A bill to amend title XVIII of the Social Security Act to permit direct payment to pharmacies for certain compounded drugs that are prepared by the pharmacies for a specific beneficiary for use through an implanted infusion pump.

Mr. President, I rise today to introduce the Free Press Act. The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues. Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant.

Anti-SLAPP laws effectively make it impossible for frivolous or marginal libel lawsuits arising out of protected speech to advance beyond an initial stage of litigation. Such laws thereby protect journalists and bloggers from the financial impact of defending against such suits. Approximately 30 States have anti-SLAPP laws, though their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties to remove some state SLAPP claims to Federal court.

At the conclusion of my remarks today, I will submit for the record a section-by-section summary of the FPA. I will first, however, comment on several features of the bill, including the meaning of some of the language that is used, and Congress' authority to enact such legislation.

The FPA's special motion to dismiss requires the plaintiff to present ``prima facie evidence'' supporting his cause of action. The standard definition of ``prima facie evidence,'' which is employed by the FPA, is that given by Justice Story in his opinion for the court in Kelly v. Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish a fact; and, if not rebutted, remains sufficient for that purpose.'' For similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 978, D.C. Cir. 1945, which notes ``Justice Story's often quoted definition of prima facie evidence.''

This definition is also employed by Black's Law Dictionary, which defines ``prima facie evidence'' as:

Such evidence as, in the judgment of the law, is sufficient

to establish a given fact and which if not rebutted or

contradicted, will remain sufficient. [Prima facie evidence],

if unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but [it]

may be contradicted by other evidence.

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

The established meaning in Virginia, then, of the term

``prima facie evidence'' appears to be perfectly orthodox: It

is evidence that suffices, on its own, to establish a

particular fact. But it is hornbook law that this is true

only to the extent that the evidence goes unrebutted. ``Prima

facie evidence of a fact is such evidence as, in judgment of

law, is sufficient to establish the fact; and, if not

rebutted, remains sufficient for the purpose.'' 7B Michie's

Jurisprudence of Virginia and West Virginia Sec. 32, 1998,

(emphasis added).

Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part.

Other Federal courts continue to use this definition of ``prima facie evidence:''

``A prima facie showing simply means evidence of such

nature as is sufficient to establish a fact and which, if

unrebutted, remains sufficient for that purpose.'' Cumulus

Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d

1167, 1176 n.13, 11th Cir. 2002.

``Under [the prima facie evidence] standard, it is

plaintiff's burden to demonstrate the existence of every fact

required to satisfy both the forum's long-arm statute and the

Due Process Clause of the Constitution. The prima facie

showing must be based upon evidence of specific facts set

forth in the record. To meet this requirement, the plaintiff

must go beyond the pleadings and make affirmative proof.

However, in evaluating whether the prima facie standard has

been satisfied, the district court is not acting as a

factfinder; rather, it accepts properly supported proffers of

evidence by a plaintiff as true and makes its ruling as a

matter of law. When the district court employs the prima

facie standard appellate review is de novo.'' United States

v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir.

2001, citations and quotations omitted.

``Prima facie evidence consists of specific factual

information which, in the absence of rebuttal, is sufficient

to show that a fairness doctrine violation exists. * * * * In

general terms, prima facie evidence is evidence which is

sufficient in law to sustain a finding in favor of a claim,

but which may be contradicted.'' American Security Council

Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24,

D.C. Cir. 1979.

``A prima facie case is established by evidence adduced by

the plaintiff in support of his case up to the time such

evidence stands unexplained and uncontradicted. The words

`prima facie,' when used to describe evidence, ex vi termini

imply that such evidence may be rebutted by competent

testimony. The term prima facie evidence' implies evidence

which may be rebutted and overcome, and simply means that in

the absence of explanatory or contradictory evidence the

finding shall be in accordance with the proof establishing

the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282,

289-90, 7th Cir. 1949, citations and quotations omitted.

``The term prima facie evidence means * * * * [e]vidence

good and sufficient on its face; such evidence as, in the

judgment of the law, is sufficient to establish a given fact,

or the group or chain of facts constituting the party's claim

or defense, and which if not rebutted or contradicted, will

remain sufficient. Prima facie evidence is evidence which, if

unexplained or uncontradicted, is sufficient to sustain a

judgment in favor of the issue which it supports, but which

may be contradicted by other evidence.''' Gibson v. Zant, 547

F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law

Dictionary, 5th Edition.

