOVERNMENT ACCOUNTABILITY OFFICE.— the Bureau of Reclamation. (17) OPERATING AGENCY.—The term ‘‘Oper- (A) IN GENERAL.—The Comptroller General (3) CAP.—The term ‘‘CAP’’ means the rec- ating Agency’’ means the 1 or more entities of the United States shall evaluate the inter- lamation project authorized and constructed authorized to assume responsibility for the nal controls (including internal controls con- by the United States in accordance with title care, operation, maintenance, and replace- cerning fraud and abuse) created to carry out III of the Colorado River Basin Project Act ment of the CAP system. the terms of the Settlement Agreement, and (43 U.S.C. 1521 et seq.). (18) REPAYMENT CONTRACT.—The term ‘‘re- report to the Congress at least 2 times (4) CAP CONTRACTOR.—The term ‘‘CAP con- payment contract’’ means— throughout the duration of the claims adju- tractor’’ means an individual or entity that (A) the contract between the United States dication process on the results of this eval- has entered into a long-term contract (as and the District for delivery of water and re- uation. that term is used in the repayment stipula- payment of the costs of the CAP, numbered

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00067 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8178 CONGRESSIONAL RECORD — SENATE November 19, 2010 14–06–W–245 (Amendment No. 1), and dated the Agreement requiring the signature of the Rights Settlement Act of 1990 (Public Law December 1, 1988; and Secretary, that is not inconsistent with this 101–628; 104 Stat. 4480). (B) any amendment to, or revision of, that title; and (2) AUTHORITY OF TRIBE.—Subject to ap- contract. (2) DISCRETION OF THE SECRETARY.—The proval by the Secretary under section (19) REPAYMENT STIPULATION.—The term Secretary may execute any other amend- 306(a)(1), the Tribe shall have the sole au- ‘‘repayment stipulation’’ means the stipu- ment to the Agreement, including any thority to lease, distribute, exchange, or al- lated judgment and the stipulation for judg- amendment to any exhibit to the Agreement locate the tribal CAP water described in ment (including any exhibits to those docu- requiring the signature of the Secretary, paragraph (1). ments) entered on November 21, 2007, in the that is not inconsistent with this title if the (c) WATER SERVICE CAPITAL CHARGES.—The United States District Court for the District amendment does not require congressional Tribe shall not be responsible for any water of Arizona in the consolidated civil action approval pursuant to the Trade and Inter- service capital charge for tribal CAP water. styled Central Arizona Water Conservation course Act (25 U.S.C. 177) or other applicable (d) ALLOCATION AND REPAYMENT.—For the District v. United States, et al., and num- Federal law (including regulations). purpose of determining the allocation and repayment of costs of any stage of the CAP bered CIV 95–625–TUC–WDB (EHC) and CIV (c) NATIONAL ENVIRONMENTAL POLICY constructed after November 21, 2007, the 95–1720–PHX–EHC. ACT.— costs associated with the delivery of water (20) RESERVATION.— (1) ENVIRONMENTAL COMPLIANCE.—In imple- described in subsection (b), regardless of (A) IN GENERAL.—The term ‘‘reservation’’ menting the Agreement and carrying out whether the water is delivered for use by the means the land within the exterior boundary this title, the Secretary shall promptly com- Tribe or in accordance with any assignment, of the White Mountain Indian Reservation ply with all applicable requirements of— exchange, lease, option to lease, or other established by the Executive order dated No- (A) the National Environmental Policy Act agreement for the temporary disposition of vember 9, 1871, as modified by subsequent Ex- of 1969 (42 U.S.C. 4321 et seq.); water entered into by the Tribe, shall be— ecutive orders and Acts of Congress— (B) the Endangered Species Act of 1973 (16 (1) nonreimbursable; and (i) known on the date of enactment of this U.S.C. 1531 et seq.); (2) excluded from the repayment obligation Act as the ‘‘Fort Apache Reservation’’ pursu- (C) all other applicable Federal environ- of the District. ant to chapter 3 of the Act of June 7, 1897 (30 mental laws; and (e) WATER CODE.—Not later than 18 months Stat. 62); and (D) all regulations promulgated under the after the enforceability date, the Tribe shall (ii) generally depicted on the map attached laws described in subparagraphs (A) through enact a water code that— to the Agreement as exhibit 2.81. (C). (1) governs the tribal water rights; and (B) NO EFFECT ON DISPUTE OR AS ADMIS- (2) EXECUTION OF AGREEMENT.— (2) includes, at a minimum— SION.—The depiction of the reservation de- (A) IN GENERAL.—Execution of the Agree- (A) provisions requiring the measurement, scribed in subparagraph (A)(ii) shall not— ment by the Secretary under this section calculation, and recording of all diversions (i) be used to affect any dispute between shall not constitute a major Federal action and depletions of water on the reservation the Tribe and the United States concerning under the National Environmental Policy and on off-reservation trust land; the legal boundary of the reservation; or Act of 1969 (42 U.S.C. 4321 et seq.). (B) terms of a water conservation plan, in- (ii) constitute an admission by the Tribe (B) ENVIRONMENTAL COMPLIANCE.—The Sec- cluding objectives, conservation measures, with regard to any dispute between the Tribe retary shall carry out all necessary environ- and an implementation timeline; and the United States concerning the legal mental compliance activities required by (C) provisions requiring the approval of the boundary of the reservation. Federal law in implementing the Agreement. Tribe for the severance and transfer of rights (21) SECRETARY.—The term ‘‘Secretary’’ (3) LEAD AGENCY.—The Bureau shall serve to the use of water from historically irri- means the Secretary of the Interior. as the lead agency with respect to ensuring gated land identified in paragraph 11.3.2.1 of (22) STATE.—The term ‘‘State’’ means the environmental compliance associated with the Agreement to diversions and depletions State of Arizona. the WMAT rural water system. on other non-historically irrigated land not (23) TRIBAL CAP WATER.—The term ‘‘tribal SEC. 305. WATER RIGHTS. located on the watershed of the same water CAP water’’ means the CAP water to which (a) TREATMENT OF TRIBAL WATER RIGHTS.— source; and the Tribe is entitled pursuant to the Con- The tribal water rights— (D) provisions requiring the authorization tract. (1) shall be held in trust by the United of the Tribe for all diversions of water on the (24) TRIBAL WATER RIGHTS.—The term States on behalf of the Tribe; and reservation and on off-reservation trust land ‘‘tribal water rights’’ means the water rights (2) shall not be subject to forfeiture or by any individual or entity other than the of the Tribe described in paragraph 4.0 of the abandonment. Tribe. Agreement. (b) REALLOCATION.— SEC. 306. CONTRACT. (25) TRIBE.—The term ‘‘Tribe’’ means the (1) IN GENERAL.—In accordance with this (a) IN GENERAL.—The Secretary shall enter White Mountain Apache Tribe organized title and the Agreement, the Secretary shall into the Contract, in accordance with the under section 16 of the Act of June 18, 1934 reallocate to the Tribe, and offer to enter Agreement, to provide, among other things, (commonly known as the ‘‘Indian Reorga- into a contract with the Tribe for the deliv- that— nization Act’’) (25 U.S.C. 476). ery in accordance with this section of— (1) the Tribe, on approval of the Secretary, (26) WATER RIGHT.—The term ‘‘water right’’ (A) an entitlement to 23,782 acre-feet per may— means any right in or to groundwater, sur- year of CAP water that has a non-Indian ag- (A) enter into contracts or options to face water, or effluent under Federal, State, ricultural delivery priority (as defined in the lease, contracts to exchange, or options to or other law. Contract) in accordance with section exchange tribal CAP water in Maricopa, (27) WMAT RURAL WATER SYSTEM.—The 104(a)(1)(A)(iii) of the Arizona Water Settle- Pinal, Pima, and Yavapai Counties in the term ‘‘WMAT rural water system’’ means ments Act (Public Law 108–451; 118 Stat. State providing for the temporary delivery the municipal, rural, and industrial water di- 3488), of which— to any individual or entity of any portion of version, storage, and delivery system de- (i) 3,750 acre-feet per year shall be firmed the tribal CAP water, subject to the condi- scribed in section 307. by the United States for the benefit of the tion that— (28) YEAR.—The term ‘‘year’’ means a cal- Tribe for the 100-year period beginning on (i) the term of the contract or option to endar year. January 1, 2008, with priority equivalent to lease shall not be longer than 100 years; SEC. 304. APPROVAL OF AGREEMENT. CAP M&I priority water, in accordance with (ii) the contracts or options to exchange (a) APPROVAL.— section 105(b)(1)(B) of that Act (118 Stat. shall be for the term provided in the con- (1) IN GENERAL.—Except to the extent that 3492); and tract or option; and any provision of the Agreement conflicts (ii) 3,750 acre-feet per year shall be firmed (iii) a lease or option to lease providing for with a provision of this title, the Agreement by the State for the benefit of the Tribe for the temporary delivery of tribal CAP water is authorized, ratified, and confirmed. the 100-year period beginning on January 1, shall require the lessee to pay to the Oper- (2) AMENDMENTS.—Any amendment to the 2008, with priority equivalent to CAP M&I ating Agency all CAP fixed OM&R charges Agreement is authorized, ratified, and con- priority water, in accordance with section and all CAP pumping energy charges (as de- firmed, to the extent that such amendment 105(b)(2)(B) of that Act (118 Stat. 3492); and fined in the repayment stipulation) associ- is executed to make the Agreement con- (B) an entitlement to 1,218 acre-feet per ated with the leased water; and sistent with this title. year of the water— (B) renegotiate any lease at any time dur- (b) EXECUTION OF AGREEMENT.— (i) acquired by the Secretary through the ing the term of the lease, subject to the con- (1) IN GENERAL.—To the extent that the permanent relinquishment of the Harquahala dition that the term of the renegotiated Agreement does not conflict with this title, Valley Irrigation District CAP subcontract lease shall not exceed 100 years; the Secretary shall promptly— entitlement in accordance with the contract (2) no portion of the tribal CAP water may (A) execute the Agreement, including all numbered 3–07–30–W0290 among the District, be permanently alienated; exhibits to the Agreement requiring the sig- Harquahala Valley Irrigation District, and (3)(A) the Tribe (and not the United States nature of the Secretary; and the United States; and in any capacity) shall be entitled to all con- (B) in accordance with the Agreement, exe- (ii) converted to CAP Indian Priority water sideration due to the Tribe under any con- cute any amendment to the Agreement, in- (as defined in the Contract) pursuant to the tract or option to lease or exchange tribal cluding any amendment to any exhibit to Fort McDowell Indian Community Water CAP water entered into by the Tribe; and

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(B) the United States (in any capacity) has (g) LEASES.— (ii) to the maximum extent practicable, in- no trust or other obligation to monitor, ad- (1) IN GENERAL.—To the extent that the corporates any changes that would improve minister, or account for, in any manner— leases of tribal CAP Water by the Tribe to the cost-effectiveness of the delivery of (i) any funds received by the Tribe as con- the District and to any of the cities in the water through the WMAT rural water sys- sideration under a contract or option to State, attached as exhibits to the Agree- tem; and lease or exchange tribal CAP water; or ment, are not in conflict with the provisions (iii) may be constructed for the amounts (ii) the expenditure of those funds; of this title— made available under section 312. (4)(A) all tribal CAP water shall be deliv- (A) those leases are authorized, ratified, (d) CONVEYANCE OF TITLE.— ered through the CAP system; and and confirmed; and (1) IN GENERAL.—Title to the WMAT rural (B) if the delivery capacity of the CAP sys- (B) the Secretary shall execute the leases. water system shall be held by the United tem is significantly reduced or anticipated (2) AMENDMENTS.—To the extent that States until title to the WMAT rural water to be significantly reduced for an extended amendments are executed to make the leases system is conveyed by the Secretary to the period of time, the Tribe shall have the same described in paragraph (1) consistent with Tribe pursuant to paragraph (2). CAP delivery rights as a CAP contractor or this title, those amendments are authorized, (2) CONVEYANCE TO TRIBE.—The Secretary CAP subcontractor that is allowed to take ratified, and confirmed. shall convey to the Tribe title to the WMAT rural water system not later than 30 days delivery of water other than through the SEC. 307. AUTHORIZATION OF WMAT RURAL CAP system; WATER SYSTEM. after the date on which the Secretary pub- lishes in the Federal Register a statement of (5) the Tribe may use tribal CAP water on (a) IN GENERAL.—Consistent with sub- findings that— or off the reservation for any purpose; sections (a) and (e) of section 312 and sub- (A) the operating criteria, standing oper- (6) as authorized by subsection (f)(2)(A) of section (h) of this section, the Secretary, ating procedures, emergency action plan, section 403 of the Colorado River Basin acting through the Bureau, shall plan, de- and first filling and monitoring criteria of Project Act (43 U.S.C. 1543) and to the extent sign, and construct the WMAT rural water the designers have been established and are that funds are available in the Lower Colo- system to divert, store, and distribute water rado River Basin Development Fund estab- in place; from the North Fork of the White River to (B) the WMAT rural water system has op- lished by subsection (a) of that section, the the Tribe that shall consist of— United States shall pay to the Operating erated under the standing operating proce- (1) a dam and storage reservoir, pumping dures of the designers, with the participation Agency the CAP fixed OM&R charges associ- plant, and treatment facilities located along ated with the delivery of tribal CAP water of the Tribe, for a period of 3 years; the North Fork of the White River near the (C) the Secretary has provided the Tribe (except in the case of tribal CAP water community of Whiteriver; with technical assistance on the manner by leased by any individual or entity); (2) a distribution system consisting of pipe- which to operate and maintain the WMAT (7) the Secretary shall waive the right of lines extending from the treatment facilities rural water system; the Secretary to capture all return flow from to existing water distribution systems serv- (D) the funds made available under section project exchange water flowing from the ex- ing the communities of Whiteriver, Fort 312(b)(3)(B) have been deposited in the terior boundary of the reservation; and Apache, Canyon Day, Cedar Creek, Carrizo, WMAT Maintenance Fund; and (8) no CAP water service capital charge and Cibecue; (E) the WMAT rural water system— shall be due or payable for the tribal CAP (3) connections to existing distribution fa- (i) is substantially complete, as deter- water, regardless of whether the water is de- cilities for the communities described in mined by the Secretary; and livered for use by the Tribe or pursuant to a paragraph (2), but not including any up- (ii) satisfies the requirement that— contract or option to lease or exchange trib- grades of, or improvements to, existing or fu- (I) the infrastructure constructed is capa- al CAP water entered into by the Tribe. ture public water systems for the commu- ble of storing, diverting, treating, transmit- (b) REQUIREMENTS.—The Contract shall nities described in paragraph (2) that may be ting, and distributing a supply of water as be— necessary to accommodate increased demand (1) for permanent service (within the set forth in the final project design described and flow rates (and any associated changes in subsection (c); and meaning of section 5 of the Boulder Canyon in water quality); Project Act (43 U.S.C. 617d)); and (II) the Secretary has consulted with the (4) connections to additional communities Tribe regarding the proposed finding that (2) without limit as to term. along the pipeline, provided that the addi- (c) RATIFICATION.— the WMAT rural water system is substan- tional connections may be added to the dis- tially complete. (1) IN GENERAL.—Except to the extent that tribution system described in paragraph (2) any provision of the Contract conflicts with (e) ALIENATION AND TAXATION.— at the expense of the Tribe; (1) IN GENERAL.—Conveyance of title to the a provision of this title, the Contract is au- (5) appurtenant buildings and access roads; thorized, ratified, and confirmed. Tribe pursuant to subsection (d) does not (6) electrical power transmission and dis- waive or alter any applicable Federal law (2) AMENDMENTS.—Any amendment to the tribution facilities necessary for operation of Contract is authorized, ratified, and con- (including regulations) prohibiting alien- the project; and ation or taxation of the WMAT rural water firmed, to the extent that such amendment (7) any other project components that the is executed to make the Contract consistent system or the underlying reservation land. Secretary, in consultation with the Tribe, (2) ALIENATION OF WMAT RURAL WATER SYS- with this title. determines to be necessary. (d) EXECUTION OF CONTRACT.—To the extent TEM.—The WMAT rural water system, in- that the Contract does not conflict with this (b) MODIFICATIONS.—The Secretary and the cluding the components of the WMAT rural title, the Secretary shall execute the Con- Tribe— water system, shall not be alienated, encum- tract. (1) may modify the components of the bered, or conveyed in any manner by the (e) PAYMENT OF CHARGES.—The Tribe, and WMAT rural water system described in sub- Tribe, unless a reconveyance is authorized any recipient of tribal CAP water through a section (a) by mutual agreement; and by an Act of Congress enacted after the date contract or option to lease or exchange, shall (2) shall make all modifications required of enactment of this Act. not be obligated to pay a water service cap- under subsection (c)(2). (f) OPERATION AND MAINTENANCE.— ital charge or any other charge, payment, or (c) FINAL PROJECT DESIGN.— (1) IN GENERAL.—Consistent with sub- fee for CAP water, except as provided in an (1) IN GENERAL.—The Secretary shall issue sections (d) and (e) of section 312, the Sec- applicable lease or exchange agreement. a final project design of the WMAT rural retary, acting through the Bureau and in co- (f) PROHIBITIONS.— water system, including the dam, pumping operation with the Tribe, shall operate, (1) USE OUTSIDE STATE.—No tribal CAP plants, pipeline, and treatment plant, that is maintain, and replace the WMAT rural water water may be leased, exchanged, forborne, or generally consistent with the project exten- system until the date on which title to the otherwise transferred by the Tribe in any sion report dated February 2007 after the WMAT rural water system is transferred to way for use directly or indirectly outside the completion of— the Tribe pursuant to subsection (d)(2). State. (A) any appropriate environmental compli- (2) LIMITATION.— (2) USE OFF RESERVATION.—Except as au- ance activity; and (A) IN GENERAL.—Beginning on the date on thorized by this section and paragraph 4.7 of (B) the review process described in para- which title to the WMAT rural water system the Agreement, no tribal water rights under graph (2). is transferred to the Tribe pursuant to sub- this title may be sold, leased, transferred, or (2) REVIEW.— section (d)(2), the United States shall have used outside the boundaries of the reserva- (A) IN GENERAL.—The Secretary shall re- no obligation to pay for the operation, main- tion or off-reservation trust land other than view the proposed design of the WMAT rural tenance, or replacement costs of the WMAT pursuant to an exchange. water system and perform value engineering rural water system. (3) AGREEMENTS WITH ARIZONA WATER BANK- analyses. (B) LIMITATION ON LIABILITY.—Effective on ING AUTHORITY.—Nothing in this title or the (B) RESULTS.—Taking into consideration the date on which the Secretary publishes a Agreement limits the right of the Tribe to the review under subparagraph (A), the Sec- statement of findings in the Federal Register enter into an agreement with the Arizona retary, in consultation with the Tribe, shall pursuant to subsection (d)(2), the United Water Banking Authority (or any successor require appropriate changes to the design, so States shall not be held liable by any court entity) established by section 45–2421 of the that the final design— for damages arising out of any act, omission, Arizona Revised Statutes in accordance with (i) meets Bureau of Reclamation design or occurrence relating to the land or facili- State law. standards; ties conveyed, other than damages caused by

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00069 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8180 CONGRESSIONAL RECORD — SENATE November 19, 2010 any intentional act or act of negligence com- this title recognizes or establishes any right States as trustee for other Indian tribes), mitted by the United States, or by employ- of a member of the Tribe to water on the res- under Federal, State, or other law for any ees or agents of the United States, prior to ervation. and all— the date on which the Secretary publishes a SEC. 309. WAIVERS AND RELEASES OF CLAIMS. (A)(i) past, present, and future claims for statement of findings in the Federal Register (a) IN GENERAL.—– water rights for the reservation and off-res- pursuant to subsection (d)(2). (1) CLAIMS AGAINST THE STATE AND OTH- ervation trust land arising from time imme- (g) RIGHT TO REVIEW.— ERS.—Except for the specifically retained morial and, thereafter, forever; and (1) IN GENERAL.—The statement of findings claims described in subsection (b)(1), the (ii) past, present, and future claims for published by the Secretary pursuant to sub- Tribe, on behalf of itself and its members, water rights arising from time immemorial section (d)(2) shall be considered to be a final and the United States, acting in its capacity and, thereafter, forever that are based on ab- agency action subject to judicial review as trustee for the Tribe and its members, as original occupancy of land by the Tribe, its under sections 701 through 706 of title 5, part of the performance of the respective ob- members, or their predecessors; United States Code. ligations of the United States and the Tribe (B)(i) past and present claims relating in (2) EFFECT OF TITLE.—Nothing in this title under the Agreement, are authorized to exe- any manner to damages, losses, or injuries to gives the Tribe or any other party the right cute a waiver and release of any claims water, water rights, land, or other resources to judicial review of the determination by against the State (or any agency or political due to loss of water or water rights (includ- ing damages, losses, or injuries to hunting, the Secretary under subsection (d) except subdivision of the State), or any other per- fishing, gathering, or cultural rights due to under subchapter II of chapter 5, and chapter son, entity, corporation, or municipal cor- loss of water or water rights, claims relating 7, of title 5, United States Code (commonly poration under Federal, State, or other law to interference with, diversion, or taking of known as the ‘‘Administrative Procedure for all— water, or claims relating to failure to pro- Act’’). (A)(i) past, present, and future claims for tect, acquire, or develop water, water rights, (h) APPLICABILITY OF ISDEAA.— water rights for the reservation and off-res- or water infrastructure) within the reserva- (1) AGREEMENT FOR SPECIFIC ACTIVITIES.— ervation trust land arising from time imme- tion and off-reservation trust land that first On receipt of a request of the Tribe, and in morial and, thereafter, forever; and accrued at any time prior to the enforce- accordance with the Indian Self-Determina- (ii) past, present, and future claims for tion and Education Assistance Act (25 U.S.C. ability date; water rights arising from time immemorial (ii) past, present, and future claims for in- 450 et seq.), the Secretary shall enter into 1 and, thereafter, forever, that are based on or more agreements with the Tribe to carry jury to water rights arising from time imme- aboriginal occupancy of land by the Tribe, morial and, thereafter, forever that are out the activities authorized by this section. its members, or their predecessors; (2) CONTRACTS.—Any contract entered into based on aboriginal occupancy of land by the (B)(i) past and present claims for injury to Tribe, its members, or their predecessors; pursuant to the Indian Self-Determination water rights for the reservation and off-res- and Education Assistance Act (25 U.S.C. 450 and ervation trust land arising from time imme- (iii) claims for injury to water rights aris- et seq.) for the purpose of carrying out any morial through the enforceability date; provision of this title shall incorporate such ing after the enforceability date for the res- (ii) past, present, and future claims for in- ervation and off-reservation trust land re- provisions regarding periodic payment of jury to water rights arising from time imme- funds, timing for use of funds, transparency, sulting from the off-reservation diversion or morial and, thereafter, forever, that are use of water in a manner that is not in viola- oversight, reporting, and accountability as based on aboriginal occupancy of land by the tion of the Agreement or applicable law; the Secretary determines to be necessary (at Tribe, its members, or their predecessors; (C) past, present, and future claims arising the sole discretion of the Secretary) to en- and out of, or relating in any manner to, the ne- sure appropriate stewardship of Federal (iii) claims for injury to water rights aris- gotiation, execution, or adoption of the funds. ing after the enforceability date for the res- Agreement, an applicable settlement judg- (i) FINAL DESIGNS; PROJECT CONSTRUC- ervation and off-reservation trust land re- ment or decree, or this title; TION.— sulting from off-reservation diversion or use (D) past and present claims relating in any (1) FINAL DESIGNS.—All designs for the of water in a manner that is not in violation manner to pending litigation of claims relat- WMAT rural water system shall— of the Agreement or State law; and ing to the water rights of the Tribe for the (A) conform to Bureau design standards; (C) past, present, and future claims arising reservation and off-reservation trust land; and out of, or relating in any manner to, the ne- (E) past and present claims relating to the (B) be subject to review and approval by gotiation, execution, or adoption of the operation, maintenance, and replacement of the Secretary. Agreement, an applicable settlement judge- existing irrigation systems on the reserva- (2) PROJECT CONSTRUCTION.—Each project ment or decree, or this title. tion constructed prior to the enforceability component of the WMAT rural water system (2) CLAIMS AGAINST TRIBE.—Except for the date that first accrued at any time prior to shall be constructed pursuant to designs and specifically retained claims described in sub- the enforceability date, which waiver shall specifications approved by the Secretary, section (b)(3), the United States, in all ca- only become effective on the full appropria- and all construction work shall be subject to pacities (except as trustee for an Indian tribe tion and payment to the Tribe of $4,950,000 of inspection and approval by the Secretary. other than the Tribe), as part of the perform- the amounts made available under section (j) CONDITION.—As a condition of construc- ance of its obligations under the Agreement, 312(b)(2)(B); tion of the facilities authorized by this sec- is authorized to execute a waiver and release (F) any claims relating to operation, main- tion, the Tribe shall provide, at no cost to of any and all claims against the Tribe, its tenance, and replacement of the WMAT rural the Secretary, all land or interests in land members, or any agency, official, or em- water system, which waiver shall only be- that the Secretary identifies as necessary for ployee of the Tribe, under Federal, State, or come effective on the date on which funds the construction, operation, and mainte- any other law for all— are made available under section 312(b)(3)(B) nance of those facilities. (A) past and present claims for injury to and deposited in the WMAT Maintenance SEC. 308. SATISFACTION OF CLAIMS. water rights resulting from the diversion or Fund; (a) IN GENERAL.—Except as set forth in the use of water on the reservation and on off- (G) past and present breach of trust and Agreement, the benefits realized by the reservation trust land arising from time im- negligence claims for damage to the land and Tribe and its members under this title shall memorial through the enforceability date; natural resources of the Tribe caused by ri- be in full satisfaction of all claims of the (B) claims for injury to water rights aris- parian and other vegetative manipulation by Tribe, its members, and the United States, ing after the enforceability date resulting the United States for the purpose of increas- acting as trustee for the benefit of the Tribe from the diversion or use of water on the res- ing water runoff from the reservation that and its members, for water rights and injury ervation and on off-reservation trust land in first accrued at any time prior to the en- to water rights under Federal, State, or a manner that is not in violation of the forceability date; and other law with respect to the reservation and Agreement; and (H) past and present claims for trespass, off-reservation trust land. (C) past, present, and future claims arising use, and occupancy of the reservation in, on, (b) USES OF WATER.—All uses of water on out of or related in any manner to the nego- and along the Black River that first accrued land outside of the reservation, if and when tiation, execution, or adoption of the Agree- at any time prior to the enforceability date. that land is subsequently and finally deter- ment, an applicable settlement judgement or (4) EFFECT ON BOUNDARY CLAIMS.—Nothing mined to be part of the reservation through decree, or this title. in this title expands, diminishes, or impacts resolution of any dispute between the Tribe (3) CLAIMS AGAINST UNITED STATES.—Except any claims the Tribe may assert, or any de- and the United States over the location of for the specifically retained claims described fense the United States may assert, con- the reservation boundary, and any fee land in subsection (b)(2), the Tribe, on behalf of cerning title to land outside the most cur- within the reservation placed into trust and itself and its members, as part of the per- rent survey, as of the date of enactment of made part of the reservation, shall be subject formance of the obligations of the Tribe this Act, of the northern boundary of the res- to the maximum annual diversion amounts under the Agreement, is authorized to exe- ervation. and the maximum annual depletion amounts cute a waiver and release of any claim (b) RESERVATION OF RIGHTS AND RETENTION specified in the Agreement. against the United States, including agen- OF CLAIMS.— (c) NO RECOGNITION OF WATER RIGHTS.— cies, officials, or employees of the United (1) RESERVATION OF RIGHTS AND RETENTION Notwithstanding subsection (a), nothing in States (except in the capacity of the United OF CLAIMS BY TRIBE AND UNITED STATES.—

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(A) IN GENERAL.—Notwithstanding the entered by the court in the Gila River adju- (G) the waivers and releases authorized and waiver and release of claims authorized dication proceedings; set forth in subsection (a) have been exe- under subsection (a)(1), the Tribe, on behalf (C) to assert claims for injuries to, and cuted by the Tribe and the Secretary. of itself and its members, and the United seek enforcement of, the rights of the Tribe (2) FAILURE OF ENFORCEABILITY DATE TO States, acting as trustee for the Tribe and and members under the judgment and decree OCCUR.—If the Secretary does not publish a its members, shall retain any right— entered by the court in the Little Colorado statement of findings under paragraph (1) by (i) subject to subparagraph 16.9 of the River adjudication proceedings; April 30, 2021— Agreement, to assert claims for injuries to, (D) to object to any claims by or for any (A) this title is repealed effective May 1, and seek enforcement of, the rights of the other Indian tribe, Indian community or na- 2021, and any activity by the Secretary to Tribe and its members under the Agreement tion, or dependent Indian community, or the carry out this title shall cease; or this title in any Federal or State court of United States on behalf of such a tribe, com- (B) any amounts made available under sec- competent jurisdiction; munity, or nation; tion 312 shall immediately revert to the gen- (ii) to assert claims for injuries to, and (E) to assert past, present, or future claims eral fund of the Treasury; seek enforcement of, the rights of the Tribe for injury to water rights or any other (C) any other amounts deposited in the under the judgment and decree entered by claims other than a claim to water rights, White Mountain Apache Tribe Water Rights the court in the Gila River adjudication pro- against any other Indian tribe, Indian com- Settlement Subaccount (including any ceedings; munity or nation, or dependent Indian com- amounts paid by the State in accordance (iii) to assert claims for injuries to, and munity, or the United States on behalf of with the Agreement), together with any in- such a tribe, community, or nation; terest accrued on those amounts, shall im- seek enforcement of, the rights of the Tribe (F) to assert claims arising after the en- mediately be returned to the respective under the judgment and decree entered by forceability date for injury to water rights sources of those funds; and the court in the Little Colorado River adju- resulting from the pumping of water from (D) the Tribe and its members, and the dication proceedings; land located within national forest land as of United States, acting as trustee for the Tribe (iv) to object to any claims by or for any the date of the Agreement in the south 1⁄2 of and its members, shall retain the right to as- other Indian tribe, Indian community or na- T. 9 N., R. 24 E., the south 1⁄2 of T. 9 N., R. sert past, present, and future water rights tion, or dependent Indian community, or the 25 E., the north 1⁄2 of T. 8 N., R. 24 E., or the claims and claims for injury to water rights United States on behalf of such a tribe, com- north 1⁄2 of T. 8 N., R. 25 E., if water from for the reservation and off-reservation trust munity, or nation; that land is used on the land or is trans- land. (v) to participate in the Gila River adju- ported off the land for municipal, commer- (3) NO ADDITIONAL RIGHTS TO WATER.—Be- dication proceedings and the Little Colorado cial, or industrial use; ginning on the enforceability date, all land River adjudication proceedings to the extent (G) to assert any claims arising after the held by the United States in trust for the provided in subparagraph 14.1 of the Agree- enforceability date for injury to water rights Tribe and its members shall have no rights ment; not specifically waived under this section; to water other than those specifically quan- (vi) to assert any claims arising after the (H) to seek remedies and to assert any tified for the Tribe and the United States, enforceability date for injury to water rights other claims not specifically waived under acting as trustee for the Tribe and its mem- not specifically waived under this section; this section; and bers, for the reservation and off-reservation (vii) to assert any past, present, or future (I) to assert any claim arising after the en- trust land pursuant to paragraph 4.0 of the claim for injury to water rights against any forceability date for a future taking by the Agreement. other Indian tribe, Indian community or na- United States of reservation land, off-res- (e) UNITED STATES ENFORCEMENT AUTHOR- tion, dependent Indian community, allottee, ervation trust land, or any property rights ITY.—Nothing in this title or the Agreement or the United States on behalf of such a appurtenant to that land, including any affects any right of the United States to tribe, community, nation, or allottee; water rights set forth in paragraph 4.0 of the take any action, including environmental (viii) to assert any past, present, or future Agreement. actions, under any laws (including regula- claim for trespass, use, and occupancy of the (3) RESERVATION OF RIGHTS AND RETENTION tions and the common law) relating to reservation in, on, or along the Black River OF CLAIMS BY UNITED STATES.—Notwith- human health, safety, or the environment. against Freeport-McMoRan Copper & Gold, standing the waiver and release of claims au- (f) NO EFFECT ON WATER RIGHTS.—Except Inc., Phelps Dodge Corporation, or Phelps thorized under subsection (a)(2), the United as provided in paragraphs (1)(A)(ii), (1)(B)(ii), Dodge Morenci, Inc. (or a predecessor or suc- States shall retain any right to assert any (3)(A)(ii), and (3)(B)(ii) of subsection (a), cessor of those entities), including all sub- claim not specifically waived in that sub- nothing in this title affects any rights to sidiaries and affiliates of those entities; and section. water of the Tribe, its members, or the (ix) to assert claims arising after the en- (c) EFFECTIVENESS OF WAIVER AND RE- United States, acting as trustee for the Tribe forceability date for injury to water rights LEASES.—Except as otherwise specifically and its members, for land outside the bound- resulting from the pumping of water from provided in subparagraphs (E) and (F) of sub- aries of the reservation or the off-reservation land located within national forest land as of section (a)(3), the waivers and releases under trust land. (g) ENTITLEMENTS.—Any entitlement to the date of the Agreement in the south 1⁄2 of subsection (a) shall become effective on the water of the Tribe, its members, or the T. 9 N., R. 24 E., the south 1⁄2 of T. 9 N., R. enforceability date. United States, acting as trustee for the Tribe 25 E., the north 1⁄2 of T. 8 N., R. 24 E., or the (d) ENFORCEABILITY DATE.— and its members, relating to the reservation north 1⁄2 of T. 8 N., R. 25 E., if water from the (1) IN GENERAL.—This section takes effect land is used on the land or is transported off on the date on which the Secretary publishes or off-reservation trust land shall be satis- the land for municipal, commercial, or in- in the Federal Register a statement of find- fied from the water resources granted, quan- tified, confirmed, or recognized with respect dustrial use. ings that— to the Tribe, its members, and the United (B) AGREEMENT.—On terms acceptable to (A)(i) to the extent that the Agreement States by the Agreement and this title. the Tribe and the United States, the Tribe conflicts with this title, the Agreement has (h) OBJECTION PROHIBITED.—Except as pro- and the United States are authorized to been revised through an amendment to vided in paragraphs (1)(A)(ix) and (2)(F) of enter into an agreement with Freeport- eliminate the conflict; and subsection (b), the Tribe and the United McMoRan Copper & Gold, Inc., Phelps Dodge (ii) the Agreement, as so revised, has been States, acting as trustee for the Tribe shall Corporation, or Phelps Dodge Morenci, Inc. executed by the Secretary, the Tribe, and not— (or a predecessor or successor of those enti- the Governor of the State; (1) object to the use of any well located ties), including all subsidiaries and affiliates (B) the Secretary has fulfilled the require- outside the boundaries of the reservation or of those entities, to resolve the claims of the ments of sections 305 and 306; the off-reservation trust land in existence on Tribe relating to the trespass, use, and occu- (C) the amount made available under sec- the enforceability date; or pancy of the reservation in, on, and along tion 312(a) has been deposited in the White (2) object to, dispute, or challenge after the the Black River. Mountain Apache Tribe Water Rights Settle- enforceability date the drilling of any well (2) RESERVATION OF RIGHTS AND RETENTION ment Subaccount; or the withdrawal and use of water from any OF CLAIMS BY TRIBE AGAINST UNITED STATES.— (D) the State funds described in subpara- well in the Little Colorado River adjudica- Notwithstanding the waiver and release of graph 13.3 of the Agreement have been depos- tion proceedings, the Gila River adjudication claims authorized under subsection (a)(3), ited in the White Mountain Apache Tribe proceedings, or any other judicial or admin- the Tribe, on behalf of itself and its mem- Water Rights Settlement Subaccount; istrative proceeding. bers, shall retain any right— (E) the Secretary has issued a record of de- SEC. 310. WHITE MOUNTAIN APACHE TRIBE (A) subject to subparagraph 16.9 of the cision approving the construction of the WATER RIGHTS SETTLEMENT SUB- Agreement, to assert claims for injuries to, WMAT rural water system in a configuration ACCOUNT. and seek enforcement of, the rights of the substantially similar to that described in (a) ESTABLISHMENT.—There is established Tribe and its members under the Agreement section 307; in the Lower Colorado River Basin Develop- or this title, in any Federal or State court of (F) the judgments and decrees substan- ment Fund a subaccount to be known as the competent jurisdiction; tially in the form of those attached to the ‘‘White Mountain Apache Tribe Water Rights (B) to assert claims for injuries to, and Agreement as exhibits 12.9.6.1 and 12.9.6.2 Settlement Subaccount’’, consisting of— seek enforcement of, the rights of the Tribe have been approved by the respective trial (1) the amounts deposited in the sub- and members under the judgment and decree courts; and account pursuant to section 312(a); and

