Congressional Record, Volume 147 Issue 83 (Thursday, June 14, 2001)

[Congressional Record Volume 147, Number 83 (Thursday, June 14, 2001)]
[Senate]
[Pages S6319-S6349]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mrs. HUTCHISON (for herself, Mr. Inouye, Mr. Hutchinson, and
Mr. Stevens):
S. 1037. A bill to amend title 10, United States Code, to authorize
disability retirement to be granted posthumously for members of the
Armed Forces who die in the line of duty while on active duty, and for
other purposes; to the Committee on Armed Services.
Mrs. HUTCHISON. Mr. President, I am pleased to be joined by Senator
Inouye and Senator Hutchinson to offer legislation on a very important
issue for those military men and women who serve our country every day.
Our current military retirement

[[Page S6320]]

system, I have come to understand, has a serious flaw on it.
We often memorialize those soldiers, sailors, and airmen who died in
combat, but too often we forget that service men and women die
frequently during daily operations or while training. In the past five
years, 2,206 military families lost their spouse, father or mother
while serving their country. In just the past year we have mourned the
loss of the sailors on the USS Cole, Air Force pilots in Scotland, and
soldiers in helicopter crashes in Hawaii, and Vietnam. What is not
fully understood is that their families do not receive their full
retirement pensions in many cases. Because service members are not
vested in their retirement system until the day they retire active duty
personnel do not qualify for a retirement pension unless the services
medically retire them before death. This has caused hardships to
families and necessitated extraordinary efforts by commanders and
medical and manpower personnel.
Most Americans, and even many in uniform, do not understand that this
affects those with one year of service as well as those with thirty. If
these military members were in the Federal service system, or a
policeman in Arizona, their family would be able to receive part of
their pension. This bill will correct that inequity by amending
Sections 1222 and 1448 of Title 10 U.S.C. and allowing members of the
armed forces on active duty who die while serving in the line of duty
to be posthumously retired. In addition, the bill would allow the
services to ensure the family is given the best choice of benefits
based on their individual situation. This is the least we can do when
they make the ultimate sacrifice for their country.
Though we have not been involved in a major conflict in more than ten
years, every day we deploy our military to many more places than we did
just a decade ago. The day-to-day activities of our armed forces are
inherently dangerous. If we are going to maintain and recruit a quality
force, we must reassure those who serve that we are going to provide
for their family. I believe that Brigadier General William Caldwell,
Assistant Division Commander of the 25th Infantry Division, said it
best, ``Everything we do is complex.'' BG Caldwell made this comment
after the crash of two helicopters in Hawaii that killed six members of
the 25th Infantry Division. That sums up the situation perfectly.
This bill will be a step in the right direction and is a way to help
repay our debt to our military and their families. Not only is it the
right thing and fair thing to do, but during these times of increased
deployments and personnel shortages, it is in our national interest to
continue to show our dedicated service members that we appreciate their
sacrifice and commitment.
I commend the Senator from Hawaii for his support on this issue and
urge other Senators to join us in this effort.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1037

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

SECTION 1. POSTHUMOUS DISABILITY RETIREMENT FOR MEMBERS OF
THE ARMED FORCES WHO DIE IN THE LINE OF DUTY
WHILE ON ACTIVE DUTY.

(a) Authority.--Chapter 61 of title 10, United States Code,
is amended by adding at the end the following new section:

``Sec. 1222. Posthumous retirement: retroactive effective
date; related elections

``(a) Authority.--Upon a determination by the Secretary
concerned that it is advantageous for the survivors of a
member of the armed forces who dies in the line of duty while
on active duty, the Secretary concerned may--
``(1) posthumously retire the member under section 1201 of
this title effective immediately before the member's death;
and
``(2) make for the deceased member any election with
respect to survivor benefits under laws referred to in
subsection (c) that the deceased member would have been
entitled to make upon being retired under that section.
``(b) Construction With Section 1201 Requirements.--Nothing
in this section modifies the requirements set forth in
section 1201 of this title regarding determinations or
eligibility.
``(c) Administration of Benefits Laws.--A retirement and
election under subsection (a) shall be effective for the
purposes of laws administered by the Secretary of Defense or
any Secretary concerned and laws administered by the
Secretary of Veterans Affairs.
``(d) Nonreviewability of Determinations.--A determination
or election made by a Secretary concerned under subsection
(a) is not subject to judicial review.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by adding at the end the
following new item:

``1222. Posthumous retirement: retroactive effective date; related
elections.''.

SEC. 2. SURVIVOR BENEFIT PLAN.

(a) Surviving Spouse Annuity.--Section 1448(d) of title 10,
United States Code, is amended by striking paragraph (1) and
inserting the following:
``(1) Surviving spouse annuity.--The Secretary concerned
shall pay an annuity under this subchapter to the surviving
spouse of a member who--
``(A) dies in the line of duty while on active duty after--
``(i) becoming eligible to receive retired pay;
``(ii) qualifying for retired pay except that the member
has not applied for or been granted that pay; or
``(iii) completing 20 years of active service but before
the member is eligible to retire as a commissioned officer
because the member has not completed 10 years of active
commissioned service; or
``(B) dies in the line of duty while on active duty and is
posthumously retired under section 1201 of this title
pursuant to section 1222 of this title.''.
(b) Dependent Child Annuity.--Paragraph (2) of such section
is amended by striking ``or if the member's surviving spouse
subsequently dies'' and inserting ``or if the payment of an
annuity to the member's surviving spouse under that paragraph
subsequently terminates''.
(c) Computation of Survivor Annuity.--Section 1451(c) of
title 10, United States Code, is amended by adding at the end
the following new paragraph:
``(5) Service members posthumously retired.--In the case of
an annuity provided under section 1448(d)(1)(B) of this
title, the retired pay to which the member would have been
entitled when the member died shall be determined for
purposes of paragraph (1) based upon the retired pay base
computed for the member under section 1406(b) or 1407 of this
title as if the member had been retired under section 1201 of
this title on the date of the member's death.''.
(d) Conforming Amendment.--Section 1451(c)(3) of such title
is amended by striking ``section 1448(d)(1)(B) or
1448(d)(1)(C)'' and inserting ``clause (ii) or (iii) of
section 1448(d)(1)(A)''.

SEC. 3. EFFECT DATE AND APPLICABILITY.

This Act and the amendments made by this Act shall take
effect on the date of the enactment of this Act and shall
apply with respect to deaths of members of the Armed Forces
occurring on or after that date.
______

By Mr. JEFFORDS (for himself and Mr. Leahy):
S. 1038. A bill to amend the Internal Revenue Code of 1986 to improve
access to tax-exempt debt for small nonprofit health care and
educational institutions; to the Committee on Finance.
Mr. JEFFORDS. Mr. President, today I am introducing the Health and
Higher Education Facilities Improvement Act of 2001. This legislation
will help small non-profit health and educational institutions more
effectively finance the cost of essential services, and lead to new
facility construction. By modifying the laws that restrict
deductibility or ``bank financing for small non-profit organizations
that need it the most: small local hospitals and colleges.
The Tax Reform Act of 1986 unintentionally discriminated against
small non-profit educational and health care facilities that want to
sell small amounts of tax-exempt debt to community banks. Before 1986,
banks and financial institutions could deduct the interest incurred to
carry tax-exempt bonds. This allowed banks to purchase tax-exempt bonds
at attractive rates. The 1986 tax act repealed bank deductibility, but
an exception was retained for small governmental issuers that issue
bonds of $10 million or less each year.
This exception was designed to preserve bank deductibility for small
local governments, but does not help small non-profit institutions. The
small issuer exception to be of little value in many States, like
Vermont where statewide health care and higher education bond issuing
authorities typically issue many millions of dollars of debt each year.
The legislation I am introducing today will modify the small issuer
exception by granting bond issuers the right to apply the small issuer
exception at the level of the ultimate beneficiary of the funding.
Consequently, a small college or health

[[Page S6321]]

care facility borrowing less than $10 million in tax-exempt debt in any
one year could elect tax-exempt status for that debt, even if it is
issued by a statewide authority. This would make the debt more
attractive to local banks, and could result in significant savings for
beneficiary institutions over the life of the bond.
The Health and Higher Education Facilities Improvement Act of 2001
focuses the benefit of the small issuer exemption on smaller non-
profits, without regard to whether the bond issuer is a government
entity issuing more than $10 million in bonds per year. Small non-
profits are important community institutions; they stand to benefit
from greater access to tax-exempt debt. Wall Street and large money
center banks may have little interest in small amounts of debt from
small institutions. The bank across the street from a local college or
health care clinic, however, may have greater confidence and insight
into the community value of the institution. This bill would allow
those banks to carry tax-exempt debt at attractive rates and maintain
commitments to the people and institutions in their local communities.
I urge my colleagues to support this bill.
______

By Mr. SHELBY:
S. 1040. A bill to promote freedom, fairness, and economic
opportunity for families by reducing the power and reach of the Federal
establishment; to the Committee on Finance.
Mr. SHELBY. Mr. President, Congress recently passed a tax bill that
provides much-needed relief for all Americans. While I am pleased that
the tax bill included marriage penalty relief, a reduction in marginal
rates and a phase out of the estate tax, these changes unfortunately
increase the tax code's complexity. Furthermore, despite the positive
changes made this year, the current code still retains the alternative
minimum tax, the taxation of Social Security benefits, and marginal
rates that increase with income.
I rise today to introduce legislation that takes tax reform to the
next level and addresses the fundamental problems of the current code.
My bill accomplishes this by repealing the current Internal Revenue
Code and replacing it with a flat tax, where all taxpayers pay the same
rate.
As with current law, not all wage earners will pay a Federal income
tax under a flat tax. In order to assist lower income Americans, I have
included large standard deductions. For example, a family of four would
need to make more than $35,200 before paying a single penny in taxes.
Some argue that it's fair to tax wealthier people at higher rates. I
believe that nothing can be further from the truth. Not only is this
type of tax policy fundamentally unfair, it also prevents our economy
from realizing its full potential.
A flat tax does not mean that a school teacher will have the same tax
liability as Bill Gates. The principles of math dictate that people who
make more will still pay more in taxes with a single rate. The
difference is that with a flat tax those who earn more will no longer
be penalized by rising marginal rates.
My bill also increases tax fairness by eliminating itemized
deductions and credits. While these tax breaks benefit those who are
lucky enough to claim them, they consequently hurt the taxpayers who
are not. As a result, people with the same yearly salaries can pay very
different Federal income taxes depending on whether they have children,
they decide to own or rent a home, or decide to finance a family
vacation through a credit card or a home equity loan.
Over time the tax code has evolved from a way to collect Federal
revenue into a way to encourage and reward behavior the government
deems important. I believe that the American people are intelligent
enough that they do not need the Federal Government dangling a carrot
in front of them when they make life decisions. Furthermore, I believe
that people should not be punished for deciding to make these decisions
in ways that are contrary to what the government decides is right.
Simplification is yet another reason our country needs the flat tax.
The National Taxpayer Advocate cited complications in the tax code as
the number one issue taxpayers faced in 2001. As the IRS publishes more
and more regulations, and new tax laws are enacted, the complexity of
the tax code will only grow.
The complexity of the tax code forces many Americans to seek the
advice of tax professionals at the cost of many millions of dollars. No
tax code should be so puzzling that the average person has to spend his
hard-earned money to hire a tax preparer or an accountant. Those who
decide to brave the tax code and file their own returns do not fare
better. These people face conflicting IRS advice and many hours of
completing confusing tax forms. All of these needless hassles results
in taxpayer frustration and apathy and less time spent on more
productive endeavors.
Under the flat tax, a taxpayers would be able to be quickly and
accurately file their returns. There would be no itemized deductions or
credits to calculate, no capital gains tabulations and no alternative
minimum tax. With this new simplicity, taxpayers would be able to
complete their personal income tax return in virtually no time at all
compared to the 13 hours the IRS estimates it takes to complete a 1040
form.
I understand that my bill is a major change from the current tax
code. Many people have become complacent with the status quo. Still
others enjoy using the tax to implement social policy. I on the other
hand believe though that a tax code should have one purpose and that is
to collect revenue.
I hope that my colleagues will begin to seriously look at
alternatives to the current code. The legislation I have introduced
today is an excellent opportunity to bring this debate to the floor of
the Senate. The combination of freedom, simplicity and fairness make
the flat tax the ultimate goal of true tax reform. I urge my colleagues
to join me in support of meaningful and comprehensive tax reform.
______