`Prima facie evidence' is evidence which, if unrebutted or

unexplained, is sufficient to establish the fact to which it

is related. It proves the fact until other proof contradicts

or overcomes the factual hypothesis initially set up by the

presumption.'' DAL Int'l Trading Co. v. The SS Milton J.

Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959.

The FPA makes its special motion to dismiss available in cases arising out of speech on matters of public concern. It bears emphasis that ``matters of public concern'' include commentary on consumer products. As the Pennsylvania intermediate court of appeals recently noted, in American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a ``statement regarding the effectiveness of a consumer product addresses a matter of public concern.'' Similarly, the U.S. Court of Appeals for the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, concluded that ``statements about product effectiveness'' address matters of public concern. And the Second Circuit, in Flamm v. American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, has held that a negative evaluation of an attorney's services, directed to potential customers, addresses a matter of public concern.

The following quotation from a New Jersey Supreme Court opinion, citing other courts' decisions, illustrates the breadth of support for the proposition that commentary on products or services offered to consumers is a matter of public concern. That court noted, in Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 516 A.2d 220, 230, 1986, that:

Some courts have developed criteria for determining whether

the activities and products of corporations constitute

matters of public interest. As previously indicated, matters

of public interest include such essentials of life as food

and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623

F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc.,

supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American

Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863.

Widespread effects of a product are yet another indicator

that statements about the product are in the public interest.

Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th

Cir.1971) (possible causes of cancer are a matter of public

concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp.

at 156, article on an arthritis cure is in public interest

because significant portion of population is afflicted with

arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet

Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90,

1974, flammability of 25,000 baby cribs held to be matter of

public interest; Krebiozen Research Found. v. Beacon Press,

Inc., 334 Mass. 86,

----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct.

65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter

of public concern. Still another criterion is substantial

government regulation of business activities and products.

The FPA thus protects speech consisting of consumer commentary that focuses solely on the quality, reliability, or effectiveness of a consumer product, regardless of whether such commentary addresses broader social issues. The quality of goods and services offered to the public is itself a matter of public concern. The FPA protects the dissemination of any information about a product that would be of interest to potential consumers.

Finally, the FPA allows removal to Federal court to be sought by a defendant. Although current law only allows removal when the Federal question appears on the face of a well-pleaded complaint, this rule is only statutory. Congress is well within its power to allow removal of cases that raise a colorable Federal defense.

Two current Federal statutes clearly allow removal by defendants based only on the assertion of a Federal defense. One is 28 U.S.C. Sec. 1442(a), which allows Federal officers, among others, to remove a state civil action or prosecution to federal court. The other is 9 U.S.C. Sec. 205, which allows removal of disputes that appear to be covered by an international arbitration agreement.

Although such a limitation is not stated on the face of section 1442, the Supreme Court has long held that ``federal officer removal must be predicated on the allegation of a colorable federal defense.'' Mesa v. California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which notes that ``an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.''

The most recent Supreme Court pronouncements confirm that `Article III `arising under' jurisdiction is broader than federal question jurisdiction under Sec. 1331,'' Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal- question jurisdiction ``has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially forms an ingredient,'' Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of the United States, 9 What. 738, 823 (1824)).

In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme Court also noted that

``[t]he judicial power * * * * was not to be exercised

exclusively for the benefit of parties who might be

plaintiffs, and would elect the national forum, but also for

the protection of defendants who might be entitled to try

their rights, or assert their privileges, in the same

forum,'' and further noting that ``we are referred to the

power which it is admitted congress possess to remove suits

from state courts to the national courts.''

The Federal-defense-based removal authorized by the FPA is thus well within Congress's constitutional authority.

Mr. President, I ask unanimous consent that the text of the bill and a section-by-section summary be printed in the Record.

Mr. President, I rise today to introduce legislation on another matter, important energy legislation for our country. I am today introducing the Hoeven-Conrad-Baucus Coal Ash Recycling and Oversight Act of 2012.

In my home State of North Dakota there is a large powerplant just north of the State capital in Bismarck. It is a coal creek power station. Now this power station generates 1,100 megawatts of electricity every year. There are two 550 megawatt plants. It has the latest, greatest technology emission control and clean coal technology. They capture the steam that was formally exhausted from the plant. They capture that steam and use it to run an ethanol plant. They produce transportation fuel with steam, a by-product of the electric generation process.