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00071 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8182 CONGRESSIONAL RECORD — SENATE November 19, 2010 (2) such other amounts as are available, in- (A) by any party to the Agreement or sig- (i) the restoration of land to the reserva- cluding the amounts provided in subpara- natory to an exhibit to the Agreement in a tion subsequently and finally determined to graph 13.3 of the Agreement. United States or State court that— be part of the reservation through resolution (b) USE OF FUNDS.— (i) relates solely and directly to the inter- of any dispute between the Tribe and the (1) IN GENERAL.—Subject to paragraph (2), pretation or enforcement of this title or the United States over the location of the res- the Secretary shall use amounts from the Agreement; and ervation boundary, unless required by Fed- White Mountain Apache Tribe Water Rights (ii) names as a party the United States or eral law; or Settlement Subaccount for the planning, de- the Tribe; or (ii) off-reservation trust land acquired sign, and construction of the WMAT rural (B) by a landowner or water user in the prior to January 1, 2008. water system, in accordance with section Gila River basin or Little Colorado River (2) WATER RIGHTS.— 307(a). basin in the State that— (A) IN GENERAL.—After-acquired trust land (2) REQUIREMENTS.—In carrying out the ac- (i) relates solely and directly to the inter- that is located outside the reservation shall tivities described in paragraph (1), the Sec- pretation or enforcement of section 309 of not include federally reserved rights to sur- retary shall use such sums as are necessary this title and paragraph 12.0 of the Agree- face water or groundwater. from the White Mountain Apache Tribe ment; and (B) RESTORED LAND.—Land that is restored Water Rights Settlement Subaccount— (ii) names as a party the United States or to the reservation as the result of the resolu- (A) to provide the Bureau with amounts the Tribe. tion of any reservation boundary dispute be- sufficient to carry out oversight of the plan- (b) EFFECT OF TITLE.—Nothing in this title tween the Tribe and the United States, or ning, design, and construction of the WMAT quantifies or otherwise affects any water any fee simple land within the reservation rural water system; right or claim or entitlement to water of any that is placed into trust, shall have water (B) to repay to the Treasury (or the United Indian tribe, band, or community other than rights pursuant to section 308(b). States) any outstanding balance on the loan the Tribe. (3) ACCEPTANCE OF LAND IN TRUST STATUS.— authorized by the White Mountain Apache (c) LIMITATION ON LIABILITY OF UNITED (A) IN GENERAL.—If the Tribe acquires STATES.— Tribe Rural Water System Loan Authoriza- legal fee title to land that is located within (1) IN GENERAL.—The United States shall tion Act (Public Law 110–390; 122 Stat. 4191), the exterior boundaries of the reservation, have no trust or other obligation— after which repayment, the Tribe shall have the Secretary shall accept the land in trust (A) to monitor, administer, or account for, no further liability for the balance on that status for the benefit of the Tribe in accord- in any manner, any amount paid to the Tribe loan; and ance with applicable Federal law (including by any party to the Agreement other than (C) to carry out all required environmental regulations) for such real estate acquisi- the United States; or compliance activities associated with the tions. (B) to review or approve the expenditure of planning, design, and construction of the (B) RESERVATION STATUS.—Land held in those funds. WMAT rural water system. trust by the Secretary under subparagraph (2) INDEMNIFICATION.—The Tribe shall in- (c) ISDEAA CONTRACT.— (A), or restored to the reservation as a result demnify the United States, and hold the of resolution of a boundary dispute between (1) IN GENERAL.—If the Tribe so requests, United States harmless, with respect to any the planning, design, and construction of the the Tribe and the United States, shall be claim (including claims for takings or breach deemed to be part of the reservation. WMAT rural water system shall be carried of trust) arising out of the receipt or expend- out pursuant to the terms of an agreement (h) CONFORMING AMENDMENT.—Section iture of funds described in paragraph (1)(A). 3(b)(2) of the White Mountain Apache Tribe or agreements entered into under section (d) APPLICABILITY OF RECLAMATION REFORM 307(h). Rural Water System Loan Authorization Act ACT.—The Reclamation Reform Act of 1982 (Public Law 110–390; 122 Stat. 4191) is amend- (2) ENFORCEMENT.—The Secretary may pur- (43 U.S.C. 390aa et seq.) and any other acre- sue any judicial remedies and carry out any ed by striking ‘‘January 1, 2013’’ and insert- age limitation or full-cost pricing provision ing ‘‘May 1, 2021’’. administrative actions that are necessary to under Federal law shall not apply to any in- enforce an agreement described in paragraph dividual, entity, or land solely on the basis SEC. 312. FUNDING. (1) to ensure that amounts in the White of— (a) RURAL WATER SYSTEM.— Mountain Apache Tribe Water Rights Settle- (1) receipt of any benefit under this title; (1) MANDATORY APPROPRIATIONS.—Subject ment Subaccount are used in accordance (2) the execution or performance of the to paragraph (2), out of any funds in the with this section. Agreement; or Treasury not otherwise appropriated, the (d) PROHIBITION ON PER CAPITA DISTRIBU- (3) the use, storage, delivery, lease, or ex- Secretary of the Treasury shall transfer to TIONS.—No amount of the principal, or the change of CAP water. the Secretary to carry out the planning, en- interest or income accruing on the principal, (e) SECRETARIAL POWER SITES.—The por- gineering, design, environmental compli- of the White Mountain Apache Tribe Water tions of the following named secretarial ance, and construction of the WMAT rural Rights Settlement Subaccount shall be dis- power site reserves that are located on the water system $126,193,000. tributed to any member of the Tribe on a per Fort Apache Indian Reservation or the San (2) INCLUSIONS.—The amount made avail- capita basis. Carlos Apache Reservation, as applicable, able under paragraph (1) shall include such sums as are necessary, but not to exceed 4 (e) AVAILABILITY OF FUNDS.— shall be transferred and restored into the percent of the construction contract costs, (1) IN GENERAL.—Amounts in the White name of the Tribe or the San Carlos Apache Mountain Apache Tribe Water Rights Settle- Tribe, respectively: for the Bureau to carry out oversight of ac- ment Subaccount shall not be available for (1) Lower Black River (T. 3 N., R. 26 E.; T. tivities for planning, design, environmental expenditure by the Secretary until the en- 3 N., R. 27 E.). compliance, and construction of the rural forceability date. (2) Black River Pumps (T. 2 N., R. 25 E.; T. water system. (b) WMAT SETTLEMENT AND MAINTENANCE (2) INVESTMENT.—The Secretary shall in- 2 N., R. 26 E.; T. 3 N., R. 26 E.). vest the amounts in the White Mountain (3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 FUNDS.— 1 1 (1) DEFINITION OF FUNDS.—In this sub- Apache Tribe Water Rights Settlement Sub- E.; T. 4 ⁄2 N., R. 19 E.; T. 4 ⁄2 N., R. 20 E.; T. 1 section, the term ‘‘Funds’’ means— account in accordance with section 403(f)(4) 4 ⁄2 N., R. 21 E.; T. 5 N., R. 19 E.). of the Colorado River Basin Project Act (43 (4) Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 E.). (A) the WMAT Settlement Fund estab- U.S.C. 1543(f)(4)). (5) Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., lished by paragraph (2)(A); and (B) the WMAT Maintenance Fund estab- (3) USE OF INTEREST.—The interest accrued R. 18 E.). 1 lished by paragraph (3)(A). on amounts invested under paragraph (2) (6) Gleason Flat (T. 4 ⁄2 N., R. 16 E.; T. 5 N., shall not be available for expenditure or R. 16 E.). (2) WMAT SETTLEMENT FUND.— withdrawal until the enforceability date. (f) NO EFFECT ON FUTURE ALLOCATIONS.— (A) ESTABLISHMENT.—There is established Water received under a lease or exchange of in the Treasury of the United States a fund SEC. 311. MISCELLANEOUS PROVISIONS. tribal CAP water under this title shall not to be known as the ‘‘WMAT Settlement (a) LIMITED WAIVER OF SOVEREIGN IMMU- affect any future allocation or reallocation Fund’’, to be administered by the Secretary, NITY.— of CAP water by the Secretary. consisting of the amounts deposited in the (1) IN GENERAL.—In the case of a civil ac- (g) AFTER-ACQUIRED TRUST LAND.— fund under subparagraph (B), together with tion described in paragraph (2)— (1) REQUIREMENT OF ACT OF CONGRESS.— any interest accrued on those amounts, for (A) the United States or the Tribe, or both, (A) LEGAL TITLE.—Subject to subparagraph use by the Tribe in accordance with subpara- may be joined in the civil action; and (B), after the enforceability date, if the Tribe graph (C). (B) any claim by the United States or the seeks to have legal title to additional land in (B) TRANSFERS TO FUND.— Tribe to sovereign immunity from the civil the State located outside the exterior bound- (i) IN GENERAL.—There are authorized to be action is waived for the sole purpose of re- aries of the reservation taken into trust by appropriated to the Secretary for deposit in solving any issue regarding the interpreta- the United States for the benefit of the the WMAT Settlement Fund— tion or enforcement of this title or the Tribe, the Tribe may do so only pursuant to (I) $78,500,000; and Agreement. an Act of Congress specifically authorizing (II) any additional amounts described in (2) DESCRIPTION OF CIVIL ACTION.—A civil the transfer for the benefit of the Tribe. clause (ii), if applicable. action referred to in paragraph (1) is a civil (B) EXCEPTIONS.—Subparagraph (A) shall (ii) AUTHORIZATION OF ADDITIONAL action filed— not apply to— AMOUNTS.—In accordance with subsection

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00072 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8183 (e)(4)(B), if the WMAT rural water system is neither the Secretary nor the Secretary of water system or to carry out activities relat- conveyed to the Tribe before the date on the Treasury shall retain any liability for ing to the operation, maintenance, or re- which the $35,000,000 described in subsection the expenditure or investment of the placement of facilities of the WMAT rural (e)(2) is completely made available, there is amounts. water system, as applicable, if the Secretary authorized to be appropriated to the Sec- (B) EXPENDITURE PLAN.— determines that the amounts made available retary, for deposit in the WMAT Settlement (i) IN GENERAL.—The Tribe shall submit to under subsections (a) and (d) will be insuffi- Fund, any remaining amounts that would the Secretary for approval an expenditure cient in the period before title to the WMAT otherwise have been made available for ex- plan for any portion of the amounts in the rural water system is conveyed to the penditure from the Cost Overrun Sub- Funds that the Tribe does not withdraw Tribe— account. under the tribal management plan. (i) to complete the WMAT rural water sys- (C) USE OF FUNDS.— (ii) DESCRIPTION.—The expenditure plan tem; or (i) IN GENERAL.—The Tribe shall use shall describe the manner in which, and the (ii) to operate and maintain the WMAT amounts in the WMAT Settlement Fund for purposes for which, amounts remaining in rural water system. any of the following purposes: the Funds will be used. (B) TRANSFER OF FUNDS.—All unobligated (I) Fish production, including hatcheries. (iii) APPROVAL.—On receipt of an expendi- amounts remaining in the Cost Overrun Sub- (II) Rehabilitation of recreational lakes ture plan under clause (i), the Secretary account on the date on which title to the and existing irrigation systems. shall approve the plan, if the Secretary de- WMAT rural water system is conveyed to the (III) Water-related economic development termines that the plan is reasonable and con- Tribe shall be— projects. sistent with this title and the Agreement. (i) returned to the general fund of the (IV) Protection, restoration, and economic (iv) ANNUAL REPORT.—For each of the Treasury; and development of forest and watershed health. Funds, the Tribe shall submit to the Sec- (ii) on an appropriation pursuant to sub- (ii) EXISTING IRRIGATION SYSTEMS.—Of the retary an annual report that describes all ex- section (b)(2)(B)(ii), deposited in the WMAT amounts deposited in the Fund under sub- penditures from the Fund during the year Settlement Fund and made available to the paragraph (B), not less than $4,950,000 shall covered by the report. Tribe for use in accordance with subsection be used for the rehabilitation of existing irri- (C) CERTAIN PER CAPITA DISTRIBUTIONS PRO- (b)(2)(C). (f) CONDITIONS.—The amounts made avail- gation systems. HIBITED.—No amount in the Funds shall be (3) WMAT MAINTENANCE FUND.— distributed to any member of the Tribe on a able to the Secretary for deposit in the (A) ESTABLISHMENT.—There is established per capita basis. WMAT Maintenance Fund, together with in the Treasury of the United States a fund (c) COST INDEXING.—All amounts made any interest accrued on those amounts under to be known as the ‘‘WMAT Maintenance available under subsections (a), (b), and (e) subsection (b)(3) and any interest accruing Fund’’, to be administered by the Secretary, shall be adjusted as necessary to reflect the on the WMAT Settlement Fund under sub- consisting of the amounts deposited in the changes since October 1, 2007, in the con- section (b)(2), shall not be available for ex- fund under subparagraph (B), together with struction cost indices applicable to the types penditure or withdrawal until the WMAT any interest accrued on those amounts, for of construction involved in the construction rural water system is transferred to the use by the Tribe in accordance with subpara- of the WMAT rural water supply system, the Tribe under section 307(d)(2). graph (C). maintenance of the rural water supply sys- (g) RECEIPT AND ACCEPTANCE.—The Sec- (B) MANDATORY APPROPRIATIONS.—Out of tem, and the construction or rehabilitation retary shall be entitled to receive, shall ac- any funds in the Treasury not otherwise ap- of the other development projects described cept, and shall use to carry out this title the propriated, the Secretary of the Treasury in subsection (b)(2)(C). funds transferred under subsections (a), (b), shall transfer to the Secretary $50,000,000 for (d) OPERATION, MAINTENANCE, AND RE- (d), and (e), without further appropriation, to deposit in the WMAT Maintenance Fund. PLACEMENT.—Out of any funds in the Treas- remain available until expended. (C) USE OF FUNDS.—The Tribe shall use ury not otherwise appropriated, the Sec- SEC. 313. ANTIDEFICIENCY. amounts in the WMAT Maintenance Fund retary of the Treasury shall transfer to the The United States shall not be liable for only for the operation, maintenance, and re- Secretary $2,500,000 for the operation, main- failure to carry out any obligation or activ- placement costs associated with the delivery tenance, and replacement costs of the WMAT ity authorized to be carried out under this of water through the WMAT rural water sys- rural water system, to remain available title (including any such obligation or activ- tem. until the conditions described in section ity under the Agreement) if adequate appro- (4) ADMINISTRATION.—The Secretary shall 307(f) have been met. priations are not provided by Congress ex- manage the Funds in accordance with the (e) COST OVERRUN SUBACCOUNT.— pressly to carry out the purposes of this American Indian Trust Fund Management (1) ESTABLISHMENT.—There is established title. Reform Act of 1994 (25 U.S.C. 4001 et seq.), in- in the Lower Colorado River Basin Develop- SEC. 314. COMPLIANCE WITH ENVIRONMENTAL cluding by investing amounts in the Funds ment Fund a subaccount to be known as the LAWS. in accordance with— ‘‘WMAT Cost Overrun Subaccount’’, to be In implementing the Agreement and car- (A) the Act of April 1, 1880 (25 U.S.C. 161); administered by the Secretary, consisting of rying out this title, the Secretary shall and the amounts deposited in the subaccount promptly comply with all applicable require- (B) the first section of the Act of June 24, under paragraph (2), together with any inter- ments of— 1938 (25 U.S.C. 162a). est accrued on those amounts, for use by the (1) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); (5) AVAILABILITY OF AMOUNTS FROM Secretary in accordance with paragraph (4). (2) the Endangered Species Act of 1973 (16 FUNDS.—Amounts in the Funds shall be (2) MANDATORY APPROPRIATIONS; AUTHOR- available for expenditure or withdrawal only IZATION OF APPROPRIATIONS.— U.S.C. 1531 et seq.); after the enforceability date and in accord- (A) MANDATORY APPROPRIATIONS.—Out of (3) all other applicable Federal environ- ance with subsection (f). any funds in the Treasury not otherwise ap- mental laws; and (6) EXPENDITURE AND WITHDRAWAL.— propriated, the Secretary of the Treasury (4) all regulations promulgated under the (A) TRIBAL MANAGEMENT PLAN.— shall transfer to the Secretary $24,000,000 for laws described in paragraphs (1) through (3). (i) IN GENERAL.—The Tribe may withdraw deposit in the WMAT Cost Overrun Sub- TITLE IV—CROW TRIBE WATER RIGHTS all or part of the amounts in the Funds on account. SETTLEMENT approval by the Secretary of a tribal man- (B) AUTHORIZATION OF APPROPRIATIONS.— SEC. 401. SHORT TITLE. agement plan, as described in the American There is authorized to be appropriated for This title may be cited as the ‘‘Crow Tribe Indian Trust Fund Management Reform Act deposit in the WMAT Cost Overrun Sub- Water Rights Settlement Act of 2010’’. of 1994 (25 U.S.C. 4001 et seq.). account $11,000,000. SEC. 402. PURPOSES. (ii) REQUIREMENTS.—In addition to the re- (3) AVAILABILITY OF FUNDS.— The purposes of this title are— quirements under the American Indian Trust (A) IN GENERAL.—Amounts in the WMAT (1) to achieve a fair, equitable, and final Fund Management Reform Act of 1994 (25 Cost Overrun Subaccount shall not be avail- settlement of claims to water rights in the U.S.C. 4001 et seq.), a tribal management able for expenditure by the Secretary until State of Montana for— plan under this subparagraph shall require the enforceability date. (A) the Crow Tribe; and the Tribe to use any amounts withdrawn (B) INVESTMENT.—The Secretary shall in- (B) the United States for the benefit of the from the Funds in accordance with para- vest the amounts in the WMAT Cost Overrun Tribe and allottees; graph (2)(C) or (3)(C), as applicable. Subaccount in accordance with section (2) to authorize, ratify, and confirm the (iii) ENFORCEMENT.—The Secretary may 403(f)(4) of the Colorado River Basin Project Crow Tribe-Montana Water Rights Compact take judicial or administrative action to en- Act (43 U.S.C. 1543(f)(4)). entered into by the Tribe and the State of force the provisions of a tribal management (C) USE OF INTEREST.—The interest accrued Montana on June 22, 1999; plan described in clause (i) to ensure that on the amounts invested under subparagraph (3) to authorize and direct the Secretary of any amounts withdrawn from the Funds (B) shall not be available for expenditure or the Interior— under the tribal management plan are used withdrawal until the enforceability date. (A) to execute the Crow Tribe-Montana in accordance with this title and the Agree- (4) USE OF COST OVERRUN SUBACCOUNT.— Water Rights Compact; and ment. (A) INITIAL USE.—The Secretary shall use (B) to take any other action necessary to (iv) LIABILITY.—If the Tribe exercises the the amounts in the WMAT Cost Overrun carry out the Compact in accordance with right to withdraw amounts from the Funds, Subaccount to complete the WMAT rural this title; and

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(4) to ensure the availability of funds nec- (11) MR&I SYSTEM.— (2) MODIFICATIONS.—Nothing in this title essary for the implementation of the Com- (A) IN GENERAL.—The term ‘‘MR&I Sys- precludes the Secretary from approving pact and this title. tem’’ means the municipal, rural, and indus- modifications to appendices or exhibits to SEC. 403. DEFINITIONS. trial water system of the Reservation, gen- the Compact not inconsistent with this title, In this title: erally described in the document entitled to the extent such modifications do not oth- (1) ALLOTTEE.—The term ‘‘allottee’’ means ‘‘Crow Indian Reservation Municipal, Rural erwise require Congressional approval pursu- any individual who holds a beneficial real and Industrial Water System Engineering ant to section 2116 of the Revised Statutes property interest in an allotment of Indian Report’’ prepared by DOWL HKM, and dated (25 U.S.C. 177) or other applicable Federal land that is— July 2008 and updated in a status report pre- law. (A) located within the Reservation or the pared by DOWL HKM dated December 2009. (c) ENVIRONMENTAL COMPLIANCE.— ceded strip; and (B) INCLUSIONS.—The term ‘‘MR&I Sys- (1) IN GENERAL.—In implementing the Com- (B) held in trust by the United States. tem’’ includes— pact, the Secretary shall promptly comply (2) CEDED STRIP.—The term ‘‘ceded strip’’ (i) the raw water intake, water treatment with all applicable aspects of the National means the area identified as the ceded strip plant, pipelines, storage tanks, pumping sta- Environmental Policy Act of 1969 (42 U.S.C. on the map included in appendix 5 of the tions, pressure-reducing valves, electrical 4321 et seq.), the Endangered Species Act of Compact. transmission facilities, and other items (in- 1973 (16 U.S.C. 1531 et seq.), and all other ap- (3) CIP OM&R.—The term ‘‘CIP OM&R’’ cluding real property and easements nec- plicable environmental Acts and regulations. means— essary to deliver potable water to the Res- (2) EXECUTION OF THE COMPACT.— (A) any recurring or ongoing activity asso- ervation) appurtenant to the system de- (A) IN GENERAL.—Execution of the Compact ciated with the day-to-day operation of the scribed in subparagraph (A); and by the Secretary under this section shall not Crow Irrigation Project; (ii) in descending order of construction pri- constitute a major Federal action under the (B) any activity relating to scheduled or ority— National Environmental Policy Act of 1969 unscheduled maintenance of the Crow Irriga- (I) the Bighorn River Valley Subsystem; (42 U.S.C. 4321 et seq.). tion Project; and (II) the Little Bighorn River Valley Sub- (B) COMPLIANCE.—The Secretary shall (C) any activity relating to replacement of system; and carry out all Federal compliance activities a feature of the Crow Irrigation Project. (III) Pryor Extension. necessary to implement the Compact. (4) COMPACT.—The term ‘‘Compact’’ means (12) MR&I SYSTEM OM&R.—The term ‘‘MR&I SEC. 405. REHABILITATION AND IMPROVEMENT the water rights compact between the Tribe System OM&R’’ means— OF CROW IRRIGATION PROJECT. and the State of Montana contained in sec- (A) any recurring or ongoing activity asso- (a) IN GENERAL.—Notwithstanding any tion 85–20–901 of the Montana Code Anno- ciated with the day-to-day operation of the other provision of law, and without altering tated (2009) (including any exhibit, part, or MR&I System; applicable law (including regulations) under amendment to the Compact). (B) any activity relating to scheduled or which the Bureau of Indian Affairs collects (5) CROW IRRIGATION PROJECT.— unscheduled maintenance of the MR&I Sys- assessments and carries out CIP OM&R, (A) IN GENERAL.—The term ‘‘Crow Irriga- tem; and other than the rehabilitation and improve- tion Project’’ means the irrigation project— (C) any activity relating to replacement of ment carried out under this section, the Sec- (i) authorized by section 31 of the Act of project features of the MR&I System. retary, acting through the Commissioner of March 3, 1891 (26 Stat. 1040); (13) RESERVATION.—The term ‘‘Reserva- Reclamation, shall carry out such activities (ii) managed by the Secretary (acting tion’’ means the area identified as the Res- as are necessary to rehabilitate and improve through the Bureau of Indian Affairs); and ervation on the map in appendix 4 of the the water diversion and delivery features of (iii) consisting of the project units of— Compact. the Crow Irrigation Project, in accordance (I) Agency; (14) SECRETARY.—The term ‘‘Secretary’’ with an agreement to be negotiated between (II) Bighorn; means the Secretary of the Interior. the Secretary and the Tribe. (III) Forty Mile; (15) TRIBAL COMPACT ADMINISTRATION.—The (b) LEAD AGENCY.—The Bureau of Reclama- (IV) Lodge Grass #1; term ‘‘Tribal Compact Administration’’ tion shall serve as the lead agency with re- (V) Lodge Grass #2; means any activity relating to— spect to any activity to rehabilitate or im- (VI) Pryor; (A) the development or enactment by the prove the water diversion or delivery fea- (VII) Reno; Tribe of the tribal water code; tures of the Crow Irrigation Project. (VIII) Soap Creek; and (c) SCOPE.— (B) establishment by the Tribe of a water (IX) Upper Little Horn. (1) IN GENERAL.—The scope of the rehabili- resources department; and (B) INCLUSION.—The term ‘‘Crow Irrigation tation and improvement under this section (C) the operation by the Tribe of that Project’’ includes land held in trust by the shall be as generally described in the docu- water resources department (or a successor United States for the Tribe and the allottees ment entitled ‘‘Engineering Evaluation of agency) during the 10-year period beginning in the Bozeman Trail and Two Leggins irri- Existing Conditions, Crow Agency Rehabili- on the date of establishment of the depart- gation districts. tation Study’’ prepared by DOWL HKM, and ment. (6) ENFORCEABILITY DATE.—The term ‘‘en- dated August 2007 and updated in a status re- (16) TRIBAL WATER CODE.—The term ‘‘tribal forceability date’’ means the date on which port dated December 2009 by DOWL HKM, on water code’’ means a water code adopted by the Secretary publishes in the Federal Reg- the condition that prior to beginning con- the Tribe in accordance with section 407(f). ister the statement of findings described in struction activities, the Secretary shall re- (17) TRIBAL WATER RIGHTS.—The term section 410(e). view the design of the proposed rehabilita- ‘‘tribal water rights’’ means— (7) FINAL.—The term ‘‘final’’ with ref- tion or improvement and perform value engi- (A) the water rights of the Tribe described erence to approval of the decree described in neering analyses. in article III of the Compact; and section 410(e)(1)(A), means— (2) NEGOTIATION WITH TRIBE.—On the basis (B) the water rights provided to the Tribe (A) completion of any direct appeal to the of the review described in paragraph (1), the under section 408. Montana Supreme Court of a decree by the Secretary shall negotiate with the Tribe ap- (18) TRIBE.—The term ‘‘Tribe’’ means the Montana Water Court pursuant to section 85– propriate changes to the final design so that Crow Tribe of Indians of the State of Mon- 2–235 of the Montana Code Annotated (2009), the final design meets applicable industry tana on behalf of itself and its members (but including the expiration of time for filing of standards, as well as changes, if any, that not its members in their capacities as any such appeal; or would improve the cost-effectiveness of the allottees). (B) completion of any appeal to the appro- delivery of irrigation water and take into priate United States Court of Appeals, in- SEC. 404. RATIFICATION OF COMPACT. consideration the equitable distribution of cluding the expiration of time in which a pe- (a) RATIFICATION OF COMPACT.— water to allottees. tition for certiorari may be filed in the (1) IN GENERAL.—Except as modified by this (d) NONREIMBURSABILITY OF COSTS.—All United States Supreme Court, denial of such title, and to the extent the Compact does not costs incurred by the Secretary in carrying petition, or issuance of a final judgment of conflict with this title, the Compact is au- out this section shall be nonreimbursable. the United States Supreme Court, whichever thorized, ratified, and confirmed. (e) FUNDING.—The total amount of obliga- occurs last. (2) AMENDMENTS TO COMPACT.—If amend- tions incurred by the Secretary in carrying (8) FUND.—The term ‘‘Fund’’ means the ments are executed to make the Compact out this section shall not exceed $131,843,000, Crow Settlement Fund established by sec- consistent with this title, those amendments except that the total amount of $131,843,000 tion 411. are also authorized, ratified, and confirmed shall be increased or decreased, as appro- (9) INDIAN TRIBE.—The term ‘‘Indian tribe’’ to the extent such amendments are con- priate, based on ordinary fluctuations from has the meaning given the term in section 4 sistent with this title. May 1, 2008, in construction cost indices ap- of the Indian Self-Determination and Edu- (b) EXECUTION OF COMPACT.— plicable to the types of construction in- cation Assistance Act (25 U.S.C. 450b). (1) IN GENERAL.—To the extent that the volved in the rehabilitation and improve- (10) JOINT STIPULATION OF SETTLEMENT.— Compact does not conflict with this title, the ment. The term ‘‘joint stipulation of settlement’’ Secretary is directed to and shall promptly (f) TRIBAL IMPLEMENTATION AGREEMENT.— means the joint stipulation of settlement re- execute the Compact, including all exhibits (1) IN GENERAL.—At the request of the lating to the civil action styled Crow Tribe to or parts of the Compact requiring the sig- Tribe, in accordance with applicable Federal of Indians v. Norton, No. 02–284 (D.D.C. 2006). nature of the Secretary. law, the Secretary shall enter into 1 or more