By Mr. FEINGOLD:
S. 1041. A bill to establish a program for an information
clearinghouse to increase public access to defibrillation in schools;
to the Committee on Health, Education, Labor, and Pensions.
Mr. FEINGOLD. Mr. President, I rise today with my colleague from
Maine, Senator Collins, to introduce the Automatic Defibrillators in
Adam's Memory Act, or the ADAM Act, which would help schools across
America implement public access defibrillation programs.
I am especially proud that the concept of this legislation came from
my home state of Wisconsin, where a similar program has saved the lives
of a number of students.
Heart disease is not only a problem among adults. I recently learned
the story of Adam Lemel, a 17-year-old high school student and a star
basketball and tennis player in southeastern Wisconsin. Tragically,
during a timeout while playing basketball at a neighboring Milwaukee
high school, Adam suffered sudden cardiac arrest, and died before the
paramedics arrived.
The following November, a Milwaukee Technical High School football
player died of Sudden Cardiac Arrest while playing basketball with his
friends. And in April 2000, two more Milwaukee-area deaths were
attributed to sudden cardiac arrest: a Marquette University senior and
a visiting 12-year old from Illinois who was playing basketball.
These stories are incredibly tragic. These young people had their
whole lives before them, and could have been saved. In fact, we have
seen a number of examples in Wisconsin where early CPR and access to
defibrillation have saved lives.
Seventy miles away from Milwaukee, a 14-year-old boy, collapsed while
playing basketball. Within three minutes, the emergency team arrived
and began CPR. Within five minutes of his collapse, the paramedics used
an automated external defibrillator to jump start his heart. Not only
has this young man survived, they have identified his father and
brother to have the same heart condition. To prevent cardiac deaths,
internal defibrillators were implanted in both men.
I also recently met Heather Rahn who on March 19, was at a church
concert in the gymnasium of Good Hope Christian Academy. She told her
friends that her heart was racing, and

[[Page S6322]]

she felt nervous. In the middle of running across the gym, she
collapsed on the ground from cardiac arrest. She was down for about
three and a half minutes when an ambulance arrived, bringing a
defibrillator that would save her life. It took two shocks to bring her
back.
These tragic stories help to underscore three issues. First, although
cardiac arrest is most common among adults, it can occur at any age,
even in apparently healthy children and adolescents. Second, early
intervention is essential, a combination of CPR and use of AEDs can
save lives. Third, some individuals who are at risk for sudden cardiac
arrest, can be identified to prevent cardiac arrest.
After Adam Lemel tragically suffered his cardiac arrest two years
ago, his friend David Ellis joined forces with Children's Hospital of
Wisconsin to initiate Project ADAM to: bring CPR training and public
access defibrillation into schools, educate communities about
preventing sudden cardiac deaths, and save lives.
Today, Project ADAM has introduced AEDs into several Wisconsin
schools, and has been a model for programs in Washington, Florida,
Michigan and elsewhere.
I had the chance to visit with Dave Ellis, Adam's parents, and the
dedicated people at Children's Hospital of Wisconsin, especially Karen
Bauer and Dr. Stu Berger. And let me tell you, there are no better
advocates for saving the lives of cardiac arrest victims. I want to
commend them for their service, and efforts to save the lives of sudden
cardiac arrest victims.
I strongly believe that the Federal Government should support local
efforts to equip more people in our communities, including younger
generations, with the necessary skills to deal with life-threatening
emergencies like cardiac arrest. And there is no better way to support
local efforts than by following the lead of a successful local effort
such as Project ADAM.
Over two hundred twenty thousand Americans die each year of sudden
cardiac arrest, including between 5000 and 7000 children. About 50,000
of these victims lives could be saved each year if more people
implemented the ``Chain of Survival,'' which includes an immediate call
to 911, early CPR and defibrillation, and early advanced life support.
According to the Centers for Disease Control, the number of sudden
cardiac deaths of people between the ages of 15 and 34 years old has
increased over 10 percent in the past 10 years. The research also shows
that sudden cardiac death has increased by 30 percent in young women.
Without any training, kids would never know what to do in the face of
such an emergency.
As a matter of fact, many adults wouldn't know what to do either.
That lack of knowledge is a break in the chain of survival, but that
break can be repaired through the right training. A number of
localities have pushed for increased CPR training and public access to
defibrillation in schools.
The ADAM Act will help strengthen the Chain by establishing a
national Project ADAM resource center. The center would provide schools
with information to help them implement public access defibrillation
programs.
The ADAM Center would also provide support to CPR and AED training
programs, and help foster new community partnerships among public and
private organizations to promote public access to defibrillation in
schools.
Finally, the ADAM Act would create a way to track cardiac arrest
among children and to conduct further research into this serious health
threat.
This clearinghouse responds to the growing number of schools that
have the desire to set up a public access defibrillation program, but
often don't know where to start.
If the ADAM Act becomes law, schools across the country will have a
place to turn as they work to establish public access to defibrillation
programs in more schools across America. The Project ADAM resource
center will help schools give victims of cardiac arrest a fighting
chance.
______

By Mr. INOUYE:
S. 1042. A bill to amend title 38, United States Code, to improve
benefits for Filipino veterans of World War II, and for other purposes;
to the Committee on Veterans' Affairs.
Mr. INOUYE. Mr. President, I rise to introduce the Filipino Veterans'
Benefits Improvement Act of 2001. This bill provides our country the
opportunity to right a wrong committed decades ago, by providing
Philippine-born veterans of World War II who served in the United
States Armed Forces their hard-earned, due compensation.
Our Nation is now at peace, and our prosperity has reached levels
never before seen by any Nation in history. We are on the top of the
world in terms of economic power and military might, and much of this
unprecedented success is due to the tremendous sacrifices made by our
fighting forces during World War II. We trampled tyranny in Europe and
in the Pacific, and when we raised our flag proudly over hostile lands,
we were greeted enthusiastically by the millions we liberated from the
grasp of terrible aggression.
I take this opportunity today to remind everyone of an injustice that
persists as a blemish on one of history's greatest success stories.
The Philippines became a United States possession in 1898, when it
was ceded from Spain following the Spanish-American War. In 1934, the
Congress enacted the Philippine Independence Act, Public Law 73-127,
which provided a 10-year time frame for the independence of the
Philippines. Between 1934 and final independence in 1946, the United
States retained certain powers over the Philippines, including the
right to call all military forces organized by the newly-formed
Commonwealth government into the service of the United States Armed
Forces.
On July 26, 1941, President Roosevelt issued an Executive Order
calling members of the Philippine Commonwealth Army into the service of
the United States Armed Forces of the Far East. Under this order,
Filipinos were entitled to full veterans' benefits. More than 100,000
Filipinos volunteered for the Philippine Commonwealth Army and fought
alongside the United States Armed Forces.
The United States Armed Forces of the Far East fought to reclaim
control of the entire Western Pacific. Filipinos, under the command of
General Douglas MacArthur, fought in the front lines of the Battle of
Corregidor and at Bataan. They served in Okinawa, on occupied mainland
Japan, and in Guam. They were part of what became known as the Bataan
Death March, and were held and tortured as prisoners of war. Through
these hardships, the men of the Philippine Commonwealth Army remained
loyal to the United States during the Japanese occupation of the
Philippines, and the valiant guerilla war they waged against the
Japanese helped to delay the Japanese advance across the Pacific.
Despite all of their sacrifices, on February 18, 1946, Congress
betrayed these veterans by enacting the Rescission Act of 1946 and
declaring the service performed by the Philippine Commonwealth Army
veterans as not ``active service,'' thus denying many benefits to which
these veterans were entitled.
Then, shortly after Japan's surrender, Congress enacted the Armed
Forces Voluntary Recruitment Act of 1945 for the purpose of sending
American troops to occupy enemy lands, and to oversee military
installations at various overseas locations. A provision included in
the Recruitment Act called for the enlistment of Philippine citizens to
constitute a new body of Philippine Scouts. The New Scouts were
authorized to receive pay and allowances for services performed
throughout the Western Pacific. Although hostilities had ceased,
wartime service of the New Philippine Scouts continued as a matter of
law until the end of 1946.
On May 27, 1946, the Congress enacted the Second Supplemental Surplus
Appropriation Rescission Act, which included a provision to limit
veterans' benefits to Filipinos. This provision duplicated the language
that had eliminated veterans' benefits under the First Rescission Act,
and placed similar restrictions on veterans of the New Philippine
Scouts. Thus, the Filipino veterans that fought in the service of the
United States during World War II have been precluded from receiving
most veterans' benefits that had been available to them before 1946,
and that are available to all other veterans of our armed forces
regardless of race, national origin, or citizenship status.

[[Page S6323]]

The Congress tried to rectify the wrong committed against the
Filipino veterans of World War II by amending the Nationality Act of
1940 to grant the veterans the privilege of becoming United States
citizens for having served in the United States Armed Forces of the Far
East.

The law expired at the end of 1946, but not before the United States
had withdrawn its sole naturalization examiner from the Philippines for
a nine-month period. This effectively denied Filipino veterans the
opportunity to become citizens during this nine-month window. Forty-
five years later, under the Immigration Act of 1990, certain Filipino
veterans who served during World War II became eligible for United
States citizenship. Between November, 1990, and February, 1995,
approximately 24,000 veterans took advantage of this opportunity and
became United States citizens.
For many years, Filipino veterans of World War II, who are now in
their twilight years, have sought to correct the injustice caused by
the Rescission Acts by seeking equal treatment of their valiant
military service in our Armed Forces. They stood up to the same
aggression that American-born soldiers did, and many Filipinos
sacrificed their lives in the war for democracy and liberty.
Heroes should never be forgotten or ignored, so let us not turn our
backs on those who sacrificed so much. Many of the Filipinos who have
fought so hard for us have been honored with American citizenship, but
let us now work to repay all of these brave men for their sacrifices by
providing them the full veterans' benefits they have earned.
______

By Mr. REID:
S. 1043. A bill to extend the deadline for commencement of
construction of a hydroelectric project in the State of Nevada; to the
Committee on Energy and Natural Resources.
Mr. REID. Mr. President, today I am introducing a simple bill that
would extend the deadline under the Federal Power Act for the
commencement of construction of the Blue Diamond hydroelectric project
in southern Nevada. The bill will allow the Federal Government to
extend the project permit for as many as three consecutive two-year
periods. At this time, serious concerns remain about the environmental
impacts of the project and where power generated at the facility would
be sold. These important questions merit additional dialogue and
introduction of this bill provides for further examination of this
project.
______

