Calendar No. 323

106TH CONGRESS

1ST SESSION S. 835

[Report No. 106–189]

A BILL

To encourage the restoration of estuary habitat

through more efficient project financing and enhanced coordination of Federal and non-Federalrestoration programs, and for other purposes.

OCTOBER 14, 1999

Reported with an amendment
II

Calendar No. 323

106TH CONGRESS

1ST SESSION S. 835

[Report No. 106–189]

To encourage the restoration of estuary habitat through more efficient project

financing and enhanced coordination of Federal and non-Federal restoration programs, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 20, 1999

Mr. CHAFEE (for himself, Mr. BREAUX, Mr. AKAKA, Mrs. BOXER, Mr. DODD,

Mr. EDWARDS, Mrs. FEINSTEIN, Mr. GRAHAM, Mr. KERRY, Ms.

LANDRIEU, Mr. LAUTENBERG, Mr. LIEBERMAN, Mr. MACK, Mr. MOYNIHAN, Mrs. MURRAY, Mr. REED, Mr. ROBB, Mr. SARBANES, Mr. WARNER, Mr. SCHUMER, Mr. WYDEN, and Ms. MIKULSKI) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

OCTOBER 14, 1999

Reported by Mr. CHAFEE, with an amendment

[Insert the part printed in italic]

A BILL

To encourage the restoration of estuary habitat through more

efficient project financing and enhanced coordination of

Federal and non-Federal restoration programs, and for

other purposes.
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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Estuary Habitat Res5 toration Partnership Act of 1999’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) estuaries provide some of the most eco9 logically and economically productive habitat for an

10 extensive variety of plants, fish, wildlife, and water11 fowl;

12 (2) the estuaries and coastal regions of the

13 United States are home to one-half the population of

14 the United States and provide essential habitat for

15 75 percent of the Nation’s commercial fish catch

16 and 80 to 90 percent of its recreational fish catch;

17 (3) estuaries are gravely threatened by habitat

18 alteration and loss from pollution, development, and

19 overuse;

20 (4) successful restoration of estuaries demands

21 the coordination of Federal, State, and local estuary

22 habitat restoration programs; and

23 (5) the Federal, State, local, and private co24 operation in estuary habitat restoration activities in

25 existence on the date of enactment of this Act
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1 should be strengthened and new public and public2 private estuary habitat restoration partnerships es3 tablished.

4 SEC. 3. PURPOSES.

5 The purposes of this Act are—

6 (1) to establish a voluntary program to restore

7 1,000,000 acres of estuary habitat by 2010;

8 (2) to ensure coordination of Federal, State,

9 and community estuary habitat restoration pro10 grams, plans, and studies;

11 (3) to establish effective estuary habitat res12 toration partnerships among public agencies at all

13 levels of government and between the public and pri14 vate sectors;

15 (4) to promote efficient financing of estuary

16 habitat restoration activities; and

17 (5) to develop and enhance monitoring and re18 search capabilities to ensure that restoration efforts

19 are based on sound scientific understanding.

20 SEC. 4. DEFINITIONS.

21 In this Act:

22 (1) COLLABORATIVE COUNCIL.—The term ‘‘Col23 laborative Council’’ means the interagency council

24 established by section 5.
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1 (2) DEGRADED ESTUARY HABITAT.—The term

2 ‘‘degraded estuary habitat’’ means estuary habitat

3 where natural ecological functions have been im4 paired and normal beneficial uses have been reduced.

5 (3) ESTUARY.—The term ‘‘estuary’’ means—

6 (A) a body of water in which fresh water

7 from a river or stream meets and mixes with

8 salt water from the ocean, including the area lo9 cated in the Great Lakes Biogeographic Region

10 and designated as a National Estuarine Re11 search Reserve under the Coastal Zone Manage12 ment Act of 1972 (16 U.S.C. 1451 et seq.) as of

13 the date of enactment of this Act; and

14 (B) the physical, biological, and chemical

15 elements associated with such a body of water.