One of the other things they do, instead of land filling the coal ash, fly ash, or coal residuals, they recycle. So, in essence, they take that coal ash--they work with a natural resource company, Headwaters, based out of Utah, and they turn the coal ash into a concrete product, FlexCrete. It is used to make roads, bridges, buildings, and also products like shingles. They make building materials.

So whereas they used to take about 600,000 tons a year of coal residuals and coal ash flash and landfill it, and it costs $6 a ton or so to landfill it, now they take that 600,000 tons a year of fly ash and residuals and turn it into building products.

The difference instead of paying to dispose of something and now being paid to recycle something is about a $16 million a year revenue item for that plant. That means lower cost for electricity for businesses in States such as the great State of North Dakota and the great State of Minnesota and other States as well. It truly benefits our consumers, our families, and our economy. It benefits small businesses throughout the upper Midwest. So it is truly a great example of American ingenuity and innovation.

In fact, I have a picture right here. This is the North Dakota Heritage Center. Right now there is a $50 million expansion being constructed in that Heritage Center which is located on the capital grounds in Bismarck. It is a $50 million expansion. They are using building materials made of coal ash for this facility. That is what it is going to look like after they do this $50 million expansion.

Let me give another example. This is the National Energy Center of Excellence at Bismarck State College. It is a 2-year college that trains people for the energy industry. It is located right above the Missouri River. This beautiful window overlooks the Missouri River. Again this is a building constructed with building materials made of fly ash. We can see how this product is being used and how effectively this is being used.

As a matter of fact, if we look nationwide, by recycling coal ash we reduce energy consumption by 162 trillion Btus every year. That is the amount of energy we would use to 1.7 million homes in a year. It is pretty substantial energy savings. Or measure it in terms of water use. By recycling coal ash, we reduce water usage by 32 billion gallons annually. That is about one-third of the total amount of water that the State of California uses in a year.

Why do I tell the story? Because right now the EPA is looking at changing the regulation of coal ash. They are looking at changing the regulation of coal ash to doing it under subtitle C of the Resource Conservation and Recovery Act. The problem is that is the hazardous waste section. Right now coal ash is regulated under subtitle D of the Resource Conservation and Recovery Act, which is the nonhazardous waste section. The EPA is looking at making that change in spite of the fact that the Department of Energy, the Federal Highway Administration, State regulatory agencies, and the EPA itself have done studies, and those studies have shown that is not a toxic waste.

The EPA first proposed this new regulation in June of 2010. This regulation would truly undermine the industry, drive up costs, and eliminate jobs when our economy can least afford it. In fact, according to industry estimates, it would increase electricity costs by up to almost $50 billion annually and eliminate 300,000 American jobs.

Let me elaborate. Meeting the regulatory disposal requirements under the EPA's subtitle C proposal would cost between $250 and $450 per ton as opposed to about $100 per ton under the current system. That would translate into $47 billion in terms of burden on electricity generators that use coal and, of course, most importantly, their customers who would see their bills increased. As I said, overall it would cost about 300,000 American jobs for our economy.

That is why I am introducing the Hoeven-Conrad-Baucus Recycling and Oversight Act, which is S. 3512, and it has very strong bipartisan support. It is truly a bipartisan bill, including 12 Republican sponsors and 12 Democratic sponsors. The Republican sponsors include myself, Senator McConnell, Senator Portman, Senator Boozman, Senator Blunt, Senator Ron Johnson, Senator Moran, Senator Alexander, Senator Toomey, Senator Graham, Senator Thune, and Senator Hatch. The Democratic cosponsors include Senator Conrad, Senator Baucus, Senator Kohl, Senator Landrieu, Senator Manchin, Senator Warner, Senator Pryor, Senator McCaskill, Senator Ben Nelson, Senator Bill Nelson, Senator Casey, and Senator Webb. I wish to thank them for their willingness to join together in a bipartisan way--12 Republicans, 12 Democrats--coming together to provide the kind of energy legislation that is going to truly help move this country forward, empowering not only more energy development but better environmental stewardship.

This legislation is similar to H.R. 2273, which was sponsored by Representative David McKinley of West Virginia in the House, and it passed the House with strong bipartisan support. This legislation is very similar. We have made some enhancements, but it is very similar.