By Mr. SARBANES (for himself, Mr. Warner, Mr. Allen, and Ms.
Mikulski):
S. 1044. A bill to amend the Federal Water Pollution Control Act to
provide assistance for nutrient removal technologies to States in the
Chesapeake Bay watershed; to the Committee on Environment and Public
Works.
______

By Mr. SARBANES (for himself, Ms. Mikulski, Mr. Warner, and Mr.
Allen):
S. 1045. A bill to amend the National Oceanic and Atmospheric
Administration Authorization Act of 1992 to revise and enhance
authorities, and to authorize appropriations, for the Chesapeake Bay
Office, and for other purposes; to the Committee on Commerce, Science,
and Transportation.
Mr. SARBANES. Mr. President, today I am introducing two measures to
expand restoration and protection efforts in the Chesapeake Bay
watershed. Joining me in sponsoring these measures are my colleagues
Senators Warner, Allen, and Mikulski.
Nearly two decades ago, the Bay area States and the Federal
Government signed an historic agreement to work together to restore the
Chesapeake Bay, our Nation's largest estuary and one of the most
productive ecosystems in the world. In 1987, the Governors of Maryland,
Virginia, Pennsylvania, the Chesapeake Bay Commission, the Mayor of the
District of Columbia and the Administrator of the EPA, on behalf of the
Federal Government, reaffirmed their commitment to that compact and
agreed to 29 specific goals and action plans including the
unprecedented goal of a 40 percent reduction of nitrogen and
phosphorous loads to the main stem of the Bay by the year 2000. Last
year, the State and the Federal Government conducted an extensive
evaluation of cleanup progress since the 1980s and determined that,
despite important advances, efforts must be redoubled to restore the
integrity of the Chesapeake Bay ecosystem. A new Chesapeake 2000
agreement was signed to serve as a blueprint for the restoration effort
over the next decade.
To meet the goals established in the new agreement, it is estimated
that the local, State and Federal Governments must invest $8.5 billion
over the course of the next ten years. Thousands of acres of watershed
property must be preserved, buffer zones to protect rivers and streams
need to be created, and pollution from all sources will have to be
further reduced. While $8.5 billion seems like an enormous sum, we
should remember that the health of Chesapeake is vital not only to the
more than 15 million people who live in the watershed, but to the
nation. The Chesapeake Bay watershed is one of our Nation's and the
world's greatest natural resources covering 64,000 square miles within
six States. It is a world-class fishery that still produces a
significant portion of the fin fish and shellfish catch in the United
States. It provides vital habitat for living resources, including more
than 3600 species of plants, fish and animals. It is a major resting
area for migratory waterfowls and birds along the Atlantic including
many endangered and threatened species. It is also a one-of-a-kind
recreational asset enjoyed by millions of people, a major commercial
waterway and shipping center for much of the eastern United States, and
provides jobs for thousands of people. In short, the Chesapeake Bay is
a magnificent, multifaceted resource worthy of the highest levels of
protection and restoration.
Over the years, human activities have profoundly impacted the Bay.
Untreated sewage, deforestation, toxic chemicals, runoff and increased
development have degraded the Bay's water quality and contributed to
the decline of such key species as oysters and blue crabs and the
underwater grasses they favor for habitat. We have lost not only
thousands of jobs in the fishing industry but much of the wilderness
that defined the watershed. By the year 2020, an additional three
million people are expected to settle in the watershed and this growth
could eclipse the nutrient reduction and habitat protection gains of
the past. Not meeting the investment needs of the next 10 years risks
reversing all that has been achieved over the past two decades in
cleaning up the Bay.
The first measure we are introducing would establish a grant program
in the Environmental Protection Agency to support the installation of
nutrient reduction technologies at major wastewater treatment
facilities in the Chesapeake Bay watershed. Despite important water
quality improvements over the past decade, nutrient over-enrichment
remains the most serious pollution problem facing the Bay. The
overabundance of the nutrients nitrogen and phosphorous continues to
rob the Bay of life sustaining oxygen. Recent modeling of EPA's Bay
Program has found that total nutrient discharges must be reduced by
more than 35 percent from current levels to restore the Chesapeake Bay
and its major tributaries to health. To do so, nitrogen discharges from
all sources must be reduced drastically below current levels. Annual
nitrogen discharges into the Bay will need to be cut by at least 110
million pounds from the current 300 million pounds to less than 190
million pounds. Municipal wastewater treatment plants, in particular,
will have to reduce nitrogen discharges by nearly 75 percent.
There are 288 major wastewater treatment plants in the Chesapeake Bay
watershed: Pennsylvania, 124, Maryland, 62, Virginia, 70, New York, 18,
Delaware, 3, Washington, D.C., 2, and West Virginia, 9. These plants
contribute about 60 million pounds of nitrogen per year, one fifth, of
the total loads of nitrogen to the Bay. Upgrading these plants with
nutrient removal technologies to achieve nitrogen reductions of 3 mg/
liter would remove 46 million pounds of nitrogen in the Bay each year
or 40 percent of the total nitrogen reductions needed. Nutrient removal
technologies have other benefits as well, they provide significant
savings in energy usage, 20 to 30 percent, in chemical usage, more than
50 percent, and in the amount of sludge produced, five to 15 percent.
They are one of the

[[Page S6324]]

most cost-effective methods of reducing nutrients discharged to the
Bay.
My legislation would provide grants for 55 percent of the capital
cost of upgrading all 288 plants with nutrient removal technologies
capable of achieving nitrogen reductions of 3 mg/liter. The total cost
of these upgrades is estimated at $1.2 billion, with a federal share of
$660 million. Any publically owned wastewater treatment plant which has
a permitted design capacity to threat an annual average of 0.5 million
gallons per day within the Chesapeake Bay watershed portion of New
York, Pennsylvania, Maryland, West Virginia, Delaware, Virginia and the
District of Columbia would be eligible to receive these grants. As a
signatory to the Chesapeake Bay Agreement, the EPA has an important
responsibility to assist the states with financing these water
infrastructure needs.
The second measure would reauthorize the National Oceanic and
Atmospheric, NOAA, Chesapeake Bay Office. I first introduced a similar
measure in June, 2000, but unfortunately it was not acted upon prior to
the adjournment of the 106th Congress.
The NOAA Chesapeake Bay office, NCBO, was first established in 1992
pursuant to Public Law 102-567. It serves as the focal point for all of
NOAA's activities within the Chesapeake Bay watershed and is a vital
part of the effort to achieve the long-term goal of the Bay Program,
restoring the Bay's living resources to healthy and balanced levels.
During the past nine years, the NCBO has made great strides in
realizing the objectives of the NOAA Authorization Act of 1992 and the
overall Bay Program living resource goals. Working with other Bay
Program partners, important progress has been made in surveying and
assessing fishery resources in the Bay, developing fishery management
plans for selected species, undertaking habitat restoration projects,
removing barriers to fish passage, and undertaking important remote
sensing and data analysis activities.

NOAA's responsibilities to the Bay restoration effort are far from
complete, however. Some populations of major species of fish and
shellfish in Chesapeake Bay such as shad and oysters, remain severely
depressed, while others, such as blue crab are at risk. Bay-wide, some
16 of 25 ecologically important species are in decline or severe
decline, due to disease, habitat loss, over-fishing and other factors.
The underwater grasses that once sustained these fisheries are only at
a fraction of their historic levels. Research and monitoring must be
continued and enhanced to track living resource trends, evaluate the
responses of the estuary's biota to changes in their environment and
establish clear management goals and progress indicators for restoring
the productivity, diversity and abundance of these species. Chesapeake
2000, the new Bay Agreement, has identified several living resource
goals which will require strong NOAA involvement to achieve.
The legislation which we are introducing would provide NOAA with
additional resources and authority necessary to ensure its continued
full participation in the Bay's restoration and in meeting with goals
and objectives of Chesapeake 2000. First, the legislation authorizes
and directs NOAA to undertake a special five-year study, in cooperation
with the scientific community of the Chesapeake Bay and appropriate
other federal agencies, to develop the knowledge base required for
understanding multi-species interactions and developing multi-species
management plans. To date, fisheries management in Chesapeake Bay and
other waters, has been largely based upon single-species plans that
often ignore the critical relationships between water and habitat
quality, ecosystem health and the food webs that support the Bay's
living resources. There is a growing consensus between scientific
leaders and managers alike that we must move beyond the one-species-at-
a-time approach toward a wider, multi-species and ecosystem
perspective. Chesapeake 2000 calls for developing multi-species
management plans for targeted species by the year 2005 and implementing
the plans by 2007. In order to achieve these goals, NOAA must take a
leadership role and support a sustained research and monitoring
program.
Second, the legislation authorizes NOAA to carry out a small-scale
fishery and habitat restoration grant and technical assistance program
to help citizens organizations and local governments in the Chesapeake
Bay watershed undertake habitat, fish and shellfish restoration
projects. Experience has shown that, with the proper tools and
training, citizens' groups and local communities can play a tremendous
role in fisheries and habitat protection and restoration efforts. The
Chesapeake Bay Foundation's oyster gardening program, for example, has
proven to be highly successful in training citizens to grow oysters at
their docks to help restore oysters' populations in the Bay. The new
Bay Agreement has identified a critical need to not only to expand and
promote community-based programs but to restore historic levels of
oyster production, restore living resource habitat and submerged
aquatic vegetation. The NOAA small-grants program, which this bill
would authorize, would complement EPA's Chesapeake Bay small watershed
program, and make ``seed'' grants available on a competitive, cost-
sharing basis to local governments and nonprofit organizations to
implement hands-on projects such as improvement of fish passageways,
creating artificial or natural reefs, restoring wetlands and seagrass
beds, and producing oysters for restoration projects.

Third, the legislation would establish an internet-based Coastal
Predictions Center for the Chesapeake Bay. Resource managers and
scientists alike agree that we must make better use of the various
modeling and monitoring systems and new technologies to improve
prediction capabilities and response to physical and chemical events
within the Bay and tributary rivers. There are substantial amounts of
data collected and compiled by Federal, state and local government
agencies and academic institutions including information on weather,
tides, currents, circulation, climate, land use, coastal environmental
quality, aquatic living resources and habitat conditions.
Unfortunately, little of this data is coordinated and organized in a
manner that is useful to the wide range of potential users. The Coastal
Predictions Center would serve as a knowledge bank for assembling
monitoring and modeling data from relevant government agencies and
academic institutions, interpreting that data, and organizing it into
products that are useful to resource managers, scientists and the
public.
Finally, the legislation would direct NOAA to implement an education
program targeted toward the 3 million pupils in kindergarten through
12th grade in the Chesapeake Bay watershed. One of the key goals of the
Chesapeake 2000 Agreement is to expand education and public awareness
of the Bay and local watersheds. Among other activities, the Agreement
calls for providing meaningful Bay or stream outdoor experiences for
every school student in the watershed before graduation from high
school, incorporating the Chesapeake Bay watershed into school
curricula, and providing students and teachers alike with information
to increase awareness of Bay living resource and other issues. Our
legislation would enable NOAA to enter into partnerships with non-
profit environmental organizations in the region experienced in
conducting environmental education programs, the Chesapeake Bay
Foundation and the Living Classrooms Foundation, for example, and to
expand opportunities for students and teachers to participate in Bay
and other field and classroom learning experiences which support
Chesapeake Bay restoration and protection efforts.
The legislation increases the authorization for the NOAA Bay Program
from the current level of $2.5 million to $8.5 million per year to
enhance current activities and to carry out these new initiatives. For
more than a decade, funding for NOAA's Bay Program has remained static
at an annual average of $1.9 million. If we are to achieve the
ultimate, long-term goal of the Bay Program, protecting, restoring and
maintaining the health of the living resources of the Bay, additional
financial resources must be provided.
These two measures would provide an important boost to our efforts to
save the Chesapeake Bay. They are strongly supported by the Chesapeake
Bay Commission, the Chesapeake Bay Foundation, and other organizations
in the