16 (4) ESTUARY HABITAT.—

17 (A) IN GENERAL.—The term ‘‘estuary

18 habitat’’ means the complex of physical and hy19 drologic features and living organisms within

20 estuaries and associated ecosystems.

21 (B) INCLUSIONS.—The term ‘‘estuary

22 habitat’’ includes salt and fresh water coastal

23 marshes, coastal forested wetlands and other

24 coastal wetlands, maritime forests, coastal

25 grasslands, tidal flats, natural shoreline areas,
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1 shellfish beds, sea grass meadows, kelp beds,

2 river deltas, and river and stream banks under

3 tidal influence.

4 (5) ESTUARY HABITAT RESTORATION ACTIV5 ITY.—

6 (A) IN GENERAL.—The term ‘‘estuary

7 habitat restoration activity’’ means an activity

8 that results in improving degraded estuary

9 habitat (including both physical and functional

10 restoration), with the goal of attaining a self11 sustaining system integrated into the sur12 rounding landscape.

13 (B) INCLUDED ACTIVITIES.—The term

14 ‘‘estuary habitat restoration activity’’

15 includes—

16 (i) the reestablishment of physical fea17 tures and biological and hydrologic func18 tions;

19 (ii) except as provided in subpara20 graph (C)(ii), the cleanup of contamination

21 related to the restoration of estuary habi22 tat;

23 (iii) the control of non-native and

24 invasive species;
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1 (iv) the reintroduction of native spe2 cies through planting or natural succes3 sion; and

4 (v) other activities that improve estu5 ary habitat.

6 (C) EXCLUDED ACTIVITIES.—The term

7 ‘‘estuary habitat restoration activity’’ does not

8 include—

9 (i) an act that constitutes mitigation

10 for the adverse effects of an activity regu11 lated or otherwise governed by Federal or

12 State law; or

13 (ii) an act that constitutes restitution

14 for natural resource damages required

15 under any Federal or State law.

16 (6) ESTUARY HABITAT RESTORATION

17 PROJECT.—The term ‘‘estuary habitat restoration

18 project’’ means an estuary habitat restoration activ19 ity under consideration or selected by the Collabo20 rative Council, in accordance with this Act, to re21 ceive financial, technical, or another form of assist22 ance.

23 (7) ESTUARY HABITAT RESTORATION STRAT24 EGY.—The term ‘‘estuary habitat restoration strat-
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1 egy’’ means the estuary habitat restoration strategy

2 developed under section 6(a).

3 (8) FEDERAL ESTUARY MANAGEMENT OR HABI4 TAT RESTORATION PLAN.—The term ‘‘Federal estu5 ary management or habitat restoration plan’’ means

6 any Federal plan for restoration of degraded estuary

7 habitat that—

8 (A) was developed by a public body with

9 the substantial participation of appropriate

10 public and private stakeholders; and

11 (B) reflects a community-based planning

12 process.

13 (9) SECRETARY.—The term ‘‘Secretary’’ means

14 the Secretary of the Army, or a designee.

15 (10) UNDER SECRETARY.—The term ‘‘Under

16 Secretary’’ means the Under Secretary for Oceans

17 and Atmosphere of the Department of Commerce, or

18 a designee.

19 SEC. 5. ESTABLISHMENT OF COLLABORATIVE COUNCIL.

20 (a) COLLABORATIVE COUNCIL.—There is established

21 an interagency council to be known as the ‘‘Estuary Habi22 tat Restoration Collaborative Council’’.

23 (b) MEMBERSHIP.—

24 (1) IN GENERAL.—The Collaborative Council

25 shall be composed of the Secretary, the Under Sec-
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1 retary, the Administrator of the Environmental Pro2 tection Agency, and the Secretary of the Interior

3 (acting through the Director of the United States

4 Fish and Wildlife Service), or their designees.

5 (2) CHAIRPERSON; LEAD AGENCY.—The Sec6 retary, or designee, shall chair the Collaborative

7 Council, and the Department of the Army shall

8 serve as the lead agency.

