No Firearms for Foreign Felons Act of 2011

Mr. President, I rise to introduce legislation to help address one of the glaring issues our domestic nuclear industry faces-- what to do with the used nuclear fuel being stored at over 100 sites across the country. I am pleased to be joined by Senator Mary Landrieu in introducing this bill.

Typically, a nuclear power plant stores its used fuel in a spent fuel pool located within the reactor site's exclusion zone. When there is no more room in the pool, and the used fuel is sufficiently cooled, the fuel can be moved to dry cask storage nearby the plant in what are called independent spent fuel storage installations.

Although there are 104 nuclear reactors producing power across the United States, not all have been in operation long enough to fill their spent fuel pools and require dry cask storage. So at present, the are 63 independent spent fuel storage installations at 56 sites in 33 States. Of those, 7 sites are from decommissioned plants. Two decommissioned plant sites still have fuel in their spent fuel pool. That means there are 9 sites, from 10 decommissioned reactors, with 2,800 metric tons of used fuel that is being stored and guarded, whether in dry cask or fuel pools, but no operating power plant nearby. These are orphan sites, and but for the remaining spent fuel the land could be used for other purposes.

Under the Nuclear Waste Policy Act of 1982, the Federal Government is contractually obligated to take title to spent nuclear fuel from commercial nuclear power plants starting in 1998. Our Government has not fulfilled that requirement and as a result we face continuous lawsuits from the utilities operating those commercial power plants to cover the costs of storing the spent fuel on-site.

According to the Department of Justice, as of June 24, 2011, $1.12 billion has been paid out in settlement of these lawsuits, with an additional $220 million paid in judgments. Another $157 million is authorized, but has not yet been paid in settlement. And $937 million in outstanding judgments remains on appeal or remand. So, the total authorized payment level, so far, is roughly $1.5 billion, with close to another $1 billion dollars in payment going through the legal process. These are not lawsuits that go away once they are settled. Every year that the Government is in breach of its contractual obligation, the same company can bring a similar lawsuit as had been previously settled. As more nuclear power plants fill up their spent fuel pools and turn to dry cask storage, more lawsuits for breach of contract will be filed. The Department of Energy estimates that even if the Government starts to accept the spent fuel by 2021, the total cost of the lawsuits will be $13.1 billion.

While the Government anticipates a liability of $13.1 billion, utilities estimate the final tally could exceed $50 billion. But both the DOE and private sector estimates were developed before the Administration took steps to withdraw the Yucca Mountain application. More recent estimates suggest a cost of $100 billion.

I take special note of what our future liability could be. The Department of Energy expects the Federal Government's liability to increase by $500 million annually if waste is not accepted by 2021--10 years from now. It took us 30 years to get this far on Yucca Mountain. If we are to begin the search for a permanent repository anew, as it appears the Administration would like us to do, it seems increasingly likely the Government's liability costs will greatly exceed the earlier $50 billion estimate. At a time when we are already racking up trillions of dollars in debt for future generations, the administration has freely chosen to incur additional future taxpayer liability in terms of tens of billions of dollars by withdrawing the Yucca Mountain repository license application.

Fortunately for the administration, I have a solution. The Nuclear Fuel Storage Improvement Act of 2011 that I am introducing seeks to establish up to two interim used nuclear fuel storage facilities to centralize the used fuel spread across this nation, end the lawsuits against the Federal Government, and help the domestic nuclear industry, and the communities that host nuclear power plants, partially resolve the long-standing problem of what to do with the used nuclear fuel stored on-site.

The bill would provide financial incentives to a local unit of government, as well as the state in which that unit of government is located, to serve as a host of an interim used nuclear fuel storage facility. The facility itself would be privately owned and operated, and licensed by the Nuclear Regulatory Commission, but the host entity would be entitled to financial payments from the Federal Government for its willingness to locate the storage facility within its jurisdiction. Up to two locations would be eligible for the financial agreement, funds for which would come from the Nuclear Waste Fund set up by the Nuclear Waste Policy Act of 1982.