[[Page S6325]]

watershed. I ask unanimous consent that the full text of the measures
and supporting letters be printed in the Record. I urge my colleagues
to join with us in supporting the two measures and continue the
momentum contributing to the improvement and enhancement of our
Nation's most valuable and treasured natural resource.
There being no objection, the additional material was ordered to be
printed in the Record, as follows:

S. 1044

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Chesapeake Bay Watershed
Nutrient Removal Assistance Act''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress finds that--
(1) nutrient pollution from point sources and nonpoint
sources continues to be the most significant water quality
problem in the Chesapeake Bay watershed;
(2) a key commitment of the Chesapeake 2000 agreement, an
interstate agreement among the Administrator, the Chesapeake
Bay Commission, the District of Columbia, and the States of
Maryland, Virginia, and Pennsylvania, is to achieve the goal
of correcting the nutrient-related problems in the Chesapeake
Bay by 2010;
(3) by correcting those problems, the Chesapeake Bay and
its tidal tributaries may be removed from the list of
impaired bodies of water designated by the Administrator of
the Environmental Protection Agency under section 303(d) of
the Federal Water Pollution Control Act (33 U.S.C. 1313(d));
(4) nearly 300 major sewage treatment plants located in the
Chesapeake Bay watershed annually discharge approximately
60,000,000 pounds of nitrogen, or the equivalent of 20
percent of the total nitrogen load, into the Chesapeake Bay;
and
(5) nutrient removal technology is 1 of the most reliable,
cost-effective, and direct methods for reducing the flow of
nitrogen from point sources into the Chesapeake Bay.
(b) Purposes.--The purposes of this Act are--
(1) to authorize the Administrator of the Environmental
Protection Agency to provide financial assistance to States
and municipalities for use in upgrading publicly-owned
wastewater treatment plants in the Chesapeake Bay watershed
with nutrient removal technologies; and
(2) to further the goal of restoring the water quality of
the Chesapeake Bay to conditions that are protective of human
health and aquatic living resources.

SEC. 3. SEWAGE CONTROL TECHNOLOGY GRANT PROGRAM.

The Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.) is amended by adding at the end the following:

``TITLE VII--MISCELLANEOUS

``SEC. 701. SEWAGE CONTROL TECHNOLOGY GRANT PROGRAM.

``(a) Definition of Eligible Facility.--In this section,
the term `eligible facility' means a municipal wastewater
treatment plant that--
``(1) as of the date of enactment of this title, has a
permitted design capacity to treat an annual average of at
least 500,000 gallons of wastewater per day; and
``(2) is located within the Chesapeake Bay watershed in any
of the States of Delaware, Maryland, New York, Pennsylvania,
Virginia, or West Virginia or in the District of Columbia.
``(b) Grant Program.--
``(1) Establishment.--Not later than 1 year after the date
of enactment of this title, the Administrator shall establish
a program within the Environmental Protection Agency to
provide grants to States and municipalities to upgrade
eligible facilities with nutrient removal technologies.
``(2) Priority.--In providing a grant under paragraph (1),
the Administrator shall--
``(A) consult with the Chesapeake Bay Program Office;
``(B) give priority to eligible facilities at which
nutrient removal upgrades would--
``(i) produce the greatest nutrient load reductions at
points of discharge; or
``(ii) result in the greatest environmental benefits to
local bodies of water surrounding, and the main stem of, the
Chesapeake Bay; and
``(iii) take into consideration the geographic distribution
of the grants.
``(3) Application.--
``(A) In general.--On receipt of an application from a
State or municipality for a grant under this section, if the
Administrator approves the request, the Administrator shall
transfer to the State or municipality the amount of
assistance requested.
``(B) Form.--An application submitted by a State or
municipality under subparagraph (A) shall be in such form and
shall include such information as the Administrator may
prescribe.
``(4) Use of funds.--A State or municipality that receives
a grant under this section shall use the grant to upgrade
eligible facilities with nutrient removal technologies that
are designed to reduce total nitrogen in discharged
wastewater to an average annual concentration of 3 milligrams
per liter.
``(5) Cost sharing.--
``(A) Federal share.--The Federal share of the cost of
upgrading any eligible facility as described in paragraph (1)
using funds provided under this section shall not exceed 55
percent.
``(B) Non-federal share.--The non-Federal share of the
costs of upgrading any eligible facility as described in
paragraph (1) using funds provided under this section may be
provided in the form of funds made available to a State or
municipality under--
``(i) any provision of this Act other than this section
(including funds made available from a State revolving fund
established under title VI); or
``(ii) any other Federal or State law.
``(c) Authorization of Appropriations.--
``(1) In general.--There is authorized to be appropriated
to carry out this section $132,000,000 for each of fiscal
years 2003 through 2007, to remain available until expended.
``(2) Administrative costs.--The Administrator may use not
to exceed 4 percent of any amount made available under
paragraph (1) to pay administrative costs incurred in
carrying out this section.''.
____

S. 1045

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``NOAA Chesapeake Bay Office
Reauthorization Act of 2001''.

SEC. 2. CHESAPEAKE BAY OFFICE.

(a) Establishment.--Section 307(a) of the National Oceanic
and Atmospheric Administration Authorization Act of 1992 (15
U.S.C. 1511d(a)) is amended--
(1) in paragraph (1), by striking ``Estuarine Resources'';
and
(2) by amending paragraph (2) to read as follows:
``(2) The Secretary of Commerce shall appoint as Director
of the Office an individual who has knowledge of and
experience in research or resource management efforts in the
Chesapeake Bay.''.
(b) Functions.--
(1) Section 307(b)(3) of the National Oceanic and
Atmospheric Administration Authorization Act of 1992 (15
U.S.C. 1511d(b)(3)) is amended to read as follows:
``(3) facilitate coordination of the programs and
activities of the various organizations and facilities within
the National Oceanic and Atmospheric Administration, the
Chesapeake Bay units of the National Estuarine Research
Reserve System, the Chesapeake Bay Regional Sea Grant
Programs, and the Cooperative Oxford Lab, including--
``(A) programs and activities in--
``(i) coastal and estuarine research, monitoring, and
assessment;
``(ii) fisheries research and stock assessments;
``(iii) data management;
``(iv) remote sensing;
``(v) coastal management;
``(vi) habitat conservation and restoration; and
``(vii) atmospheric deposition; and
``(B) programs and activities of the Cooperative Oxford
Laboratory of the National Ocean Service with respect to--
``(i) nonindigenous species;
``(ii) marine species pathology;
``(iii) human pathogens in marine environments; and
``(iv) ecosystems health;''.
(2) Section 307(b)(7) of the National Oceanic and
Atmospheric Administration Authorization Act of 1992 (15
U.S.C. 1511d(b)(7)) is amended by striking the period at the
end and inserting the following: ``, which report shall
include an action plan consisting of--
``(A) a list of recommended research, monitoring, and data
collection activities necessary to continue implementation of
the strategy described in paragraph (2); and
``(B) proposals for--
``(i) continuing and new National Oceanic and Atmospheric
Administration activities in the Chesapeake Bay; and
``(ii) the integration of those activities with the
activities of the partners in the Chesapeake Bay Program to
meet the commitments of the Chesapeake 2000 agreement and
subsequent agreements.''.
(c) Conforming Amendment.--Section 307 of the National
Oceanic and Atmospheric Administration Authorization Act of
1992 (15 U.S.C. 1511d) is amended by striking the section
heading and inserting the following:

``SEC. 307. CHESAPEAKE BAY OFFICE.''.

SEC. 3. MULTIPLE SPECIES MANAGEMENT STRATEGY; CHESAPEAKE BAY
FISHERY AND HABITAT RESTORATION SMALL GRANTS
PROGRAM; COASTAL PREDICTION CENTER.

The National Oceanic and Atmospheric Administration
Authorization Act of 1992 is amended by inserting after
section 307 (15 U.S.C. 1511d) the following:

``SEC. 307A. MULTIPLE SPECIES MANAGEMENT STRATEGY.

``(a) In General.--Not later than 180 days after the date
of enactment of this section, the Director of the Chesapeake
Bay Office of the National Oceanic and Atmospheric
Administration shall commence a 5-year study, in cooperation
with the scientific community of the Chesapeake Bay and
appropriate Federal agencies--
``(1) to determine and expand the understanding of the role
and response of living resources in the Chesapeake Bay
ecosystem; and
``(2) to develop a multiple species management strategy for
the Chesapeake Bay.

[[Page S6326]]

``(b) Required Elements of Study.--In order to improve the
understanding necessary for the development of the strategy
under subsection (a), the study shall--
``(1) determine the current status and trends of fish and
shellfish that live in the Chesapeake Bay estuary and are
selected for study;
``(2) evaluate and assess interactions among the fish and
shellfish described in paragraph (1) and other living
resources, with particular attention to the impact of changes
within and among trophic levels; and
``(3) recommend management actions to optimize the return
of a healthy and balanced ecosystem for the Chesapeake Bay.

``SEC. 307B. CHESAPEAKE BAY FISHERY AND HABITAT RESTORATION
SMALL GRANTS PROGRAM.

``(a) In General.--The Director of the Chesapeake Bay
Office of the National Oceanic and Atmospheric Administration
(referred to in this section as the `Director'), in
cooperation with the Chesapeake Executive Council (as defined
in section 307(e)), shall carry out a community-based fishery
and habitat restoration small grants and technical assistance
program in the Chesapeake Bay watershed.
``(b) Projects.--
``(1) Support.--The Director shall make grants under the
program under subsection (a) to pay the Federal share of the
cost of projects that are carried out by eligible entities
described in subsection (c) for the restoration of fisheries
and habitats in the Chesapeake Bay.
``(2) Federal share.--The Federal share of the cost of a
project under paragraph (1) shall not exceed 75 percent of
the total cost of that project.
``(3) Types of projects.--Projects for which grants may be
made under the program include--
``(A) the improvement of fish passageways;
``(B) the creation of natural or artificial reefs or
substrata for habitats;
``(C) the restoration of wetland or sea grass;
``(D) the production of oysters for restoration projects;
and
``(E) the identification and characterization of
contaminated habitats, and the development of restoration
plans for those habitats in the Chesapeake Bay watershed.
``(c) Eligible Entities.--The following entities are
eligible to receive grants under the program under this
section:
``(1) The government of a political subdivision of a State
in the Chesapeake Bay watershed and the Government of the
District of Columbia.
``(2) An organization in the Chesapeake Bay watershed (such
as an educational institution or a community organization)
that is described in section 501(c) of the Internal Revenue
Code of 1986 and is exempt from taxation under section 501(a)
of the Code.
``(d) Additional Requirements.--The Director may prescribe
any additional requirements, including procedures, that the
Director considers necessary to carry out the program under
this section.

``SEC. 307C. COASTAL PREDICTION CENTER.