9 (c) CONVENING OF COLLABORATIVE COUNCIL.—The

10 Secretary shall—

11 (1) convene the first meeting of the Collabo12 rative Council not later than 30 days after the date

13 of enactment of this Act; and

14 (2) convene additional meetings as often as ap15 propriate to ensure that this Act is fully carried out,

16 but not less often than quarterly.

17 (d) COLLABORATIVE COUNCIL PROCEDURES.—

18 (1) QUORUM.—Three members of the Collabo19 rative Council shall constitute a quorum.

20 (2) VOTING AND MEETING PROCEDURES.—The

21 Collaborative Council shall establish procedures for

22 voting and the conduct of meetings by the Council.

23 SEC. 6. DUTIES OF COLLABORATIVE COUNCIL.

24 (a) ESTUARY HABITAT RESTORATION STRATEGY.—
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1 (1) IN GENERAL.—Not later than 1 year after

2 the date of enactment of this Act, the Collaborative

3 Council, in consultation with non-Federal partici4 pants, including nonprofit sectors, as appropriate,

5 shall develop an estuary habitat restoration strategy

6 designed to ensure a comprehensive approach to the

7 selection and prioritization of estuary habitat res8 toration projects and the coordination of Federal

9 and non-Federal activities related to restoration of

10 estuary habitat.

11 (2) INTEGRATION OF PREVIOUSLY AUTHORIZED

12 ESTUARY HABITAT RESTORATION PLANS, PROGRAMS,

13 AND PARTNERSHIPS.—In developing the estuary

14 habitat restoration strategy, the Collaborative Coun15 cil shall—

16 (A) conduct a review of—

17 (i) Federal estuary management or

18 habitat restoration plans; and

19 (ii) Federal programs established

20 under other law that provide funding for

21 estuary habitat restoration activities;

22 (B) develop a set of proposals for—

23 (i) using programs established under

24 this or any other Act to maximize the in25 centives for the creation of new public-pri-
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1 vate partnerships to carry out estuary

2 habitat restoration projects; and

3 (ii) using Federal resources to encour4 age increased private sector involvement in

5 estuary habitat restoration activities; and

6 (C) ensure that the estuary habitat res7 toration strategy is developed and will be imple8 mented in a manner that is consistent with the

9 findings and requirements of Federal estuary

10 management or habitat restoration plans.

11 (3) ELEMENTS TO BE CONSIDERED.—Con12 sistent with the requirements of this section, the

13 Collaborative Council, in the development of the es14 tuary habitat restoration strategy, shall consider—

15 (A) the contributions of estuary habitat

16 to—

17 (i) wildlife, including endangered and

18 threatened species, migratory birds, and

19 resident species of an estuary watershed;

20 (ii) fish and shellfish, including com21 mercial and sport fisheries;

22 (iii) surface and ground water quality

23 and quantity, and flood control;

24 (iv) outdoor recreation; and
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1 (v) other areas of concern that the

2 Collaborative Council determines to be ap3 propriate for consideration;

4 (B) the estimated historic losses, estimated

5 current rate of loss, and extent of the threat of

6 future loss or degradation of each type of estu7 ary habitat; and

8 (C) the most appropriate method for se9 lecting a balance of smaller and larger estuary

10 habitat restoration projects.

11 (4) ADVICE.—The Collaborative Council shall

12 seek advice in restoration of estuary habitat from ex13 perts in the private and nonprofit sectors to assist

14 in the development of an estuary habitat restoration

15 strategy.

16 (5) PUBLIC REVIEW AND COMMENT.—Before

17 adopting a final estuary habitat restoration strategy,

18 the Collaborative Council shall publish in the Fed19 eral Register a draft of the estuary habitat restora20 tion strategy and provide an opportunity for public

21 review and comment.

22 (b) PROJECT APPLICATIONS.—

23 (1) IN GENERAL.—An application for an estu24 ary habitat restoration project shall originate from a
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1 non-Federal organization and shall require, when ap2 propriate, the approval of State or local agencies.