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agreements with the Tribe to implement the struction activities, the Secretary shall re- (B) TORT CLAIMS.—Nothing in this section provisions of this section by which the Tribe view the design of the proposed MR&I Sys- increases the liability of the United States shall plan, design, and construct any or all of tem and perform value engineering analyses. beyond the liability provided in chapter 171 the rehabilitation and improvement required (2) NEGOTIATION WITH TRIBE.—On the basis of title 28, United States Code (commonly by this section. of the review described in paragraph (1), the known as the ‘‘Federal Tort Claims Act’’). (2) OVERSIGHT COSTS.—The Bureau of Rec- Secretary shall negotiate with the Tribe ap- (3) NOTICE OF PROPOSED CONVEYANCE.—Not lamation and the Tribe shall negotiate the propriate changes to the final design so that later than 45 days before the date of a pro- cost of any oversight activities carried out the final design meets applicable industry posed conveyance of title to any MR&I Sys- by the Bureau of Reclamation for each standards, as well as changes, if any, that tem facility, the Secretary shall submit to agreement under this section, provided that would improve the cost-effectiveness of the the Committee on Natural Resources of the the total cost for that oversight shall not ex- delivery of MR&I System water and take House of Representatives and to the Com- ceed 4 percent of the total project costs. into consideration the equitable distribution mittee on Energy and Natural Resources of (g) ACQUISITION OF LAND.— of water to allottees. the Senate notice of the conveyance of each (1) TRIBAL EASEMENTS AND RIGHTS-OF- (d) NONREIMBURSABILITY OF COSTS.—All such MR&I System facility or section of a WAY.— costs incurred by the Secretary in carrying MR&I System facility. (A) IN GENERAL.—Upon request, and in par- out this section shall be nonreimbursable. (4) MR&I SYSTEM OM&R OBLIGATION OF THE tial consideration for the funding provided (e) FUNDING.—The total amount of obliga- FEDERAL GOVERNMENT AFTER CONVEYANCE.— under section 414(a), the Tribe shall consent tions incurred by the Secretary in carrying The Federal Government shall have no obli- to the grant of such easements and rights-of- out this section shall not exceed $246,381,000, gation to pay for the operation, mainte- way over tribal land as may be necessary for except that the total amount of $246,381,000 nance, or replacement costs of the MR&I the rehabilitation and improvement of the shall be increased or decreased, as appro- System beginning on the date on which— Crow Irrigation Project authorized by this priate, based on ordinary fluctuations from (A) title to any MR&I System facility or section at no cost to the United States. May 1, 2008, in construction cost indices ap- section of a MR&I System facility under this (B) JURISDICTION.—The Tribe shall retain plicable to the types of construction in- subsection is conveyed to the Tribe; and criminal and civil jurisdiction over any volved in the design and construction of the (B) the amounts required to be deposited in lands that were subject to tribal jurisdiction MR&I System. the MR&I System OM&R Account pursuant RIBAL IMPLEMENTATION AGREEMENT.— prior to the granting of an easement or (f) T to section 411 have been deposited in that ac- (1) IN GENERAL.—At the request of the right-of-way in connection with the rehabili- count. Tribe, in accordance with applicable Federal tation and improvement of the Crow Irriga- (i) AUTHORITY OF TRIBE.—Upon transfer of law, the Secretary shall enter into 1 or more tion Project. title to the MR&I System or any section of agreements with the Tribe to implement the a MR&I System facility to the Tribe in ac- (2) USER EASEMENTS AND RIGHTS-OF-WAY.— provisions of this section by which the Tribe In partial consideration of the rehabilitation cordance with subsection (h), the Tribe is au- shall plan, design, and construct any or all of thorized to collect water use charges from and improvement of the Crow Irrigation the rehabilitation and improvement required customers of the MR&I System to cover— Project authorized by this section and as a by this section. (1) MR&I System OM&R costs; and condition of continued service from the Crow (2) OVERSIGHT COSTS.—The Bureau of Rec- (2) any other costs relating to the con- Irrigation Project after the enforceability lamation and the Tribe shall negotiate the struction and operation of the MR&I Sys- date, any water user of the Crow Irrigation cost of any oversight activities carried out tem. Project shall consent to the grant of such by the Bureau of Reclamation for each (j) ALIENATION AND TAXATION.—Conveyance easements and rights-of-way as may be nec- agreement under this section, provided that of title to the Tribe pursuant to subsection essary for the rehabilitation and improve- the total cost for that oversight shall not ex- (h) does not waive or alter any applicable ments authorized under this section at no ceed 4 percent of the total project costs. Federal law prohibiting alienation or tax- cost to the Secretary. (g) ACQUISITION OF LAND.— ation of the MR&I System or the underlying (3) LAND ACQUIRED BY THE UNITED STATES.— (1) TRIBAL EASEMENTS AND RIGHTS-OF- Reservation land. Land acquired by the United States in con- WAY.— (k) TECHNICAL ASSISTANCE.—The Secretary nection with rehabilitation and improve- (A) IN GENERAL.—Upon request, and in par- shall provide technical assistance to prepare ment of the Crow Irrigation Project author- tial consideration for the funding provided the Tribe for operation of the MR&I System, ized by this section shall be held in trust by under section 414(b), the Tribe shall consent including operation and management train- the United States on behalf of the Tribe as to the grant of such easements and rights-of- ing. part of the Reservation of the Tribe. (l) PROJECT MANAGEMENT COMMITTEE.—The way over tribal land as may be necessary for (h) PROJECT MANAGEMENT COMMITTEE.— Secretary shall facilitate the formation of a the construction of the MR&I System au- The Secretary shall facilitate the formation project management committee composed of of a project management committee com- thorized by this section at no cost to the representatives from the Bureau of Reclama- posed of representatives from the Bureau of United States. tion, the Bureau of Indian Affairs, and the Reclamation, the Bureau of Indian Affairs, (B) JURISDICTION.—The Tribe shall retain Tribe— and the Tribe— criminal and civil jurisdiction over any (1) to review cost factors and budgets for (1) to review cost factors and budgets for lands that were subject to tribal jurisdiction construction, operation and maintenance ac- construction, operation, and maintenance prior to the granting of an easement or tivities for the MR&I System; activities relating to the Crow Irrigation right-of-way in connection with the con- (2) to improve management of inherently Project; struction of the MR&I System. governmental activities through enhanced (2) to improve management of inherently (2) LAND ACQUIRED BY THE UNITED STATES.— communication; and governmental activities through enhanced Land acquired by the United States in con- (3) to seek additional ways to reduce over- communication; and nection with the construction of the MR&I all costs for the MR&I System. (3) to seek additional ways to reduce over- System authorized by this section shall be (m) NON-FEDERAL CONTRIBUTION.— all costs for the rehabilitation and improve- held in trust by the United States on behalf (1) IN GENERAL.—Prior to completion of the ment of the Crow Irrigation Project. of the Tribe as part of the Reservation of the final design of the MR&I System required by SEC. 406. DESIGN AND CONSTRUCTION OF MR&I Tribe. subsection (c), the Secretary shall consult SYSTEM. (h) CONVEYANCE OF TITLE TO MR&I SYSTEM with the Tribe, the State of Montana, and (a) IN GENERAL.—The Secretary, acting FACILITIES.—— other affected non-Federal parties to discuss through the Commissioner of Reclamation, (1) IN GENERAL.—The Secretary shall con- the possibility of receiving non-Federal con- shall plan, design, and construct the water vey title to each MR&I System facility or tributions to the cost of the MR&I System. diversion and delivery features of the MR&I section of a MR&I System facility author- (2) NEGOTIATIONS.—If, based on the extent System, in accordance with 1 or more agree- ized under subsection (a) to the Tribe after to which non-Federal parties are expected to ments between the Secretary and the Tribe. completion of construction of a MR&I Sys- use the MR&I System, a non-Federal con- (b) LEAD AGENCY.—The Bureau of Reclama- tem facility or a section of a MR&I System tribution to the MR&I System is determined tion shall serve as the lead agency with re- facility that is operating and delivering by the parties described in paragraph (1) to spect to any activity to design and construct water. be appropriate, the Secretary shall initiate the water diversion and delivery features of (2) LIABILITY.— negotiations for an agreement on the means the MR&I System. (A) IN GENERAL.—Effective on the date of by which such contributions may be pro- (c) SCOPE.— the conveyance authorized by this sub- vided. (1) IN GENERAL.—The scope of the design section, the United States shall not be held SEC. 407. TRIBAL WATER RIGHTS. and construction under this section shall be liable by any court for damages of any kind (a) INTENT OF CONGRESS.—It is the intent of as generally described in the document enti- arising out of any act, omission, or occur- Congress to provide to each allottee benefits tled ‘‘Crow Indian Reservation Municipal, rence relating to the land, buildings, or fa- that are equivalent to or exceed the benefits Rural and Industrial Water System Engi- cilities conveyed under this subsection, allottees possess as of the date of enactment neering Report’’ prepared by DOWL HKM, other than damages caused by acts of neg- of this Act, taking into consideration— and dated July 2008 and updated in a status ligence committed by the United States, or (1) the potential risks, cost, and time delay report dated December 2009 by DOWL HKM, by employees or agents of the United States, associated with litigation that would be re- on the condition that prior to beginning con- prior to the date of conveyance. solved by the Compact and this title;

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(2) the availability of funding under this (B) charges for delivery of water for irriga- (i) IN GENERAL.—The Tribe shall admin- title and from other sources; tion purposes for allottees shall be assessed ister the water allocated under paragraph (1) (3) the availability of water from the tribal on a just and equitable basis; in accordance with the Compact. water rights; and (C) there is a process by which an allottee (ii) TEMPORARY TRANSFER.—In accordance (4) the applicability of section 7 of the Act may request that the Tribe provide water for with subsection (c), the Tribe may tempo- of February 8, 1887 (25 U.S.C. 381) and this irrigation use in accordance with this title; rarily transfer by service contract, lease, ex- title to protect the interests of allottees. (D) there is a due process system for the change, or other agreement, not more than (b) CONFIRMATION OF TRIBAL WATER consideration and determination by the 50,000 acre-feet of water allocated under RIGHTS.— Tribe of any request by an allottee, or any paragraph (1)(A) off the Reservation, subject (1) IN GENERAL.—The tribal water rights successor in interest to an allottee, for an al- to the approval of the Secretary and the re- are ratified, confirmed, and declared to be location of such water for irrigation pur- quirements of the Compact. valid. poses on allotted land, including a process (b) ALLOCATION AGREEMENT.— (2) USE.—Use of the tribal water rights for— (1) IN GENERAL.—As a condition of receiv- shall be subject to the terms and conditions (i) appeal and adjudication of any denied or ing an allocation under this section, the established by the Compact. disputed distribution of water; and Tribe shall enter into an allocation agree- (c) HOLDING IN TRUST.—The tribal water (ii) resolution of any contested administra- ment with the Secretary to establish the rights— tive decision; and terms and conditions of the allocation, in ac- (1) shall be held in trust by the United (E) there is a requirement that any allot- cordance with the terms and conditions of States for the use and benefit of the Tribe tee with a claim relating to the enforcement the Compact and this title. and the allottees in accordance with this sec- of rights of the allottee under the tribal (2) INCLUSIONS.—The allocation agreement tion; and water code or relating to the amount of under paragraph (1) shall include, among (2) shall not be subject to forfeiture or water allocated to land of the allottee must other things, a provision that— abandonment. first exhaust remedies available to the allot- (A) the agreement is without limit as to (d) ALLOTTEES.— tee under tribal law and the tribal water term; (1) APPLICABILITY OF ACT OF FEBRUARY 8, code before initiating an action against the (B) the Tribe, and not the United States, 1887.—The provisions of section 7 of the Act of United States or petitioning the Secretary shall be entitled to all consideration due to February 8, 1887 (25 U.S.C. 381), relating to pursuant to subsection (d)(6). the Tribe under any lease, contract, or the use of water for irrigation purposes shall agreement the Tribe may enter into pursu- (3) ACTION BY SECRETARY.— apply to the tribal water rights. ant to the authority in subsection (c); (A) IN GENERAL.—The Secretary shall ad- (2) ENTITLEMENT TO WATER.—Any entitle- (C) the United States shall have no trust minister the tribal water rights until the ment to water of an allottee under Federal obligation or other obligation to monitor, tribal water code is enacted in accordance law shall be satisfied from the tribal water administer, or account for— with paragraph (1) and those provisions re- rights. (i) any funds received by the Tribe as con- quiring approval pursuant to paragraph (2). (3) ALLOCATIONS.—Allottees shall be enti- sideration under any lease, contract, or (B) APPROVAL.—The tribal water code shall tled to a just and equitable allocation of agreement the Tribe may enter into pursu- not be valid unless— water for irrigation purposes. ant to the authority in subsection (c); or (i) the provisions of the tribal water code (4) EXHAUSTION OF REMEDIES.—Before as- (ii) the expenditure of such funds; required by paragraph (2) are approved by serting any claim against the United States (D) if the facilities at Yellowtail Dam are the Secretary; and under section 7 of the Act of February 8, 1887 significantly reduced or are anticipated to be (ii) each amendment to the tribal water (25 U.S.C. 381), or any other applicable law, significantly reduced for an extended period code that affects a right of an allottee is ap- an allottee shall exhaust remedies available of time, the Tribe shall have the same stor- proved by the Secretary. under the tribal water code or other applica- age rights as other storage contractors with (C) APPROVAL PERIOD.—The Secretary shall ble tribal law. respect to the allocation under this section; approve or disapprove the tribal water code (5) CLAIMS.—Following exhaustion of rem- (E) the costs associated with the construc- within a reasonable period of time after the edies available under the tribal water code or tion of the storage facilities at Yellowtail date on which the Tribe submits it to the other applicable tribal law, an allottee may Dam allocable to the Tribe— Secretary. seek relief under section 7 of the Act of Feb- (i) shall be nonreimbursable; and ruary 8, 1887 (25 U.S.C. 381), or other applica- (g) EFFECT.—Except as otherwise specifi- (ii) shall be excluded from any repayment ble law. cally provided in this section, nothing in this obligation of the Tribe; title— (6) AUTHORITY.—The Secretary shall have (F) no water service capital charges shall the authority to protect the rights of (1) authorizes any action by an allottee be due or payable for any water allocated to allottees as specified in this section. against any individual or entity, or against the Tribe pursuant to this title and the allo- (e) AUTHORITY OF TRIBE.— the Tribe, under Federal, State, tribal, or cation agreement, regardless of whether that (1) IN GENERAL.—Except as provided in local law; or water is delivered for use by the Tribe or is paragraph (2), the Tribe shall have authority (2) alters or affects the status of any action delivered under any leases, contracts, or to allocate, distribute, and lease the tribal pursuant to section 1491(a) of title 28, United agreements the Tribe may enter into pursu- water rights— States Code. ant to the authority in subsection (c); (A) in accordance with the Compact; and SEC. 408. STORAGE ALLOCATION FROM BIGHORN (G) the Tribe shall not be required to make (B) subject to approval of the Secretary of LAKE. payments to the United States for any water the tribal water code under subsection (a) STORAGE ALLOCATION TO TRIBE.— allocated to the Tribe pursuant to this title (f)(3)(B). (1) IN GENERAL.—As described in and sub- and the allocation agreement except for each (2) LEASES BY ALLOTTEES.—Notwith- ject to article III(A)(1)(b) of the Compact, acre-foot of stored water leased or sold for standing paragraph (1), an allottee may lease the Secretary shall allocate to the Tribe industrial purposes; and any interest in land held by the allottee, to- 300,000 acre-feet per year of water stored in (H) for each acre-foot of stored water gether with any water right determined to Bighorn Lake, Yellowtail Unit, Lower Big- leased or sold by the Tribe for industrial pur- be appurtenant to the interest in land. horn Division, Pick Sloan Missouri Basin poses— (f) TRIBAL WATER CODE.— Program, Montana, under a water right held (i) the Tribe shall pay annually to the (1) IN GENERAL.—Notwithstanding the time by the United States and managed by the United States an amount to cover the pro- period set forth in article IV(A)(2)(b) of the Bureau of Reclamation, as measured at the portionate share of the annual operation, Compact, not later than 3 years after the outlet works of Yellowtail Dam, including— maintenance, and replacement costs for the date on which the Tribe ratifies the Compact (A) not more than 150,000 acre-feet per year Yellowtail Unit allocable to the amount of as set forth in section 410(e)(1)(E), the Tribe of the allocation, which may be used in addi- water for industrial purposes leased or sold shall enact a tribal water code, that provides tion to the natural flow right described in by the Tribe; and for— article III(A)(1)(a) of the Compact; and (ii) the annual payments of the Tribe shall (A) the management, regulation, and gov- (B) 150,000 acre-feet per year of the alloca- be reviewed and adjusted, as appropriate, to ernance of all uses of the tribal water rights tion, which may be used only as supple- reflect the actual operation, maintenance, in accordance with the Compact; and mental water for the natural flow right de- and replacement costs for the Yellowtail (B) establishment by the Tribe of condi- scribed in article III(A)(1)(a) of the Compact Unit. tions, permit requirements, and other limi- for use in times of natural flow shortage. (c) TEMPORARY TRANSFER FOR USE OFF tations relating to the storage, recovery, and (2) TREATMENT.— RESERVATION.— use of the tribal water rights in accordance (A) IN GENERAL.—The allocation under (1) IN GENERAL.—Notwithstanding any with the Compact. paragraph (1) shall be considered to be part other provision of statutory or common law (2) INCLUSIONS.—Subject to the approval of of the tribal water rights. and subject to paragraph (2), on approval of the Secretary, the tribal water code shall (B) PRIORITY DATE.—The priority date of the Secretary and subject to the terms and provide that— the allocation under paragraph (1) shall be conditions of the Compact, the Tribe may (A) tribal allocations of water to allottees the priority date of the water right held by enter into a service contract, lease, ex- shall be satisfied with water from the tribal the Bureau of Reclamation. change, or other agreement providing for the water rights; (C) ADMINISTRATION.— temporary delivery, use, or transfer of not

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00076 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8187 more than 50,000 acre-feet per year of water ject to the retention of rights set forth in (D) all claims against the United States, allocated under subsection (a)(1)(A) for use subsection (c), in return for recognition of including the agencies and employees of the off the Reservation. the tribal water rights and other benefits as United States, relating to the negotiation, (2) REQUIREMENT.—An agreement under set forth in the Compact and this title, the execution, or the adoption of the Compact paragraph (1) shall not permanently alienate Tribe, on behalf of itself and the members of (including exhibits) or this title; any portion of the water allocated under sub- the Tribe (but not tribal members in their (E) subject to the retention of rights set section (a)(1)(A). capacities as allottees), and the United forth in subsection (c), all claims for mone- (d) REMAINING STORAGE.— States, acting as trustee for the Tribe and tary damages against the United States that (1) IN GENERAL.—As of the date of enact- the members of the Tribe (but not tribal first accrued at any time prior to and includ- ment of this Act, water in Bighorn Lake members in their capacities as allottees), are ing the enforceability date with respect to— shall be considered to be fully allocated and authorized and directed to execute a waiver (i) the failure to recognize or enforce the no further storage allocations shall be made and release of all claims for water rights claim of the Tribe of title to land created by by the Secretary. within the State of Montana that the Tribe, the movement of the Bighorn River; and (2) EFFECT OF SUBSECTION.—Nothing in this or the United States acting as trustee for the (ii) the failure to make productive use of subsection prevents the Secretary from— Tribe, asserted, or could have asserted, in that land created by the movement of the (A) renewing the storage contract with any proceeding, including the State of Mon- Bighorn River to which the Tribe has Pennsylvania Power and Light Company tana stream adjudication, prior to and in- claimed title; consistent with the allocation to Pennsyl- cluding the enforceability date, except to the (F) all claims against the United States vania Power and Light Company in existence extent that such rights are recognized in the that first accrued at any time prior to and on the date of enactment of this Act; or Compact or this title. including the enforceability date arising (B) entering into future agreements with (2) WAIVER AND RELEASE OF CLAIMS BY THE from the taking or acquisition of the land of either the Northern Cheyenne Tribe or the UNITED STATES ACTING IN ITS CAPACITY AS the Tribe or resources for the construction of Crow Tribe facilitating either tribe’s use of TRUSTEE FOR ALLOTTEES.—Subject to the re- the Yellowtail Dam; its respective allocation of water from Big- tention of rights set forth in subsection (c), (G) all claims against the United States horn Lake. in return for recognition of the water rights that first accrued at any time prior to and of the Tribe and other benefits as set forth in SEC. 409. SATISFACTION OF CLAIMS. including the enforceability date relating to the Compact and this title, the United (a) IN GENERAL.— the construction and operation of Yellowtail States, acting as trustee for allottees, is au- (1) SATISFACTION OF TRIBAL CLAIMS.—The Dam and the management of Bighorn Lake; thorized and directed to execute a waiver benefits realized by the Tribe under this title and and release of all claims for water rights shall be in complete replacement of and sub- (H) all claims that first accrued at any within the Reservation and the ceded strip stitution for, and full satisfaction of, all time prior to and including the enforce- that the United States, acting as trustee for claims of the Tribe against the United States ability date relating to the generation, or the allottees, asserted, or could have as- under paragraphs (1) and (3) of section 410(a). the lack thereof, of power from Yellowtail serted, in any proceeding, including the (2) SATISFACTION OF ALLOTTEE CLAIMS.—The Dam. State of Montana stream adjudication, prior (b) EFFECTIVENESS OF WAIVERS AND RE- benefits realized by the allottees under this to and including the enforceability date, ex- LEASES.—The waivers under subsection (a) title shall be in complete replacement of and cept to the extent that such rights are recog- shall take effect on the enforceability date. substitution for, and full satisfaction of— nized in the Compact or this title. (A) all claims waived and released under (3) WAIVER AND RELEASE OF CLAIMS BY THE (c) RESERVATION OF RIGHTS AND RETENTION section 410(a)(2); and TRIBE AGAINST THE UNITED STATES.—Subject OF CLAIMS.—Notwithstanding the waivers (B) any claims of the allottees against the to the retention of rights set forth in sub- and releases authorized in this title, the United States that the allottees have or section (c), the Tribe, on behalf of itself and Tribe on behalf of itself and the members of could have asserted that are similar in na- the members of the Tribe (but not Tribal the Tribe and the United States, acting as ture to those described in section 410(a)(3). members in their capacities as allottees), is trustee for the Tribe and allottees, retain— (b) SATISFACTION OF CLAIMS RELATING TO authorized to execute a waiver and release (1) all claims for enforcement of the Com- CROW IRRIGATION PROJECT.— of— pact, any final decree, or this title; (1) IN GENERAL.—Subject to paragraph (3), (A) all claims against the United States, (2) all rights to use and protect water the funds made available under subsections including the agencies and employees of the rights acquired after the date of enactment (a) and (f) of section 414 shall be used to sat- United States, relating to claims for water of this Act; isfy any claim of the Tribe or the allottees rights within the State of Montana that the (3) all claims relating to activities affect- with respect to the appropriation of funds for United States, acting as trustee for the ing the quality of water, including any the rehabilitation, expansion, improvement, Tribe, asserted, or could have asserted, in claims the Tribe may have under— repair, operation, or maintenance of the any proceeding, including the State of Mon- (A) the Comprehensive Environmental Re- Crow Irrigation Project. tana stream adjudication, except to the ex- sponse, Compensation, and Liability Act of (2) SATISFACTION OF CLAIMS.—Upon com- tent that such rights are recognized as tribal 1980 (42 U.S.C. 9601 et seq.), including for plete transfer of the funds described in sub- water rights in this title, including all damages to natural resources; sections (a) and (f) of section 414 any claim of claims relating in any manner to the claims (B) the Safe Drinking Water Act (42 U.S.C. the Tribe or the allottees with respect to the reserved against the United States or agen- 300f et seq.); transfer of funds for the rehabilitation, ex- cies or employees of the United States in (C) the Federal Water Pollution Control pansion, improvement, repair, operation, or section 4(e) of the joint stipulation of settle- Act (33 U.S.C. 1251 et seq.); and maintenance of the Crow Irrigation Project ment; (D) any regulations implementing the Acts shall be deemed to have been satisfied. (B) all claims against the United States, described in subparagraphs (A) through (C); (3) EFFECT.—Except as provided in section including the agencies and employees of the (4) all claims relating to damages, losses, 405, nothing in this title affects any applica- United States, relating to damages, losses, or injuries to land or natural resources not ble law (including regulations) under which or injuries to water, water rights, land, or due to loss of water or water rights (includ- the United States collects irrigation assess- natural resources due to loss of water or ing hunting, fishing, gathering, or cultural ments from— water rights (including damages, losses, or rights); (A) non-Indian users of the Crow Irrigation injuries to hunting, fishing, gathering, or (5) all rights, remedies, privileges, immuni- Project; and cultural rights due to loss of water or water ties, and powers not specifically waived and (B) the Tribe, tribal entities and instru- rights, claims relating to interference with, released pursuant to this title or article mentalities, tribal members, allottees, and diversion or taking of water, or claims relat- VII(E) of the Compact; entities owned by the Tribe, tribal members, ing to failure to protect, acquire, replace, or (6) all claims against any person or entity or allottees, to the extent that annual irriga- develop water, water rights, or water infra- other than the United States, including tion assessments on such tribal water users structure) within the State of Montana that claims for monetary damages, with respect exceed the amount of funds available under first accrued at any time prior to and includ- to— section 411(e)(3)(D) for costs relating to CIP ing the enforceability date, including all (A) the claim of the Tribe of title to land OM&R. claims relating to the failure to establish or created by the movement of the Bighorn (c) NO RECOGNITION OF WATER RIGHTS.— provide a municipal rural or industrial water River; and Notwithstanding subsection (a) and except as delivery system on the Reservation and all (B) the productive use of that land created provided in section 407, nothing in this title claims relating to the failure to provide for, by the movement of the Bighorn River to recognizes or establishes any right of a mem- operate, or maintain the Crow Irrigation which the Tribe has claimed title; and ber of the Tribe or an allottee to water with- Project, or any other irrigation system or ir- (7) all claims that first accrued after the in the Reservation or the ceded strip. rigation project on the Reservation; enforceability date with respect to claims SEC. 410. WAIVERS AND RELEASES OF CLAIMS. (C) all claims against the United States, otherwise waived in accordance with sub- (a) IN GENERAL.— including the agencies and employees of the paragraphs (B) and (E) through (H) of sub- (1) WAIVER AND RELEASE OF CLAIMS BY THE United States, relating to the pending litiga- section (a)(3). TRIBE AND THE UNITED STATES ACTING IN ITS tion of claims relating to the water rights of (d) EFFECT OF COMPACT AND TITLE.—Noth- CAPACITY AS TRUSTEE FOR THE TRIBE.—Sub- the Tribe in the State of Montana; ing in the Compact or this title—

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(B) to determine the duties of the United agreed to by the Tribe and the United States (3) DISTRIBUTIONS FROM CROW SETTLEMENT States or other parties pursuant to Federal and approved by Congress; and FUND.— law regarding health, safety, or the environ- (3) except for Federal funds used to acquire (A) IN GENERAL.—Amounts from the Fund ment; or or develop property that is returned to the shall be used for each purpose described in (C) to conduct judicial review of Federal Federal Government under paragraph (2), the subparagraphs (B) through (E). agency action; United States shall be entitled to set off any (B) TRIBAL COMPACT ADMINISTRATION AC- (4) waives any claim of a member of the Federal funds appropriated or made avail- COUNT.—The Tribal Compact Administration Tribe in an individual capacity that does not able to carry out the activities authorized in account shall be used for expenditures by the derive from a right of the Tribe; or this Act that were expended or withdrawn, Tribe for Tribal Compact Administration. (5) revives any claims waived by the Tribe together with any interest accrued, against (C) ENERGY DEVELOPMENT PROJECTS AC- in the joint stipulation of settlement. any claims against the United States relat- COUNT.—The Energy Development Projects account shall be used for expenditures by the (e) ENFORCEABILITY DATE.— ing to water rights in the State of Montana Tribe for the following types of energy devel- (1) IN GENERAL.—The enforceability date asserted by the Tribe or in any future settle- opment on the Reservation, the ceded strip, shall be the date on which the Secretary ment of the water rights of the Crow Tribe. and land owned by the Tribe: publishes in the Federal Register a state- SEC. 411. CROW SETTLEMENT FUND. (i) Development and marketing of power ment of findings that— (a) ESTABLISHMENT.—There is established generation on the Yellowtail Afterbay Dam (A)(i) the Montana Water Court has issued in the Treasury of the United States a fund authorized in section 412(b). a final judgment and decree approving the to be known as ‘‘the Crow Settlement Fund’’, (ii) Development of clean coal conversion Compact; or to be administered by the Secretary for the projects. (ii) if the Montana Water Court is found to purpose of carrying out this title. (iii) Renewable energy projects other than lack jurisdiction, the district court of juris- (b) TRANSFERS TO FUND.—The Fund shall the project described in clause (i). diction has approved the Compact as a con- consist of such amounts as are deposited in (D) CIP OM&R ACCOUNT.— sent decree and such approval is final; the Fund under subsections (c) through (h) of (i) IN GENERAL.—Amounts in the CIP (B) all of the funds made available under section 414. OM&R Account shall be used for CIP OM&R subsections (c) through (f) of section 414 have (c) ACCOUNTS OF CROW SETTLEMENT FUND.— costs. been deposited in the Fund; The Secretary shall establish in the Fund (ii) REDUCTION OF COSTS TO TRIBAL WATER (C) the Secretary has executed the agree- the following accounts: USERS.— ments with the Tribe required by sections (1) The Tribal Compact Administration ac- (I) IN GENERAL.—Subject to subclause (II), 405(a) and 406(a); count, consisting of amounts made available the funds described in clause (i) shall be used (D) the State of Montana has appropriated pursuant to section 414(c). to reduce the CIP OM&R costs to all tribal and paid into an interest-bearing escrow ac- (2) The Energy Development Projects ac- water users on a proportional basis for a count any payments due as of the date of en- count, consisting of amounts made available given year. actment of this Act to the Tribe under the pursuant to section 414(d). (II) LIMITATION ON USE OF FUNDS.—Funds in Compact; (3) The MR&I System OM&R Account, con- the CIP OM&R Account shall be used to pay (E)(i) the Tribe has ratified the Compact sisting of amounts made available pursuant irrigation assessments only for the Tribe, by submitting this title and the Compact to to section 414(e). tribal entities and instrumentalities, tribal a vote by the tribal membership for approval (4) The CIP OM&R Account, consisting of members, allottees, and entities owned by or disapproval; and amounts made available pursuant to section the Tribe, tribal members, or allottees. (ii) the tribal membership has voted to ap- 414(f). (E) MR&I SYSTEM OM&R ACCOUNT.—Funds prove this title and the Compact by a major- (d) DEPOSITS TO CROW SETTLEMENT FUND.— from the MR&I System OM&R Account shall ity of votes cast on the day of the vote, as (1) IN GENERAL.—The Secretary of the be used to assist the Tribe in paying MR&I certified by the Secretary and the Tribe; Treasury shall promptly deposit in the Fund System OM&R costs. (F) the Secretary has fulfilled the require- any amounts appropriated for that purpose. (4) WITHDRAWALS BY TRIBE.— ments of section 408(a); and (2) PRIORITY OF DEPOSITS TO ACCOUNTS.—Of (A) IN GENERAL.—The Tribe may withdraw (G) the waivers and releases authorized and the amounts appropriated for deposit in the any portion of amounts in the Fund on ap- set forth in subsection (a) have been exe- Fund, the Secretary of the Treasury shall de- proval by the Secretary of a tribal manage- cuted by the Tribe and the Secretary. posit amounts in the accounts listed in sub- ment plan in accordance with the American (f) TOLLING OF CLAIMS.— section (c)— Indian Trust Fund Management Reform Act (1) IN GENERAL.—Each applicable period of (A) in full; and of 1994 (25 U.S.C. 4001 et seq.). limitation and time-based equitable defense (B) in the order listed in subsection (c). (B) REQUIREMENTS.— relating to a claim described in this section (e) MANAGEMENT.— (i) IN GENERAL.—In addition to the require- shall be tolled for the period beginning on (1) IN GENERAL.—The Secretary shall man- ments under the American Indian Trust the date of enactment of this Act and ending age the Fund, make investments from the Fund Management Reform Act of 1994 (25 on the date on which the amounts made Fund, and make amounts available from the U.S.C. 4001 et seq.), the tribal management available to carry out this title are trans- Fund for distribution to the Tribe consistent plan of the Tribe under subparagraph (A) ferred to the Secretary. with the American Indian Trust Fund Man- shall require that the Tribe spend any (2) EFFECT OF SUBSECTION.—Nothing in this agement Reform Act of 1994 (25 U.S.C. 4001 et amounts withdrawn from the Fund in ac- subsection revives any claim or tolls any pe- seq.). cordance with this title. riod of limitation or time-based equitable de- (2) INVESTMENT OF CROW SETTLEMENT (ii) ENFORCEMENT.—The Secretary may fense that expired before the date of enact- FUND.—Beginning on the enforceability date, carry out such judicial or administrative ac- ment of this Act. the Secretary shall invest amounts in the tions as the Secretary determines to be nec- (g) EXPIRATION AND TOLLING.—In the event Fund in accordance with— essary to enforce a tribal management plan that all appropriations authorized by this (A) the Act of April 1, 1880 (25 U.S.C. 161); to ensure that amounts withdrawn by the Act have not been made available to the Sec- (B) the first section of the Act of June 24, Tribe from the Fund under this paragraph retary by June 30, 2030— 1938 (25 U.S.C. 162a); and are used in accordance with this title.