The bill not only preserves coal ash recycling by preventing these by-products from being treated as hazardous, it also establishes--and this is important because it is also about good environmental stewardship--it also establishes comprehensive Federal standards for coal ash disposal. Under this legislation, States can set up their own permitting program for the management and the disposal of coal ash. These programs would be required to be based on existing EPA regulations that protect human health and the environment. If a State does not implement an acceptable permitting program, then EPA regulates the program for the State. As a result, States and industry will know where they stand under the bill, since the benchmarks for what constitutes a successful State program will be set in statute. EPA can say yes, the State does meet those standards, or no, it does not, but the EPA cannot move the goalposts.

This is a States-first approach that provides regulatory certainty. Let me repeat that. This is a States-first approach that provides regulatory certainty, and it is that regulatory certainty we need to stimulate private investment that will deploy the new technologies that will not only produce more energy but will produce better environmental stewardship.

What is certain is that under this bill, coal ash disposal sites will be required to meet established standards. Those established standards include groundwater detection and monitoring, liners, corrective action when environmental damage occurs, structural stability criteria, and the financial assurance and recordkeeping needed to protect the public.

This legislation is needed to protect jobs and help reduce the cost of homes and roads as well as to help reduce electric bills.

I wish to thank both Republicans and Democrats who have taken a leadership role in this effort as original sponsors of the legislation. I especially wish to express thanks to my fellow Senator from North Dakota, Mr. Conrad, as well as Senator Baucus of Montana and their staffs for the hard work that has gone into this legislation. I urge our colleagues to join us in this important energy legislation.

Mr. President, I rise today to introduce the Fair Trade in Seafood Act.

Right now, our country is proud to be a world leader in the fishing and seafood processing industries. We rank among the world's top five exporters of seafood, and its largest importer. However, the U.S. seafood industry faces many challenges on the global stage from unfair competition. The Congress should be doing everything it can to make sure we retain our status as global leader. That is why I am introducing the Fair Trade in Seafood Act. This bill will establish this issue as a Principal Negotiating Objective of the United States in the ongoing Trans-Pacific Partnership and World Trade Organization talks.

Why is this bill important? According to the United Nations Food and Agricultural Organization, 85 percent of the world's fisheries are fully exploited, overexploited, depleted, or recovering from depletion--the highest percentage since the Food and Agricultural Organization began keeping records.

Many governments continue to provide significant subsidies that push their fleets to fish longer, more intensively, and farther away than otherwise would be possible. These destructive fisheries subsidies are estimated to be at least $16 billion annually, an amount equivalent to approximately 20 percent of the value of the world catch. The detrimental effects of these illegal subsidies are so significant that eliminating them is the single greatest action that can be taken to protect the world's oceans.

In contrast to these nefarious actors, the U.S. does not just talk about the importance of sustainable fishing practices and marine conservation. We are practicing what we preach. That means enforcing regulations and changing old, counterproductive, destructive habits. Our seafood industry is stronger because of it. At the same time, our market is open. In my view, this is the way every country ought to run its seafood industry. Our foreign trading partners, as I mentioned, often support practices that can cause long-term harm to marine habitat. In addition, our trading partners put up trade barriers that prevent sustainably caught U.S. seafood from reaching foreign consumers. These are practices that skew the playing field in a competitive marketplace. They skew the playing field against American fishers and give foreign competitors a huge advantage in an industry that depends on global trade. Forty percent of global fishery products are traded internationally, and seafood is more globally sourced than coffee, rice, and tea combined.

These harmful foreign trade barriers and practices that encourage overfishing are top priorities that need to be addressed. These foreign trade barriers harm our country's ability to create good-paying jobs. Preserving the wealth of the world's marine environment is of paramount importance. The U.S. seafood industry represents a major portion of our economy, employing over 1.5 million workers in the commercial sector alone. The commercial seafood industry has a significant presence in over 23 States and is an industry and, in fact, a way of life, a way of life that binds communities and stitches together the regions of our country. The seafood sector employs more people than the mining or oil industries.

It is also a foundation of our economy because, without fish, there are no jobs. Preserving the wealth of our oceans and rivers is an economic imperative as much as a moral one. That is why I urge my colleagues to cosponsor the Fair Trade in Seafood Act.

In short, this Act will codify an official trade negotiating objective of the United States with respect to government fisheries subsidies. More specifically, the negotiating objective will be to eliminate fisheries subsidies provided by governments that unfairly destroy markets to the detriment of the United States commercial fishing interests and that perpetuate unsustainable fishing practices. The bill aims to ensure that any commitments with respect to such subsidies are enforceable under appropriate trade laws. This negotiating objective will apply to any trade agreement that includes any negotiations relating to the elimination or reduction of government fisheries subsidies.