3 (2) FACTORS TO BE TAKEN INTO ACCOUNT.—

4 In determining the eligibility of an estuary habitat

5 restoration project for financial assistance under this

6 Act, the Collaborative Council shall consider the fol7 lowing:

8 (A) Whether the proposed estuary habitat

9 restoration project meets the criteria specified

10 in the estuary habitat restoration strategy.

11 (B) The technical merit and feasibility of

12 the proposed estuary habitat restoration

13 project.

14 (C) Whether the non-Federal persons pro15 posing the estuary habitat restoration project

16 provide satisfactory assurances that they will

17 have adequate personnel, funding, and author18 ity to carry out and properly maintain the estu19 ary habitat restoration project.

20 (D) Whether, in the State in which a pro21 posed estuary habitat restoration project is to

22 be carried out, there is a State dedicated source

23 of funding for programs to acquire or restore

24 estuary habitat, natural areas, and open spaces.
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1 (E) Whether the proposed estuary habitat

2 restoration project will encourage the increased

3 coordination and cooperation of Federal, State,

4 and local government agencies.

5 (F) The amount of private funds or in6 kind contributions for the estuary habitat res7 toration project.

8 (G) Whether the proposed habitat restora9 tion project includes a monitoring plan to en10 sure that short-term and long-term restoration

11 goals are achieved.

12 (H) Other factors that the Collaborative

13 Council determines to be reasonable and nec14 essary for consideration.

15 (3) PRIORITY ESTUARY HABITAT RESTORATION

16 PROJECTS.—An estuary habitat restoration project

17 shall be given a higher priority in receipt of funding

18 under this Act if, in addition to meeting the selec19 tion criteria specified in this section—

20 (A) the estuary habitat restoration project

21 is part of an approved Federal estuary manage22 ment or habitat restoration plan;

23 (B) the non-Federal share with respect to

24 the estuary habitat restoration project exceeds

25 50 percent; or
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1 (C) there is a program within the water2 shed of the estuary habitat restoration project

3 that addresses sources of water pollution that

4 would otherwise re-impair the restored habitat.

5 (c) INTERIM ACTIONS.—

6 (1) IN GENERAL.—Pending completion of the

7 estuary habitat restoration strategy developed under

8 subsection (a), the Collaborative Council may pay

9 the Federal share of the cost of an interim action to

10 carry out an estuary habitat restoration activity.

11 (2) FEDERAL SHARE.—The Federal share shall

12 not exceed 25 percent.

13 (d) COOPERATION OF NON-FEDERAL PARTNERS.—

14 (1) IN GENERAL.—The Collaborative Council

15 shall not select an estuary habitat restoration project

16 until a non-Federal interest has entered into a writ17 ten agreement with the Secretary in which it agrees

18 to provide the required non-Federal cooperation for

19 the project.

20 (2) NONPROFIT ENTITIES.—Notwithstanding

21 section 221 of the Flood Control Act of 1970 (42

22 U.S.C. 1962d–5b(b)), for any project undertaken

23 under this section, the Secretary may, after coordi24 nation with the official responsible for the political
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1 jurisdiction in which a project would occur, allow a

2 nonprofit entity to serve as the non-Federal interest.

3 (3) MAINTENANCE AND MONITORING.—A co4 operation agreement entered into under paragraph

5 (1) shall provide for maintenance and monitoring of

6 the estuary habitat restoration project to the extent

7 determined necessary by the Collaborative Council.

8 (e) LEAD COLLABORATIVE COUNCIL MEMBER.—The

9 Collaborative Council shall designate a lead Collaborative

10 Council member for each proposed estuary habitat res11 toration project. The lead Collaborative Council member

12 shall have primary responsibility for overseeing and assist13 ing others in implementing the proposed project.

14 (f) AGENCY CONSULTATION AND COORDINATION.—

15 In carrying out this section, the Collaborative Council

16 shall, as the Collaborative Council determines it to be nec17 essary, consult with, cooperate with, and coordinate its ac18 tivities with the activities of other appropriate Federal

19 agencies.