``(a) Establishment.--
``(1) In general.--Not later than 1 year after the date of
enactment of this section, the Director of the Chesapeake Bay
Office of the National Oceanic and Atmospheric Administration
(referred to in this section as the `Director'), in
collaboration with regional scientific institutions, shall
establish a coastal prediction center for the Chesapeake Bay
(referred to in this section as the `center').
``(2) Purpose of center.--The center shall serve as a
knowledge bank for--
``(A) assembling, integrating, and modeling coastal
information and data from appropriate government agencies and
scientific institutions;
``(B) interpreting the data; and
``(C) organizing the data into predictive products that are
useful to policy makers, resource managers, scientists, and
the public.
``(b) Activities.--
``(1) Information and prediction system.--The center shall
develop an Internet-based information system for integrating,
interpreting, and disseminating coastal information and
predictions concerning--
``(A) climate;
``(B) land use;
``(C) coastal pollution;
``(D) coastal environmental quality;
``(E) ecosystem health and performance;
``(F) aquatic living resources and habitat conditions; and
``(G) weather, tides, currents, and circulation that affect
the distribution of sediments, nutrients, and organisms,
coastline erosion, and related physical and chemical events
within the Chesapeake Bay and the tributaries of the
Chesapeake Bay.
``(2) Agreements to provide data, information, and
support.--The Director may enter into agreements with other
entities of the National Oceanic and Atmospheric
Administration, other appropriate Federal, State, and local
government agencies, and academic institutions, to provide
and interpret data and information, and provide appropriate
support, relating to the activities of the center.
``(3) Agreements relating to information products.--The
Director may enter into grants, contracts, and interagency
agreements with eligible entities for the collection,
processing, analysis, interpretation, and electronic
publication of information products for the center.''.

SEC. 4. ENVIRONMENTAL EDUCATION.

The National Oceanic and Atmospheric Administration
Authorization Act of 1992 is amended by inserting after
section 307C (as added by section 3) the following:

``SEC. 307D. ENVIRONMENTAL EDUCATION PILOT PROGRAM.

``(a) Pilot Program Established.--Not later than 180 days
after the date of enactment of this section, the Director, in
cooperation with the Chesapeake Executive Council, shall
establish the Chesapeake Bay Environmental Education Program
to improve the understanding of elementary and secondary
school students and teachers of the living resources of the
ecosystem of the Chesapeake Bay, and to meet the educational
goals of the Chesapeake 2000 agreement.
``(b) Grant Program.--
``(1) In general.--The Director, through the pilot program
established under subsection (a), shall make grants to not-
for-profit institutions (or consortia of such institutions)
to pay the federal share of the cost of programs described in
paragraph (3).
``(2) Criteria.--The Director shall award grants under this
subsection based on the experience of the applicant in
providing environmental education and training programs
regarding the Chesapeake Bay watershed to a range of
participants and in a range of settings.
``(3) Functions and Activities.--Grants awarded under this
subsection may be used to support education and training
programs that--
``(A) provide classroom education, including the use of
distance learning technologies, on the issues, science, and
problems of the living resources of the Chesapeake Bay
watershed;
``(B) provide meaningful outdoor experience on the
Chesapeake Bay, or on a stream or in a local watershed of the
Chesapeake Bay, in the design and implementation of field
studies, monitoring and assessments, or restoration
techniques for living resources;
``(C) provide professional development for teachers related
to the science of the Chesapeake Bay watershed and the
dissemination of pertinent education materials oriented to
varying grade levels;
``(D) demonstrate or disseminate environmental educational
tools and materials related to the Chesapeake Bay watershed;
``(E) demonstrate field methods, practices and techniques
including assessment of environmental and ecological
conditions and analysis of environmental problems; and
``(F) develop or disseminate projects designed to--
``(i) enhance understanding and assessment of a specific
environmental problem in the Chesapeake Bay watershed or of a
goal of the Chesapeake Bay Program; or
``(ii) protect or restore living resources of the
Chesapeake Bay watershed.
``(4) Federal share.--The Federal share of the cost of a
program under paragraph (1) shall not exceed 75 percent of
the total cost of that program.
``(5) Program review.--Not later than 1 year after the date
on which the Director awards the first grant under this
subsection, and annually thereafter, the Director shall
conduct a detailed review and evaluation of the programs
supported by grants awarded under this subsection to
determine whether the quality of the content, delivery, and
outcome of the program warrants continued support.
``(c) Procedures.--The Director shall establish procedures,
including safety protocols, as necessary for carrying out the
purposes of this section.
``(d) Termination and Report.--
``(1) Termination.--The program established under this
section shall be effective during the 4-year period beginning
on October 1, 2001.
``(2) Report.--Not later than December 31, 2005, the
Director, in consultation with the Chesapeake Executive
Council, shall submit a report through the Administrator of
National Oceanic and Atmospheric Administration to Congress
regarding this program and, on the appropriate role of
Federal, State and local governments in continuing the
program established under this section.
``(e) Definition.--In this section, the term `Chesapeake
2000 agreement' means the agreement between the United
States, the States of Maryland, Pennsylvania, and Virginia,
and the District of Columbia entered into on June 28,
2000.''.

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--Section 307(d) of the National Oceanic and
Atmospheric Administration Authorization Act of 1992 (15
U.S.C. 1511d(d)) is amended to read as follows:
``(d) Authorization of Appropriations.--
``(1) In general.--There is authorized to be appropriated
to the Department of Commerce for the Chesapeake Bay Office
$8,000,000 for each of fiscal years 2002 through 2005.
``(2) Amounts for programs.--Of the amount authorized to be
appropriated for each fiscal year under paragraph (1)--
``(A) not more than $2,500,000 shall be available to
operate the Chesapeake Bay Office and to carry out section
307A;
``(B) not more than $1,000,000 shall be available to carry
out section 307B; and
``(C) not more than $500,000 shall be available to carry
out section 307C.
``(D) not more than $2,000,000 shall be available to carry
out section 307D.

[[Page S6327]]

(c) Conforming Amendment.--Section 2 of the National
Oceanic and Atmospheric Administration Marine Fisheries
Program Authorization Act (97 Stat. 1409) is amended by
striking subsection (e), as added by section 307(d) of the
National Oceanic and Atmospheric Administration Authorization
Act of 1992 (106 Stat. 4285).

SEC. 6. TECHNICAL CORRECTION.

Section 307(b) of the National Oceanic and Atmospheric
Administration Authorization Act of 1992 (15 U.S.C. 1511d(b))
is amended by striking ``Chesapeake Bay Executive Council''
and inserting ``Chesapeake Executive Council''.
____

Chesapeake Bay Foundation,

Annapolis, MD, May 15, 2001.
Hon. Paul Sarbanes,
U.S. Senate, Hart Office Building, Washington, DC.
Dear Senator Sarbanes: Last year, a few Members claimed
that the Florida Everglades was a national treasure. I know
you agree with me that the Chesapeake Bay, which drains six
states and the District, has more claim to being a national
treasure than the Florida Everglades.
I am writing to thank you for your steadfast support for
the Bay. I am also writing to urge you to pass new
legislation that will fund wastewater treatment plant
upgrades to reduce nutrient pollution in the Bay. Nutrient
pollution is the Bay's number one problem. The Bay and its
tributaries receive about twice as much nitrogen and
phosphorus as they should. Sewage plants are not the sole
source, but new technology makes them the low-hanging fruit
as we seek reductions.
First, let me give credit where it is due. Over 70 large
wastewater treatment plants have been upgraded with
technology that dramatically reduces the amount of nitrogen
and phosphorus in the treated discharge. Some plants, like
the Blue Plains facility in DC, have gone beyond what was
asked of them. Virginia and Maryland and the local
municipalities have shouldered that cost so far.
Nevertheless, to make a real dent in nutrient pollution, we
need to get serious about getting all the major plants to
remove nitrogen and phosphorus from the effluent. Another 218
major plants await upgrades. These plants need to install
state-of-the-art technology, which would cut 85% of the
nitrogen and phosphorus pollution from the treated discharge.
That would slash nutrients in the Bay by more than 50 million
pounds each year. I've attached a copy of a letter from my
staff to yours that provides a detailed background briefing
on this subject.
The Clean Water Act promised citizens that they would have
clean waters by now. Sadly, the Bay is still polluted thirty
years later. If we fail to greatly reduce nutrient pollution
in the next few years, the Bay will not be the only loser.
Commercial fishermen and their families will suffer.
Waterfront property owners will not realize a gain in their
investment. Recreational opportunities--so important in this
workaholic world--will be diminished. And certainly, an
unhealthy Bay imperils human health.
The Chesapeake Bay Foundation stands ready to galvanize
public support behind your effort to fund these upgrades.
With 92,000 members, a dedicated professional staff and a
volunteer board, we are determined to do whatever it takes to
save the Bay. Thank you again for all of your hard work on
behalf of the Bay.
Sincerely,
William C. Baker,
President.
____

Chesapeake Bay Commission,

Annapolis, MD, May 23, 2001.
Hon. Paul S. Sarbanes,
Hart Senate Office Building,
Washington, DC.
Dear Senator Sarbanes: We write in support of your efforts
to reduce the environmental and public health impacts of one
of the major point sources of nutrient pollution to the
Chesapeake Bay--municipal wastewater treatment plants. As you
know, nearly 300 major sewerage treatment plants located in
the Chesapeake Bay watershed discharge approximately 60
million pounds of nitrogen, amounting to 20 percent of the
total nitrogen load, into the Chesapeake Bay.
Nutrient pollution has been a particularly difficult and
persistent problem in our efforts to protect and restore the
Chesapeake Bay's ecosystem. In 1987, the Chesapeake Bay
Commission and our Bay partners committed to achieving a 40
percent reduction in controllable nutrient loads to the Bay
by the year 2000. While measurable pollution reductions were
achieved despite continued population growth and development,
the Chesapeake Bay Program estimates that at least an
additional 100 million lbs. of nitrogen must be removed in
order to correct the Bay's nutrient-related problems by 2010.
Fortunately, the Bay states have led the way in the
application of advanced nutrient removal technologies. For
example, of Maryland's 66 wastewater treatment plants,
biological nutrient removal (BNR) technology is in operation
at 34 plants, under construction at 9 plants, and all but one
of the remaining wastewater treatment plants have signed
cost-share agreements for implementation of BNR. While this
technology is one of the most reliable and cost-effective
means of reducing nutrient loads to the Bay, it is
prohibitively expensive without the combined contribution of
local, state, and Federal funds. To date, the financial
burden for upgrading aging sewerage infrastructure has rested
largely upon local governments, which have a limited capacity
to support such expensive capital improvements. The
Chesapeake Bay Foundation has derived a rough estimate of
$1.2 billion for the application of BNR at treatment plants
within the Bay watershed over a 10-year period.
By establishing the proposed grant program under the
``Chesapeake Bay Watershed Nutrient Removal Assistance Act,''
state and local funds could be matched with Federal funds to
initiate urgently needed upgrades to eligible wastewater
treatment facilities. By prioritizing those facilities that
would produce the greatest nutrient load reductions at points
of discharge and the greatest environmental benefits to local
bodies of water, this program would ensure significant and
measurable improvements to the water quality and living
resources of the Chesapeake Bay. We commend you and your
colleagues for addressing this important issue and offer our
assistance in your endeavor.
Sincerely,
Brian E. Frosh,
Chairman (Senate of Maryland).
Robert S. Bloxom,
Vice-Chairman (Virginia House of Delegates).
Russ Fairchild,
Vice-Chairman (Pennsylvania House of Representatives).
____