Importantly for the Federal Government, under the legislation the Secretary of Energy can contract with the private entity operating an interim storage facility to store used fuel from civilian nuclear power plants. Priority of acceptance is given to the used fuel being stored at plants that have been permanently shut down and decommissioned--the orphan sites. The Secretary is then authorized to enter into an agreement with those which it has contractual obligations to under the Nuclear Waste Policy Act, to settle all claims and liabilities for the Government's failure to take title of the used nuclear fuel, thus saving the Government, and future taxpayers, billions of dollars.

I want to be clear. In no way shape or form does this legislation diminish or replace the need for a permanent repository. I have been, and continue to be, supportive of using Yucca Mountain for that purpose. Until such a repository can be opened, however, we have a responsibility to put a plan into action

that will consolidate the used fuel sitting at all of these sites across the nation, as well as settle the Federal Government's liability for its failure to take title to that spent fuel, costing the American taxpayer millions of dollars each year. I believe this legislation moves us in that direction.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to speak about overregulation--something that is really putting a wet blanket on many businesses throughout our country, and especially in Massachusetts. That is why I am introducing a bill to reform the National Oceanic and Atmospheric Administration's--or NOAA's--asset forfeiture fund.

The fund, as you may know, is authorized by the Magnuson-Stevens Fishery and Conservation Act and allows NOAA to retain fines and penalties collected as a result of enforcement actions for legitimate enforcement purposes.

As the Department of Commerce inspector general's excellent work revealed, NOAA has mismanaged that fund for many years, wasting taxpayer funds on exorbitant foreign travel and unauthorized purchases of vehicles. As a matter of fact, they purchase more vehicles than they actually have employees. So that speaks for itself. They also purchased a $300,000 luxury boat with the funds collected in that forfeiture fund.

The reason I am standing on the floor of the Senate today is because the way the fund has been implemented has actually corrupted the relationship between the fishermen and the regulators. Fishermen have complained for years about the arbitrary fines, overzealous enforcement, and violations of their due process rights when it comes to dealing with NOAA. After decades of such complaints, mostly in the Northeast, the Department of Commerce appointed a distinguished retired judge to serve as a special master and investigate enforcement actions and abuses by NOAA.

In one case, a New Bedford, MA, fisherman lost his livelihood and a farm that had been in the family since the 1640s. He was forced to sell due to punitive NOAA penalties. Incredibly, the Commerce Department's own special master concluded that the perverse incentive to fill the asset forfeiture fund with funds was a motivating factor in how NOAA handled that case. Larry Yacubian got not only a check but an apology from Washington because of those abuses, but he will never get his home back.

That is why in my role as ranking member of the Federal Financial Management Subcommittee, I, along with my dear friend, Senator Tom Carper of Delaware, held a field hearing in Boston on June 20 to identify a lot of these longstanding problems and identify the problems with the asset forfeiture fund itself.

Unfortunately, the hearing revealed that while NOAA has instituted some reforms to its management of the asset forfeiture fund, including auditing the funds for the first time in nearly four

decades, it still intends to utilize the seized assets of fishermen to pay for foreign travel, which is inappropriate.

The years of NOAA's mismanagement and abuse of the asset forfeiture fund have bred mistrust among fishermen and Federal officials, and it can only be broken by removing the fund from NOAA.

It is for these reasons that today I am introducing the Asset Forfeiture Responsibility Act of 2011, which will hopefully end this sad chapter in Federal financial management by this agency by replacing the existing funds with a new fisheries investment fund. Funds will be kept--like most every other fund--at the Treasury Department for the benefit of regional councils and NOAA, and the fund will be audited for the next 3 years to make sure they are getting their act together.

The fishing investment fund will direct monies from those fishermen who break the rules toward assisting fishermen with the ever-growing costs of regulatory compliance and to reimburse the legal fees incurred by fishermen whose fines were remitted by the recommendation of the Special Master.

Currently, appropriated funds assist fishermen with the costs of compliance, but in these difficult fiscal times this funding is actually at risk. This legislation would provide a more reliable source of funds to offset the increasing cost of compliance, while allowing the fishing councils the flexibility to address other priorities, such as preparing fishing impact statements and addressing other priorities to rebuild or maintain the fishery and the fishing stocks.