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(C) LIABILITY.—The Secretary and the Sec- agement Plan referred to in and part of the (II) 3 percent of the gross annual revenue retary of the Treasury shall not be liable for Compact shall be interpreted to clearly re- produced by the sale of electricity generated the expenditure or investment of amounts flect paragraphs (1) and (2). by such project. withdrawn from the Fund by the Tribe under (4) APPLICABILITY OF INSTREAM FLOW RE- (4) USE OF POWER BY TRIBE.—Any hydro- this paragraph. QUIREMENTS IN PLAN.—Notwithstanding any electric power generated in accordance with (D) EXPENDITURE PLAN.— term (including any defined term) or provi- this subsection shall be used or marketed by (i) IN GENERAL.—For each fiscal year, the sion in the Streamflow and Lake Level Man- the Tribe. Tribe shall submit to the Secretary for ap- agement Plan, for purposes of this title, the (5) REVENUES.—The Tribe shall retain any proval an expenditure plan for any portion of Compact, and the Streamflow and Lake revenues from the sale of hydroelectric the amounts described in subparagraph (A) Level Management Plan, any requirement in power generated by a project under this sub- that the Tribe elects not to withdraw under the Streamflow and Lake Level Management section. this paragraph during the fiscal year. Plan that the Tribe dedicate a specified per- (6) LIABILITY OF UNITED STATES.—The (ii) INCLUSION.—An expenditure plan under centage, portion, or number of acre-feet of United States shall have no trust obligation clause (i) shall include a description of the water per year of the tribal water rights to to monitor, administer, or account for— manner in which, and the purposes for instream flow means (and is limited in (A) the revenues received by the Tribe which, amounts of the Tribe remaining in meaning and effect to) an obligation on the under this subsection; or the Fund will be used during subsequent fis- part of the Tribe to withhold from develop- (B) the expenditure of the revenues re- cal years. ment or otherwise refrain from diverting or ceived by the Tribe under this subsection. (iii) APPROVAL.—On receipt of an expendi- removing from the Bighorn River the speci- (c) CONSULTATION WITH TRIBE.—The Bureau ture plan under clause (i), the Secretary fied quantity of water for the duration, at of Reclamation shall consult with the Tribe shall approve the plan if the Secretary deter- the locations, and under the conditions set on at least a quarterly basis on all issues re- mines that the plan is— forth in the applicable requirement. lating to the management of Yellowtail Dam (I) reasonable; and (b) POWER GENERATION.— by the Bureau of Reclamation. (II) consistent with this title. (1) IN GENERAL.—Notwithstanding any (d) AMENDMENTS TO COMPACT AND PLAN.— (5) ANNUAL REPORTS.—The Tribe shall sub- other provision of law, the Tribe shall have The provisions of subsection (a) apply to any mit to the Secretary annual reports describ- the exclusive right to develop and market amendment to— ing each expenditure by the Tribe of power generation on the Yellowtail Afterbay (1) the Compact; or amounts in the Fund during the preceding Dam, provided that this exclusive right shall (2) the Streamflow and Lake Level Man- calendar year. expire 15 years after the date of enactment of agement Plan. (6) CERTAIN PER CAPITA DISTRIBUTIONS PRO- this Act if construction has not been sub- SEC. 413. MISCELLANEOUS PROVISIONS. HIBITED.—No amount in the Fund shall be stantially completed on the power genera- (a) WAIVER OF SOVEREIGN IMMUNITY BY THE distributed to any member of the Tribe on a tion project of the Tribe. UNITED STATES.—Except as provided in sub- per capita basis. (2) BUREAU OF RECLAMATION COOPERATION.— sections (a) through (c) of section 208 of the (f) AVAILABILITY.— The Bureau of Reclamation shall cooperate Department of Justice Appropriation Act, (1) IN GENERAL.—Except as provided in with the Tribe on the development of any 1953 (43 U.S.C. 666), nothing in this title paragraph (2), the amounts in the Fund shall power generation project under this sub- waives the sovereign immunity of the United be available for use by the Secretary and section. States. withdrawal by the Tribe beginning on the en- (3) AGREEMENT.—Before construction of a (b) OTHER TRIBES NOT ADVERSELY AF- forceability date. power generation project under this sub- FECTED.—Nothing in this title quantifies or (2) EXCEPTION.—The amounts made avail- section, the Tribe shall enter into an agree- diminishes any land or water right, or any able under section 414(c) shall be available ment with the Bureau of Reclamation that claim or entitlement to land or water, of an for use by the Secretary and withdrawal by contains provisions that— Indian tribe, band, or community other than the Tribe beginning on the date on which the (A) allocate the responsibilities for the de- the Tribe. Tribe ratifies the Compact as provided in sign, construction, and operations of the (c) LIMITATION ON CLAIMS FOR REIMBURSE- section 410(e)(1)(E). project; MENT.—With respect to Indian land within (g) STATE CONTRIBUTION.—The State of (B) assure the compatibility of the power the Reservation or the ceded strip— Montana contribution to the Fund shall be generation project with the operations of the (1) the United States shall not submit provided in accordance with article VI(A) of Yellowtail Unit and the Yellowtail Afterbay against any Indian-owned land located with- the Compact. Dam, which shall include entering into in the Reservation or the ceded strip any (h) SEPARATE APPROPRIATIONS ACCOUNT.— agreements— claim for reimbursement of the cost to the Section 1105(a) of title 31, United States (i) regarding operating criteria and emer- United States of carrying out this title and Code, is amended— gency procedures, as they relate to dam safe- the Compact; and (1) by redesignating paragraphs (35) and ty; and (2) no assessment of any Indian-owned land (36) as paragraphs (36) and (37), respectively; (ii) under which, should the Tribe propose located within the Reservation or the ceded (2) by redesignating the second paragraph any modifications to facilities owned by the strip shall be made regarding that cost. (33) (relating to obligational authority and Bureau of Reclamation, the proposed modi- (d) LIMITATION ON LIABILITY OF UNITED outlays requested for homeland security) as fications shall be subject to review and ap- STATES.— paragraph (35); and proval by the Secretary, acting through the (1) IN GENERAL.—The United States has no (3) by adding at the end the following: Bureau of Reclamation; trust or other obligation— ‘‘(38) a separate statement for the Crow (C) beginning 10 years after the date on (A) to monitor, administer, or account for, Settlement Fund established under section which the Tribe begins marketing power gen- in any manner, any funds provided to the 411 of the Crow Tribe Water Rights Settle- erated from the Yellowtail Afterbay Dam, Tribe by any party to the Compact other ment Act of 2010, which shall include the es- the Tribe shall make annual payments for than the United States; or timated amount of deposits into the Fund, operation, maintenance, and replacement (B) to review or approve any expenditure of obligations, and outlays from the Fund.’’. costs in amounts determined in accordance those funds. SEC. 412. YELLOWTAIL DAM, MONTANA. with the guidelines and methods of the Bu- (2) INDEMNIFICATION.—The Tribe shall in- (a) STREAMFLOW AND LAKE LEVEL MANAGE- reau of Reclamation for assessing operation, demnify the United States, and hold the MENT PLAN.— maintenance, and replacement charges, pro- United States harmless, with respect to all (1) IN GENERAL.—Nothing in this title, the vided that such annual payments shall not claims (including claims for takings or Compact, or the Streamflow and Lake Level exceed 3 percent of gross annual revenue pro- breach of trust) arising from the receipt or Management Plan referred to in article duced by the sale of electricity generated by expenditure of amounts described in para- III(A)(7) of the Compact— such project; and graph (1)(A). (A) limits the discretion of the Secretary (D) the Secretary— (e) EFFECT ON CURRENT LAW.—Nothing in under the section 4F of that plan; or (i) shall review the charges established in this section affects any provision of law (in- (B) requires the Secretary to give priority the agreement on the date that is 5 years cluding regulations) in effect on the day be- to any factor described in section 4F of that after the date on which the Tribe makes the fore the date of enactment of this Act with plan over any other factor described in that first payment described in subparagraph (C) respect to preenforcement review of any Fed- section. to the Secretary under the agreement and at eral environmental enforcement action. (2) BIGHORN LAKE MANAGEMENT.—Bighorn 5 year intervals thereafter; and (f) LIMITATIONS ON EFFECT.— Lake water management, including the (ii) may increase or decrease the charges in (1) IN GENERAL.—Nothing in this title, the Streamflow and Lake Level Management proportion to the amount of any increase or Compact, or the Streamflow and Lake Level Plan, is a Federal activity, and the review decrease in the costs of operation, mainte- Management Plan referred to in article and enforcement of any water management nance, and replacement for the Yellowtail III(A)(7) of the Compact— decisions relating to Bighorn Lake shall be Afterbay Dam, provided that any increase in (A) limits, expands, alters, or otherwise af- as provided by Federal law. operation, maintenance, and replacement fects— (3) APPLICABILITY OF PARAGRAPHS (1) AND costs assessed to the Tribe may not exceed— (i) the meaning, interpretation, implemen- (2).—The Streamflow and Lake Level Man- (I) 5 percent in any 5 year period; and tation, application, or effect of any article,

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00079 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8190 CONGRESSIONAL RECORD — SENATE November 19, 2010 provision, or term of the Yellowstone River justed to reflect changes since May 1, 2008, in later than March 31, 2016, or the extended Compact; construction cost indices applicable to the date agreed to by the Tribe and the Sec- (ii) any right, requirement, or obligation types of construction involved in the design retary, after reasonable notice to the State under the Yellowstone River Compact; and construction of the MR&I System, for of Montana, as applicable— (iii) any allocation (or manner of deter- the design and construction of the MR&I (1) this title is repealed effective April 1, mining any allocation) of water under the System. 2016, or the day after the extended date Yellowstone River Compact; or (2) AUTHORIZATION OF APPROPRIATIONS.—In agreed to by the Tribe and the Secretary (iv) any present or future claim, defense, or addition to the amount made available under after reasonable notice to the State of Mon- other position asserted in any legal, adminis- paragraph (1), there is authorized to be ap- tana, whichever is later; trative, or other proceeding arising under or propriated to the Secretary for the design (2) any action taken by the Secretary and relating to the Yellowstone River Compact and construction of the MR&I System any contract or agreement pursuant to the (including the original proceeding between $100,381,000, adjusted to reflect changes since authority provided under any provision of the State of Montana and the State of Wyo- May 1, 2008, in construction cost indices ap- this title shall be void; ming pending as of the date of enactment of plicable to the types of construction in- (3) any amounts made available under sec- this Act before the United States Supreme volved in the design and construction of the tion 414, together with any interest on those Court); MR&I System. amounts, shall immediately revert to the (B) makes an allocation or apportionment (c) TRIBAL COMPACT ADMINISTRATION.—Out general fund of the Treasury; of water between or among States; of any funds in the Treasury not otherwise (4) any amounts made available under sec- (C) addresses or implies whether, how, or appropriated, the Secretary of the Treasury tion 414 that remain unexpended shall imme- to what extent (if any)— shall transfer to the Secretary $4,776,000, ad- diately revert to the general fund of the (i) the tribal water rights, or any portion justed to reflect changes in appropriate cost Treasury; and of the tribal water rights, should be ac- indices during the period beginning on the (5) the United States shall be entitled to counted for as part of or otherwise charged date of enactment of this Act and ending on set off against any claims asserted by the against any allocation of water made to a the date of the transfer, for Tribal Compact Tribe against the United States relating to State under the provisions of the Yellow- Administration. water rights— stone River Compact; or (d) ENERGY DEVELOPMENT PROJECTS.—Out (A) any funds expended or withdrawn from (ii) the Yellowstone River Compact in- of any funds in the Treasury not otherwise the amounts made available pursuant to this cludes the tribal water rights or the water appropriated, the Secretary of the Treasury title; and right of any Indian tribe as part of any allo- shall transfer to the Secretary $20,000,000, ad- (B) any funds made available to carry out cation or other disposition of water under justed to reflect changes in appropriate cost the activities authorized in this title from that compact; or indices during the period beginning on the other authorized sources. (D) waives the sovereign immunity from date of enactment of this Act and ending on SEC. 416. ANTIDEFICIENCY. suit of any State under the Eleventh Amend- the date of the transfer, for Energy Develop- The United States shall not be liable for ment to the Constitution of the United ment Projects as set forth in section any failure to carry out any obligation or ac- States, except as expressly authorized in Ar- 411(e)(3)(C). tivity authorized by this title (including any ticle IV(F)(8) of the Compact. (e) MR&I SYSTEM OM&R.—Out of any such obligation or activity under the Settle- (2) EFFECT OF CERTAIN PROVISIONS IN COM- funds in the Treasury not otherwise appro- ment Agreement) if adequate appropriations PACT.—The provisions in paragraphs (1) and priated, the Secretary of the Treasury shall are not provided expressly by Congress to (2) of article III (A)(6)(a), paragraphs (1) and transfer to the Secretary $47,000,000, adjusted carry out the purposes of this title in the (2) of article III(B)(6)(a), paragraphs (1) and to reflect changes in appropriate cost indices Reclamation Water Settlements Fund estab- (2) of article III(E)(6)(a), and paragraphs (1) during the period beginning on the date of lished under section 10501 of Public Law 111– and (2) of article III (F)(6)(a) of the Compact enactment of this Act and ending on the date 11 or the ‘‘Emergency Fund for Indian Safety that provide protections to certain water of the transfer, for MR&I System OM&R. and Health’’ established by section 601(a) of rights recognized under the laws of the State (f) CIP OM&R.—Out of any funds in the the Tom Lantos and Henry J. Hyde United of Montana do not affect in any way, either Treasury not otherwise appropriated, the States Global Leadership Against HIV/AIDS, directly or indirectly, existing or future Secretary of the Treasury shall transfer to Tuberculosis, and Malaria Reauthorization water rights (including the exercise of any the Secretary $10,000,000, adjusted to reflect Act of 2008 (25 U.S.C. 443c(a)). such rights) outside of the State of Montana. changes in appropriate cost indices during TITLE V—TAOS PUEBLO INDIAN WATER the period beginning on the date of enact- (g) EFFECT ON RECLAMATION LAW.—The ac- RIGHTS ment of this Act and ending on the date of tivities carried out by the Bureau of Rec- SEC. 501. SHORT TITLE. lamation under this title shall not establish the transfer, for CIP OM&R. (g) USE.—In addition to the uses authorized This title may be cited as the ‘‘Taos Pueb- a precedent or impact the authority provided under subsections (a) and (b), such amounts lo Indian Water Rights Settlement Act’’. under any other provision of Federal rec- as may be necessary of the amounts made SEC. 502. PURPOSES. lamation law, including— available under those subsections may be The purposes of this title are— (1) the Rural Supply Act of 2006 (Public used to carry out related activities necessary (1) to approve, ratify, and confirm the Taos Law 109–451; 120 Stat. 3345); and to comply with Federal environmental and Pueblo Indian Water Rights Settlement (2) the Omnibus Public Land Management cultural resource laws. Agreement; Act of 2009 (Public Law 111–11; 123 Stat. 991). (h) ACCOUNT TRANSFERS.— (2) to authorize and direct the Secretary to SEC. 414. FUNDING. (1) IN GENERAL.—The Secretary may trans- execute the Settlement Agreement and to (a) REHABILITATION AND IMPROVEMENT OF fer from the amounts made available under perform all obligations of the Secretary CROW IRRIGATION PROJECT.— subsection (a) such amounts as the Sec- under the Settlement Agreement and this (1) MANDATORY APPROPRIATION.—Out of any retary, with the concurrence of the Tribe, title; and funds in the Treasury not otherwise appro- determines to be necessary to supplement (3) to authorize all actions and appropria- priated, the Secretary of the Treasury shall the amounts made available under sub- tions necessary for the United States to transfer to the Secretary $73,843,000, adjusted section (b), on a determination of the Sec- meet its obligations under the Settlement to reflect changes since May 1, 2008, in con- retary, in consultation with the Tribe, that Agreement and this title. struction cost indices applicable to the types such a transfer is in the best interest of the SEC. 503. DEFINITIONS. of construction involved in the rehabilita- Tribe. In this title: tion and improvement of the Crow Irrigation (2) OTHER APPROVED TRANSFERS.—The Sec- (1) ELIGIBLE NON-PUEBLO ENTITIES.—The Project, for the rehabilitation and improve- retary may transfer from the amounts made term ‘‘Eligible Non-Pueblo Entities’’ means ment of the Crow Irrigation Project. available under subsection (b) such amounts the Town of Taos, the El Prado Water and (2) AUTHORIZATION OF APPROPRIATIONS.—In as the Secretary, with the concurrence of the Sanitation District, and the New Mexico De- addition to the amount made available under Tribe, determines to be necessary to supple- partment of Finance and Administration paragraph (1), there is authorized to be ap- ment the amounts made available under sub- Local Government Division on behalf of the propriated to the Secretary for the rehabili- section (a), on a determination of the Sec- Acequia Madre del Rio Lucero y del Arroyo tation and improvement of the Crow Irriga- retary, in consultation with the Tribe, that Seco, the Acequia Madre del Prado, the tion Project $58,000,000, adjusted to reflect such a transfer is in the best interest of the Acequia del Monte, the Acequia Madre del changes since May 1, 2008, in construction Tribe. Rio Chiquito, the Upper Ranchitos Mutual cost indices applicable to the types of con- (i) RECEIPT AND ACCEPTANCE.—The Sec- Domestic Water Consumers Association, the struction involved in the rehabilitation and retary shall be entitled to receive, shall ac- Upper Arroyo Hondo Mutual Domestic Water improvement of the Crow Irrigation Project. cept, and shall use to carry out this section Consumers Association, and the Llano (b) DESIGN AND CONSTRUCTION OF MR&I the funds transferred under subsections (a) Quemado Mutual Domestic Water Consumers SYSTEM.— through (f), without further appropriation. Association. (1) MANDATORY APPROPRIATION.—Out of any SEC. 415. REPEAL ON FAILURE TO MEET EN- (2) ENFORCEMENT DATE.—The term ‘‘En- funds in the Treasury not otherwise appro- FORCEABILITY DATE. forcement Date’’ means the date upon which priated, the Secretary of the Treasury shall If the Secretary does not publish a state- the Secretary publishes the notice required transfer to the Secretary $146,000,000, ad- ment of findings under section 410(e) not by section 509(f)(1).

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(3) MUTUAL-BENEFIT PROJECTS.—The term (3) restoring, preserving and protecting the ized sources for the Pueblo’s acquisition of ‘‘Mutual-Benefit Projects’’ means the Buffalo Pasture, including planning, permit- water rights pursuant to Article 5.1.1.2.3 of projects described and identified in articles 6 ting, designing, engineering, constructing, the Settlement Agreement, the Buffalo Pas- and 10.1 of the Settlement Agreement. operating, managing and replacing the Buf- ture Recharge Project, implementation of (4) PARTIAL FINAL DECREE.—The term ‘‘Par- falo Pasture Recharge Project; the Pueblo’s water rights acquisition pro- tial Final Decree’’ means the Decree entered (4) administering the Pueblo’s water rights gram and water management and adminis- in New Mexico v. Abeyta and New Mexico v. acquisition program and water management tration system, the design, planning, engi- Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and administration system; and neering, permitting or construction of water and 7939–BB (U.S. D.N.M.) (consolidated), for (5) watershed protection and enhancement, or wastewater infrastructure eligible for the resolution of the Pueblo’s water right support of agriculture, water-related Pueblo funding under subsection (a), or costs related claims and which is substantially in the community welfare and economic develop- to the negotiation, authorization, and imple- form agreed to by the Parties and attached ment, and costs related to the negotiation, mentation of the Settlement Agreement, to the Settlement Agreement as Attachment authorization, and implementation of the provided that such funds may be expended 5. Settlement Agreement. prior to the Enforcement Date only for ac- (5) PARTIES.—The term ‘‘Parties’’ means (b) MANAGEMENT OF FUND.—The Secretary tivities which are determined by the Sec- the Parties to the Settlement Agreement, as shall manage the Fund, invest amounts in retary to be more cost effective when imple- identified in article 1 of the Settlement the Fund, and make monies available from mented as early as possible; and Agreement. the Fund for distribution to the Pueblo con- (2) shall be distributed by the Secretary to (6) PUEBLO.—The term ‘‘Pueblo’’ means the sistent with the American Indian Trust Fund the Pueblo on receipt by the Secretary from Taos Pueblo, a sovereign Indian tribe duly Management Reform Act of 1994 (25 U.S.C. the Pueblo of a written notice and a Tribal recognized by the United States of America. 4001 et seq.) (hereinafter, ‘‘Trust Fund Re- Council resolution that describes the pur- form Act’’), this title, and the Settlement (7) PUEBLO LANDS.—The term ‘‘Pueblo poses under paragraph (1) for which the mon- Agreement. lands’’ means those lands located within the ies will be used after a cost-effectiveness de- Taos Valley to which the Pueblo, or the (c) INVESTMENT OF FUND.—Upon the En- forcement Date, the Secretary shall invest termination by the Secretary has been made United States in its capacity as trustee for as described in paragraph (1). The Secretary the Pueblo, holds title subject to Federal law amounts in the Fund in accordance with— (1) the Act of April 1, 1880 (21 Stat. 70, ch. shall make the determination described in limitations on alienation. Such lands include paragraph (1) within a reasonable period of Tracts A, B, and C, the Pueblo’s land grant, 41, 25 U.S.C. 161); (2) the first section of the Act of June 24, time after receipt of the notice and resolu- the Blue Lake Wilderness Area, and the tion. Tenorio and Karavas Tracts and are gen- 1938 (52 Stat. 1037, ch. 648, 25 U.S.C. 162a); and (3) the American Indian Trust Fund Man- (g) NO PER CAPITA DISTRIBUTIONS.—No por- erally depicted in Attachment 2 to the Set- tion of the Fund shall be distributed on a per tlement Agreement. agement Reform Act of 1994 (25 U.S.C. 4001 et seq.). capita basis to members of the Pueblo. (8) SAN JUAN-CHAMA PROJECT.—The term (d) AVAILABILITY OF AMOUNTS FROM SEC. 506. MARKETING. ‘‘San Juan-Chama Project’’ means the FUND.—Upon the Enforcement Date, all mon- (a) PUEBLO WATER RIGHTS.—Subject to the Project authorized by section 8 of the Act of ies deposited in the Fund pursuant to section approval of the Secretary in accordance with June 13, 1962 (76 Stat. 96 and 97), and the Act 509(c)(1) or made available from other au- subsection (e), the Pueblo may market water of April 11, 1956 (70 Stat. 105). thorized sources shall be available to the rights secured to it under the Settlement (9) SECRETARY.—The term ‘‘Secretary’’ Pueblo for expenditure or withdrawal after Agreement and Partial Final Decree, pro- means the Secretary of the Interior. the requirements of subsection (e) have been vided that such marketing is in accordance (10) SETTLEMENT AGREEMENT.—The term met. with this section. ‘‘Settlement Agreement’’ means the con- (e) EXPENDITURES AND WITHDRAWAL.— (b) PUEBLO CONTRACT RIGHTS TO SAN JUAN- tract dated March 31, 2006, between and (1) TRIBAL MANAGEMENT PLAN.— CHAMA PROJECT WATER.—Subject to the ap- among— (A) IN GENERAL.—The Pueblo may with- proval of the Secretary in accordance with (A) the United States, acting solely in its draw all or part of the Fund on approval by subsection (e), the Pueblo may subcontract capacity as trustee for Taos Pueblo; the Secretary of a tribal management plan water made available to the Pueblo under (B) the Taos Pueblo, on its own behalf; as described in the Trust Fund Reform Act. the contract authorized under section (C) the State of New Mexico; (B) REQUIREMENTS.—In addition to the re- 508(b)(1)(A) to third parties to supply water (D) the Taos Valley Acequia Association quirements under the Trust Fund Reform for use within or without the Taos Valley, and its 55 member ditches; Act, the tribal management plan shall re- provided that the delivery obligations under (E) the Town of Taos; quire that the Pueblo spend any funds in ac- such subcontract are not inconsistent with (F) the El Prado Water and Sanitation Dis- cordance with the purposes described in sub- the Secretary’s existing San Juan-Chama trict; and section (a). Project obligations and such subcontract is (G) the 12 Taos area Mutual Domestic (2) ENFORCEMENT.—The Secretary may in accordance with this section. Water Consumers Associations, as amended take judicial or administrative action to en- (c) LIMITATION.— to conform with this title. force the requirement that monies with- (1) IN GENERAL.—Diversion or use of water (11) STATE ENGINEER.—The term ‘‘State En- drawn from the Fund are used for the pur- off Pueblo lands pursuant to Pueblo water gineer’’ means the New Mexico State Engi- poses specified in subsection (a). rights or Pueblo contract rights to San neer. (3) LIABILITY.—If the Pueblo exercises the Juan-Chama Project water shall be subject (12) TAOS VALLEY.—The term ‘‘Taos Val- right to withdraw monies from the Fund, to and not inconsistent with the same re- ley’’ means the geographic area depicted in neither the Secretary nor the Secretary of quirements and conditions of State law, any Attachment 4 of the Settlement Agreement. the Treasury shall retain any liability for the expenditure or investment of the monies applicable Federal law, and any applicable SEC. 504. PUEBLO RIGHTS. interstate compact as apply to the exercise (a) IN GENERAL.—Those rights to which the withdrawn. of water rights or contract rights to San Pueblo is entitled under the Partial Final (4) EXPENDITURE PLAN.— Juan-Chama Project water held by non-Fed- Decree shall be held in trust by the United (A) IN GENERAL.—The Pueblo shall submit eral, non-Indian entities, including all appli- States on behalf of the Pueblo and shall not to the Secretary for approval an expenditure be subject to forfeiture, abandonment, or plan for any portions of the funds made cable State Engineer permitting and report- permanent alienation. available under this title that the Pueblo ing requirements. (b) SUBSEQUENT ACT OF CONGRESS.—The does not withdraw under paragraph (1)(A). (2) EFFECT ON WATER RIGHTS.—Such diver- Pueblo shall not be denied all or any part of (B) DESCRIPTION.—The expenditure plan sion or use off Pueblo lands under paragraph its rights held in trust absent its consent un- shall describe the manner in which, and the (1) shall not impair water rights or increase less such rights are explicitly abrogated by purposes for which, amounts remaining in surface water depletions within the Taos an Act of Congress hereafter enacted. the Fund will be used. Valley. SEC. 505. TAOS PUEBLO WATER DEVELOPMENT (C) APPROVAL.—On receipt of an expendi- (d) MAXIMUM TERM.— FUND. ture plan under subparagraph (A), the Sec- (1) IN GENERAL.—The maximum term of (a) ESTABLISHMENT.—There is established retary shall approve the plan if the Sec- any water use lease or subcontract, includ- in the Treasury of the United States a fund retary determines that the plan is reason- ing all renewals, shall not exceed 99 years in to be known as the ‘‘Taos Pueblo Water De- able and consistent with this title. duration. velopment Fund’’ (referred to in this section (5) ANNUAL REPORT.—The Pueblo shall sub- (2) ALIENATION OF RIGHTS.—The Pueblo as the ‘‘Fund’’) to be used to pay or reim- mit to the Secretary an annual report that shall not permanently alienate any rights it burse costs incurred by the Pueblo for— describes all expenditures from the Fund has under the Settlement Agreement, the (1) acquiring water rights; during the year covered by the report. Partial Final Decree, and this title. (2) planning, permitting, designing, engi- (f) AMOUNTS AVAILABLE ON APPROPRIA- (e) APPROVAL OF SECRETARY.—The Sec- neering, constructing, reconstructing, re- TION.—Notwithstanding subsection (d), retary shall approve or disapprove any lease placing, rehabilitating, operating, or repair- $15,000,000 of the monies deposited in the or subcontract submitted by the Pueblo for ing water production, treatment or delivery Fund— approval within a reasonable period of time infrastructure, on-farm improvements, or (1) shall be available upon appropriation or after submission, provided that no Secre- wastewater infrastructure; availability of the funds from other author- tarial approval shall be required for any

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00081 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8192 CONGRESSIONAL RECORD — SENATE November 19, 2010 water use lease for less than 10 acre-feet per able period after the date of enactment of adjusted by such amounts as may be re- year with a term of less than 7 years, includ- this Act, for the delivery of San Juan-Chama quired due to increases since April 1, 2007, in ing all renewals. Project water in the following amounts: construction costs, as indicated by engineer- (f) NO FORFEITURE OR ABANDONMENT.—The (A) 2,215 acre-feet/annum to the Pueblo. ing cost indices applicable to the types of nonuse by a lessee or subcontractor of the (B) 366 acre-feet/annum to the Town of construction or rehabilitation involved, for Pueblo of any right to which the Pueblo is Taos. the period of fiscal years 2011 through 2016. entitled under the Partial Final Decree shall (C) 40 acre-feet/annum to the El Prado (2) MUTUAL-BENEFIT PROJECTS FUNDING.— in no event result in a forfeiture, abandon- Water and Sanitation District. (A) FUNDING.— ment, relinquishment, or other loss of all or (2) REQUIREMENTS.—Each such contract (i) MANDATORY APPROPRIATION.—Out of any any part of those rights. shall provide that if the conditions precedent funds in the Treasury not otherwise appro- (g) NO PREEMPTION.— set forth in section 509(f)(2) have not been priated, the Secretary of the Treasury shall (1) IN GENERAL.—The approval authority of fulfilled by March 31, 2017, the contract shall transfer to the Secretary to provide grants the Secretary provided under subsection (e) expire on that date. pursuant to section 507 $16,000,000 for the pe- shall not amend, construe, supersede, or pre- (3) APPLICABLE LAW.—Public Law 87–483 (76 riod of fiscal years 2011 through 2016. empt any State or Federal law, interstate Stat. 97) applies to the contracts entered (ii) AUTHORIZATION OF APPROPRIATIONS.—In compact, or international treaty that per- into under paragraph (1) and no preference addition to the amount made available under tains to the Colorado River, the Rio Grande, shall be applied as a result of section 504(a) clause (i), there is authorized to be appro- or any of their tributaries, including the ap- with regard to the delivery or distribution of priated to the Secretary to provide grants propriation, use, development, storage, regu- San Juan-Chama Project water or the man- pursuant to section 507 $20,000,000 for the pe- lation, allocation, conservation, exportation, agement or operation of the San Juan- riod of fiscal years 2011 through 2016. or quantity of those waters. Chama Project. (B) DEPOSIT IN FUND.—The Secretary shall (2) APPLICABLE LAW.—The provisions of (c) WAIVER.—With respect to the contract deposit the funds made available pursuant to section 2116 of the Revised Statutes (25 authorized and required by subsection subparagraph (A) into a noninterest-bearing U.S.C. 177) shall not apply to any water made (b)(1)(A) and notwithstanding the provisions fund, to be known as the ‘‘Taos Settlement available under the Settlement Agreement. of Public Law 87–483 (76 Stat. 96) or any other Fund’’, to be established in the Treasury of (h) NO PREJUDICE.—Nothing in this title provision of law— the United States so that such funds may be shall be construed to establish, address, prej- (1) the Secretary shall waive the entirety made available on the Enforcement Date as udice, or prevent any party from litigating of the Pueblo’s share of the construction set forth in section 507(a). whether or to what extent any applicable costs, both principal and the interest, for the (3) RECEIPT AND ACCEPTANCE.—The Sec- State law, Federal law, or interstate com- San Juan-Chama Project and pursuant to retary shall be entitled to receive, shall ac- pact does or does not permit, govern, or that waiver, the Pueblo’s share of all con- cept, and shall use to carry out this title the apply to the use of the Pueblo’s water out- struction costs for the San Juan-Chama funds transferred under paragraphs (1)(A) side of New Mexico. Project, inclusive of both principal and in- and (2)(A)(i), without further appropriation, to remain available until expended. SEC. 507. MUTUAL-BENEFIT PROJECTS. terest shall be nonreimbursable; and (2) the Secretary’s waiver of the Pueblo’s (d) AUTHORITY OF SECRETARY.—The Sec- (a) IN GENERAL.—Upon the Enforcement share of the construction costs for the San retary is authorized to enter into such agree- Date, the Secretary, acting through the ments and to take such measures as the Sec- Commissioner of Reclamation, shall provide Juan-Chama Project will not result in an in- crease in the pro rata shares of other San retary may deem necessary or appropriate to financial assistance in the form of grants on fulfill the intent of the Settlement Agree- a nonreimbursable basis to Eligible Non- Juan-Chama Project water contractors, but such costs shall be absorbed by the United ment and this title. Pueblo Entities to plan, permit, design, engi- (e) ENVIRONMENTAL COMPLIANCE.— neer, and construct the Mutual-Benefit States Treasury or otherwise appropriated to the Department of the Interior. (1) EFFECT OF EXECUTION OF SETTLEMENT Projects in accordance with the Settlement AGREEMENT.—The Secretary’s execution of SEC. 509. AUTHORIZATIONS, RATIFICATIONS, Agreement— the Settlement Agreement shall not con- (1) to minimize adverse impacts on the CONFIRMATIONS, AND CONDITIONS PRECEDENT. stitute a major Federal action under the Na- Pueblo’s water resources by moving future (a) RATIFICATION.— tional Environmental Policy Act of 1969 (42 non-Indian ground water pumping away from (1) IN GENERAL.—Except to the extent that U.S.C. 4321 et seq.). the Pueblo’s Buffalo Pasture; and any provision of the Settlement Agreement (2) COMPLIANCE WITH ENVIRONMENTAL (2) to implement the resolution of a dis- conflicts with any provision of this title, the LAWS.—In carrying out this title, the Sec- pute over the allocation of certain surface Settlement Agreement is authorized, rati- retary shall comply with each law of the water flows between the Pueblo and non-In- fied, and confirmed. Federal Government relating to the protec- dian irrigation water right owners in the (2) AMENDMENTS.—To the extent amend- tion of the environment, including— community of Arroyo Seco Arriba. ments are executed to make the Settlement (A) the National Environmental Policy Act OST-SHARING.— (b) C Agreement consistent with this title, such of 1969 (42 U.S.C. 4321 et seq.); and (1) FEDERAL SHARE.—The Federal share of amendments are also authorized, ratified, (B) the Endangered Species Act of 1973 (16 the total cost of planning, designing, and and confirmed. U.S.C. 1531 et seq.). constructing the Mutual-Benefit Projects (b) EXECUTION OF SETTLEMENT AGREE- (f) CONDITIONS PRECEDENT AND SECRE- authorized in subsection (a) shall be 75 per- MENT.—To the extent that the Settlement TARIAL FINDING.— cent and shall be nonreimbursable. Agreement does not conflict with this title, (1) IN GENERAL.—Upon the fulfillment of (2) NON-FEDERAL SHARE.—The non-Federal the Secretary shall execute the Settlement the conditions precedent described in para- share of the total cost of planning, design- Agreement, including all exhibits to the Set- graph (2), the Secretary shall publish in the ing, and constructing the Mutual-Benefit tlement Agreement requiring the signature Federal Register a statement of finding that Projects shall be 25 percent and may be in of the Secretary and any amendments nec- the conditions have been fulfilled. the form of in-kind contributions, including essary to make the Settlement Agreement (2) CONDITIONS.—The conditions precedent the contribution of any valuable asset or consistent with this title, after the Pueblo referred to in paragraph (1) are the following: service that the Secretary determines would has executed the Settlement Agreement and (A) The President has signed into law the substantially contribute to completing the any such amendments. Taos Pueblo Indian Water Rights Settlement Mutual-Benefit Projects. (c) FUNDING.— Act. (3) ADDITIONAL STATE CONTRIBUTION.—As a (1) TAOS PUEBLO WATER DEVELOPMENT (B) To the extent that the Settlement condition of expenditure by the Secretary of FUND.— Agreement conflicts with this title, the Set- the funds made available under section (A) MANDATORY APPROPRIATION.—Out of tlement Agreement has been revised to con- 509(c)(2), the State shall— any funds in the Treasury not otherwise ap- form with this title. (A) appropriate and make available the propriated, the Secretary of the Treasury (C) The Settlement Agreement, so revised, non-Federal share described in paragraph (2); shall transfer to the Secretary for deposit in including waivers and releases pursuant to and the Taos Pueblo Water Development Fund section 510, has been executed by the Parties (B) agree to provide additional funding as- established by section 505(a), for the period and the Secretary prior to the Parties’ mo- sociated with the Mutual-Benefit Projects as of fiscal years 2011 through 2016, $50,000,000, tion for entry of the Partial Final Decree. described in paragraph 10 of the Settlement as adjusted by such amounts as may be re- (D) Congress has fully appropriated or the Agreement. quired due to increases since April 1, 2007, in Secretary has provided from other author- SEC. 508. SAN JUAN-CHAMA PROJECT CON- construction costs, as indicated by engineer- ized sources all funds made available under TRACTS. ing cost indices applicable to the types of paragraphs (1) and (2) of subsection (c). (a) IN GENERAL.—Contracts issued under construction or rehabilitation involved. (E) The Legislature of the State of New this section shall be in accordance with this (B) AUTHORIZATION OF APPROPRIATIONS.—In Mexico has fully appropriated the funds for title and the Settlement Agreement. addition to the amount made available under the State contributions as specified in the (b) CONTRACTS FOR SAN JUAN-CHAMA subparagraph (A), there is authorized to be Settlement Agreement, and those funds have PROJECT WATER.— appropriated to the Secretary for deposit in been deposited in appropriate accounts. (1) IN GENERAL.—The Secretary shall enter the Taos Pueblo Water Development Fund (F) The State of New Mexico has enacted into 3 repayment contracts within a reason- established by section 505(a) $38,000,000, as legislation that amends NMSA 1978, section