Maryland Department

of the Environment,

Baltimore, MD, June 12, 2001.
Hon. Paul Sarbanes,
U.S. Senate, Hart Building,
Washington, DC.
Dear Senator Sarbanes: The State of Maryland has been
pursuing an aggressive program of reducing nutrients from
publicly owned wastewater treatment plants through its
Biological Nutrient Removal (BNR) Cost-Share Program. This
State funded program provides 50% of the costs to upgrade
existing wastewater treatment plants with pollutant removal
technologies that go beyond regulatory requirements to help
meet the goal of cleaning up the Chesapeake Bay and its
tributaries.
This State funded program has benefited from your efforts
as well as those of Senator Mikulski through the earmarking
of special federal appropriations to some of the wastewater
treatment plants targeted for these BNR upgrades. This
assistance has made the needed improvements affordable to the
citizens served by these treatment plants and advanced the
goals of the Chesapeake Bay Program.
I am writing to you today to request your continued support
of the BNR Program. Maryland has accomplished much in this
program. Of the 66 targeted plants, 34 are in operation and 9
are under construction. The remaining plants are in planning
and design. Maryland has provided $163 million to fund these
improvements, with another $73 to $100 million estimated to
be needed to complete the program. The local governments have
committed an equal share, and have the need for additional
funding to implement BNR. With full implementation of the BNR
Program, nitrogen loadings to the Bay will be reduced from 32
to 15.2 million pounds per year.
Achieving this level of nutrient reduction is more critical
than ever, as the new goals being evaluated for the
Chesapeake 2000 Agreement are refined. It is already clear
that we will have to do much more to reduce both point
sources and non-point sources of nutrient pollution to
restore the Bay.
BNR will remain the cornerstone of the point survey
strategy to achieve the needed nutrient reductions. While the
BNR program has targeted a nitrogen concentration of 8 mg/l,
many of the plants designed with BNR will be able to achieve
even lower concentrations. The plants currently in planning
and design are being evaluated and designed to be able to
achieve lower concentrations, in anticipation of more
ambitious Bay goals. In some cases, this may increase project
costs, but is a reasonable investment to protect the Bay and
its tributaries.
In the interest of maintaining the leadership of the
Chesapeake Bay restoration effort by providing a nationally
significant demonstration effort, I am asking for your
continuing assistance in helping Maryland, and the other
jurisdictions in the Chesapeake Bay region, meet these
ambitious yet critical nutrient reduction goals. The creation
of a special grant program to help local governments upgrade
their wastewater treatment plants to reach the lowest
possible nutrient discharge levels would ensure that the
large publicly owned wastewater treatment plants in the
region are maximizing pollutant removals to the benefit of
the Chesapeake Bay.
The beneficiaries of this capital investment will be not
only the future residents in the Chesapeake Bay region, who
will be able to enjoy the environment and economic wealth of
the Bay and the living resources with which we share this
unique resource, but also the nation which will benefit from

[[Page S6328]]

the knowledge gained from the Chesapeake Bay restoration
effort.
Sincerely,
Jane Nishida,
Secretary.
______

By Mr. DeWINE (for himself, Mr. Leahy, Mr. Voinovich, Mr. Breaux,
Mr. Conrad, Mr. Lugar, Mr. Santorum Ms. Landrieu, and Mr.
Hatch):
S. 1048. A bill to amend the Internal Revenue Code of 1986 to provide
relief for payment of asbestos-related claims; to the Committee on
Finance.
Mr. DeWINE. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection the text of the bill was ordered to be
printed in the Record.

S. 1048

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

SECTION. 1. EXEMPTION FOR ASBESTOS-RELATED SETTLEMENT FUNDS.

(a) Exemption for Asbestos-Related Settlement Funds.--
Subsection (b) of section 468B of the Internal Revenue Code
of 1986 (relating to special rules for designated settlement
funds) is amended by adding at the end the following new
paragraph:
``(6) Exemption from tax for asbestos-related settlement
funds.--Notwithstanding paragraph (1), no tax shall be
imposed under this section or any other provision of this
subtitle on any settlement fund to which this section or the
regulations thereunder applies that is established for the
principal purpose of resolving and satisfying present and
future claims relating to asbestos.''.
(b) Conforming Amendments.--
(1) Paragraph (1) of section 468B(b) of such Code is
amended by striking ``There'' and inserting ``Except as
provided in paragraph (6), there''.
(2) Subsection (g) of section 468B of such Code is amended
by inserting ``(other than subsection (b)(6))'' after
``Nothing in any provision of law''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years ending on or after December 31,
2000.

SEC. 2. MODIFY TREATMENT OF ASBESTOS-RELATED NET OPERATING
LOSSES.

(a) Asbestos-Related Net Operating Losses.--Subsection (f)
of section 172 of the Internal Revenue Code of 1986 (relating
to net operating loss deduction) is amended by redesignating
paragraphs (4), (5), and (6) as paragraphs (5), (6), and (7),
respectively, and by inserting after paragraph (3) the
following new paragraph:
``(4) Special rules for asbestos liability losses.--
``(A) In general.--At the election of the taxpayer, the
portion of any specified liability loss that is attributable
to asbestos may, for purposes of subsection (b)(1)(C), be
carried back to the taxable year in which the taxpayer,
including any predecessor corporation, was first involved in
the production or distribution of products containing
asbestos and each subsequent taxable year. In determining its
specified liability losses attributable to asbestos, the
taxpayer may elect to take into account payments of related
parties attributable to asbestos-related products produced or
distributed by the taxpayer.
``(B) Coordination with credits.--If a deduction is
allowable for any taxable year by reason of a carryback
described in subparagraph (A)--
``(i) the credits allowable under part IV (other than
subpart C) of subchapter A shall be determined without regard
to such deduction, and
``(ii) the amount of taxable income taken into account with
respect to the carryback under subsection (b)(2) for such
taxable year shall be reduced by an amount equal to--

``(I) the increase in the amount of such credits allowable
for such taxable year solely by reason of clause (i), divided
by
``(II) the maximum rate of tax under section 1 or 11
(whichever is applicable) for such taxable year.

``(C) Carryforwards taken into account before asbestos-
related deductions.--For purposes of this section--
``(i) in determining whether a net operating loss
carryforward may be carried under subsection (b)(2) to a
taxable year, taxable income for such year shall be
determined without regard to the deductions referred to in
paragraph (1)(A) with respect to asbestos, and
``(ii) if there is a net operating loss for such year after
taking into account such carryforwards and deductions, the
portion of such loss attributable to such deductions shall be
treated as a specified liability loss that is attributable to
asbestos.
``(D) Limitation.--The amount of reduction in income tax
liability arising from the election described in subparagraph
(A) that exceeds the amount of reduction in income tax
liability that would have resulted if the taxpayer utilized
the 10-year carryback period under subsection (b)(1)(C) shall
be devoted by the taxpayer solely to asbestos claimant
compensation and related costs, through a settlement fund or
otherwise.
``(E) Coordination with other carryback limitations.--The
amount of asbestos-related specified liability loss that may
be absorbed in a prior taxable year (and the amount of refund
attributable to such loss absorption) shall be determined
without regard to any limitation under section 381, 382, or
1502 or the regulations thereunder.
``(F) Predecessor corporation.--For purposes of this
paragraph, a predecessor corporation shall include a
corporation that transferred or distributed assets to the
taxpayer in a transaction to which section 381(a) applies or
that distributed the stock of the taxpayer in a transaction
to which section 355 applies.''.
(b) Conforming Amendment.--Paragraph (7) of section 172(f)
of such Code, as redesignated by this section, is amended by
striking ``10-year''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years ending on or after December 31,
2000.

Mr. LEAHY. Mr. President, I am pleased to join with Senator DeWine in
introducing bipartisan legislation to provide common-sense tax
incentives to help address asbestos liability issues.
First, our legislation would exempt investment income in an asbestos-
related designated settlement funds from Federal income tax, much as
the investment income in a 401(k) savings plan is exempt from Federal
income tax under current law. To qualify for this exemption from
Federal taxation, the principal purpose of the asbestos-related
designated settlement fund must be to pay present and future claims to
asbestos victims and their families. This tax incentive encourages
businesses to create settlement funds to meet their asbestos-related
liabilities, just as the tax incentive for 401(k) savings plans
encourages workers to invest for their retirement.
Second, our legislation recognizes the unique nature of asbestos-
related diseases by providing a special ``carry-back'' rule for a
company's losses from paying claims to asbestos victims and their
families. Under current law, a company may carry back these costs from
products sold in the last ten years. This carry-back period, however,
fails to match the realities of asbestos-related diseases, which are
often latent for forty or more years. In many cases, companies are
paying asbestos-related claims for exposure to products that were
produced a half-century ago.
Our legislation would permit companies for whom the ten-year period
provides no relief to carry back their current expenses from asbestos
payments to victims and their families to the years in which the
company produced the asbestos product. This extension of the carry-back
tax rule is only fair given the long latency period of asbestos-related
diseases.
I agree with Supreme Court Justice Ruth Bader Ginsburg in the Amchem
Products decision that Congress can provide a secure, fair and
efficient means of compensating victims of asbestos exposure. The
appropriate role for Congress is to provide incentives for private
parties to reach settlements, not to take away the legal rights of
asbestos victims and their families. Our bipartisan bill provides these
tax incentives for private parties involved in asbestos-related
litigation to reach global settlements and for asbestos victims and
their families to receive the full benefit of the incentives.
Encouraging fair settlements while still preserving the legal rights
of all parties involved is a win-win situation for business and
asbestos victims. For example, Rutland Fire Clay Company, a family-run,
118-year-old small business in my home state of Vermont, recently
reached a settlement with its insurers and the trial bar concerning the
firm's asbestos problems. Unlike some big businesses that are trying to
avoid any accountability for their asbestos responsibilities through
national ``tort reform'' legislation, the Rutland Fire Clay Company and
its President, Tom Martin, are doing the right thing within the legal
system. The tax incentives in our bipartisan bill will support the
Rutland Fire Clay Company and its employees while providing financial
security for its settlement with asbestos victims and their families.
I believe it is in the national interest to encourage fair and
expeditious settlements between companies and asbestos victims. The
legislation we are introducing today will encourage payments to victims
while ensuring defendant firms remain solvent.
I thank Senator DeWine for his leadership on this issue. I urge my
colleagues to support our bipartisan approach to provide a secure and
fair

[[Page S6329]]

means of compensating victims of asbestos exposure and to permit
businesses with asbestos liabilities to efficiently meet their
responsibilities.
______