As I have always said, since I was elected and got involved in this issue, all the fishermen want is to have a level playing field and an assurance that those who break the rules will be caught and they will be fined appropriately. That is why I have maintained funding for NOAA's legitimate law enforcement responsibilities.

However, in the end, we should be focused, quite frankly, in this Chamber on bettering the economic security and ability of the American people to make an honest living. This bill will bring back jobs to the hard-working men and women of the American fishing industry while restoring their trust in government. It is the right thing to do.

Mr. President, today I am pleased to introduce the No Firearms for Foreign Felons Act of 2011. This bill would close a loophole in current law, by ensuring that people convicted of foreign felonies and crimes involving domestic violence cannot possess firearms. We must close this gap in our laws before it is exploited by terrorists, drug gangs, and other dangerous criminals who threaten our communities.

Under current Federal law, people who are convicted in the United Sates of violent felonies like rape, murder and terrorism are prohibited from possessing firearms. But, shockingly, Federal law does not bar criminals convicted of these same violent crimes in foreign courts from possessing guns. This outrageous loophole for foreign convicts is the result of a 2005 U.S. Supreme Court decision in the case of Small v. United States.

In that case, the Court analyzed the 1968 Gun Control Act, which states that anyone who has been convicted of a felony ``in any court'' cannot possess firearms. The Court concluded that the phrase only applied to American courts, despite the fact that the Gun Control Act had been applied to foreign felonies since 1968, the year it took effect.

At the time, the Supreme Court was very much aware that its ruling could have serious consequences. As Justice Clarence Thomas noted in his dissent, ``the majority's interpretation permits those convicted overseas of murder, rape, assault, kidnapping, terrorism and other dangerous crimes to possess firearms freely in the United States.'' But whatever one may think of the Court's ruling, it is now the law of the land.

We must make every effort to close this dangerous loophole and the bill I am introducing today would do just that.

Under this bill, section 921 of Title 18 would be amended to state that ``[t]he term `any court' includes any Federal, State, or foreign court.'' Similar changes would be made in other sections of the Gun Control Act. Where there are references to ``state offenses'' or ``offenses under state law,'' the bill would expand these terms to include convictions of offenses under foreign law.

In other words, the bill would make it clear that if someone was convicted in a foreign court of an offense that would have disqualified him from possessing a gun in the U.S., then they

will be disqualified from gun possession under U.S. law. The only exception will be if there is reason to think the conviction entered by the foreign jurisdiction is somehow invalid.

Under the bill, a foreign conviction will not constitute a ``conviction'' under the Gun Control Act, if either: the foreign conviction resulted from a denial of fundamental fairness that would violate due process if committed in the United States, or the conduct on which the foreign conviction was based would be legal if committed in the United States.

I expect that these circumstances will be fairly rare, but the bill does take them into account and will provide a complete defense to anyone with an invalid foreign conviction. In any event, it is clear that we should not keep in place a dangerous policy which essentially treats every foreign conviction as invalid.

Particularly in these times, America cannot continue to give foreign- convicted murderers, rapists and even terrorists the right to buy firearms in the United States.

With each passing day, we run a risk that foreign felons are exploiting this loophole in our law. This is unacceptable.

Criminals convicted in foreign courts should not be able to have guns when U.S. law forbids those convicted of the same crimes on U.S. soil from possessing guns. We should not wait for lives to be lost before we act to close this loophole.

I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am pleased to introduce the No Firearms for Foreign Felons Act of 2011. This bill would close a loophole in current law, by ensuring that people convicted of foreign felonies and crimes involving domestic violence cannot possess firearms. We must close this gap in our laws before it is exploited by terrorists, drug gangs, and other dangerous criminals who threaten our communities.

Under current Federal law, people who are convicted in the United Sates of violent felonies like rape, murder and terrorism are prohibited from possessing firearms. But, shockingly, Federal law does not bar criminals convicted of these same violent crimes in foreign courts from possessing guns. This outrageous loophole for foreign convicts is the result of a 2005 U.S. Supreme Court decision in the case of Small v. United States.

In that case, the Court analyzed the 1968 Gun Control Act, which states that anyone who has been convicted of a felony ``in any court'' cannot possess firearms. The Court concluded that the phrase only applied to American courts, despite the fact that the Gun Control Act had been applied to foreign felonies since 1968, the year it took effect.