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

Mr. President, I am pleased to introduce today legislation that will help American businesses and inventors by reducing obstacles for obtaining patent protection overseas. This bipartisan measure implements two patent law treaties that were signed under President Clinton and submitted for the Senate's advice and consent by President George W. Bush. The Senate voted to ratify the treaties in 2007 without a single Senator in dissent. With this implementing legislation, Congress will complete its work so that the treaties at last can be ratified and go into effect.

Our patent system plays a key role in encouraging innovation and bringing new products to market. The discoveries made by American inventors and research institutions, commercialized by our companies, and protected and promoted by our patent laws, have made our system the envy of the world. But in this global economy, it is not enough to have an effective domestic patent system; we must also help American inventors and businesses to protect their inventions and thrive in markets around the world. Consistent with last year's landmark patent reform legislation, the Leahy-Smith America Invents Act, this legislation will benefit American inventors by implementing two measures to reduce application barriers around the world.

The Hague Agreement Concerning International Registration of Industrial Designs provides a simplified application system for U.S. creators of industrial designs who, by filing a single standardized application for a design patent at the U.S. Patent and Trademark Office, can apply for design protection in each country that has ratified the Treaty. American design patent applicants who previously had to file separate applications in numerous countries may now file a single, English-language application at the U.S. Patent Office, reducing the costs and burdens of obtaining international protections. The U.S. Patent Office may also receive applications that have been filed internationally, but its substantive examination process remains unchanged. The standard for obtaining a design patent is not affected. By simplifying the process for American businesses to obtain design patents overseas, the Hague Agreement will reduce barriers for small and mid-size companies to expand into foreign markets.

The Patent Law Treaty also streamlines the process for American businesses seeking patent protection overseas. It limits the formalities different countries can require in patent applications, which are often used to disadvantage American applications in foreign jurisdictions. American businesses and inventors will benefit from harmonized applications, reducing the cost of doing business and encouraging U.S. innovators to protect and export their products internationally.

In June, Director Kappos of the U.S. Patent and Trademark Office testified before the Judiciary Committee about the important need for this implementing legislation, stating that the treaties are ``pro- American innovation, pro-global innovation, pro-jobs, pro- opportunity.'' I agree. I urge the Senate to act quickly on this final step so that the treaties can at last be ratified, and American innovators and businesses can benefit from them as U.S. products continue to thrive on the global stage.

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

Mr. President, today I introduce the Family Self- Sufficiency Act.

The Family Self Sufficiency, FSS, program is an existing employment and savings incentive initiative for families that have section 8 vouchers or live in public housing. The FSS program provides two key tools for its participants: first, it provides access to the resources and training that help participants pursue employment opportunities and meet financial goals, and second, it encourages FSS families to save by establishing an interest-bearing escrow account for them. Upon graduation from the FSS program, the family can use these savings to pay for job-related expenses, such as the purchase or maintenance of a car or for additional workforce training.

My legislation seeks to enhance the FSS program by streamlining the administration of this program, by broadening the supportive services that can be provided to a participant, and by extending the FSS program to tenants who live in privately-owned properties with project-based assistance.

First, to streamline the FSS program, my bill would combine the two separate FSS programs into one. Currently, HUD operates one FSS program for those families being served by the Housing Choice Voucher Program and another for those families being served by the Public Housing program, even though the core purpose of each FSS program, to increase economic independence and self-sufficiency, is the same for both. As a result, Public Housing Agencies, PHAs, have to operate essentially two programs to achieve the same goal. With my bill, PHAs would be relieved of this unnecessary burden.

Second, my legislation broadens the scope of the supportive services that may be offered to include attainment

of a GED, education in pursuit of a post-secondary degree or certification, and training in financial literacy. Providing families in need with affordable rental housing is critical, but coupling it with the support and services to help families get ahead is more effective. This legislation makes it easier for FSS participants to obtain the training necessary to secure employment and the education to make prudent financial decisions to better safeguard their earnings.

Lastly, this bill opens up the FSS program to families who live in privately-owned properties subsidized with project-based rental assistance. It shouldn't matter what kind of housing assistance a family gets, and families seeking to achieve self-sufficiency shouldn't be held back by this sort of technicality.

I urge my colleagues to support this bill, which will help give those receiving housing assistance a better chance to build their skills and achieve economic independence.