By Mr. TORRICELLI:
S. 1049. A bill to provide for an election to exchange research-
related tax benefits for a refundable tax credit, for the recapture of
refunds in certain circumstances, and for other purposes; to the
Committee on Finance.
Mr. TORRICELLI. Mr. President, I rise today to introduce a vital
piece of legislation that will encourage the growth of some of the most
innovative companies in the world. I refer to the small biotechnology
firms throughout the country which on a daily basis perform
breakthrough research that enhances our daily lives.
Indeed, biotechnology research over the years has benefitted greatly
from successful initiatives such as the R&D tax credit. The R&D credit
is of particular importance to my State of New Jersey because there are
over 100 companies who spend $20 billion a year in R&D. In fact, over
50 percent of all the prescription drug research in the world is
conducted in my State.
Going hand in hand with the R&D tax credit are the contributions of
the biotechnology industry. My colleagues are well aware of the
importance of this segment of industry and the beneficial role
biotechnology plays in improving our quality of life and protecting the
environment. In fact, the Senate unanimously approved a resolution
acknowledging the benefits of biotech research earlier this Congress.
The Senate has recognized these benefits that are seen in the drugs
and vaccines developed over the last 20 years, which have already
enabled over 270 million people throughout the world live healthier and
longer lives. Today, a breast cancer, leukemia or diabetes patient has
a fighting chance to survive their illness through treatments developed
by biotech research.
The record number of biotech drug approvals by the FDA over the past
five years demonstrates the potential of this industry to develop new
therapies which may someday lead to cures and vaccines for debilitating
diseases such as heart disease, Alzheimer's, AIDS and cancer.
While the R&D credit has been responsible for enabling much of this
breakthrough research, the irony is that many small firms who are
performing the most advanced, cutting edge research and
experimentation, who desperately need the R&D credit are unable to
utilize it because they have failed to turn a profit. These small
companies often dedicate all of their resources to one or two major
initiatives to conduct long term R&D projects benefitting our medical,
agricultural and industrial sectors.
In many instances, these projects are time consuming, expend much
capital, and unfortunately are unsuccessful or unmarketable.
Consequently, the long term unprofitability of these companies make
them unable to take advantage of tax breaks and incentives such as the
R&D credit. Therefore, many small firms are forced to abandon their
research, sell their innovations to larger companies or simply go out
of business.
I firmly believe that these industry failures are our failures
because the firm that ends its research today, may have been the
company that provides the cure for Parkinson's or Lou Gherig's disease
tomorrow.
In order to address this situation, it is time for Congress to adopt
a straightforward proposal that would build on the success of the R&D
credit to provide these small research companies with the resources
they need to continue their vital work. Specifically, I am introducing
a proposal to allow these small firms to elect to take a refundable tax
credit, equal to 75 percent of the nominal value of their current-year
research credits or deductions or 75 percent of the value of the
current- year net operating losses multiplied by the highest marginal
tax rate for corporations (currently 35 percent).
I have also included safeguard provisions to ensure that the
government's investment in these companies is put to good use. Any
company that elects to take this refundable tax credit would become
ineligible for normal R&D tax credits and normal corporate tax
deductions until they are able to payback the original amount of the
refundable tax credit in federal income taxes after they turn a profit.
Furthermore, my proposal requires that the proceeds from the refundable
tax credit must be used towards ongoing research-related activities. My
legislation also maintains that if it is determined that a company
claiming this credit is not using the proceeds for research, the IRS
can recapture that portion of the credit.
This proposal does not seek to supercede or replace the R&D tax
credit. Rather, it complements the tremendous success of the R&D
credit. It helps the struggling companies that the R&D credit doesn't
reach. I am hopeful that my colleagues will recognize, as I do, the
magnificent potential of the biotech industry and make this investment
in its future.
______

By Mr. SANTORUM (for himself, Mr. Fitzgerald, and Mr. Voinovich):
S. 1050. A bill to protect infants who are born alive; to the
Committee on the Judiciary.
Mr. SANTORUM. Mr. President, today I am introducing the Born Alive
Infants Protection Act.
When I was first elected to the Senate in 1994, I never imagined that
the bill I am offering today would be necessary. Simply stated, this
measure gives legal status to a fully born living infant, regardless of
the circumstances of his or her birth. I am deeply saddened that we
must clarify Federal law to specify that a living newborn baby is, in
fact, a person.
One could ask, ``Why do you need Federal legislation to state the
obvious? What else could a living baby be, except a person?'' I will
begin my explanation with events in 1995, when the Senate began its
attempts to outlaw a horrifying, inhumane, and barbaric abortion
procedure: partial birth abortion. In this particular abortion method,
a living baby is killed when he or she is only inches from being fully
born. Twice, the House and Senate stood united in sending a bill to
President Clinton to ban this procedure. Twice, President Clinton
vetoed the bill; and twice, the House courageously voted to override
his veto. Although support in the Senate grew each time the ban came to
a vote, the Senate fell a few votes shy of overriding the veto.
Then, on June 28, 2000, the U.S. Supreme Court struck down Nebraska's
partial birth abortion ban. The Supreme Court's ruling in Stenberg v.
Carhart, as well as subsequent rulings in lower courts, are disturbing
on a number of levels. First, the Supreme Court struck down Nebraska's
attempt to ban a grotesque procedure the American Medical Association
has called ``bad medicine,'' and thousands of physicians who specialize
in high risk pregnancies have called ``never medically necessary.''
Further, the Court said it did not matter that the baby is killed when
it is almost totally outside the mother's body in this abortion method.
In other known abortion methods, the baby is killed in utero. Finally,
the U.S. Supreme Court, and the Third Circuit Court have stated it does
not matter where the baby is positioned when it is aborted. This
assertion, to me, is the most horrifying of all.
In the years of debates on partial birth abortion, I have asked
Senators a very simple question: If a partial birth abortion were being
performed on a baby, and for some reason the head slipped out and the
baby were delivered, would it be o.k. to kill that baby? Not one
Senator who defended the procedure has ever provided a straightforward
``yes'' or ``no'' response. They would not answer my question. I
believe it is important to define when a child is protected by the
Constitution; so, I revised my question. I asked whether it would be
alright to kill a baby whose foot is still inside the mother's body, or
what if only a toe is inside? Again, I did not receive an answer.
Unfortunately, evidence uncovered last year at a hearing before the
House Judiciary Subcommittee on the Constitution suggests my questions
were not so hypothetical. In fact, two nurses testified to seeing
babies who were born alive as a result of induced labor abortions being
left to die in soiled utility rooms. Furthermore, the intellectual
framework for legalization of

[[Page S6330]]

killing unwanted babies is being constructed by a prominent bioethics
professor at Princeton University. Professor Peter Singer has advocated
allowing parents a 28-day waiting period to decide whether to kill a
disabled or unhealthy newborn. In his widely disseminated book,
Practical Ethics, he asserts, ``killing a disabled infant is not
morally equivalent to killing a person. Very often it is not wrong at
all.''
In response to these events, the Born Alive Infants Protection Act
grants protection under Federal law to newborns who are fully outside
of the mother. Specifically, it states that Federal laws and
regulations referring to a ``person,'' ``human being,'' ``child,'' and
``individual'' include ``every infant member of the species homo
sapiens who is born alive at any stage of development.'' ``Born alive''
means ``the complete expulsion or extraction from its mother of that
member, at any stage of development, who after such expulsion or
extraction breathes or has a beating heart, pulsation of the umbilical
cord, or definite movement of voluntary muscles, regardless of whether
the umbilical cord has been cut, and regardless of whether the
expulsion or extraction occurs as a result of natural or induced labor,
caesarean section, or induced abortion.'' The definition of ``born
alive'' is derived from a World Health Organization definition of
``live birth'' that has been enacted in approximately 30 states and the
District of Columbia.
Again, all this bill says is that a living baby who is completely
outside of its mother is a person, a human being, a child, an
individual. Similar legislation passed by the House of Representatives
last year by an overwhelming vote of 380-15. I am hopeful that Senators
on both sides of the general abortion debate can agree that once a baby
is completely outside of its mother, it is a person, deserving the
protections and dignity afforded to all other Americans.
I ask unanimous consent that the text of the Born Alive Infants
Protection Act be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1050

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Born-Alive Infants
Protection Act''.

SEC. 2. DEFINITION OF BORN-ALIVE INFANT.

(a) In General.--Chapter 1 of title 1, United States Code,
is amended by adding at the end the following:

``Sec. 8. `Person', `human being', `child', and `individual'
as including born-alive infant

``(a) In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the
words `person', `human being', `child', and `individual',
shall include every infant member of the species homo sapiens
who is born alive at any stage of development.
``(b) As used in this section, the term `born alive', with
respect to a member of the species homo sapiens, means the
complete expulsion or extraction from its mother of that
member, at any stage of development, who after such expulsion
or extraction breathes or has a beating heart, pulsation of
the umbilical cord, or definite movement of voluntary
muscles, regardless of whether the umbilical cord has been
cut, and regardless of whether the expulsion or extraction
occurs as a result of natural or induced labor,caesarean
section, or induced abortion.
``(c) Nothing in this section shall be construed to affirm,
deny, expand, or contract any legal status or legal right
applicable to any member of the species homo sapiens at any
point prior to being born alive as defined in this section''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 1 of title 1, United States Code, is
amended by adding at the end the following new item:

``8. `Person', `human being', `child', and `individual' as including
born-alive infant.''.
______

By Mr. WARNER (for himself and Mr. Allen):
S. 1051. A bill to expand the boundary of the Booker T. Washington
National Monument, and for other purposes; to the Committee on Energy
and Natural Resources.
Mr. WARNER. Mr. President, today I rise to introduce a bill which
will expand the borders of the Booker T. National Washington Monument
in Virginia. This extraordinary 224 acres of rolling hills, woodlands,
and agricultural fields preserves and protects the birth site and
childhood home of Booker T. Washington. It interprets both his life
experiences and significance in American history.
On April 2, 1956 the Monument was authorized by Congress to create a
``public national memorial to Booker T. Washington, noted Negro
educator and apostle of good will . . .''. Mr. Washington was widely
considered the most powerful African American of his time. This park
provides a focal point for the continuing discussions on the context of
race in American society, a resource for public education, and the
continuation of his legacy today.
The agricultural landscape surrounding the Monument plays a critical
role in the park's interpretation of Washington's life as an enslaved
child during the Civil War era. Many of his most significant
experiences center on this small tobacco farm located near the rapidly
developing recreational area of Smith Mountain Lake. It is remarkable
that the area immediately surrounding the national monument remains
relatively unchanged since the time of Booker T. Washington's birth.
As part of the park's strategic plan, a viewshed study was conducted
in 1998. It's purpose was to survey the surrounding lands in the most
highly visited areas of the park and determine what visual effects
urban development would have on the preservation of this historic site.
The study identified a 15-acre parcel of land to be the most critical
addition for this park because of its proximity to Booker T.
Washington's birth site.
Several private landowners now wish to sell some of the surrounding
farmland, including the 15-acre tract identified in the viewshed study.
I believe that in order to maintain this unique historic setting, the
Park Service should acquire this property so that visitors will be able
to experience the same pastoral setting that was so crucial to Booker
T. Washington's life. I urge my colleagues to join me in preserving
this important landmark in our nation's history for all future
generations.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows;

S. 1051

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Booker T. Washington
National Monument Boundary Adjustment Act of 2001''.

SEC. 2. BOUNDARY OF BOOKER T. WASHINGTON NATIONAL MONUMENT
EXPANDED.

The Act entitled ``An Act to provide for the establishment
of the Booker T. Washington National Monument'', approved
April 2, 1956 (16 U.S.C. 450ll et seq.), is amended by adding
at the end the following new section:

``SEC. 5. ADDITIONAL LANDS.