At the time, the Supreme Court was very much aware that its ruling could have serious consequences. As Justice Clarence Thomas noted in his dissent, ``the majority's interpretation permits those convicted overseas of murder, rape, assault, kidnapping, terrorism and other dangerous crimes to possess firearms freely in the United States.'' But whatever one may think of the Court's ruling, it is now the law of the land.

We must make every effort to close this dangerous loophole and the bill I am introducing today would do just that.

Under this bill, section 921 of Title 18 would be amended to state that ``[t]he term `any court' includes any Federal, State, or foreign court.'' Similar changes would be made in other sections of the Gun Control Act. Where there are references to ``state offenses'' or ``offenses under state law,'' the bill would expand these terms to include convictions of offenses under foreign law.

In other words, the bill would make it clear that if someone was convicted in a foreign court of an offense that would have disqualified him from possessing a gun in the U.S., then they

will be disqualified from gun possession under U.S. law. The only exception will be if there is reason to think the conviction entered by the foreign jurisdiction is somehow invalid.

Under the bill, a foreign conviction will not constitute a ``conviction'' under the Gun Control Act, if either: the foreign conviction resulted from a denial of fundamental fairness that would violate due process if committed in the United States, or the conduct on which the foreign conviction was based would be legal if committed in the United States.

I expect that these circumstances will be fairly rare, but the bill does take them into account and will provide a complete defense to anyone with an invalid foreign conviction. In any event, it is clear that we should not keep in place a dangerous policy which essentially treats every foreign conviction as invalid.

Particularly in these times, America cannot continue to give foreign- convicted murderers, rapists and even terrorists the right to buy firearms in the United States.

With each passing day, we run a risk that foreign felons are exploiting this loophole in our law. This is unacceptable.

Criminals convicted in foreign courts should not be able to have guns when U.S. law forbids those convicted of the same crimes on U.S. soil from possessing guns. We should not wait for lives to be lost before we act to close this loophole.

I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am introducing legislation to help protect children from Internet predators and pornographers. I am joined by the distinguished senior Senator from Minnesota, Senator Klobuchar, with whom I serve on the Judiciary Committee and who is herself a former prosecutor. The same bill has been introduced in the House by Judiciary Committee Chairman Rep. Lamar Smith and Rep. Debbie Wasserman Schultz.

Technology can do so much for us today, but it also has a dark side. Students and Senators can use it, but so can predators and pornographers. Sadly, in some ways children are more at risk than ever and we must do whatever we can to protect them. This means equipping law enforcement with the tools they need to combat the sexual exploitation of children wherever it occurs.

This bill does several things. First, it makes it a crime to financially facilitate access to child pornography. Second, this bill requires companies such as Internet service providers to retain information such as subscriber network addresses for at least 18 months. Third, it expands existing authority to issue administrative subpoenas while investigating federal offenses involving the sexual exploitation or abuse of children. Fourth, it provides for protecting from intimidation or harassment child witnesses and victims in criminal investigations and prosecutions. Finally, it provides for enhancing criminal penalties or sentences for crimes such as the sex trafficking of children or child pornography.

Several of these provisions may look familiar. The provisions relating to subpoena authority, protection of child witnesses, child sex trafficking, and sentencing come directly from S. 2925, the Trafficking Deterrence and Victims Support Act of 2009, which Senator Wyden introduced in the 111 Congress.

In preparing this bill for introduction today, Senator Klobuchar and I met or spoke with law enforcement groups, financial institutions, communications companies, and child advocates. Many of them are stepping up their own voluntary efforts through coalitions such as the Financial Coalition Against Child Pornography and the Family Online Safety Institute. I have worked with many of these organizations and companies for years and look forward to doing so again on this important legislation.

This is a strong bill, a balanced bill, which will provide effective tools for addressing these threats to our children. I know that many divisions exist today, in the country and in the Congress, on many issues. But I trust that those divisions will disappear when it comes to protecting children from sexual exploitation. That must be an ongoing commitment and I hope that all of my colleagues, on both sides of the aisle and across the political spectrum, will join me and Senator Klobuchar in supporting this legislation and helping us get it enacted into law.