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00082 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8193 72–6–3 to state that a water use due under a and the United States acting in its capacity water replacement appropriated by said Acts water right secured to the Pueblo under the as trustee for the Pueblo are authorized to that first accrued before the date of enact- Settlement Agreement or the Partial Final execute a waiver and release of claims ment of this Act; Decree may be leased for a term, including against the parties to New Mexico v. Abeyta (4) all claims against the United States, its all renewals, not to exceed 99 years, provided and New Mexico v. Arellano, Civil Nos. 7896– agencies, or employees relating to the pend- that this condition shall not be construed to BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) ing litigation of claims relating to the Pueb- require that said amendment state that any (consolidated) from— lo’s water rights in New Mexico v. Abeyta State law based water rights acquired by the (1) all claims for water rights in the Taos and New Mexico v. Arellano, Civil Nos. 7896– Pueblo or by the United States on behalf of Valley that the Pueblo, or the United States BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) the Pueblo may be leased for said term. acting in its capacity as trustee for the (consolidated); and (G) A Partial Final Decree that sets forth Pueblo, asserted, or could have asserted, in (5) all claims against the United States, its the water rights and contract rights to water any proceeding, including but not limited to agencies, or employees relating to the nego- to which the Pueblo is entitled under the in New Mexico v. Abeyta and New Mexico v. tiation, Execution or the adoption of the Settlement Agreement and this title and Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) Settlement Agreement, exhibits thereto, the that substantially conforms to the Settle- and 7939–BB (U.S. D.N.M.) (consolidated), up Final Decree, or this title. ment Agreement and Attachment 5 thereto to and including the Enforcement Date, ex- (c) RESERVATION OF RIGHTS AND RETENTION has been approved by the Court and has be- cept to the extent that such rights are recog- OF CLAIMS.—Notwithstanding the waivers come final and nonappealable. nized in the Settlement Agreement or this and releases authorized in this title, the (g) ENFORCEMENT DATE.—The Settlement title; Pueblo on behalf of itself and its members Agreement shall become enforceable, and the (2) all claims for water rights, whether for and the United States acting in its capacity waivers and releases executed pursuant to consumptive or nonconsumptive use, in the as trustee for the Pueblo retain— section 510 and the limited waiver of sov- Rio Grande mainstream or its tributaries (1) all claims for enforcement of the Settle- ereign immunity set forth in section 511(a) that the Pueblo, or the United States acting ment Agreement, the Final Decree, includ- shall become effective, as of the date that in its capacity as trustee for the Pueblo, as- ing the Partial Final Decree, the San Juan- Chama Project contract between the Pueblo the Secretary publishes the notice required serted or could assert in any water rights ad- and the United States, or this title; by subsection (f)(1). judication proceedings except those claims based on Pueblo or United States ownership (2) all claims against persons other than (h) EXPIRATION DATE.— of lands or water rights acquired after the the Parties to the Settlement Agreement for (1) IN GENERAL.—If all of the conditions damages, losses or injuries to water rights or precedent described in section (f)(2) have not Enforcement Date, provided that nothing in claims of interference with, diversion or tak- been fulfilled by March 31, 2017, the Settle- this paragraph shall prevent the Pueblo or the United States from fully participating in ing of water rights (including but not limited ment Agreement shall be null and void, the the inter se phase of any such water rights to claims for injury to lands resulting from waivers and releases executed pursuant to adjudication proceedings; such damages, losses, injuries, interference section 510 and the sovereign immunity (3) all claims for damages, losses or inju- with, diversion, or taking of water rights) waivers in section 511(a) shall not become ef- ries to water rights or claims of interference within the Taos Valley arising out of activi- fective, and any unexpended Federal funds, with, diversion or taking of water (including ties occurring outside the Taos Valley or the together with any income earned thereon, but not limited to claims for injury to lands Taos Valley Stream System; and title to any property acquired or con- resulting from such damages, losses, inju- (3) all rights to use and protect water structed with expended Federal funds, shall ries, interference with, diversion, or taking) rights acquired after the date of enactment be returned to the Federal Government, un- in the Rio Grande mainstream or its tribu- of this Act; less otherwise agreed to by the Parties in taries or for lands within the Taos Valley (4) all rights to use and protect water writing and approved by Congress. that accrued at any time up to and including rights acquired pursuant to State law, to the (2) EXCEPTION.—Notwithstanding sub- the Enforcement Date; and extent not inconsistent with the Partial section (h)(1) or any other provision of law, (4) all claims against the State of New Final Decree and the Settlement Agreement except as provided in subsection (i), title to Mexico, its agencies, or employees relating (including water rights for the land the any property acquired or constructed with to the negotiation or the adoption of the Pueblo owns in Questa, New Mexico); expended Federal funds made available under Settlement Agreement. (5) all claims relating to activities affect- section 505(f) shall be retained by the Pueblo. (b) CLAIMS BY THE PUEBLO AGAINST THE ing the quality of water including but not (i) RIGHT TO SET-OFF.—If the conditions UNITED STATES.—The Pueblo, on behalf of limited to any claims the Pueblo might have precedent described in subsection (f)(2) have itself and its members, is authorized to exe- under the Comprehensive Environmental Re- not been fulfilled by March 31, 2017, and the cute a waiver and release of— sponse, Compensation, and Liability Act of Settlement Agreement is null and void under (1) all claims against the United States, its 1980 (42 U.S.C. 9601 et seq.) (including but not subsection (h)(1)— agencies, or employees relating to claims for limited to claims for damages to natural re- (1) the United States shall be entitled to water rights in or water of the Taos Valley sources), the Safe Drinking Water Act (42 set off any Federal funds made available that the United States acting in its capacity U.S.C. 300f et seq.), the Federal Water Pollu- under section 505(f) that were used for pur- as trustee for the Pueblo asserted, or could tion Control Act (33 U.S.C. 1251 et seq.), and poses other than the purchase of water rights have asserted, in any proceeding, including the regulations implementing those Acts; against any claim of the Pueblo against the but not limited to in New Mexico v. Abeyta (6) all claims relating to damages, losses, United States described in section 510(b) (but and New Mexico v. Arellano, Civil Nos. 7896– or injuries to land or natural resources not excluding any claim retained under section BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) due to loss of water or water rights (includ- 510(c)); and (consolidated); ing but not limited to hunting, fishing, gath- (2) the Pueblo shall have the option ei- (2) all claims against the United States, its ering, or cultural rights); and ther— agencies, or employees relating to damages, (7) all rights, remedies, privileges, immuni- (A) to accept an equitable credit for any losses, or injuries to water, water rights, ties, powers, and claims not specifically water rights acquired with funds made avail- land, or natural resources due to loss of waived and released pursuant to this title able under section 505(f) against any water water or water rights (including but not lim- and the Settlement Agreement. rights secured for the Pueblo by the Pueblo, ited to damages, losses or injuries to hunt- (d) EFFECT.—Nothing in the Settlement or by the United States on behalf of the ing, fishing, gathering, or cultural rights due Agreement or this title— Pueblo, in any litigation or future settle- to loss of water or water rights, claims relat- (1) affects the ability of the United States ment of the case styled New Mexico v. ing to interference with, diversion or taking acting in its sovereign capacity to take ac- Abeyta and New Mexico v. Arellano, Civil of water or water rights, or claims relating tions authorized by law, including but not Nos. 7896–BB (U.S.6 D.N.M.) and 7939–BB to failure to protect, acquire, replace, or de- limited to any laws relating to health, safe- (U.S. D.N.M.) (consolidated); or velop water, water rights or water infra- ty, or the environment, including but not (B) to convey to the United States any structure) in the Rio Grande mainstream or limited to the Federal Water Pollution Con- water rights acquired with funds made avail- its tributaries or within the Taos Valley trol Act (33 U.S.C. 1251 et seq.), the Safe able under section 505(f). that first accrued at any time up to and in- Drinking Water Act (42 U.S.C. 300f et seq.), (j) EXTENSION.—The dates in subsections cluding the Enforcement Date; the Comprehensive Environmental Response, (h) and (i) and section 510(e) may be extended (3) all claims against the United States, its Compensation, and Liability Act of 1980 (42 if the Parties agree that an extension is rea- agencies, or employees for an accounting of U.S.C. 9601 et seq.), the Solid Waste Disposal sonably necessary. funds appropriated by the Act of March 4, Act (42 U.S.C. 6901 et seq.), and the regula- SEC. 510. WAIVERS AND RELEASES OF CLAIMS. 1929 (45 Stat. 1562), the Act of March 4, 1931 tions implementing such Acts; (a) CLAIMS BY THE PUEBLO AND THE UNITED (46 Stat. 1552), the Act of June 22, 1936 (49 (2) affects the ability of the United States STATES.—In return for recognition of the Stat. 1757), the Act of August 9, 1937 (50 Stat. to take actions acting in its capacity as Pueblo’s water rights and other benefits, in- 564), and the Act of May 9, 1938 (52 Stat. 291), trustee for any other Indian tribe or allottee; cluding but not limited to the commitments as authorized by the Pueblo Lands Act of (3) confers jurisdiction on any State court by non-Pueblo parties, as set forth in the June 7, 1924 (43 Stat. 636), and the Pueblo to— Settlement Agreement and this title, the Lands Act of May 31, 1933 (48 Stat. 108), and (A) interpret Federal law regarding health, Pueblo, on behalf of itself and its members, for breach of trust relating to funds for safety, or the environment or determine the

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00083 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8194 CONGRESSIONAL RECORD — SENATE November 19, 2010 duties of the United States or other parties SEC. 602. DEFINITIONS. rainfall and runoff flow into arroyos, drain- pursuant to such Federal law; or In this title: ages, and named tributaries that eventually (B) conduct judicial review of Federal (1) AAMODT CASE.—The term ‘‘Aamodt drain to— agency action; or Case’’ means the civil action entitled State (i) the Rio Pojoaque; or (4) waives any claim of a member of the of New Mexico, ex rel. State Engineer and (ii) the 2 unnamed arroyos immediately Pueblo in an individual capacity that does United States of America, Pueblo de Nambe, south; and not derive from a right of the Pueblo. Pueblo de Pojoaque, Pueblo de San Ildefonso, (iii) 2 arroyos (including the Arroyo (e) TOLLING OF CLAIMS.— and Pueblo de Tesuque v. R. Lee Aamodt, et Alamo) that are north of the confluence of (1) IN GENERAL.—Each applicable period of al., No. 66 CV 6639 MV/LCS (D.N.M.). the Rio Pojoaque and the Rio Grande. limitation and time-based equitable defense (2) ACRE-FEET.—The term ‘‘acre-feet’’ (B) INCLUSION.—The term ‘‘Pojoaque relating to a claim described in this section means acre-feet of water per year. Basin’’ includes the San Ildefonso Eastern shall be tolled for the period beginning on (3) AUTHORITY.—The term ‘‘Authority’’ Reservation recognized by section 8 of Public the date of enactment of this Act and ending means the Pojoaque Basin Regional Water Law 87–231 (75 Stat. 505). on the earlier of— Authority described in section 9.5 of the Set- (14) PUEBLO.—The term ‘‘Pueblo’’ means (A) March 31, 2017; or tlement Agreement or an alternate entity each of the pueblos of Nambe, Pojoaque, San (B) the Enforcement Date. acceptable to the Pueblos and the County to Ildefonso, or Tesuque. (2) EFFECT OF SUBSECTION.—Nothing in this operate and maintain the diversion and (15) PUEBLOS.—The term ‘‘Pueblos’’ means subsection revives any claim or tolls any pe- treatment facilities, certain transmission collectively the Pueblos of Nambe, Pojoaque, riod of limitation or time-based equitable de- pipelines, and other facilities of the Regional San Ildefonso, and Tesuque. fense that expired before the date of enact- Water System. (16) PUEBLO LAND.—The term ‘‘Pueblo ment of this Act. (4) CITY.—The term ‘‘City’’ means the city land’’ means any real property that is— (3) LIMITATION.—Nothing in this subsection of Santa Fe, New Mexico. (A) held by the United States in trust for precludes the tolling of any period of limita- (5) COST-SHARING AND SYSTEM INTEGRATION a Pueblo within the Pojoaque Basin; tions or any time-based equitable defense AGREEMENT.—The term ‘‘Cost-Sharing and (B)(i) owned by a Pueblo within the under any other applicable law. System Integration Agreement’’ means the Pojoaque Basin before the date on which a agreement, dated August 27, 2009, to be exe- court approves the Settlement Agreement; SEC. 511. INTERPRETATION AND ENFORCEMENT. cuted by the United States, the State, the or (a) LIMITED WAIVER OF SOVEREIGN IMMU- Pueblos, the County, and the City that— (ii) acquired by a Pueblo on or after the NITY.—Upon and after the Enforcement Date, (A) describes the location, capacity, and date on which a court approves the Settle- if any Party to the Settlement Agreement management (including the distribution of ment Agreement, if the real property is lo- brings an action in any court of competent water to customers) of the Regional Water cated— jurisdiction over the subject matter relating System; and (I) within the exterior boundaries of the only and directly to the interpretation or en- (B) allocates the costs of the Regional Pueblo, as recognized and conformed by a forcement of the Settlement Agreement or Water System with respect to— patent issued under the Act of December 22, this title, and names the United States or (i) the construction, operation, mainte- 1858 (11 Stat. 374, chapter V); or the Pueblo as a party, then the United nance, and repair of the Regional Water Sys- (II) within the exterior boundaries of any States, the Pueblo, or both may be added as tem; territory set aside for the Pueblo by law, ex- a party to any such action, and any claim by (ii) rights-of-way for the Regional Water ecutive order, or court decree; the United States or the Pueblo to sovereign System; and (C) owned by a Pueblo or held by the immunity from the action is waived, but (iii) the acquisition of water rights. United States in trust for the benefit of a only for the limited and sole purpose of such (6) COUNTY.—The term ‘‘County’’ means Pueblo outside the Pojoaque Basin that is lo- interpretation or enforcement, and no waiver Santa Fe County, New Mexico. cated within the exterior boundaries of the of sovereign immunity is made for any ac- (7) COUNTY DISTRIBUTION SYSTEM.—The Pueblo as recognized and confirmed by a pat- tion against the United States or the Pueblo term ‘‘County Distribution System’’ means ent issued under the Act of December 22, 1858 that seeks money damages. the portion of the Regional Water System (11 Stat. 374, chapter V); or (b) SUBJECT MATTER JURISDICTION NOT AF- that serves water customers on non-Pueblo (D) within the exterior boundaries of any FECTED.—Nothing in this title shall be land in the Pojoaque Basin. real property located outside the Pojoaque deemed as conferring, restricting, enlarging, (8) COUNTY WATER UTILITY.—The term Basin set aside for a Pueblo by law, execu- or determining the subject matter jurisdic- ‘‘County Water Utility’’ means the water tive order, or court decree, if the land is tion of any court, including the jurisdiction utility organized by the County to— within or contiguous to land held by the of the court that enters the Partial Final De- (A) receive water distributed by the Au- United States in trust for the Pueblo as of cree adjudicating the Pueblo’s water rights. thority; and January 1, 2005. (c) REGULATORY AUTHORITY NOT AF- (B) provide the water received under sub- (17) PUEBLO WATER FACILITY.— FECTED.—Nothing in this title shall be paragraph (A) to customers on non-Pueblo (A) IN GENERAL.—The term ‘‘Pueblo Water deemed to determine or limit any authority land in the Pojoaque Basin. Facility’’ means— of the State or the Pueblo to regulate or ad- (9) ENGINEERING REPORT.—The term ‘‘Engi- (i) a portion of the Regional Water System minister waters or water rights now or in the neering Report’’ means the report entitled that serves only water customers on Pueblo future. ‘‘Pojoaque Regional Water System Engineer- land; and SEC. 512. DISCLAIMER. ing Report’’ dated September 2008 and any (ii) portions of a Pueblo water system in Nothing in the Settlement Agreement or amendments thereto, including any modi- existence on the date of enactment of this this title shall be construed in any way to fications which may be required by section Act that serve water customers on non-Pueb- quantify or otherwise adversely affect the 611(d)(2). lo land, also in existence on the date of en- land and water rights, claims, or entitle- (10) FUND.—The term ‘‘Fund’’ means the actment of this Act, or their successors, that ments to water of any other Indian tribe. Aamodt Settlement Pueblos’ Fund estab- are— SEC. 513. ANTIDEFICIENCY. lished by section 615(a). (I) depicted in the final project design, as The United States shall not be liable for (11) OPERATING AGREEMENT.—The term modified by the drawings reflecting the com- failure to carry out any obligation or activ- ‘‘Operating Agreement’’ means the agree- pleted Regional Water System; and ity authorized to be carried out under this ment between the Pueblos and the County (II) described in the Operating Agreement. title (including any such obligation or activ- executed under section 612(a). (B) INCLUSIONS.—The term ‘‘Pueblo Water ity under the Agreement) if adequate appro- (12) OPERATIONS, MAINTENANCE, AND RE- Facility’’ includes— priations are not provided expressly to carry PLACEMENT COSTS.— (i) the barrier dam and infiltration project out the purposes of this title by Congress or (A) IN GENERAL.—The term ‘‘operations, on the Rio Pojoaque described in the Engi- there are not enough monies available to maintenance, and replacement costs’’ means neering Report; and carry out the purposes of this title in the all costs for the operation of the Regional (ii) the Tesuque Pueblo infiltration pond Reclamation Water Settlements Fund estab- Water System that are necessary for the described in the Engineering Report. lished under section 10501 of Public Law 111– safe, efficient, and continued functioning of (18) REGIONAL WATER SYSTEM.— 11 or the ‘‘Emergency Fund for Indian Safety the Regional Water System to produce the (A) IN GENERAL.—The term ‘‘Regional and Health’’ established by section 601(a) of benefits described in the Settlement Agree- Water System’’ means the Regional Water the Tom Lantos and Henry J. Hyde United ment. System described in section 611(a). States Global Leadership Against HIV/AIDS, (B) EXCLUSION.—The term ‘‘operations, (B) EXCLUSIONS.—The term ‘‘Regional Tuberculosis, and Malaria Reauthorization maintenance, and replacement costs’’ does Water System’’ does not include the County Act of 2008 (25 U.S.C. 443c(a)). not include construction costs or costs re- or Pueblo water supply delivered through the lated to construction design and planning. Regional Water System. TITLE VI—AAMODT LITIGATION (13) POJOAQUE BASIN.— (19) SAN JUAN-CHAMA PROJECT.—The term SETTLEMENT (A) IN GENERAL.—The term ‘‘Pojoaque ‘‘San Juan-Chama Project’’ means the SEC. 601. SHORT TITLE. Basin’’ means the geographic area limited by Project authorized by section 8 of the Act of This title may be cited as the ‘‘Aamodt a surface water divide (which can be drawn June 13, 1962 (76 Stat. 96, 97), and the Act of Litigation Settlement Act’’. on a topographic map), within which area April 11, 1956 (70 Stat. 105).

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(20) SAN JUAN-CHAMA PROJECT ACT.—The and other signatories to the Cost-Sharing and (B), including any land or interest in term ‘‘San Juan-Chama Project Act’’ means and System Integration Agreement, may land acquired by the United States for the sections 8 through 18 of the Act of June 13, modify the extent, size, and capacity of the construction of the portions of the Regional 1962 (76 Stat. 96, 97). County Distribution System as set forth in Water System. (21) SECRETARY.—The term ‘‘Secretary’’ the Cost-Sharing and System Integration (2) CONDITIONS FOR CONVEYANCE.—The Sec- means the Secretary of the Interior. Agreement. retary shall not convey any portion of the (22) SETTLEMENT AGREEMENT.—The term (B) EFFECT.—A modification under sub- Regional Water System facilities under para- ‘‘Settlement Agreement’’ means the agree- paragraph (A)— graph (1) until the date on which— ment among the State, the Pueblos, the (i) shall not affect implementation of the (A) construction of the Regional Water United States, the County, and the City Settlement Agreement so long as the provi- System is substantially complete, as defined dated January 19, 2006, and signed by all of sions in section 623 are satisfied; and in section 623(e); and the government parties to the Settlement (ii) may result in an adjustment of the (B) the Operating Agreement is executed in Agreement (other than the United States) on State and County cost-share allocation as accordance with section 612. May 3, 2006, as amended in conformity with set forth in the Cost-Sharing and System In- (3) SUBSEQUENT CONVEYANCE.—On convey- this title. tegration Agreement. ance by the Secretary under paragraph (1), (23) STATE.—The term ‘‘State’’ means the (e) APPLICABLE LAW.—The Indian Self-De- the Pueblos, the County, and the Authority State of New Mexico. termination and Education Assistance Act shall not reconvey any portion of the Re- (25 U.S.C. 450 et seq.) shall not apply to the gional Water System conveyed to the Pueb- Subtitle A—Pojoaque Basin Regional Water design and construction of the Regional System los, the County, and the Authority, respec- Water System. tively, unless the reconveyance is authorized SEC. 611. AUTHORIZATION OF REGIONAL WATER (f) CONSTRUCTION COSTS.— by an Act of Congress enacted after the date SYSTEM. (1) PUEBLO WATER FACILITIES.— of enactment of this Act. (a) IN GENERAL.—The Secretary, acting (A) IN GENERAL.—Except as provided in (4) INTEREST OF THE UNITED STATES.—On through the Commissioner of Reclamation, subparagraph (B), the expenditures of the conveyance of a portion of the Regional shall plan, design, and construct a regional Secretary to construct the Pueblo Water Fa- Water System under paragraph (1), the water system in accordance with the Settle- cilities under this section shall not exceed United States shall have no further right, ment Agreement, to be known as the ‘‘Re- $106,400,000. title, or interest in and to the portion of the gional Water System’’— (B) EXCEPTION.—The amount described in Regional Water System conveyed. (1) to divert and distribute water to the subparagraph (A) shall be increased or de- (5) ADDITIONAL CONSTRUCTION.—On convey- Pueblos and to the County Water Utility, in creased, as appropriate, based on ordinary ance of a portion of the Regional Water Sys- accordance with the Engineering Report; and fluctuations in construction costs since Oc- tem under paragraph (1), the Pueblos, Coun- (2) that consists of— tober 1, 2006, as determined using applicable ty, or the Authority, as applicable, may, at (A) surface water diversion facilities at engineering cost indices. the expense of the Pueblos, County, or the San Ildefonso Pueblo on the Rio Grande; and (2) COSTS TO PUEBLO.—The costs incurred Authority, construct any additional infra- (B) any treatment, transmission, storage by the Secretary in carrying out activities structure that is necessary to fully use the and distribution facilities and wellfields for to construct the Pueblo Water Facilities water delivered by the Regional Water Sys- the County Distribution System and Pueblo under this section shall not be reimbursable tem. Water Facilities that are necessary to supply to the United States. (6) TAXATION.—Conveyance of title to any 4,000 acre-feet of water within the Pojoaque (3) COUNTY DISTRIBUTION SYSTEM.—As a portion of the Regional Water System, the Basin, unless modified in accordance with condition of the Secretary using the funds Pueblo Water Facilities, or the County Dis- subsection (d)(2). made available pursuant to section 617(a)(1), tribution System under paragraph (1) does (b) FINAL PROJECT DESIGN.—The Secretary the costs of constructing the County Dis- not waive or alter any applicable Federal law shall issue a final project design within 90 tribution System shall be a State and local prohibiting taxation of such facilities or the days of completion of the environmental expense pursuant to the Cost-Sharing and underlying land. compliance described in section 616 for the System Integration Agreement. (7) LIABILITY.— Regional Water System that— (g) INITIATION OF DISCUSSIONS.— (A) IN GENERAL.—Effective on the date of (1) is consistent with the Engineering Re- (1) IN GENERAL.—If the Secretary deter- port; and mines that the cost of constructing the Re- conveyance of any land or facility under this (2) includes a description of any Pueblo gional Water System exceed the amounts de- section, the United States shall not be held Water Facilities. scribed in the Cost-Sharing and System Inte- liable by any court for damages of any kind (c) ACQUISITION OF LAND; WATER RIGHTS.— gration Agreement for construction of the arising out of any act, omission, or occur- (1) ACQUISITION OF LAND.—Upon request, Regional Water System and would neces- rence relating to the land and facilities con- and in exchange for the funding which shall sitate funds in excess of the amount made veyed, other than damages caused by acts of be provided in section 617(c), the Pueblos available pursuant to section 617(a)(1), the negligence by the United States, or by em- shall consent to the grant of such easements Secretary shall initiate negotiations with ployees or agents of the United States, prior and rights-of-way as may be necessary for the parties to the Cost-Sharing and System to the date of conveyance. the construction of the Regional Water Sys- Integration Agreement for an agreement re- (B) TORT CLAIMS.—Nothing in this section tem at no cost to the Secretary. To the ex- garding non-Federal contributions to ensure increases the liability of the United States tent that the State or County own easements that the Regional Water System can be com- beyond the liability provided in chapter 171 or rights-of-way that may be used for con- pleted as required by section 623(e). of title 28, United States Code (commonly known as the ‘‘Federal Tort Claims Act’’). struction of the Regional Water System, the (2) JOINT RESPONSIBILITIES.—The United State or County shall provide that land or States shall not bear the entire amount of (8) EFFECT.—Nothing in any transfer of interest in land as necessary for construc- any cost overrun, nor shall the State be re- ownership provided or any conveyance there- tion at no cost to the Secretary. The Sec- sponsible to pay any amounts in addition to to as provided in this section shall extin- retary shall acquire any other land or inter- the amounts specified in the Cost-Sharing guish the right of any Pueblo, the County, or est in land that is necessary for the con- and System Integration Agreement. the Regional Water Authority to the contin- struction of the Regional Water System. (h) CONVEYANCE OF REGIONAL WATER SYS- uous use and benefit of each easement or (2) WATER RIGHTS.—The Secretary shall not TEM FACILITIES.— right of way for the use, operation, mainte- condemn water rights for purposes of the Re- (1) IN GENERAL.—Subject to paragraph (2), nance, repair, and replacement of Pueblo gional Water System. on completion of the construction of the Re- Water Facilities, the County Distribution (d) CONDITIONS FOR CONSTRUCTION.— gional Water System as defined in section System or the Regional Water System or for (1) IN GENERAL.—The Secretary shall not 623(e), the Secretary, in accordance with the wastewater purposes as provided in the Cost- begin construction of the Regional Water Operating Agreement, shall convey to— Sharing and System Integration Agreement. System facilities until the date on which— (A) each Pueblo the portion of any Pueblo SEC. 612. OPERATING AGREEMENT. (A) the Secretary executes— Water Facility that is located within the (i) the Settlement Agreement; and boundaries of the Pueblo, including any land (a) IN GENERAL.—The Pueblos and the (ii) the Cost-Sharing and System Integra- or interest in land located within the bound- County shall submit to the Secretary an exe- tion Agreement; and aries of the Pueblo that is acquired by the cuted Operating Agreement for the Regional (B) the State and the County have entered United States for the construction of the Water System that is consistent with this into an agreement with the Secretary to Pueblo Water Facility; title, the Settlement Agreement, and the contribute the non-Federal share of the costs (B) the County the County Distribution Cost-Sharing and System Integration Agree- of the construction in accordance with the System, including any land or interest in ment not later than 180 days after the later Cost-Sharing and System Integration Agree- land acquired by the United States for the of— ment. construction of the County Distribution Sys- (1) the date of completion of environ- (2) MODIFICATIONS TO REGIONAL WATER SYS- tem; and mental compliance and permitting; or TEM.— (C) the Authority any portions of the Re- (2) the date of issuance of a final project (A) IN GENERAL.—The State and the Coun- gional Water System that remain after mak- design for the Regional Water System under ty, in agreement with the Pueblos, the City, ing the conveyances under subparagraphs (A) section 611(b).