20 (g) BENEFITS AND COSTS OF ESTUARY HABITAT

21 RESTORATION PROJECTS.—The Collaborative Council

22 shall evaluate the benefits and costs of estuary habitat res23 toration projects in accordance with section 907 of the

24 Water Resources Development Act of 1986 (33 U.S.C.

25 2284).
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1 (h) AUTHORIZATION OF APPROPRIATIONS.—There is

2 authorized to be appropriated to the Department of the

3 Army for the administration and operation of the Collabo4 rative Council $4,000,000 for each of fiscal years 2000

5 through 2004.

6 SEC. 7. COST SHARING OF ESTUARY HABITAT RESTORA7 TION PROJECTS.

8 (a) IN GENERAL.—No financial assistance in car9 rying out an estuary habitat restoration project shall be

10 available under this Act from any Federal agency unless

11 the non-Federal applicant for assistance demonstrates

12 that the estuary habitat restoration project meets—

13 (1) the requirements of this Act; and

14 (2) any criteria established by the Collaborative

15 Council under this Act.

16 (b) FEDERAL SHARE.—The Federal share of the cost

17 of an estuary habitat restoration and protection project

18 assisted under this Act shall be not more than 65 percent.

19 (c) NON-FEDERAL SHARE.—The non-Federal share

20 of the cost of an estuary habitat restoration project may

21 be provided in the form of land, easements, rights-of-way,

22 services, or any other form of in-kind contribution deter23 mined by the Collaborative Council to be an appropriate

24 contribution equivalent to the monetary amount required
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1 for the non-Federal share of the estuary habitat restora2 tion project.

3 (d) ALLOCATION OF FUNDS BY STATES TO POLIT4 ICAL SUBDIVISIONS.—With the approval of the Secretary,

5 a State may allocate to any local government, area-wide

6 agency designated under section 204 of the Demonstration

7 Cities and Metropolitan Development Act of 1966 (42

8 U.S.C. 3334), regional agency, or interstate agency, a por9 tion of any funds disbursed in accordance with this Act

10 for the purpose of carrying out an estuary habitat restora11 tion project.

12 SEC. 8. MONITORING AND MAINTENANCE OF ESTUARY

13 HABITAT RESTORATION PROJECTS.

14 (a) DATABASE OF RESTORATION PROJECT INFORMA15 TION.—The Under Secretary shall maintain an appro16 priate database of information concerning estuary habitat

17 restoration projects funded under this Act, including infor18 mation on project techniques, project completion, moni19 toring data, and other relevant information.

20 (b) REPORT.—

21 (1) IN GENERAL.—The Collaborative Council

22 shall biennially submit a report to the Committee on

23 Environment and Public Works of the Senate and

24 the Committee on Transportation and Infrastructure
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1 of the House of Representatives on the results of ac2 tivities carried out under this Act.

3 (2) CONTENTS OF REPORT.—A report under

4 paragraph (1) shall include—

5 (A) data on the number of acres of estuary

6 habitat restored under this Act, including the

7 number of projects approved and completed

8 that comprise those acres;

9 (B) the percentage of restored estuary

10 habitat monitored under a plan to ensure that

11 short-term and long-term restoration goals are

12 achieved;

13 (C) an estimate of the long-term success of

14 varying restoration techniques used in carrying

15 out estuary habitat restoration projects;

16 (D) a review of how the information de17 scribed in subparagraphs (A) through (C) has

18 been incorporated in the selection and imple19 mentation of estuary habitat restoration

20 projects;

21 (E) a review of efforts made to maintain

22 an appropriate database of restoration projects

23 funded under this Act; and

24 (F) a review of the measures taken to pro25 vide the information described in subparagraphs
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1 (A) through (C) to persons with responsibility

2 for assisting in the restoration of estuary habi3 tat.

4 SEC. 9. COOPERATIVE AGREEMENTS; MEMORANDA OF UN5 DERSTANDING.

6 In carrying out this Act, the Collaborative Council

7 may—

8 (1) enter into cooperative agreements with Fed9 eral, State, and local government agencies and other

10 persons and entities; and

11 (2) execute such memoranda of understanding

12 as are necessary to reflect the agreements.