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(b) APPROVAL.—The Secretary shall ap- (iv) the County has the right to serve any (A) failure of the United States District prove or disapprove the Operating Agree- new water users located on non-Pueblo land Court for the District of New Mexico to enter ment within a reasonable period of time in the Pojoaque Basin; and a final decree for the Aamodt Case by the ex- after the Pueblos and the County submit the (B) allow for any aquifer storage and recov- piration date described in section 623(b), or Operating Agreement described in subsection ery projects that are approved by the Office within the time period of any extension of (a) and upon making a determination that of the New Mexico State Engineer. that deadline granted by the court; or the Operating Agreement is consistent with (d) EFFECT.—Nothing in this title precludes (B) entry of an order by the United States this title, the Settlement Agreement, and the Operating Agreement from authorizing District Court for the District of New Mexico the Cost-Sharing and System Integration phased or interim operations if the Regional voiding the final decree and Settlement Agreement. Water System is constructed in phases. Agreement for the Aamodt Case pursuant to (c) CONTENTS.—The Operating Agreement SEC. 613. ACQUISITION OF PUEBLO WATER SUP- section 10.3 of the Settlement Agreement. shall include— PLY FOR REGIONAL WATER SYSTEM. (f) LIMITATION.—The Secretary shall use (1) provisions consistent with the Settle- (a) IN GENERAL.—For the purpose of pro- the water supply secured under subsection ment Agreement and the Cost-Sharing and viding a reliable firm supply of water from (a) only for the purposes described in the System Integration Agreement and nec- the Regional Water System for the Pueblos Settlement Agreement. essary to implement the intended benefits of in accordance with the Settlement Agree- (g) FULFILLMENT OF WATER SUPPLY ACQUI- the Regional Water System described in ment, the Secretary, on behalf of the Pueb- SITION OBLIGATIONS.—Compliance with sub- those documents; los, shall— sections (a) through (f) shall satisfy any and (2) provisions for— (1) acquire water rights to— all obligations of the Secretary to acquire or (A) the distribution of water conveyed (A) 302 acre-feet of Nambe reserved water secure a water supply for the Pueblos pursu- through the Regional Water System, includ- described in section 2.6.2 of the Settlement ant to the Settlement Agreement. ing a delineation of— Agreement; and (h) RIGHTS OF PUEBLOS IN SETTLEMENT (i) distribution lines for the County Dis- (B) 1141 acre-feet from water acquired by AGREEMENT UNAFFECTED.—Notwithstanding tribution System; the County for water rights commonly re- the provisions of subsections (a) through (g), (ii) distribution lines for the Pueblo Water ferred to as ‘‘Top of the World’’ rights in the the Pueblos, the County or the Regional Water Authority may acquire any additional Facilities; and Aamodt Case; water rights to ensure all parties to the Set- (iii) distribution lines that serve both— (2) enter into a contract with the Pueblos tlement Agreement receive the full alloca- (I) the County Distribution System; and for 1,079 acre-feet in accordance with section tion of water provided by the Settlement (II) the Pueblo Water Facilities; 11 of the San Juan-Chama Project Act; and Agreement and nothing in this title amends (B) the allocation of the Regional Water (3) by application to the State Engineer, System capacity; or modifies the quantities of water allocated seek approval to divert the water acquired to the Pueblos thereunder. (C) the terms of use of unused water capac- and made available under paragraphs (1) and ity in the Regional Water System; SEC. 614. DELIVERY AND ALLOCATION OF RE- (2) at the points of diversion for the Regional GIONAL WATER SYSTEM CAPACITY (D) terms of interim use of County unused Water System, consistent with the Settle- capacity, in accordance with section 614(d); AND WATER. ment Agreement and the Cost-Sharing and (a) ALLOCATION OF REGIONAL WATER SYS- (E) the construction of additional infra- System Integration Agreement. TEM CAPACITY.— structure and the acquisition of associated (b) FORFEITURE.—The nonuse of the water (1) IN GENERAL.—The Regional Water Sys- rights-of-way or easements necessary to en- supply secured by the Secretary for the tem shall have the capacity to divert from able any of the Pueblos or the County to Pueblos under subsection (a) shall in no the Rio Grande a quantity of water sufficient fully use water allocated to the Pueblos or event result in forfeiture, abandonment, re- to provide— the County from the Regional Water System, linquishment, or other loss thereof. (A) up to 4,000 acre-feet of consumptive use including provisions addressing when the (c) TRUST.—The Pueblo water rights se- of water; and construction of such additional infrastruc- cured under subsection (a) shall be held by (B) the requisite peaking capacity de- ture requires approval by the Authority; the United States in trust for the Pueblos. scribed in— (F) the allocation and payment of annual (d) APPLICABLE LAW.—The water supply (i) the Engineering Report; and operation, maintenance, and replacement made available pursuant to subsection (a)(2) (ii) the final project design. costs for the Regional Water System, includ- shall be subject to the San Juan-Chama (2) ALLOCATION TO THE PUEBLOS AND COUNTY ing the portions of the Regional Water Sys- Project Act, and no preference shall be pro- WATER UTILITY.—Of the capacity described in tem that are used to treat, transmit, and dis- vided to the Pueblos as a result of subsection paragraph (1)— tribute water to both the Pueblo Water Fa- (c) with regard to the delivery or distribu- (A) there shall be allocated to the Pueb- cilities and the County Water Utility; tion of San Juan-Chama Project water or the los— (G) the operation of wellfields located on management or operation of the San Juan- (i) sufficient capacity for the conveyance Pueblo land; Chama Project. of 2,500 acre-feet consumptive use; and (H) the transfer of any water rights nec- (e) CONTRACT FOR SAN JUAN-CHAMA (ii) the requisite peaking capacity for the essary to provide the Pueblo water supply PROJECT WATER SUPPLY.—With respect to quantity of water described in clause (i); and described in section 613(a); the contract for the water supply required by (B) there shall be allocated to the County (I) the operation of the Regional Water subsection (a)(2), such San Juan-Chama Water Utility— System with respect to the water supply, in- Project contract shall be pursuant to the fol- (i) sufficient capacity for the conveyance cluding the allocation of the water supply in lowing terms: of up to 1,500 acre-feet consumptive use; and accordance with section 3.1.8.4.2 of the Set- (1) WAIVERS.—Notwithstanding the provi- (ii) the requisite peaking capacity for the tlement Agreement so that, in the event of a sions of the San Juan-Chama Project Act, or quantity of water described in clause (i). shortage of supply to the Regional Water any other provision of law— (3) APPLICABLE LAW.—Water shall be allo- System, the supply to each of the Pueblos’ (A) the Secretary shall waive the entirety cated to the Pueblos and the County Water and to the County’s distribution system of the Pueblos’ share of the construction Utility under this subsection in accordance shall be reduced on a pro rata basis, in pro- costs for the San Juan-Chama Project, and with— portion to each distribution system’s most pursuant to that waiver, the Pueblos’ share (A) this subtitle; current annual use; and of all construction costs for the San Juan- (B) the Settlement Agreement; and (J) dispute resolution; and Chama Project, inclusive of both principal (C) the Operating Agreement. (3) provisions for operating and maintain- and interest, due from 1972 to the execution (b) DELIVERY OF REGIONAL WATER SYSTEM ing the Regional Water System facilities be- of the contract required by subsection (a)(2), WATER.—The Authority shall deliver water fore and after conveyance under section shall be nonreimbursable; from the Regional Water System— 611(h), including provisions to— (B) the Secretary’s waiver of each Pueblo’s (1) to the Pueblos water in a quantity suffi- (A) ensure that— share of the construction costs for the San cient to allow full consumptive use of up to (i) the operation of, and the diversion and Juan-Chama Project will not result in an in- 2,500 acre-feet per year of water rights by the conveyance of water by, the Regional Water crease in the pro rata shares of other San Pueblos in accordance with— System is in accordance with the Settlement Juan-Chama Project water contractors, but (A) the Settlement Agreement; Agreement; such costs shall be absorbed by the United (B) the Operating Agreement; and (ii) the wells in the Regional Water System States Treasury or otherwise appropriated to (C) this subtitle; and are used in conjunction with the surface the Department of the Interior; and (2) to the County water in a quantity suffi- water supply of the Regional Water System (C) the construction costs associated with cient to allow full consumptive use of up to to ensure a reliable firm supply of water to any water made available from the San 1,500 acre-feet per year of water rights by the all users of the Regional Water System, con- Juan-Chama Project which were determined County Water Utility in accordance with— sistent with the intent of the Settlement nonreimbursable and nonreturnable pursu- (A) the Settlement Agreement; Agreement that surface supplies will be used ant to Public Law No. 88–293, 78 Stat. 171 (B) the Operating Agreement; and to the maximum extent feasible; (March 26, 1964), shall remain nonreimburs- (C) this subtitle. (iii) the respective obligations regarding able and nonreturnable. (c) ADDITIONAL USE OF ALLOCATION QUAN- delivery, payment, operation, and manage- (2) TERMINATION.—The contract shall pro- TITY AND UNUSED CAPACITY.—The Regional ment are enforceable; and vide that it shall terminate only on— Water System may be used to—

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(1) provide for use of return flow credits to cordance with the purposes described in sec- (1) FUNDING.— allow for full consumptive use of the water tion 617(c). (A) MANDATORY APPROPRIATION.—Subject allocated in the Settlement Agreement to (3) ENFORCEMENT.—The Secretary may to paragraph (5), out of any funds in the each of the Pueblos and to the County; and take judicial or administrative action to en- Treasury not otherwise appropriated, the (2) convey water allocated to one of the force the provisions of any tribal manage- Secretary of the Treasury shall transfer to Pueblos or the County Water Utility for the ment plan to ensure that any amounts with- the Secretary for the planning, design, and benefit of another Pueblo or the County drawn from the Fund under an approved trib- construction of the Regional Water System Water Utility or allow use of unused capac- al management plan are used in accordance and the conduct of environmental compli- ity by each other through the Regional with this subtitle. ance activities under section 616 an amount Water System in accordance with an inter- (4) LIABILITY.—If a Pueblo or the Pueblos not to exceed $56,400,000, as adjusted under governmental agreement between the Pueb- exercise the right to withdraw amounts from paragraph (4), for the period of fiscal years los, or between a Pueblo and County Water the Fund, neither the Secretary nor the Sec- 2011 through 2016, to remain available until Utility, as applicable, if— retary of the Treasury shall retain any li- expended. (A) such intergovernmental agreements ability for the expenditure or investment of (B) AUTHORIZATION OF APPROPRIATIONS.—In are consistent with the Operating Agree- the amounts withdrawn. addition to the amount made available under ment, the Settlement Agreement, and this (5) EXPENDITURE PLAN.— subparagraph (A), there is authorized to be title; (A) IN GENERAL.—The Pueblos shall submit appropriated to the Secretary for the plan- (B) capacity is available without reducing to the Secretary for approval an expenditure ning, design, and construction of the Re- water delivery to any Pueblo or the County plan for any portion of the amounts in the gional Water System and the conduct of en- Water Utility in accordance with the Settle- Fund that the Pueblos do not withdraw vironmental compliance activities under sec- ment Agreement, unless the County Water under this subsection. tion 616 $50,000,000, as adjusted under para- Utility or Pueblo contracts for a reduction (B) DESCRIPTION.—The expenditure plan graph (4), for the period of fiscal years 2011 in water delivery or Regional Water System shall describe the manner in which, and the through 2024. capacity; purposes for which, amounts remaining in (2) RECEIPT AND ACCEPTANCE.—The Sec- (C) the Pueblo or County Water Utility the Fund will be used. retary shall be entitled to receive, shall ac- contracting for use of the unused capacity or (C) APPROVAL.—On receipt of an expendi- cept, and shall use to carry out this title the water has the right to use the water under ture plan under subparagraph (A), the Sec- funds transferred under paragraph (1)(A), applicable law; and retary shall approve the plan if the Sec- without further appropriation, to remain (D) any agreement for the use of unused retary determines that the plan is reason- available until expended. capacity or water provides for payment of able and consistent with this title, the Set- (3) PRIORITY OF FUNDING.—Of the amounts the operation, maintenance, and replace- tlement Agreement, and the Cost-Sharing made available under paragraph (1), the Sec- ment costs associated with the use of capac- and System Integration Agreement. retary shall give priority to funding— (A) the construction of the San Ildefonso ity or water. (D) ANNUAL REPORT.—The Pueblos shall portion of the Regional Water System, con- (d) INTERIM USE OF COUNTY CAPACITY.—In submit to the Secretary an annual report accordance with section 9.6.4 of the Settle- that describes all expenditures from the sisting of— ment Agreement, the County may use un- Fund during the year covered by the report. (i) the surface water diversion, treatment, and transmission facilities at San Ildefonso used capacity and water rights of the County (6) NO PER CAPITA PAYMENTS.—No part of Pueblo; and Water Utility to supply water within the the principal of the Fund, or the interest or (ii) the San Ildefonso Pueblo portion of the County outside of the Pojoaque Basin— income accruing on the principal shall be Pueblo Water Facilities; and (1) on approval by the State and the Au- distributed to any member of a Pueblo on a (B) that part of the Regional Water System thority; and per capita basis. providing 475 acre-feet to Pojoaque Pueblo (2) subject to the issuance of a permit by (7) AVAILABILITY OF AMOUNTS FROM THE pursuant to section 2.2 of the Settlement the New Mexico State Engineer. FUND.— Agreement. (A) APPROVAL OF SETTLEMENT AGREE- SEC. 615. AAMODT SETTLEMENT PUEBLOS’ FUND. (4) ADJUSTMENT.—The amounts made avail- MENT.— (a) ESTABLISHMENT OF THE AAMODT SETTLE- able under paragraph (1) shall be adjusted (i) IN GENERAL.—Except as provided in MENT PUEBLOS’ FUND.—There is established annually to account for increases in con- clause (ii), amounts made available under in the Treasury of the United States a fund, struction costs since October 1, 2006, as de- section 617(c)(1), or from other authorized to be known as the ‘‘Aamodt Settlement termined using applicable engineering cost sources, shall be available for expenditure or Pueblos’ Fund,’’ consisting of— indices. withdrawal only after the publication of the (1) such amounts as are made available to (5) LIMITATIONS.— statement of findings required by section the Fund under section 617(c) or other au- (A) IN GENERAL.—No amounts shall be 623(a)(1). thorized sources; and made available under paragraph (1) for the (ii) EXCEPTION.—Notwithstanding clause (2) any interest earned from investment of construction of the Regional Water System (i), the amounts described in that clause may amounts in the Fund under subsection (b). until the date on which the United States be expended before the date of publication of (b) MANAGEMENT OF THE FUND.—The Sec- District Court for the District of New Mexico the statement of findings under section retary shall manage the Fund, invest issues an order approving the Settlement 623(a)(1) for any activity that is more cost-ef- amounts in the Fund, and make amounts Agreement. fective when implemented in conjunction available from the Fund for distribution to (B) RECORD OF DECISION.—No amounts with the construction of the Regional Water the Pueblos in accordance with— made available under paragraph (1) shall be System, as determined by the Secretary. (1) the American Indian Trust Fund Man- expended for construction unless the record (B) COMPLETION OF CERTAIN PORTIONS OF RE- agement Reform Act of 1994 (25 U.S.C. 4001 et of decision issued by the Secretary after GIONAL WATER SYSTEM.—Amounts made seq.); and completion of an environmental impact available under section 617(c)(1) or from (2) this title. statement provides for a preferred alter- other authorized sources shall be available (c) INVESTMENT OF THE FUND.—On the date native that is in substantial compliance with for expenditure or withdrawal only after on which the waivers become effective as set the proposed Regional Water System, as de- those portions of the Regional Water System forth in section 623(d), the Secretary shall fined in the Engineering Report. invest amounts in the Fund in accordance described in section 1.5.24 of the Settlement (b) ACQUISITION OF WATER RIGHTS.— with— Agreement have been declared substantially (1) IN GENERAL.—Out of any funds in the (1) the Act of April 1, 1880 (25 U.S.C. 161); complete by the Secretary. Treasury not otherwise appropriated, the (2) the first section of the Act of June 24, SEC. 616. ENVIRONMENTAL COMPLIANCE. Secretary of the Treasury shall transfer to 1938 (25 U.S.C. 162a); and (a) IN GENERAL.—In carrying out this sub- the Secretary for the acquisition of the (3) the American Indian Trust Fund Man- title, the Secretary shall comply with each water rights under section 613(a)(1)(B) agement Reform Act of 1994 (25 U.S.C. 4001 et law of the Federal Government relating to $5,400,000. seq.). the protection of the environment, includ- (2) RECEIPT AND ACCEPTANCE.—The Sec- (d) TRIBAL MANAGEMENT PLAN.— ing— retary shall be entitled to receive, shall ac- (1) IN GENERAL.—A Pueblo may withdraw (1) the National Environmental Policy Act cept, and shall use to carry out this title the all or part of the Pueblo’s portion of the of 1969 (42 U.S.C. 4321 et seq.); and funds transferred under paragraph (1), with- Fund on approval by the Secretary of a trib- (2) the Endangered Species Act of 1973 (16 out further appropriation, to remain avail- al management plan as described in the U.S.C. 1531 et seq.). able until expended. American Indian Trust Fund Management (b) NATIONAL ENVIRONMENTAL POLICY (c) AAMODT SETTLEMENT PUEBLOS’ FUND.— Reform Act of 1994 (25 U.S.C. 4001 et seq.). ACT.—Nothing in this title affects the out- (1) FUNDING.— (2) REQUIREMENTS.—In addition to the re- come of any analysis conducted by the Sec- (A) MANDATORY APPROPRIATIONS.—Out of quirements under the American Indian Trust retary or any other Federal official under any funds in the Treasury not otherwise ap- Fund Management Reform Act of 1994 (25 the National Environmental Policy Act of propriated, the Secretary of the Treasury U.S.C. 4001 et seq.), the tribal management 1969 (42 U.S.C. 4321 et seq.). shall transfer to the Secretary the following plan shall require that a Pueblo spend any SEC. 617. FUNDING. amounts for the period of fiscal years 2011 amounts withdrawn from the Fund in ac- (a) REGIONAL WATER SYSTEM.— through 2015:

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00087 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8198 CONGRESSIONAL RECORD — SENATE November 19, 2010 (i) $15,000,000, as adjusted according to the cute the Settlement Agreement and the (D) the Secretary has acquired and entered CPI Urban Index beginning on October 1, Cost-Sharing and System Integration Agree- into appropriate contracts for the water 2006, which shall be allocated to the Pueblos, ment (including any amendments that are rights described in section 613(a); in accordance with section 2.7.1 of the Settle- necessary to make the Settlement Agree- (E) for purposes of section 613(a), permits ment Agreement, for the rehabilitation, im- ment or the Cost-Sharing and System Inte- have been issued by the New Mexico State provement, operation, maintenance, and re- gration Agreement consistent with this Engineer to the Regional Water Authority to placement of the agricultural delivery facili- title). change the points of diversion to the ties, waste water systems, and other water- (c) AUTHORITIES OF THE PUEBLOS.— mainstem of the Rio Grande for the diver- related infrastructure of the applicable (1) IN GENERAL.—Each of the Pueblos may sion and consumptive use of at least 2,381 Pueblo. enter into leases or contracts to exchange acre-feet by the Pueblos as part of the water (ii) $5,000,000, as adjusted according to the water rights or to forebear undertaking new supply for the Regional Water System, sub- CPI Urban Index beginning on January 1, or expanded water uses for water rights rec- ject to the conditions that— 2011, and any interest on that amount, which ognized in section 2.1 of the Settlement (i) the permits shall be free of any condi- shall be allocated to the Pueblo of Nambe Agreement for use within the Pojoaque tion that materially adversely affects the only for the acquisition land, other real Basin, in accordance with the other limita- ability of the Pueblos or the Regional Water property interests, or economic development tions of section 2.1.5 of the Settlement Authority to divert or use the Pueblo water for the Nambe reserved water rights in ac- Agreement, provided that section 2.1.5 is supply described in section 613(a), including cordance with section 613(a)(1)(A). amended accordingly. water rights acquired in addition to those (B) AUTHORIZATION OF APPROPRIATIONS.—In (2) APPROVAL BY SECRETARY.—Consistent described in section 613(a), in accordance addition to the amounts made available with the Settlement Agreement, the Sec- with section 613(g); and under clauses (i) and (ii) of subparagraph (A), retary shall approve or disapprove a lease or (ii) the Settlement Agreement shall estab- respectively, there are authorized to be ap- contract entered into under paragraph (1). lish the means to address any permit condi- tions to ensure the ability of the Pueblos to propriated to the Secretary for the period of (3) PROHIBITION ON PERMANENT ALIEN- fully divert and consume at least 2,381 acre- fiscal years 2011 through 2024, $37,500,000 to ATION.—No lease or contract under paragraph assist the Pueblos in paying the Pueblos’ (1) shall be for a term exceeding 99 years, nor feet as part of the water supply for the Re- share of the cost of operating, maintaining, shall any such lease or contract provide for gional Water System, including defining the conditions that will not constitute a mate- and replacing the Pueblo Water Facilities permanent alienation of any portion of the rial adverse affect; and the Regional Water System. water rights made available to the Pueblos (F) the State has enacted any necessary (2) OPERATION, MAINTENANCE, AND REPLACE- under the Settlement Agreement. legislation and provided any funding that MENT COSTS.— (4) APPLICABLE LAW.—Section 2116 of the may be required under the Settlement (A) IN GENERAL.—Prior to conveyance of Revised Statutes (25 U.S.C. 177) shall not Agreement; the Regional Water System pursuant to sec- apply to any lease or contract entered into (G) a partial final decree that sets forth tion 611, the Secretary is authorized to and under paragraph (1). the water rights and other rights to water to shall pay any operation, maintenance, and (5) LEASING OR MARKETING OF WATER SUP- which the Pueblos are entitled under the replacement costs associated with the Pueb- PLY.—The water supply provided on behalf of Settlement Agreement and this subtitle and lo Water Facilities or the Regional Water the Pueblos pursuant to section 613(a)(1) may that substantially conforms to the Settle- System, up to the amount made available only be leased or marketed by any of the ment Agreement has been approved by the under subparagraph (B). Pueblos pursuant to the intergovernmental United States District Court for the District (B) AUTHORIZATION OF APPROPRIATIONS.— agreements described in section 614(c)(2). There is authorized to be appropriated to the of New Mexico; (d) AMENDMENTS TO CONTRACTS.—The Sec- (H) a final decree that sets forth the water Secretary to carry out subparagraph (A) retary shall amend the contracts relating to $5,000,000. rights for all parties to the Aamodt Case and the Nambe Falls Dam and Reservoir that are that substantially conforms to the Settle- (C) OBLIGATION OF FEDERAL GOVERNMENT necessary to use water supplied from the ment Agreement has been approved by the AFTER COMPLETION.—After the date on which Nambe Falls Dam and Reservoir in accord- United States District Court for the District construction of the Regional Water System ance with the Settlement Agreement. is completed and the amounts required to be of New Mexico; and deposited in the Aamodt Settlement Pueb- SEC. 622. ENVIRONMENTAL COMPLIANCE. (I) the waivers and releases described in los’ Fund pursuant to paragraph (1) have (a) EFFECT OF EXECUTION OF SETTLEMENT section 624 have been executed. (b) EXPIRATION DATE.—If all the conditions been deposited by the Federal Government— AGREEMENT.—The execution of the Settle- precedent described in subsection (a)(2) have (i) the Federal Government shall have no ment Agreement under section 611(b) shall not constitute a major Federal action under not been fulfilled by September 15, 2017— obligation to pay for the operation, mainte- (1) the Settlement Agreement shall no nance, and replacement costs associated the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). longer be effective; with the Pueblo Water Facilities or the Re- (2) the waivers and releases described in (b) COMPLIANCE WITH ENVIRONMENTAL gional Water System; and the Settlement Agreement and section 624 LAWS.—In carrying out this title, the Sec- (ii) the authorization for the Secretary to shall not be effective; retary shall comply with each law of the expend funds for the operation, maintenance, (3) any unexpended Federal funds appro- Federal Government relating to the protec- and replacement costs of those systems priated or made available to carry out the tion of the environment, including— under subparagraph (A) shall expire. activities authorized by this title, together (1) the National Environmental Policy Act (3) RECEIPT AND ACCEPTANCE.—The Sec- with any interest earned on those funds, any of 1969 (42 U.S.C. 4321 et seq.); and retary shall be entitled to receive, shall ac- water rights or contracts to use water, and (2) the Endangered Species Act of 1973 (16 cept, and shall use to carry out this title the title to other property acquired or con- U.S.C. 1531 et seq.). funds transferred under paragraphs (1)(A), structed with Federal funds appropriated or without further appropriation, to remain SEC. 623. CONDITIONS PRECEDENT AND EN- made available to carry out the activities available until expended or until the author- FORCEMENT DATE. authorized by this title shall be returned to ization for the Secretary to expend funds (a) CONDITIONS PRECEDENT.— the Federal Government, unless otherwise pursuant to paragraph (2) expires. (1) IN GENERAL.—Upon the fulfillment of agreed to by the Pueblos and the United Subtitle B—Pojoaque Basin Indian Water the conditions precedent described in para- States and approved by Congress; and Rights Settlement graph (2), the Secretary shall publish in the (4) except for Federal funds used to acquire SEC. 621. SETTLEMENT AGREEMENT AND CON- Federal Register by September 15, 2017, a or develop property that is returned to the TRACT APPROVAL. statement of findings that the conditions Federal Government under paragraph (3), the (a) APPROVAL.—To the extent the Settle- have been fulfilled. United States shall be entitled to set off any ment Agreement and the Cost-Sharing and (2) REQUIREMENTS.—The conditions prece- Federal funds appropriated or made avail- System Integration Agreement do not con- dent referred to in paragraph (1) are the con- able to carry out the activities authorized by flict with this title, the Settlement Agree- ditions that— this title that were expended or withdrawn, ment and the Cost-Sharing and System Inte- (A) to the extent that the Settlement together with any interest accrued on those gration Agreement (including any amend- Agreement conflicts with this subtitle, the funds, against any claims against the United ments to the Settlement Agreement and the Settlement Agreement has been revised to States— Cost-Sharing and System Integration Agree- conform with this subtitle; (A) relating to water rights in the ment that are executed to make the Settle- (B) the Settlement Agreement, so revised, Pojoaque Basin asserted by any Pueblo that ment Agreement or the Cost-Sharing and including waivers and releases pursuant to benefitted from the use of expended or with- System Integration Agreement consistent section 624, has been executed by the appro- drawn Federal funds; or with this title) are authorized, ratified, and priate parties and the Secretary; (B) in any future settlement of the Aamodt confirmed. (C) Congress has fully appropriated, or the Case. (b) EXECUTION.—To the extent the Settle- Secretary has provided from other author- (c) ENFORCEMENT DATE.—The Settlement ment Agreement and the Cost-Sharing and ized sources, all funds authorized by section Agreement shall become enforceable begin- System Integration Agreement do not con- 617, with the exception of subsection (a)(1) of ning on the date on which the United States flict with this title, the Secretary shall exe- that section; District Court for the District of New Mexico

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00088 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8199 enters a partial final decree pursuant to sub- United States acting on behalf of a Pueblo, (4) their defenses in the Aamodt Case to section (a)(2)(G) and an Interim Administra- shall have the right to notify the Decree the claims previously asserted therein by tive Order consistent with the Settlement Court of the determination. other parties to the Settlement Agreement; Agreement. (B) EFFECT.—The Final Decree shall have (5) all pending and future inter se chal- (d) EFFECTIVENESS OF WAIVERS.—The waiv- no force or effect on a finding by the Decree lenges to the quantification and priority of ers and releases executed pursuant to section Court that a Pueblo, or the United States water rights of non-Pueblo wells in the 624 shall become effective as of the date that acting on behalf of a Pueblo, has submitted Pojoaque Basin, except as provided by sec- the Secretary publishes the notice required proper notification under subparagraph (A). tion 2.8 of the Settlement Agreement; by subsection (a)(1). (f) VOIDING OF WAIVERS.—If the Final De- (6) all pending and future inter se chal- (e) REQUIREMENTS FOR DETERMINATION OF cree is void under subsection (e)(5)— lenges against other parties to the Settle- SUBSTANTIAL COMPLETION OF THE REGIONAL (1) the Settlement Agreement shall no ment Agreement; WATER SYSTEM.— longer be effective; (7) all claims for damages, losses, or inju- (1) CRITERIA FOR SUBSTANTIAL COMPLETION (2) the waivers and releases executed pur- ries to water rights or claims of interference OF REGIONAL WATER SYSTEM.—Subject to the suant to section 624 shall no longer be effec- with, diversion or taking of water (including provisions in section 611(d) concerning the tive; claims for injury to land resulting from such extent, size, and capacity of the County Dis- (3) any unexpended Federal funds appro- damages, losses, injuries, interference with, tribution System, the Regional Water Sys- priated or made available to carry out the diversion, or taking of water) attributable to tem shall be determined to be substantially activities authorized by this title, together City of Santa Fe pumping of groundwater completed if the infrastructure has been con- with any interest earned on those funds, any that has effects on the ground and surface structed capable of— water rights or contracts to use water, and water supplies of the Pojoaque Basin, pro- (A) diverting, treating, transmitting, and title to other property acquired or con- vided that this waiver shall not be effective distributing a supply of 2,500 acre-feet of structed with Federal funds appropriated or water to the Pueblos; and by the Pueblo of Tesuque unless there is a made available to carry out the activities water resources agreement executed between (B) diverting, treating, and transmitting authorized by this title shall be returned to the quantity of water specified in the Engi- the Pueblo of Tesuque and the City of Santa the Federal Government, unless otherwise Fe; and neering Report to the County Distribution agreed to by the Pueblos and the United System. (8) all claims for damages, losses, or inju- States and approved by Congress; and ries to water rights or claims of interference (2) CONSULTATION.—On or after June 30, (4) except for Federal funds used to acquire with, diversion or taking of water (including 2021, at the request of 1 or more of the Pueb- or develop property that is returned to the los, the Secretary shall consult with the claims for injury to land resulting from such Federal Government under paragraph (3), the damages, losses, injuries, interference with, Pueblos and confer with the County and the United States shall be entitled to set off any State on whether the criteria in paragraph diversion, or taking of water) attributable to Federal funds appropriated or made avail- County of Santa Fe pumping of groundwater (1) for substantial completion of the Re- able to carry out the activities authorized by gional Water System have been met or will that has effects on the ground and surface this title that were expended or withdrawn, water supplies of the Pojoaque Basin. be met by June 30, 2024. together with any interest accrued on those (3) WRITTEN DETERMINATION BY SEC- funds, against any claims against the United (b) CLAIMS BY THE PUEBLOS AGAINST THE RETARY.—Not earlier than June 30, 2021, at States— UNITED STATES.—The Pueblos, on behalf of the request of 1 or more of the Pueblos and (A) relating to water rights in the themselves and their members, are author- after the consultation required by paragraph Pojoaque Basin asserted by any Pueblo that ized to execute a waiver and release of— (2), the Secretary shall— benefitted from the use of expended or with- (1) all claims against the United States, its (A) determine whether the Regional Water drawn Federal funds; or agencies, or employees, relating to claims System has been substantially completed (B) in any future settlement of the Aamodt for water rights in or water of the Pojoaque based on the criteria described in paragraph Case. Basin or for rights to use water in the (1); and (g) EXTENSION.—The dates in subsections Pojoaque Basin that the United States act- (B) submit a written notice of the deter- (a)(1) and (b) may be extended if the parties ing in its capacity as trustee for the Pueblos mination under subparagraph (A) to— to the Cost-Sharing and System Integration asserted, or could have asserted, in any pro- (i) the Pueblos; Agreement agree that an extension is rea- ceeding, including the Aamodt Case; (ii) the County; and sonably necessary. (2) all claims against the United States, its (iii) the State. SEC. 624. WAIVERS AND RELEASES OF CLAIMS. agencies, or employees relating to damages, (4) RIGHT TO REVIEW.— (a) CLAIMS BY THE PUEBLOS AND THE UNITED losses, or injuries to water, water rights, (A) IN GENERAL.—A determination by the STATES.—In return for recognition of the land, or natural resources due to loss of Secretary under paragraph (3)(A) shall be Pueblos’ water rights and other benefits, in- water or water rights (including damages, considered to be a final agency action sub- cluding waivers and releases by non-Pueblo losses or injuries to hunting, fishing, gath- ject to judicial review by the Decree Court parties, as set forth in the Settlement Agree- ering or cultural rights due to loss of water under sections 701 through 706 of title 5, ment and this title, the Pueblos, on behalf of or water rights; claims relating to inter- United States Code. themselves and their members, and the ference with, diversion or taking of water or (B) FAILURE TO MAKE TIMELY DETERMINA- United States acting in its capacity as trust- water rights; or claims relating to failure to TION.— ee for the Pueblos are authorized to execute protect, acquire, replace, or develop water, (i) IN GENERAL.—If a Pueblo requests a a waiver and release of— water rights or water infrastructure) within written determination under paragraph (3) (1) all claims for water rights in the the Pojoaque Basin that first accrued at any and the Secretary fails to make such a writ- Pojoaque Basin that the Pueblos, or the time up to and including the waiver effec- ten determination by the date described in United States acting in its capacity as trust- tiveness date identified in section 623(d); clause (ii), there shall be a rebuttable pre- ee for the Pueblos, asserted, or could have (3) all claims against the United States, its sumption that the failure constitutes agency asserted, in any proceeding, including the agencies, or employees for an accounting of action unlawfully withheld or unreasonably Aamodt Case, up to and including the waiver funds appropriated by Acts, including the delayed under section 706 of title 5, United effectiveness date identified in section 623(d), Act of December 22, 1927 (45 Stat. 2), the Act States Code. except to the extent that such rights are rec- of March 4, 1929 (45 Stat. 1562), the Act of (ii) DATE.—The date referred to in clause ognized in the Settlement Agreement or this March 26, 1930 (46 Stat. 90), the Act of Feb- (i) is the date that is the later of— title; ruary 14, 1931 (46 Stat. 1115), the Act of (I) the date that is 180 days after the date (2) all claims for water rights for lands in March 4, 1931 (46 Stat. 1552), the Act of July of receipt by the Secretary of the request by the Pojoaque Basin and for rights to use 1, 1932 (47 Stat. 525), the Act of June 22, 1936 the Pueblo; and water in the Pojoaque Basin that the Pueb- (49 Stat. 1757), the Act of August 9, 1937 (50 (II) June 30, 2023. los, or the United States acting in its capac- Stat. 564), and the Act of May 9, 1938 (52 Stat. (C) EFFECT OF TITLE.—Nothing in this title ity as trustee for the Pueblos, might be able 291), as authorized by the Pueblo Lands Act gives any Pueblo or Settlement Party the to otherwise assert in any proceeding not of June 7, 1924 (43 Stat. 636), and the Pueblo right to judicial review of a determination of initiated on or before the date of enactment Lands Act of May 31, 1933 (48 Stat. 108), and the Secretary regarding whether the Re- of this Act, except to the extent that such for breach of Trust relating to funds for gional Water System has been substantially rights are recognized in the Settlement water replacement appropriated by said Acts completed except under subchapter II of Agreement or this title; that first accrued before the date of enact- chapter 5, and chapter 7, of title 5, United (3) all claims for damages, losses or inju- ment of this Act; States Code (commonly known as the ‘‘Ad- ries to water rights or claims of interference (4) all claims against the United States, its ministrative Procedure Act’’). with, diversion or taking of water (including agencies, or employees relating to the pend- (5) RIGHT TO VOID FINAL DECREE.— claims for injury to land resulting from such ing litigation of claims relating to the Pueb- (A) IN GENERAL.—Not later than June 30, damages, losses, injuries, interference with, los’ water rights in the Aamodt Case; and 2024, on a determination by the Secretary, diversion, or taking) for land within the (5) all claims against the United States, its after consultation with the Pueblos, that the Pojoaque Basin that accrued at any time up agencies, or employees relating to the nego- Regional Water System is not substantially to and including the waiver effectiveness tiation, Execution or the adoption of the complete, 1 or more of the Pueblos, or the date identified in section 623(d); Settlement Agreement, exhibits thereto, the

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00089 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8200 CONGRESSIONAL RECORD — SENATE November 19, 2010 Partial Final Decree, the Final Decree, or shall be tolled for the period beginning on payable under section 6402 of the Internal this title. the date of enactment of this Act and ending Revenue Code of 1986 on or after the date of (c) RESERVATION OF RIGHTS AND RETENTION on June 30, 2021. the enactment of this Act. OF CLAIMS.—Notwithstanding the waivers (2) EFFECT OF SUBSECTION.—Nothing in this SEC. 802. REPORTING OF FIRST DAY OF EARN- and releases authorized in this title, the subsection revives any claim or tolls any pe- INGS TO DIRECTORY OF NEW HIRES. Pueblos on behalf of themselves and their riod of limitation or time-based equitable de- (a) ADDITION OF REQUIREMENT.—Section members and the United States acting in its fense that expired before the date of enact- 453A(b)(1)(A) of the Social Security Act (42 capacity as trustee for the Pueblos retain.— ment of this Act. (1) all claims for enforcement of the Settle- U.S.C. 653a(b)(1)(A)) is amended by inserting (3) LIMITATION.—Nothing in this section ‘‘the date services for remuneration were ment Agreement, the Cost-Sharing and Sys- precludes the tolling of any period of limita- tem Integration Agreement, the Final De- first performed by the employee,’’ after ‘‘of tions or any time-based equitable defense the employee,’’. cree, including the Partial Final Decree, the under any other applicable law. (b) CONFORMING AMENDMENT REGARDING San Juan-Chama Project contract between SEC. 625. EFFECT. REPORTING FORMAT AND METHOD.—Section the Pueblos and the United States or this Nothing in this title or the Settlement title; 453A(c) of the Social Security Act (42 U.S.C. Agreement affects the land and water rights, 653a(c)) is amended by inserting ‘‘, to the ex- (2) all rights to use and protect water claims, or entitlements to water of any In- tent practicable,’’ after ‘‘Each report re- rights acquired after the date of enactment dian tribe, pueblo, or community other than quired by subsection (b) shall’’. of this Act; the Pueblos. (3) all rights to use and protect water (c) EFFECTIVE DATE.— SEC. 626. ANTIDEFICIENCY. (1) IN GENERAL.—Subject to paragraph (2), rights acquired pursuant to state law to the The United States shall not be liable for the amendments made by this section shall extent not inconsistent with the Partial any failure to carry out any obligation or ac- take effect 6 months after the date of the en- Final Decree, Final Decree, and the Settle- tivity authorized by this title (including any ment Agreement; such obligation or activity under the Settle- actment of this Act. (4) all claims against persons other than ment Agreement) if adequate appropriations (2) COMPLIANCE TRANSITION PERIOD.—If the Parties to the Settlement Agreement for are not provided expressly by Congress to Secretary of Health and Human Services de- damages, losses or injuries to water rights or carry out the purposes of this title in the termines that State legislation (other than claims of interference with, diversion or tak- Reclamation Water Settlements Fund estab- legislation appropriating funds) is required ing of water (including claims for injury to lished under section 10501 of Public Law 111– in order for a State plan under part D of title lands resulting from such damages, losses, 11 or the ‘‘Emergency Fund for Indian Safety IV of the Social Security Act to meet the ad- injuries, interference with, diversion, or tak- and Health’’ established by section 601(a) of ditional requirements imposed by the ing of water) within the Pojoaque Basin aris- the Tom Lantos and Henry J. Hyde United amendment made by subsection (a), the plan ing out of activities occurring outside the States Global Leadership Against HIV/AIDS, shall not be regarded as failing to meet such Pojoaque Basin; Tuberculosis, and Malaria Reauthorization requirements before the first day of the sec- (5) all claims relating to activities affect- Act of 2008 (25 U.S.C. 443c(a)). ond calendar quarter beginning after the ing the quality of water including any claims close of the first regular session of the State the Pueblos may have under the Comprehen- TITLE VII—RECLAMATION WATER legislature that begins after the effective sive Environmental Response, Compensa- SETTLEMENTS FUND date of such amendment. If the State has a tion, and Liability Act of 1980 (42 U.S.C. 9601 SEC. 701. MANDATORY APPROPRIATION. 2-year legislative session, each year of the et seq.) (including claims for damages to nat- (a) IN GENERAL.—Notwithstanding any session is deemed to be a separate regular ural resources), the Safe Drinking Water Act other provision of law, out of any funds in session of the State legislature. (42 U.S.C. 300f et seq.), the Federal Water the Treasury not otherwise appropriated, for Subtitle B—TANF Pollution Control Act (33 U.S.C. 1251 et seq.), each of fiscal years 2012 through 2014, the and the regulations implementing those Secretary of the Treasury shall transfer to SEC. 811. EXTENSION OF THE TEMPORARY AS- laws; the Secretary of the Interior $60,000,000 for SISTANCE FOR NEEDY FAMILIES (6) all claims against the United States re- deposit in the Reclamation Water Settle- PROGRAM. lating to damages, losses, or injuries to land ments Fund established in section 10501 of (a) IN GENERAL.—Activities authorized by or natural resources not due to loss of water Public Law 111–11. part A of title IV and section 1108(b) of the or water rights (including hunting, fishing, (b) RECEIPT AND ACCEPTANCE.—Starting in Social Security Act (other than the Emer- gathering or cultural rights); fiscal year 2012, the Secretary of the Interior gency Contingency Fund for State Tem- (7) all claims for water rights from water shall be entitled to receive, shall accept, and porary Assistance for Needy Families Pro- sources outside the Pojoaque Basin for land shall use to carry out subtitle B of title X of grams established under subsection (c) of Public Law 111–11 the funds transferred outside the Pojoaque Basin owned by a Pueb- section 403 of such Act) shall continue under subsection (a), without further appro- lo or held by the United States for the ben- through September 30, 2011, in the manner priation, to remain available until expended. efit of any of the Pueblos; and authorized for fiscal year 2010, and out of any (8) all rights, remedies, privileges, immuni- TITLE VIII—GENERAL PROVISIONS money in the Treasury of the United States ties, powers and claims not specifically Subtitle A—Unemployment Compensation not otherwise appropriated, there are hereby waived and released pursuant to this title or Program Integrity appropriated such sums as may be necessary the Settlement Agreement. SEC. 801. COLLECTION OF PAST-DUE, LEGALLY for such purpose. Grants and payments may (d) EFFECT.—Nothing in the Settlement ENFORCEABLE STATE DEBTS. be made pursuant to this authority on a Agreement or this title— (a) UNEMPLOYMENT COMPENSATION DEBTS.— quarterly basis through fiscal year 2011 at (1) affects the ability of the United States Section 6402(f) of the Internal Revenue Code the level provided for such activities for the acting in its sovereign capacity to take ac- of 1986 is amended— corresponding quarter of fiscal year 2010, ex- tions authorized by law, including any laws (1) in the heading, by striking ‘‘RESULTING cept that— relating to health, safety, or the environ- FROM FRAUD’’; (1) in the case of healthy marriage pro- ment, including the Comprehensive Environ- (2) by striking paragraphs (3) and (8) and motion and responsible fatherhood grants mental Response, Compensation, and Liabil- redesignating paragraphs (4) through (7) as under section 403(a)(2) of such Act, such ity Act of 1980 (42 U.S.C. 9601 et seq.), the paragraphs (3) through (6), respectively; grants and payments shall be made in ac- Safe Drinking Water Act (42 U.S.C. 300f et (3) in paragraph (3), as so redesignated— cordance with the amendments made by sub- seq.), the Federal Water Pollution Control (A) in subparagraph (A), by striking ‘‘by section (b) of this section; Act (33 U.S.C. 1251 et seq.), the Solid Waste certified mail with return receipt’’; (2) in the case of supplemental grants Disposal Act (42 U.S.C. 6901 et seq.), and the (B) in subparagraph (B), by striking ‘‘due under section 403(a)(3) of such Act— regulations implementing those laws; to fraud’’ and inserting ‘‘is not a covered un- (A) such grants and payments for the pe- (2) affects the ability of the United States employment compensation debt’’; riod beginning on October 1, 2010, and ending to take actions acting in its capacity as (C) in subparagraph (C), by striking ‘‘due on December 3, 2010, shall not exceed the trustee for any other Indian tribe or allottee; to fraud’’ and inserting ‘‘ is not a covered un- level provided for such grants and payments or employment compensation debt’’; and under the Continuing Appropriations Act, (3) confers jurisdiction on any State court (4) in paragraph (4), as so redesignated— 2011; and to— (A) in subparagraph (A)— (B) such grants and payments for the pe- (A) interpret Federal law regarding health, (i) by inserting ‘‘or the person’s failure to riod beginning on December 4, 2010, and end- safety, or the environment or determine the report earnings’’ after ‘‘due to fraud’’; and ing on June 30, 2011, shall not exceed the duties of the United States or other parties (ii) by striking ‘‘for not more than 10 amount equal to the difference between pursuant to such Federal law; or years’’; and $490,000,000 and such sums as are necessary (B) conduct judicial review of Federal (B) in subparagraph (B)— for amounts obligated under section 403(b) of agency action; (i) by striking ‘‘due to fraud’’; and the Social Security Act on or after October (e) TOLLING OF CLAIMS.— (ii) by striking ‘‘for not more than 10 1, 2010, and before the date of enactment of (1) IN GENERAL.—Each applicable period of years’’. this Act; and limitation and time-based equitable defense (b) EFFECTIVE DATE.—The amendments (3) in the case of the Contingency Fund for relating to a claim described in this section made by this section shall apply to refunds State Welfare Programs established under

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00090 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8201 section 403(b) of such Act, grants and pay- SEC. 812. MODIFICATIONS TO TANF DATA RE- an eligible State shall publish on an Internet ments may be made in the manner author- PORTING. website maintained by the State agency re- ized for fiscal year 2010 through fiscal year (a) IN GENERAL.—Section 411 of the Social sponsible for administering the State pro- 2012, in accordance with the amendments Security Act (42 U.S.C. 611) is amended by gram funded under this part (or such State- made by subsection (c) of this section. adding at the end the following new sub- maintained website as the Secretary may ap- (b) HEALTHY MARRIAGE PROMOTION AND RE- section: prove)— ‘‘(c) PRE-REAUTHORIZATION STATE-BY-STATE SPONSIBLE FATHERHOOD GRANTS.—Section ‘‘(A) a summary of the information sub- REPORTS ON ENGAGEMENT IN ADDITIONAL 403(a)(2) of the Social Security Act (42 U.S.C. mitted in the report: WORK ACTIVITIES AND EXPENDITURES FOR 603(a)(2)) is amended— ‘‘(B) an analysis statement regarding the OTHER BENEFITS AND SERVICES.— (1) in subparagraph (A)— extent to which the information changes ‘‘(1) STATE REPORTING REQUIREMENTS.— (A) in clause (i), by striking ‘‘and (C)’’ and measures of total engagement in work ac- ‘‘(A) REPORTING PERIODS AND DEADLINES.— inserting ‘‘, (C), and (E)’’; tivities from what was (or will be) reported Each eligible State shall submit to the Sec- (B) in clause (ii), in the matter preceding by the State in the quarterly report sub- retary the following reports: subclause (I), by inserting ‘‘(or, in the case of mitted under subsection (a) for the com- ‘‘(i) MARCH 2011 REPORT.—Not later than an entity seeking funding to carry out May 31, 2011, a report for the period that be- parable period; and healthy marriage promotion activities and gins on March 1, 2011, and ends on March 31, ‘‘(C) a narrative describing the most com- activities promoting responsible fatherhood, 2011, that contains the information specified mon activities contained in the report that a combined application that contains assur- in subparagraphs (B) and (C). are not countable toward the State partici- ances that the entity will carry out such ac- pation rates under section 407. ‘‘(ii) APRIL-JUNE, 2011 REPORT.—Not later tivities under separate programs and shall than August 31, 2011, a report for the period ‘‘(3) APPLICATION OF AUTHORITY TO USE SAM- not combine any funds awarded to carry out that begins on April 1, 2011, and ends on June PLING.—Subparagraph (B) of subsection (a)(1) either such activities)’’ after ‘‘an applica- 30, 2011, that contains with respect to the 3 shall apply to the reports required under tion’’; and months that occur during that period— paragraph (1) of this subsection in the same (C) in clause (iii), by striking subclause ‘‘(I) the average monthly numbers for the manner as subparagraph (B) of subsection (III) and inserting the following: information specified in subparagraph (B); (a)(1) applies to reports required under sub- ‘‘(III) Marriage education, marriage skills, and paragraph (A) of subsection (a)(1). and relationship skills programs, that may ‘‘(II) the information specified in subpara- ‘‘(4) SECRETARIAL REPORTS TO CONGRESS.— include parenting skills, financial manage- graph (C). ‘‘(A) MARCH 2011 REPORT.—Not later than ment, conflict resolution, and job and career ‘‘(B) ENGAGEMENT IN ADDITIONAL WORK AC- June 30, 2011, the Secretary shall submit to advancement.’’; TIVITIES.— Congress a report on the information sub- (2) in subparagraph (C)(i), by striking ‘‘(i) With respect to each work-eligible in- mitted by eligible States for the March 2011 ‘‘$50,000,000’’ and inserting ‘‘$75,000,000’’; dividual in a family receiving assistance dur- reporting period under paragraph (1)(A)(i). (3) by striking subparagraph (D) and in- ing a reporting period specified in subpara- The report shall include a State-by-State serting the following: graph (A), whether the individual engages in summary and analysis of such information, ‘‘(D) APPROPRIATION.—Out of any money in any activities directed toward attaining self- identification of any States with missing or the Treasury of the United States not other- sufficiency during a month occurring in a re- incomplete reports, and recommendations wise appropriated, there are appropriated for porting period, and if so, the specific activi- for such administrative or legislative fiscal year 2011 for expenditure in accordance ties— changes as the Secretary determines are nec- with this paragraph— ‘‘(I) that do not qualify as a work activity essary to require eligible States to report ‘‘(i) $75,000,000 for awarding funds for the under section 407(d) but that are otherwise the information on a recurring basis. purpose of carrying out healthy marriage reasonably calculated to help the family ‘‘(B) APRIL-JUNE, 2011 REPORT.—Not later promotion activities; and move toward self-sufficiency; or than September 30, 2011, the Secretary shall ‘‘(ii) $75,000,000 for awarding funds for the ‘‘(II) that are of a type that would be submit to Congress a report on the informa- purpose of carrying out activities promoting counted toward the State participation rates tion submitted by eligible States for the responsible fatherhood. under section 407 but for the fact that— April-June 2011 reporting period under para- If the Secretary makes an award under sub- ‘‘(aa) the work-eligible individual did not graph (1)(A)(ii). The report shall include a paragraph (B)(i) for fiscal year 2011, the engage in sufficient hours of the activity; State-by-State summary and analysis of funds for such award shall be taken in equal ‘‘(bb) the work-eligible individual has such information, identification of any portion from the amounts appropriated reached the maximum time limit allowed for States with missing or incomplete reports, under clauses (i) and (ii).’’; and having participation in the activity counted and recommendations for such administra- (4) by adding at the end the following: toward the State’s work participation rate; tive or legislative changes as the Secretary ‘‘(E) PREFERENCE.—In awarding funds or determines are necessary to require eligible under this paragraph for fiscal year 2011, the ‘‘(cc) the number of work-eligible individ- States to report the information on a recur- Secretary shall give preference to entities uals engaged in such activity exceeds a limi- ring basis that were awarded funds under this para- tation under such section. ‘‘(5) AUTHORITY FOR EXPEDITIOUS IMPLEMEN- graph for any prior fiscal year and that have ‘‘(ii) Any other information that the Sec- TATION.—The requirements of chapter 5 of demonstrated the ability to successfully retary determines appropriate with respect title 5, United States Code (commonly re- carry out the programs funded under this to the information required under clause (i), ferred to as the ‘Administrative Procedure paragraph.’’. including if the individual has no hours of Act’) or any other law relating to rule- (c) CONTINGENCY FUND.—Section 403(b)(2) of participation, the principal reason or reasons making or publication in the Federal Reg- the Social Security Act (42 U.S.C. 603(b)(2)), for such non-participation. ister shall not apply to the issuance of guid- as amended by section 131(b)(2)(A) of the ‘‘(C) EXPENDITURES ON OTHER BENEFITS AND ance or instructions by the Secretary with Continuing Appropriations Act, 2011, is SERVICES.— respect to the implementation of this sub- amended— ‘‘(i) Detailed, disaggregated information section to the extent the Secretary deter- (1) by striking ‘‘$506,000,000’’ and inserting regarding the types of, and amounts of, ex- mines that compliance with any such re- ‘‘such sums as are necessary for amounts ob- penditures made by the State during a re- quirement would impede the expeditious im- ligated on or after October 1, 2010, and before porting period specified in subparagraph (A) plementation of this subsection.’’. the date of enactment of the Claims Resolu- using— (b) APPLICATION OF PENALTY FOR FAILURE tion Act of 2010,’’; and ‘‘(I) Federal funds provided under section TO FILE REPORT.— (2) by striking ‘‘, reduced’’ and all that fol- 403 that are (or will be) reported by the State (1) IN GENERAL.—Section 409(a)(2) of such lows up to the period. on Form ACF–196 (or any successor form) Act (42 U.S.C. 609(a)(2)) is amended— (d) CONFORMING AMENDMENTS.—Section under the category of other expenditures or (A) by redesignating subparagraphs (A) and 403(a)(3) of the Social Security Act (42 U.S.C. the category of benefits or services provided (B) as clauses (i) and (ii), respectively, 603(a)(3)), as amended by section 131(b)(1) of in accordance with the authority provided (B) by inserting before clause (i) (as redes- the Continuing Appropriations Act, 2011, is under section 404(a)(2); or ignated by paragraph (1)), the following: amended— ‘‘(II) State funds expended to meet the re- ‘‘(A) QUARTERLY REPORTS.—’’; (1) in subparagraph (F)— quirements of section 409(a)(7) and reported (C) in clause (ii) of subparagraph (A) (as re- (A) by inserting ‘‘(or portion of a fiscal by the State in the category of other expend- designated by paragraphs (1) and (2)), by year)’’ after ‘‘a fiscal year’’; and itures on Form ACF–196 (or any successor striking ‘‘subparagraph (A)’’ and inserting (B) by inserting ‘‘(or portion of the fiscal form). ‘‘clause (i)’’; and year)’’ after ‘‘the fiscal year’’ each place it ‘‘(ii) Any other information that the Sec- (D) by adding at the end the following: appears; and retary determines appropriate with respect ‘‘(B) REPORT ON ENGAGEMENT IN ADDITIONAL (2) by striking clause (ii) of subparagraph to the information required under clause (i). WORK ACTIVITIES AND EXPENDITURES FOR (H) and inserting the following: ‘‘(2) PUBLICATION OF SUMMARY AND ANAL- OTHER BENEFITS AND SERVICES.— ‘‘(ii) subparagraph (G) shall be applied as if YSIS OF ENGAGEMENT IN ADDITIONAL ACTIVI- ‘‘(i) IN GENERAL.—If the Secretary deter- ‘fiscal year 2011’ were substituted for ‘fiscal TIES.—Concurrent with the submission of mines that a State has not submitted the re- year 2001’;’’. each report required under paragraph (1)(A), port required by section 411(c)(1)(A)(i) by

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00091 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8202 CONGRESSIONAL RECORD — SENATE November 19, 2010 May 31, 2011, or the report required by sec- Subtitle E—Rescission of Funds From WIC and that the November 18 order be tion 411(c)(1)(A)(ii) by August 31, 2011, the Program modified to make it in order to con- Secretary shall reduce the grant payable to SEC. 841. RESCISSION OF FUNDS FROM WIC PRO- sider the Baucus amendment No. 4713, the State under section 403(a)(1) for the im- GRAM. as modified. mediately succeeding fiscal year by an Notwithstanding any other provision of The PRESIDING OFFICER. Without amount equal to not more than 4 percent of law, of the amounts made available in appro- objection, it is so ordered. the State family assistance grant. priations Acts to provide grants to States ‘‘(ii) RESCISSION OF PENALTY.—The Sec- The amendment, as modified, is as under the special supplemental nutrition follows: retary shall rescind a penalty imposed on a program for women, infants, and children es- State under clause (i) with respect to a re- tablished by section 17 of the Child Nutrition (Purpose: To repeal the expansion of infor- port required by section 411(c)(1)(A) if the Act of 1966 (42 U.S.C. 1786), $562,000,000 is re- mation reporting requirements for pay- State submits the report not later than— scinded. ments of $600 or more to corporations, and ‘‘(I) in the case of the report required for other purposes) Subtitle F—Budgetary Effects under section 411(c)(1)(A)(i), June 15, 2011; At the end, add the following: SEC. 851. BUDGETARY EFFECTS. and TITLE V—SMALL BUSINESS PAPERWORK ‘‘(II) in the case of the report required The budgetary effects of this Act, for the RELIEF under section 411(c)(1)(A)(ii), September 15, purpose of complying with the Statutory Pay-As-You-Go-Act of 2010, shall be deter- SEC. 501. REPEAL OF EXPANSION OF INFORMA- 2011. TION REPORTING REQUIREMENTS. mined by reference to the latest statement ‘‘(iii) PENALTY BASED ON SEVERITY OF FAIL- (a) REPEAL OF PAYMENTS FOR PROPERTY titled ‘‘Budgetary Effects of PAYGO Legisla- URE.—The Secretary shall impose a reduc- AND OTHER GROSS PROCEEDS.—Subsection (b) tion under clause (i) with respect to a fiscal tion’’ for this Act, submitted for printing in of section 9006 of the Patient Protection and year based on the degree of noncompliance.’’. the Congressional Record by the Chairman of Affordable Care Act, and the amendments (2) APPLICATION OF REASONABLE CAUSE EX- the Senate Budget Committee, provided that made thereby, are hereby repealed; and the CEPTION.—Section 409(b)(2) of such Act (42 such statement has been submitted prior to Internal Revenue Code of 1986 shall be ap- U.S.C. 609(b)(2)) is amended by inserting be- the vote on passage. plied as if such subsection, and amendments, fore the period the following: ‘‘and, with re- Amend the title so as to read: This Act had never been enacted. spect to the penalty under paragraph (2)(B) may be cited as ‘‘The Claims Resettlement (b) REPEAL OF APPLICATION TO CORPORA- of subsection (a), shall only apply to the ex- Act of 2010.’’. TIONS; APPLICATION OF REGULATORY AUTHOR- tent the Secretary determines that the rea- The PRESIDING OFFICER. The var- ITY.— sonable cause for failure to comply with a re- ious requests with respect to this bill (1) IN GENERAL.—Section 6041 of the Internal quirement of that paragraph is as a result of are agreed to. Revenue Code of 1986, as amended by section a one-time, unexpected event, such as a Mr. REID. The bill is passed? 9006(a) of the Patient Protection and Afford- widespread data system failure or a natural able Care Act and section 2101 of the Small or man-made disaster’’. The PRESIDING OFFICER. The bill is passed. Business Jobs Act of 2010, is amended by (3) NONAPPLICATION OF CORRECTIVE COMPLI- striking subsections (i) and (j) and inserting ANCE PLAN PROVISIONS.—Section 409(c)(4) of Mr. REID. Mr. President, I appreciate the following new subsection: such Act (42 U.S.C. 609(c)(4)) is amended by everyone’s cooperation. This has been a ‘‘(i) REGULATIONS.—The Secretary may inserting ‘‘(2)(B),’’ after ‘‘paragraph’’. long hard slog to get where we are. I prescribe such regulations and other guid- Subtitle C—Customs User Fees; Continued appreciate Senator KYL, Senator ance as may be appropriate or necessary to Dumping and Subsidy Offset MENENDEZ, and many others who have carry out the purposes of this section, in- worked on this matter tirelessly for cluding rules to prevent duplicative report- SEC. 821. CUSTOMS USER FEES. many years. I am grateful it is accom- ing of transactions.’’. (2) EFFECTIVE DATE.—The amendments Section 13031(j)(3) of the Consolidated Om- plished. It is one of the noteworthy made by this subsection shall apply to pay- nibus Budget Reconciliation Act of 1985 (19 items we have been able to pass this ments made after December 31, 2010. U.S.C. 58c(j)(3)) is amended— Congress. It is good for all people con- f (1) in subparagraph (A), by striking ‘‘De- cerned. cember 10, 2018’’ and inserting ‘‘September ANIMAL CRUSH VIDEO 30, 2019’’; and f PROHIBITION ACT OF 2010 (2) in subparagraph (B)(i), by striking ‘‘No- SENATOR KENT CONRAD vember 30, 2018’’ and inserting ‘‘September Mr. REID. Mr. President, I ask that 30, 2019’’. Mr. REID. Mr. President, Senator the Chair now lay before the Senate CONRAD, because of his tenure of serv- the House message to accompany H.R. SEC. 822. LIMITATION ON DISTRIBUTIONS RELAT- 5566. ING TO REPEAL OF CONTINUED ice, had the choice to take a number of DUMPING AND SUBSIDY OFFSET. different committees. He decided to The Presiding Officer laid before the stay as chairman of the Budget Com- Senate the following message from the Notwithstanding section 1701(b) of the Def- House of Representatives: icit Reduction Act of 2005 (Public Law 109– mittee. When I talked to him this H.R. 5566 171; 120 Stat. 154 (19 U.S.C. 1675c note)) or any morning, I said: I am elated. He is real- other provision of law, no payments shall be ly a wizard with numbers. As a young Resolved, That the House agree to the amendment of the Senate to the bill (H.R. distributed under section 754 of the Tariff man, he was academically extremely 5566) entitled ‘‘An Act to amend title 18, Act of 1930, as in effect on the day before the talented. And as a person who has ex- United States Code, to prohibit interstate date of the enactment of such section 1701, perience in the Senate, no one knows commerce in animal crush videos, and for with respect to the entries of any goods that numbers better than he does. We are other purposes.’’, with the following House are, on the date of the enactment of this fortunate as a country that KENT amendment to Senate amendment: Act— CONRAD is going to remain as chairman In lieu of the matter proposed to be in- (1) unliquidated; and of the Budget Committee. serted by the amendment of the Senate, in- (2)(A) not in litigation; or sert the following: (B) not under an order of liquidation from f SECTION 1. SHORT TITLE. the Department of Commerce. SIGNING AUTHORITY This Act may be cited as the ‘‘Animal Crush Video Prohibition Act of 2010’’. Subtitle D—Emergency Fund for Indian Mr. REID. Mr. President, I ask unan- Safety and Health SEC. 2. FINDINGS. imous consent that the majority leader The Congress finds the following: SEC. 831. EMERGENCY FUND FOR INDIAN SAFETY be authorized to sign any duly enrolled (1) The United States has a long history of AND HEALTH. bills or joint resolutions for the re- prohibiting the interstate sale, marketing, ad- vertising, exchange, and distribution of obscene Section 601 of the Tom Lantos and Henry mainder of today. material and speech that is integral to criminal J. Hyde United States Global Leadership The PRESIDING OFFICER. Without conduct. Against HIV/ AIDS, Tuberculosis, and Ma- objection, it is so ordered. (2) The Federal Government and the States laria Reauthorization Act of 2008 (25 U.S.C. f have a compelling interest in preventing inten- 443c) is amended— tional acts of extreme animal cruelty. (1) in subsection (b)(1), by striking AMENDMENT NO. 4713, AS (3) Each of the several States and the District ‘‘$2,000,000,000’’ and inserting ‘‘$1,602,619,000’’; MODIFIED of Columbia criminalize intentional acts of ex- and treme animal cruelty, such as the intentional (2) in subsection (f)(2)(B), by striking ‘‘50 Mr. REID. I ask unanimous consent crushing, burning, drowning, suffocating, or im- percent’’ and inserting ‘‘not more than that the Baucus amendment No. 4713 be paling of animals for no socially redeeming pur- $602,619,000’’. modified with the changes at the desk pose.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00092 Fmt 4637 Sfmt 6333 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8203 (4) There are certain extreme acts of animal ‘‘(2) the animal crush video is transported into grounds. The Senate Judiciary Com- cruelty that appeal to a specific sexual fetish. the United States or its territories or possessions. mittee regularly looks at questions These acts of extreme animal cruelty are ‘‘(d) PENALTY.—Any person who violates sub- raised by Supreme Court decisions and videotaped, and the resulting video tapes are section (b) shall be fined under this title, impris- the first amendment, and the House commonly referred to as ‘‘animal crush videos’’. oned for not more than 7 years, or both. bill was referred to the Senate Judici- (5) The Supreme Court of the United States ‘‘(e) EXCEPTIONS.— has long held that obscenity is an exception to ‘‘(1) IN GENERAL.—This section shall not apply ary Committee for consideration. The speech protected under the First Amendment to with regard to any visual depiction of— version of the bill passed today reflects the Constitution of the United States. ‘‘(A) customary and normal veterinary or ag- a carefully crafted compromise be- (6) In the judgment of Congress, many animal ricultural husbandry practices; tween the House and Senate that crush videos are obscene in the sense that the ‘‘(B) the slaughter of animals for food; or strikes the right balance between the depictions, taken as a whole— ‘‘(C) hunting, trapping, or fishing. first amendment and the needs of law (A) appeal to the prurient interest in sex; ‘‘(2) GOOD-FAITH DISTRIBUTION.—This section enforcement, while adhering to the sep- (B) are patently offensive; and shall not apply to the good-faith distribution of (C) lack serious literary, artistic, political, or an animal crush video to— aration of powers enshrined in our Con- scientific value. ‘‘(A) a law enforcement agency; or stitution. (7) Serious criminal acts of extreme animal ‘‘(B) a third party for the sole purpose of There are a few well-established ex- cruelty are integral to the creation, sale, dis- analysis to determine if referral to a law en- ceptions to the first amendment. The tribution, advertising, marketing, and exchange forcement agency is appropriate. United States has long prohibited the of animal crush videos. ‘‘(f) NO PREEMPTION.—Nothing in this section interstate sale of obscene materials, (8) The creation, sale, distribution, adver- shall be construed to preempt the law of any tising, marketing, and exchange of animal crush and the Supreme Court recognized this State or local subdivision thereof to protect ani- exception to the first amendment in videos is intrinsically related and integral to mals.’’. 1957. Earlier this year, the Judiciary creating an incentive for, directly causing, and (b) CLERICAL AMENDMENT.—The item relating perpetuating demand for the serious acts of ex- to section 48 in the table of sections for chapter Committee held a hearing focused on treme animal cruelty the videos depict. The pri- 3 of title 18, United States Code, is amended to the obscene nature of many animal mary reason for those criminal acts is the cre- read as follows: crush videos. We heard testimony from ation, sale, distribution, advertising, marketing, ‘‘48. Animal crush videos.’’. experts who confirmed that many ani- and exchange of the animal crush video image. (9) The serious acts of extreme animal cruelty (c) SEVERABILITY.—If any provision of section mal crush videos depict extreme acts of necessary to make animal crush videos are com- 48 of title 18, United States Code (as amended by animal cruelty which are designed to mitted in a clandestine manner that— this section), or the application of the provision appeal to a specific, prurient, sexual (A) allows the perpetrators of such crimes to to any person or circumstance, is held to be un- fetish. Indeed, these animal crush vid- remain anonymous; constitutional, the provision and the application eos are patently offensive, lack any re- (B) makes it extraordinarily difficult to estab- of the provision to other persons or cir- deeming social value, and can be lish the jurisdiction within which the under- cumstances shall not be affected thereby. banned consistent with the Supreme lying criminal acts of extreme animal cruelty oc- SEC. 4. PAYGO COMPLIANCE. curred; and Court’s obscenity jurisprudence. Courts The budgetary effects of this Act, for purposes and juries play an important role in de- (C) often precludes proof that the criminal of complying with the Statutory Pay-As-You-Go acts occurred within the statute of limitations. Act of 2010, shall be determined by reference to termining what is obscene, and I (10) Each of the difficulties described in para- the latest statement titled ‘‘Budgetary Effects of worked hard with Senator SESSIONS, graph (9) seriously frustrates and impedes the PAYGO Legislation’’ for this Act, jointly sub- and the bill sponsors, to make sure ability of State authorities to enforce the crimi- mitted for printing in the Congressional Record that the law passed today respects the nal statutes prohibiting such behavior. by the Chairmen of the House and Senate Budg- role of both. SEC. 3. ANIMAL CRUSH VIDEOS. et Committees, provided that such statement has The United States also has a history (a) IN GENERAL.—Section 48 of title 18, United been submitted prior to the vote on passage in of prohibiting speech that is integral to States Code, is amended to read as follows: the House acting first on this conference report criminal conduct. The acts of animal ‘‘§ 48. Animal crush videos or amendments between the Houses. cruelty depicted in many animal crush ‘‘(a) DEFINITION.—In this section the term Mr. REID. Mr. President, I ask unan- videos violate State laws, but these ‘animal crush video’ means any photograph, imous consent that the Senate concur laws are hard to enforce. The animal motion-picture film, video or digital recording, in the House amendment, the motion or electronic image that— cruelty is often committed in a clan- ‘‘(1) depicts actual conduct in which 1 or more to reconsider be laid upon the table, destine manner that allows the per- living non-human mammals, birds, reptiles, or and any statements relating to this petrators to remain anonymous. The amphibians is intentionally crushed, burned, matter be printed in the RECORD. nature of the videos makes it extraor- drowned, suffocated, impaled, or otherwise sub- The PRESIDING OFFICER. Without dinarily difficult to establish the juris- jected to serious bodily injury (as defined in sec- objection, it is so ordered. diction necessary to prosecute the tion 1365 and including conduct that, if com- Mr. LEAHY. Mr. President, today, crimes. Given the severe difficulties mitted against a person and in the special mari- the Senate passed the Animal Crush time and territorial jurisdiction of the United that State law enforcement agencies States, would violate section 2241 or 2242); and Video Prohibition Act of 2010. I thank have encountered in investigating the ‘‘(2) is obscene. Senators KYL, MERKLEY and BURR for underlying conduct, today Congress ‘‘(b) PROHIBITIONS.— their leadership on this important leg- has taken an important step towards ‘‘(1) CREATION OF ANIMAL CRUSH VIDEOS.—It islation, which bans the creation, sale combating the crimes of extreme ani- shall be unlawful for any person to knowingly and distribution of obscene animal mal cruelty that obscene animal crush create an animal crush video, if— crush videos. We worked together on a ‘‘(A) the person intends or has reason to know videos depict. that the animal crush video will be distributed bipartisan basis to ensure that the bill I have long been a champion of first in, or using a means or facility of, interstate or respects the first amendment and the amendment rights. As the son of foreign commerce; or role of our court system, while at the Vermont printers, I know firsthand ‘‘(B) the animal crush video is distributed in, same time giving law enforcement a that the freedom of speech is the cor- or using a means or facility of, interstate or for- valuable and necessary tool to stop ob- nerstone of our democracy. This is why eign commerce. scene animal cruelty. I have worked hard to pass legislation ‘‘(2) DISTRIBUTION OF ANIMAL CRUSH VIDEOS.— Earlier this year, in United States v. like the SPEECH Act, which protects It shall be unlawful for any person to know- Stevens, the Supreme Court struck ingly sell, market, advertise, exchange, or dis- American authors, journalists and pub- tribute an animal crush video in, or using a down a Federal statute banning depic- lishers from foreign libel lawsuits that means or facility of, interstate or foreign com- tions of animal cruelty because it held undermine the first amendment. merce. the statute to be overbroad and in vio- Today’s success demonstrates that ‘‘(c) EXTRATERRITORIAL APPLICATION.—Sub- lation of the first amendment. Animal Congress can work on a bipartisan section (b) shall apply to the knowing sale, mar- crush videos, which can depict obscene, basis to pass legislation that is the keting, advertising, exchange, distribution, or extreme acts of animal cruelty, were a focus of many competing interests. I creation of an animal crush video outside of the primary target of that legislation. commend the coalition that worked United States, if— ‘‘(1) the person engaging in such conduct in- Several months ago, in response to hard, alongside the Humane Society tends or has reason to know that the animal the Stevens decision, the House over- and first amendment experts, to strike crush video will be transported into the United whelmingly passed a narrower bill ban- the proper balance between the needs States or its territories or possessions; or ning animal crush videos on obscenity of law enforcement and the first