13 SEC. 10. DISTRIBUTION OF APPROPRIATIONS FOR ESTU14 ARY HABITAT RESTORATION ACTIVITIES.

15 The Secretary shall allocate funds made available to

16 carry out this Act based on the need for the funds and

17 such other factors as are determined to be appropriate to

18 carry out this Act.

19 SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

20 (a) AUTHORIZATION OF APPROPRIATIONS UNDER

21 OTHER LAW.—Funds authorized to be appropriated

22 under section 908 of the Water Resources Development

23 Act of 1986 (33 U.S.C. 2285) and section 206 of the

24 Water Resources Development Act of 1996 (33 U.S.C.

25 2330) may be used by the Secretary in accordance with
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1 this Act to assist States and other non-Federal persons

2 in carrying out estuary habitat restoration projects or in3 terim actions under section 6(c).

4 (b) AUTHORIZATION OF APPROPRIATIONS.—There

5 are authorized to be appropriated to the Secretary to carry

6 out estuary habitat restoration activities—

7 (1) $40,000,000 for fiscal year 2000;

8 (2) $50,000,000 for fiscal year 2001; and

9 (3) $75,000,000 for each of fiscal years 2002

10 through 2004.

11 SEC. 12. NATIONAL ESTUARY PROGRAM.

12 (a) GRANTS FOR COMPREHENSIVE CONSERVATION

13 AND MANAGEMENT PLANS.—Section 320(g)(2) of the

14 Federal Water Pollution Control Act (33 U.S.C.

15 1330(g)(2)) is amended by inserting ‘‘and implementa16 tion’’ after ‘‘development’’.

17 (b) AUTHORIZATION OF APPROPRIATIONS.—Section

18 320(i) of the Federal Water Pollution Control Act (33

19 U.S.C. 1330(i)) is amended by striking ‘‘1987’’ and all

20 that follows through ‘‘1991’’ and inserting the following:

21 ‘‘1987 through 1991, such sums as may be necessary for

22 fiscal years 1992 through 1999, and $25,000,000 for each

23 of fiscal years 2000 and 2001’’.
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1 SEC. 13. GENERAL PROVISIONS.

2 (a) ADDITIONAL AUTHORITY FOR ARMY CORPS OF

3 ENGINEERS.—The Secretary—

4 (1) may carry out estuary habitat restoration

5 projects in accordance with this Act; and

6 (2) shall give estuary habitat restoration

7 projects the same consideration as projects relating

8 to irrigation, navigation, or flood control.

9 (b) INAPPLICABILITY OF CERTAIN LAW.—Sections

10 203, 204, and 205 of the Water Resources Development

11 Act of 1986 (33 U.S.C. 2231, 2232, 2233) shall not apply

12 to an estuary habitat restoration project selected in ac13 cordance with this Act.

14 (c) ESTUARY HABITAT RESTORATION MISSION.—

15 The Secretary shall establish restoration of estuary habi16 tat as a primary mission of the Army Corps of Engineers.

17 (d) FEDERAL AGENCY FACILITIES AND PER18 SONNEL.—

19 (1) IN GENERAL.—Federal agencies may co20 operate in carrying out scientific and other programs

21 necessary to carry out this Act, and may provide fa22 cilities and personnel, for the purpose of assisting

23 the Collaborative Council in carrying out its duties

24 under this Act.

25 (2) REIMBURSEMENT FROM COLLABORATIVE

26 COUNCIL.—Federal agencies may accept reimburse-
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1 ment from the Collaborative Council for providing

2 services, facilities, and personnel under paragraph

3 (1).

4 (e) ADMINISTRATIVE EXPENSES AND STAFFING.—

5 Not later than 180 days after the date of enactment of

6 this Act, the Comptroller General of the United States

7 shall submit to Congress and the Secretary an analysis

8 of the extent to which the Collaborative Council needs ad9 ditional personnel and administrative resources to fully

10 carry out its duties under this Act. The analysis shall in11 clude recommendations regarding necessary additional

12 funding.