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00093 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8204 CONGRESSIONAL RECORD — SENATE November 19, 2010 amendment, and I am pleased that, striking ‘‘preexisting subscription digital audio tion. I appreciate the Senate acting once the President signs this bill into transmission services or preexisting satellite dig- quickly to pass this bill, and I look for- law, obscene animal crush videos will ital radio audio services’’ and inserting ‘‘eligible ward to the President signing it into no longer threaten animal welfare. nonsubscription services and new subscription law. services’’. f SEC. 6. TECHNICAL CORRECTIONS. f COPYRIGHT CLEANUP, CLARIFICA- (a) DEFINITIONS.—Section 101 is amended— TION, AND CORRECTIONS ACT OF (1) by moving the definition of ‘‘Copyright 2010 Royalty Judges’’ to follow the definition of JESSICA ANN ELLIS GOLD STAR ‘‘Copyright owner’’; FATHERS ACT OF 2010 Mr. REID. Mr. President, I now ask (2) by moving the definition of ‘‘motion pic- that the Chair lay before the Senate a ture exhibition facility’’ to follow the definition Mr. REID. Mr. President, I ask unan- House message with respect to S. 3689. of ‘‘Literary works’’; and imous consent that the Senate proceed The Presiding Officer laid before the (3) by moving the definition of ‘‘food service to the consideration of Calendar No. or drinking establishment’’ to follow the defini- 650, S. 3650. Senate the following message from the tion of ‘‘fixed’’; House of Representatives: (b) LICENSES FOR WEBCASTING.—Section The PRESIDING OFFICER. The S. 3689 114(f)(2)(B) is amended in the fourth sentence, clerk will report the bill by title. Resolved, That the bill from the Senate (S. in the matter preceding clause (i), by striking The legislative clerk read as follows: 3689) entitled ‘‘An Act to clarify, improve, ‘‘Judges shall base its decision’’ and inserting A bill (S. 3650) to amend chapter 21 of title and correct the laws relating to copy- ‘‘Judges shall base their decision’’. 5, United States Code, to provide that fa- rights.’’, do pass with the following amend- (c) SATELLITE CARRIERS.—Section thers of certain permanently disabled or de- ments: 119(g)(4)(B)(vi) is amended by striking ‘‘the ex- ceased veterans shall be included with moth- Strike out all after the enacting clause and aminations’’ and inserting ‘‘an examination’’. ers of such veterans as preference eligibles insert: (d) REMEDIES FOR INFRINGEMENT.—Section 503(a)(1)(B) is amended by striking ‘‘copies of for treatment in the civil service. SECTION 1. SHORT TITLE. phonorecords’’ and inserting ‘‘copies or This Act may be cited as the ‘‘Copyright There being no objection, the Senate phonorecords’’. Cleanup, Clarification, and Corrections Act of (e) RETENTION OF COPIES IN COPYRIGHT OF- proceeded to consider the bill. 2010’’. FICE.—Section 704(e) is amended, in the second Mr. REID. Mr. President, I ask unan- SEC. 2. REFERENCE. sentence, by striking ‘‘section 708(a)(10)’’ and imous consent that the Wyden amend- Except as otherwise specifically provided, inserting ‘‘section 708(a)’’. ment, which is at the desk, be consid- whenever in this Act a section or other provision (f) CORRECTION OF INTERNAL REFERENCES.— ered and agreed to, the bill, as amend- is amended or repealed, such amendment or re- (1) Section 114(b) is amended by striking ed, be read a third time and passed, the peal shall be considered to be made to that sec- ‘‘118(g)’’ and inserting ‘‘118(f)’’. tion or other provision of title 17, United States (2) Section 504(c)(2) is amended by striking motions to reconsider be laid upon the Code. ‘‘subsection (g) of section 118’’ and inserting table with no intervening action or de- SEC. 3. COPYRIGHT OFFICE PROCEDURES. ‘‘section 118(f)’’. bate, and that any statements relating (a) DIRECTORY OF AGENTS OF SERVICE PRO- (3) Sections 1203(c)(5)(B)(i) and 1204(b) are to this measure be printed in the VIDERS.—Section 512(c)(2) is amended, in the each amended by striking ‘‘118(g)’’ and insert- RECORD. matter following subparagraph (B), by striking ing ‘‘118(f)’’. The PRESIDING OFFICER. Without (g) PRO-IP ACT.—Section 209(a)(3)(A) of Pub- ‘‘, in both electronic and hard copy formats’’. objection, it is so ordered. (b) RECORDATION OF DOCUMENTS.—Section lic Law 110–403 is amended by striking ‘‘by 205(a) is amended by adding at the end the fol- striking ‘and 509’ ’’ and inserting ‘‘by striking The amendment (No. 4717) was agreed lowing: ‘‘A sworn or official certification may be ‘and section 509’ ’’. to, as follows: (h) TRADEMARK TECHNICAL AMENDMENTS submitted to the Copyright Office electronically, (Purpose: To strike the short title) pursuant to regulations established by the Reg- ACT.—Section 4(a)(1) of Public Law 111–146 is ister of Copyrights.’’. amended by striking ‘‘by corporations attempt- Strike section 1 and redesignate sections 2 ing’’ and inserting ‘‘the purpose of which is’’. SEC. 4. REPEAL OF EXPIRED PROVISIONS. and 3 as sections 1 and 2, respectively. (i) TRAFFICKING.—Section 2318(e)(6) of title 18, (a) REPEAL.—Section 601, and the item relat- United States Code, is amended by striking The bill (S. 3650), as amended, was or- ing to such section in the table of sections for ‘‘under section’’ and inserting ‘‘under this sub- dered to be engrossed for a third read- chapter 6, are repealed. section’’. ing, was read the third time, and (b) CONFORMING AMENDMENTS.— passed, as follows: (1) CLERICAL AMENDMENT.—(A) The heading Amend the title so as to read: ‘‘An Act to for chapter 6 is amended to read as follows: clarify, improve, and correct the laws relat- S. 3650 ing to copyrights, and for other purposes.’’. ‘‘CHAPTER 6—IMPORTATION AND Be it enacted by the Senate and House of EXPORTATION’’. Mr. REID. Mr. President, I move to Representatives of the United States of America (B) The item relating to chapter 6 in the table concur in the House amendments, the in Congress assembled, motion to reconsider be laid upon the of chapters is amended to read as follows: SECTION 1. PREFERENCE ELIGIBLE TREATMENT ‘‘6. Importation and Exportation ...... 601’’. table, with no intervening action or de- FOR FATHERS OF CERTAIN PERMA- bate, and that any statements relating NENTLY DISABLED OR DECEASED PPLICATION FOR COPYRIGHT REGISTRA (2) A - VETERANS. TION.—Section 409 is amended— to this matter be printed in the (A) in paragraph (9), by adding ‘‘and’’ after RECORD. Section 2108(3) of title 5, United States the semicolon; The motion was agreed to. Code, is amended by striking subparagraphs (B) by striking paragraph (10); and Mr. LEAHY. Mr. President, I am (F) and (G) and inserting the following: (C) by redesignating paragraph (11) as para- pleased that the Senate today has ‘‘(F) the parent of an individual who lost graph (10). taken up and passed bipartisan legisla- his or her life under honorable conditions (c) INFRINGING IMPORTATION OR EXPOR- while serving in the armed forces during a tion to make a number of improve- period named by paragraph (1)(A) of this sec- TATION.—The second sentence of section 602(b) ments to the way in which the Copy- is amended by striking ‘‘unless the provisions of tion, if— section 601 are applicable’’. right Office functions, to clarify areas ‘‘(i) the spouse of that parent is totally and in copyright law that have become un- permanently disabled; or SEC. 5. CLARIFICATIONS. clear, and make technical changes to ‘‘(ii) that parent, when preference is (a) CERTAIN DISTRIBUTIONS OF PHONOREC- current law. The Copyright Office pro- claimed, is unmarried or, if married, legally ORDS.—Section 303(b) is amended by striking separated from his or her spouse; ‘‘the musical work’’ and inserting ‘‘any musical vided important recommendations that are included in this legislation, and I ‘‘(G) the parent of a service-connected per- work, dramatic work, or literary work’’. manently and totally disabled veteran, if— (b) PROCEEDINGS OF COPYRIGHT ROYALTY thank them for their input and guid- ‘‘(i) the spouse of that parent is totally and JUDGES.—Section 803(b)(6)(A) is amended by ance on these issues. permanently disabled; or striking the second sentence and inserting the The changes made by this legislation ‘‘(ii) that parent, when preference is following: ‘‘All regulations issued by the Copy- are commonsense improvements that claimed, is unmarried or, if married, legally right Royalty Judges are subject to the approval will make the copyright system more separated from his or her spouse; and’’. of the Librarian of Congress and are subject to judicial review pursuant to chapter 7 of title 5, efficient. Bills such as this underscore SEC. 2. EFFECTIVE DATE. except as set forth in subsection (d).’’. the point that when Congress works to- The amendment made by this Act shall (c) LICENSES FOR CERTAIN NONEXEMPT TRANS- gether in a bipartisan, bicameral fash- take effect 90 days after the date of enact- MISSIONS.—Section 114(f)(2)(C) is amended by ion, we can pass good pieces of legisla- ment of this Act.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00094 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — SENATE S8205 BANKRUPTCY TECHNICAL charged from further consideration of NATIONAL SCHOOL PSYCHOLOGY CORRECTIONS ACT of 2010 S. Res. 611 and the Senate proceed to WEEK Mr. REID. Mr. President, I ask unan- its immediate consideration. Mr. REID. Mr. President, I ask unan- imous consent the Judiciary Com- The PRESIDING OFFICER. Without imous consent that the Judiciary Com- mittee be discharged from further con- objection, it is so ordered. mittee be discharged from further con- The clerk will report the resolution sideration of H.R. 6198. sideration of S. Res. 631 and that the by title. The PRESIDING OFFICER. Without The assistant legislative clerk read Senate proceed to the consideration of objection, it is so ordered. as follows: that measure. The clerk will report the bill by title. The PRESIDING OFFICER. Without The legislative clerk read as follows: A resolution (S. Res. 611) congratulating the Cumberland Valley Athletic Club on the objection, it is so ordered. A bill (H.R. 6198) to amend title 11 of the 48th anniversary of the running of the JFK The clerk will report the resolution United States Code to make technical cor- 50-Mile Ultra-Marathon. by title. rections; and for related purposes. There being no objection, the Senate The assistant legislative clerk read There being no objection, the Senate proceeded to consider the resolution. as follows: proceeded to consider the bill. Mr. REID. Mr. President, I ask unan- A resolution (S. Res. 631) designating the Mr. REID. I ask unanimous consent imous consent that the resolution be week beginning on November 8, 2010, as ‘‘Na- that the Hatch amendment which is at agreed to, the preamble be agreed to, tional School Psychology Week.’’ the desk be agreed to; the bill, as the motions to reconsider be laid upon There being no objection, the Senate amended, be read the third time and the table, without any intervening ac- proceeded to consider the resolution. passed, the motion to reconsider be tion or debate, and any statements re- Mr. REID. Mr. President, I ask unan- laid upon the table, and that any state- lating to this matter be printed in the imous consent that the resolution be ments relating to this matter be print- RECORD. agreed to, the preamble be agreed to, ed in the RECORD. The PRESIDING OFFICER. Without the motions to reconsider be laid upon The PRESIDING OFFICER. Without objection, it is so ordered. the table, with no intervening action objection, it is so ordered. The resolution (S. Res. 611) was or debate, and that any statements re- The amendment (No. 4718) was agreed agreed to. lated to the measure be printed in the to, as follows: The preamble was agreed to. RECORD. On page 3, strike lines 1 through 5 and in- The resolution, with its preamble, The PRESIDING OFFICER. Without sert the following: ‘‘and reads as follows: objection, it is so ordered. ‘‘(F) in paragraph (51D), by inserting ‘of S. RES. 611 The resolution (S. Res. 631) was the filing’ after ‘date’ the 1st place it ap- Whereas President John F. Kennedy set as agreed to. pears,’’ a national goal the improvement of the The preamble was agreed to. The amendment was ordered to be health of the members of the United States The resolution, with its preamble, engrossed and the bill to be read a Armed Forces; reads as follows: third time. Whereas President Kennedy, in 1963, issued S. RES. 631 The bill (H.R. 6198), as amended, was an Executive order challenging United Whereas all children and youth learn best read the third time and passed. States Marine officers to finish a 50-mile race in 20 hours, matching a similar chal- when they are healthy, supported, and re- f lenge issued in 1908 by President Theodore ceive an education that meets their indi- RECOGNIZING AND SUPPORTING Roosevelt; vidual needs; THE EFFORTS OF THE USA BID Whereas, since that Executive order, thou- Whereas schools can more effectively en- sands of Americans, not just servicemen and sure that all students are ready and able to COMMITTEE women, have taken up the challenge of the learn if schools meet all the needs of each Mr. REID. I ask unanimous consent JFK 50-Mile Ultra-Marathon; student; to proceed to H. Con. Res. 327. Whereas, since the inception of the JFK 50- Whereas learning and development are di- The PRESIDING OFFICER. The Mile Ultra-Marathon, all members of the rectly linked to the mental health of chil- clerk will report the concurrent resolu- Armed Services have been invited to meet dren, and a supportive learning environment the challenge set by Presidents Kennedy and is an optimal place to promote mental tion by title. Roosevelt over an historic race course; health; The assistant legislative clerk read Whereas between 30 and 40 percent of par- Whereas sound psychological principles are as follows: ticipants in the JFK 50-Mile Ultra-Marathon critical to proper instruction and learning, A concurrent resolution (H. Con. Res. 327) each year are active duty military or vet- social and emotional development, preven- recognizing and supporting the efforts of the erans; tion and early intervention, and support for USA Bid Committee to bring the 2022 Fed- Whereas each of the branches of the United a culturally diverse student population; eration Internationale de Football Associa- States Armed Forces fields at least 1 team Whereas school psychologists are specially tion (FIFA) World Cup Competition to the each year in the JFK 50-Mile Ultra-Mara- trained to deliver mental health services and United States. thon, and the Navy typically fields several academic support that lower barriers to There being no objection, the Senate teams; learning and allow teachers to teach more ef- fectively; proceeded to consider the concurrent Whereas much of the course of the JFK 50- Mile Ultra-Marathon is located on Federal Whereas school psychologists facilitate resolution. land, including the historic C&O Canal, the collaboration that helps parents and edu- Mr. REID. I ask unanimous consent Appalachian Trail, and Antietam Battlefield; cators identify and reduce risk factors, pro- that the concurrent resolution be Whereas the JFK 50-Mile Ultra-Marathon mote protective factors, create safe schools, agreed to, the preamble be agreed to, includes the War Correspondents Memorial and access community resources; the motions to reconsider be laid upon Arch, a national monument located in Whereas school psychologists are trained the table, with no intervening action Gathland State Park in the State of Mary- to assess barriers to learning, utilize data- or debate, and that any statements re- land; and based decisionmaking, implement research- driven prevention and intervention strate- lating to this matter be printed in the Whereas following the assassination of President Kennedy, the first JFK 50-Mile gies, evaluate outcomes, and improve ac- RECORD. Ultra-Marathon was organized as a way to countability; The PRESIDING OFFICER. Without honor President Kennedy, and has been held Whereas State educational agencies and objection, it is so ordered. annually, rain or shine, ever since: Now, other State entities credential more than The concurrent resolution (H. Con. therefore, be it 35,000 school psychologists who practice in Res. 327) was agreed to. Resolved, That the Senate— schools in the United States as key profes- The preamble was agreed to. (1) commends and congratulates the past, sionals that promote the learning and men- present, and future participants and orga- tal health of all children; f nizers of the JFK 50-Mile Ultra-Marathon; Whereas the National Association of CONGRATULATING THE CUM- and School Psychologists establishes and main- BERLAND VALLEY ATHLETIC (2) requests the Secretary of the Senate to tains high standards for training, practice, CLUB transmit an enrolled copy of this resolution and school psychologist credentialing, in col- to the Cumberland Valley Athletic Club as laboration with organizations such as the Mr. REID. I ask unanimous consent an expression of the best wishes of the Sen- American Psychological Association, that that the Judiciary Committee be dis- ate for a glorious year of celebration. promote effective and ethical services by

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00095 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE S8206 CONGRESSIONAL RECORD — SENATE November 19, 2010 school psychologists to children, families, brates National American Indian and Alaska honors the contributions of American Indi- and schools; Native Heritage Month; ans and Alaska Natives to the United States; Whereas the National Association of Whereas American Indians and Alaska Na- and School Psychologists has a Model for Com- tives are descendants of the original, indige- (3) urges the people of the United States to prehensive and Integrated School Psycho- nous inhabitants of what is now the United observe National American Indian and Alas- logical Services that promotes standards for States; ka Native Heritage Month with appropriate the consistent delivery of school psycho- Whereas the United States Bureau of the programs and activities. logical services to all students in need; and Census estimated in 2009 that there were al- Whereas the people of the United States most 5,000,000 individuals in the United f should recognize the vital role school psy- States of American Indian or Alaska Native chologists play in the personal and academic descent; ORDERS FOR MONDAY, NOVEMBER development of children in the United Whereas American Indians and Alaska Na- 29, 2010 States: Now, therefore, be it tives maintain vibrant cultures and tradi- Resolved, That the Senate— tions, and hold a deeply rooted sense of com- Mr. REID. Mr. President, I ask unan- (1) designates the week beginning on No- munity; imous consent that when the Senate vember 8, 2010, as National School Psy- Whereas American Indians and Alaska Na- completes its business today, it ad- chology Week; tives have moving stories of tragedy, tri- journ under the provisions of H. Con. (2) honors and recognizes the contributions umph, and perseverance that need to be Res. 332 until 2 p.m., Monday, Novem- of school psychologists to the success of stu- shared with future generations; ber 29; that following the prayer and dents in schools across the United States; Whereas American Indians and Alaska Na- the pledge, the Journal of proceedings and tives speak and preserve indigenous lan- be approved to date, the morning hour (3) encourages the people of the United guages, which have contributed to the States to observe the week with appropriate English language by being used as names of be deemed to have expired, the time for ceremonies and activities that promote individuals and locations throughout the the two leaders be reserved for their awareness of the vital role school psycholo- United States; use later in the day, and that the Sen- gists play in schools, in the community, and Whereas Congress has recently reaffirmed ate proceed to a period of morning in helping students develop into successful its support of tribal self-governance and its business, until 4 p.m., with Senators and productive members of society. commitment to improving the lives of all permitted to speak therein for up to 10 f Native Americans by enhancing health care minutes each; that following morning services, increasing law enforcement re- business the Senate resume consider- RECOGNIZING NATIONAL AMER- sources, and approving settlements of litiga- ICAN INDIAN AND ALASKA NA- tion involving Indian tribes and the United ation of S. 510, the FDA Food Safety TIVE HERITAGE MONTH States; Modernization Act, as provided under Mr. REID. Mr. President, I ask unan- Whereas Congress is committed to improv- the previous order. imous consent that the Senate proceed ing the housing conditions and socio- The PRESIDING OFFICER. Without economic status of American Indians and objection, it is so ordered. to the immediate consideration of S. Alaska Natives; Res. 689. Whereas the United States is committed to f The PRESIDING OFFICER. Without strengthening the government-to-govern- objection, it is so ordered. The clerk ment relationship that it has maintained PROGRAM will report the resolution by title. with the various Indian Tribes; The assistant legislative clerk read Whereas Congress has recognized the con- Mr. REID. Mr. President, the next as follows: tributions of the Iroquois Confederacy, and vote will occur at 6:30 p.m. on Monday, A resolution (S. Res. 689) recognizing Na- its influence on the Founding Fathers in the November 29. Under the agreement we tional American Indian and Alaska Native drafting of the Constitution of the United reached last night, at 6:30 p.m. on Mon- Heritage Month, and celebrating the herit- States with the concepts of freedom of day the Senate will vote on the motion age and culture of American Indians and speech, the separation of governmental pow- to invoke cloture on the substitute Alaska Natives and the contributions of ers, and the system of checks and balances amendment. Senators should expect American Indians and Alaska Natives to the between the branches of government; additional votes on the four motions to United States. Whereas American Indians and Alaska Na- suspend the rules and on passage of the There being no objection, the Senate tives have served with honor and distinction bill on Monday night. Therefore, Sen- proceeded to consider the resolution. in the Armed Forces of the United States, Mr. REID. Mr. President, I ask unan- and continue to serve in the Armed Forces in ators should expect up to six rollcall imous consent that the resolution be greater numbers per capita than any other votes Monday evening. group in the United States; agreed to, the preamble be agreed to, Whereas the United States has recognized f the motions to reconsider be laid upon the contribution of the Native American the table, with no intervening action code talkers in World War I and World War ADJOURNMENT UNTIL MONDAY, or debate, and that any statements re- II, who used indigenous languages as an un- NOVEMBER 29, 2010, AT 2 P.M. lated to the measure be printed in the breakable military code, saving countless Mr. REID. Mr. President, if there is RECORD. Americans; and The PRESIDING OFFICER. Without Whereas the people of the United States nothing further to come before the objection, it is so ordered. have reason to honor the great achievements Senate—first of all, I appreciate the The resolution (S. Res. 689) was and contributions of American Indians and Chair’s courtesy in waiting this after- agreed to. Alaska Natives and their ancestors: Now, noon, as we got this most important The preamble was agreed to. therefore, be it legislation completed—I ask unani- The resolution, with its preamble, Resolved, That the Senate— mous consent that the Senate adjourn (1) recognizes the month of November 2010 reads as follows: as National American Indian and Alaska Na- under the previous order. S. RES. 689 tive Heritage Month; There being no objection, the Senate, Whereas from November 1, 2010, through (2) celebrates the heritage and culture of at 4:33 p.m., adjourned until Monday, November 30, 2010, the United States cele- American Indians and Alaska Natives and November 29, at 2 p.m.

VerDate Mar 15 2010 00:28 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00096 Fmt 4637 Sfmt 0634 E:\RECORD10\RECFILES\S19NO0.REC S19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE Friday, November 19, 2010 Daily Digest Senate Association (FIFA) World Cup competition to the Chamber Action United States. Page S8205 Routine Proceedings, pages S8111–S8206 Cumberland Valley Athletic Club: Committee Measures Introduced: Three bills and four resolu- on the Judiciary was discharged from further consid- tions were introduced, as follows: S. 3976–3978, and eration of S. Res. 611, congratulating the Cum- S. Res. 686–689. Page S8128 berland Valley Athletic Club on the 48th anniver- Measures Reported: sary of the running of the JFK 50-Mile Ultra-Mara- S. 3665, to promote the strengthening of the pri- thon, and the resolution was then agreed to. vate sector in Pakistan. (S. Rept. No. 111–353) Page S8205 Page S8128 National School Psychology Week: Committee on Measures Passed: the Judiciary was discharged from further consider- ation of S. Res. 631, designating the week beginning Claims Resettlement Act: Committee on Finance on November 8, 2010, as National School Psy- was discharged from further consideration of H.R. chology Week, and the resolution was then agreed 4783, may be cited as ‘‘The Claims Resettlement to. Pages S8205–06 Act of 2010’’, and the bill was then passed, after agreeing to the following amendments proposed National American Indian and Alaska Native Heritage Month: Senate agreed to S. Res. 689, rec- thereto: Pages S8172–S8202 Reid (for Baucus) Amendment No. 4719, in the ognizing National American Indian and Alaska Na- tive Heritage Month and celebrating the heritage nature of a substitute. Page S8172 and culture of American Indians and Alaska Natives Reid (for Baucus/Dorgan) Amendment No. 4720, and the contributions of American Indians and Alas- to amend the title. Page S8172 ka Natives to the United States. Page S8206 Jessica Ann Ellis Gold Star Fathers Act: Senate House Messages: passed S. 3650, to amend chapter 21 of title 5, United States Code, to provide that fathers of certain Animal Crush Video Prohibition Act: Senate permanently disabled or deceased veterans shall be concurred in the amendment of the House of Rep- included with mothers of such veterans as preference resentatives to the amendment of the Senate to H.R. eligibles for treatment in the civil service, after 5566, to amend title 18, United States Code, to pro- agreeing to the following amendment proposed hibit interstate commerce in animal crush videos. thereto: Page S8204 Pages S8202–04 Reid (for Wyden) Amendment No. 4717, to Copyright Cleanup, Clarification, and Correc- strike the short title. Page S8204 tions Act: Senate concurred in the amendments of Bankruptcy Technical Corrections Act: Com- the House of Representatives to S. 3689, to clarify, mittee on the Judiciary was discharged from further improve, and correct the laws relating to copyrights. consideration of H.R. 6198, to amend title 11 of the Page S8204 United States Code to make technical corrections, FDA Food Safety Modernization Act—Agree- and the bill was then passed, after agreeing to the ment: A unanimous-consent agreement was reached following amendment proposed thereto: Page S8205 providing that Baucus Amendment No. 4713 be Reid (for Hatch) Amendment No. 4718, to make modified with the changes at the desk and that the a technical correction. Page S8205 November 18, 2010 order relative to S. 510 be 2022 FIFA World Cup Competition: Senate modified to make it in order to consider the Baucus agreed to H. Con. Res. 327, recognizing and sup- motion to suspend with respect to Baucus Amend- porting the efforts of the USA Bid Committee to ment No. 4713, as modified. Page S8202 bring the 2022 Federation Internationale de Football Messages from the House: Pages S8123–24 D1114

VerDate Mar 15 2010 00:29 Apr 30, 2011 Jkt 099060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\RECORD10\RECFILES\D19NO0.REC D19NO0 bjneal on DSK69SOYB1PROD with CONG-REC-ONLINE November 19, 2010 CONGRESSIONAL RECORD — DAILY DIGEST D1115 Measures Placed on the Calendar: Adjournment: Senate convened at 10:30 a.m. and Pages S8111, S8124 adjourned, pursuant to the provisions of H. Con. Enrolled Bills Presented: Page S8124 Res. 332, at 4:33 p.m., until 2 p.m. on Monday, November 29, 2010. (For Senate’s program, see the Executive Communications: Pages S8124–28 remarks of the Majority Leader in today’s Record on Petitions and Memorials: Page S8128 page S8206.) Additional Cosponsors: Pages S8128–29 Statements on Introduced Bills/Resolutions: Committee Meetings Pages S8129–31 Additional Statements: Pages S8122–23 (Committees not listed did not meet) Amendments Submitted: Pages S8131–72 No committee meetings were held. h House of Representatives Chamber Action Committee Meetings The House was not in session today. The House No committee meetings were held. is scheduled to meet at 2 p.m. on Monday, Novem- ber 29, 2010, pursuant to the provisions of H. Con. Joint Meetings Res. 332. No joint committee meetings were held.

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Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 2 p.m., Monday, November 29 2 p.m., Monday, November 29

Senate Chamber House Chamber Program for Monday: After the transaction of any Program for Monday: To be announced. morning business (not to extend beyond 4 p.m.), Senate will resume consideration of S. 510, FDA Food Safety Modernization Act, with up to 5 roll call votes beginning at 6:30 p.m.

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