``(a) Lands Added to Monument.--The boundary of the Booker
T. Washington National Monument is modified to include the
approximately 15 acres, as generally depicted on the map
entitled ``Boundary Map, Booker T. Washington National
Monument, Franklin County, Virginia'', numbered BOWA 404/
80,024, and dated February 2001. The map shall be on file and
available for inspection in the appropriate offices of the
National Park Service, Department of the Interior.
``(b) Acquisition of Additional Lands.--The Secretary of
the Interior is authorized to acquire from willing owners the
land or interests in land described in subsection (a) by
donation, purchase with donated or appropriated funds, or
exchange.
``(c) Administration of Additional Lands.--Lands added to
Booker T. Washington National Monument by subsection (a)
shall be administered by the Secretary of the Interior as
part of the monument in accordance with applicable laws and
regulations.''.
______

By Mr. Harkin (for himself, Mr. Akaka, Mr. Bingaman, Mr.
Murkowski, Mr. Reid, Mr. Domenici, Mr. Kyl, Mr. Bayh, Mr.
Inouye, Mr. Lieberman, and Mr. Jeffords):
S. 1053. A bill to reauthorize and amend the Spark M. Matsunaga
Hydrogen Research Development, and Demonstration Act of 1990, and for
other purposes; to the Committee on Energy and Natural Resources.
Mr. HARKIN. Mr. President, I am pleased to introduce today the
Hydrogen Future Act of 2001, a bill to reauthorize the Department of
Energy's hydrogen energy programs. I am especially pleased that this
bill has strong bipartisan support. I worked closely with my colleague
from Hawaii, Senator Akaka, in developing the bill, which builds on the
great work of his

[[Page S6331]]

predecessor, Spark Matsunaga, and I thank him for his support. Other
cosponsors include Senators Bingaman, Murkowski, Reid, Domenici, Kyl,
Bayh, Inouye, Lieberman, and Jeffords.
There has been a wide-ranging and sometimes fierce debate recently
over what should be in a national energy policy. But while there is
significant disagreement over near-term strategies, there is a widely
shared vision of where we need to end up. For the sake of both the
economy and the environment, we need to develop clean, domestic
renewable fuels, such as solar heat and power, wind turbines,
geothermal power, hydroelectric power, and biomass and ethanol. These
fuels are domestic, avoiding the risks of dependence on foreign
sources; indeed several of these fuels are widely available in the
U.S., so that many states, such as Iowa, that now import virtually all
their fuel could bring that work home. The use of multiple fuels, and
the local availability, should make supplies more reliable as well. And
these renewable fuels are truly ``green''--they cause almost no
pollution and result in almost no global warming.
However, the sun, the wind, and even the rivers are not always
available when you need them, and you can't store sunlight, wind, or
the electricity you make from them. If they are to be major sources of
power, you need a way to store the energy.
The need to store electricity is not just a hypothetical problem for
an energy future. The California energy crisis this year has vividly
demonstrated that electricity is not just another commodity. The
terrible price spikes and rolling blackouts occur in part because
customers need electricity but cannot store or stockpile it, during
brief shortages purchasers have paid hundreds or thousands of dollars a
kilowatthour, or found there was no electricity to buy. Californians
hoped to create a free and fair market in electricity, but instead find
themselves at the mercy of electricity providers.
The automobile industry has also recognized for some time that
electric cars could be much more efficient than any combustion engine
vehicle, as well as quieter and non-polluting. But they have lacked an
effective way to generate electricity on board.
These issues may be even more important abroad. Our world population
continues to increase at an almost alarming rate. Back when I was born
in 1939, there were three billion people on the earth. When I turned 60
not long ago, there were 6 billion people. And 40 years from now, when
by daughter turns 60, there will be 11 billion people on earth.
As countries like India, China and the African Nations become
industrialized consumer societies, billions of additional people will
want, and deserve to have, a better quality of life. That means heating
in the winter and air conditioning in the summer, televisions and
microwave ovens and cars. But if they develop the same way we did, we
are all in trouble. The air pollution, water pollution, and global
warming could make our earth unlivable. And if China and other
developing nations import oil to fuel a billion cars, our recent $2 a
gallon gasoline prices will look like bargains. For the sake of these
countries and for our own sake, we've got to help these developing
countries leap-frog fossil fuels and move directly to sustainable
development based on renewable energy.
The Hydrogen Future Act is about the solution to the electricity
storage problem. Hydrogen is a colorless, odorless, non-toxic gas that
can be obtained from ordinary water using electricity or from plants
such as switchgrass and trees. Hydrogen can be stored and transported
much like natural gas. And it is an almost perfect fuel. When burned,
the main waste product is water. But hydrogen can more efficiently be
used to power fuel cells, making only electricity, heat, and pure
water. And it's safe, escaping harmlessly into the air if there is a
leak.
Because of these qualities, hydrogen has long been a technologist's
dream. Jules Verne imagined hydrogen from water powering machinery,
trains, and and lights back in 1874. But in 1990, when the Hydrogen
Research, Development, and Demonstration Act first became law, hydrogen
was still used for energy more in space, by NASA, than on earth.
How things are changing. Hydrogen fuel cells are no longer a
laboratory curiosity. Today, the First National Bank of Omaha, just
outside my home state of Iowa, uses fuel cells to power its credit card
service operations. They wanted fuel cells because of their
reliability. They figure it costs them one million dollars for every
hour their power is out, and that the $3.8 million system has already
paid for itself. The New York Central Park Police Station relies on a
fuel cell for off-grid electricity because it would have cost over a
million dollars to run power line extensions to the building. And at
the Kirby Cove Campground in California, fuel cells have another
advantage: they're quiet.
We've seen public buses running on hydrogen fuel cells in Chicago and
Vancouver and Southern California. Every major car manufacturer has
prototype fuel cell cars and vans on the roads. And there are hydrogen
fueling stations in places such as Dearborn, Michigan; Las Vegas,
Nevada, and Sacramento, CA. Some companies are developing fuel cells to
power cell phones and personal computers, others for full-size power
plants. Companies have announced plans to deliver commercial fuel cell
products in the next few years in cars, buses, and homes.
Soon hydrogen may be powering the world. It's potential is so great
that some people look forward to a ``hydrogen economy,'' an economy in
which hydrogen is the ubiquitous energy ``carrier'' between renewable
sources and all end uses. Larry Burns, a vice president of General
Motors has said, ``We believe hydrogen will be the fuel of the
future.'' And Don Huberts, of Shell, said ``The stone age did not end
because the world ran out of stones, and the oil age will not end
because we run out of oil.'' Saudi Arabian Oil Minister Ahmed Zaki
Yamani has used almost the same words. Now Iceland has embarked on a
visionary program to create the world's first hydrogen economy using
their abundant hydroelectric and geothermal resources.
The Department of Energy hydrogen energy program is a critical part
of this revolution. The program conducts research in the efficient and
cost-effective production of hydrogen from renewable sources and from
fossil fuels, in effective storage of hydrogen, and in potential uses
such as reversible fuel cells, as well as in necessary infrastructure
including hydrogen sensors. The program demonstrates technologies such
as hydrogen fueling and remote off-grid power applications. The program
also conducts invaluable process and market analyses, as well as doing
necessary work on codes and regulations. They are working on ceramic
membranes, combined electricity generation and hydrogen production, and
niche markets such as vehicles in mines. Almost all projects are funded
in party by industry.
The bill we are introducing today will extend, expand, and improve
this DOE program. Because of the enormous promise of hydrogen energy,
and the current rapid expansion of opportunities, the bill authorizes a
significant increase in funding for the hydrogen program, to $60
million next year, with a total of $350 million over five years.
It also establishes a new program aimed at demonstrating hydrogen
technologies and their integration with fuel cells at Federal, State,
and local government facilities. The program would be based on a plan
to be developed by an interagency task force. It would focus on
hydrogen production, storage, and use in buildings and vehicles; on
hydrogen-based infrastructure for buses and fleet transportation; and
on distributed power generation, including the generation of combined
heat, power, and hydrogen. This new demonstration program would be
funded at an additional $20 million next year, with a total of $150
million over five years.
The bill makes other improvements, including: Modification of cost-
sharing requirements to enable more participation in research projects
by small companies and to exclude from cost-sharing analytical and
service work that will not lead to commercial products. These changes
are intended to conform more closely to the requirements in the Energy
Policy Act of 1992 that govern the rest of the renewable energy
program, without violating WTO rules; Language incorporating
international activities where appropriate in the

[[Page S6332]]

DOE programs. A global perspective is necessary both to develop world
markets for our products and to encourage international development on
a sustainable path; Clarification of the composition of the Hydrogen
Technical Advisory Panel that oversees the program for DOE; Reporting
requirements to further enhance inter-agency and inter-governmental
cooperation in the hydrogen program.
This bill has the support of the chairman and ranking members of the
Energy Committee as well as the chairman and ranking member of the
Energy and Water Subcommittee of the Appropriations Committee. I
understand that a bill to reauthorize the Hydrogen Future Act will also
be introduced today in the House by Representatives Ken Calvert and
Sherwood Boehlert, key members of the Science Committee. And the recent
report of the administration's National Energy Policy Development Group
recommended reauthorization of the hydrogen program. I hope with this
strong bipartisan support we will be able to pass this bill quickly and
to help realize hydrogen's potential in providing the clean, reliable
energy we so desperately need.
Mr. AKAKA. Mr. President, I am pleased to join Senator Harkin,
Senator Bingaman and Senator Murkowski, Chairman and Ranking Member of
the Senate Committee on Energy and Natural Resources, my colleagues
Senators Bayh, Domenici, Jeffords, Kyl, Lieberman, Reid, and my senior
colleague from Hawaii, Senator Inouye, in introducing legislation that
will accelerate the ongoing efforts for the development of a fuel for
the future--hydrogen. Hydrogen is an efficient and environmentally
friendly energy carrier that can be obtained using conventional or
renewable resources.
In these days of soaring energy prices, oil cartels, air pollution,
global climate change and greenhouse gases, hydrogen is a dazzling
alternative. We can have a zero-pollution fuel. It can be produced
domestically, ending our dependence on foreign oil. The question is not
whether there will be a hydrogen age but when.
Hydrogen as a fuel can help us resolve our energy problems and
satisfy much of the world's energy needs. I am convinced that sometimes
in the 21st century, hydrogen will join electricity as one of our
Nation's primary energy carriers, and hydrogen will ultimately be
produced from renewable sources. In the next twenty years, increasing
concerns about global climate change and energy security will help
bring about penetration of hydrogen in several niche markets. The
growth of fuel cell technology will allow the introduction of hydrogen
in both the transportation and electricity sectors.
I have a long-term vision for hydrogen energy as a renewable
resource. Progress is being made and challenges and barriers are being
surmounted at an accelerating pace on a global scale. Fuel cells for
distributed stationary power are being commercialized and installed in
various locations in the United States and worldwide. Transit bus
demonstration programs are underway in both the United States and
Europe. Major automobile companies are poised to deploy fuel cell
passenger cars within the next few years. All these activities involve
government and private sector cooperation.
Industry is moving ahead with fuel cell developments at a rapid pace.
Many companies are forming partnerships to bring new technologies to
the marketplace. Daimler-Chrysler, Ford, and Ballard have formed a
partnership and pledged $1.5 billion for commercialization of
automotive fuel cells. Edison Development Company, General Electric,
SoCal Gas, and Plug Power have agreements to commercialize residential
fuel cells.
National governments are turning to hydrogen as the fuel of the
future. Iceland is making a strong bid to become the world's first
hydrogen-based economy. According to its plans, hydrogen-powered cars
and buses will transport people in Reykjavik, the country's capital
within ten years. If all goes well there will be no need for oil in
Iceland.
Closer to home, I am particularly pleased that the State of Hawaii is
taking the lead in ushering in the hydrogen era. Our State Legislature
is advancing bills that would authorize the formation of a public-
private sector partnership for promoting hydrogen as an energy source.
The partnership would involve the State, Counties, Federal Government,
utilities, and private companies. The partnership would be charged with
developing plans to promote investment in hydrogen infrastructure,
begin pilot plants to produce hydrogen from geothermal and other
sources on Oahu, study how to move hydrogen to other islands, and study
how wind and other methods could be used to produce hydrogen. In
California, the state's zero emissions vehicle requirements favor early
introduction of hydrogen-powered vehicles.

These are very important initiatives. They may be small steps, but
for the hydrogen future they are important steps forward.
My predecessor in the Senate, Senator Spark Matsunaga was one of the
first to focus attention on hydrogen by sponsoring hydrogen research
legislation. The Matsunaga Hydrogen Act, as the legislation became
known, was designed to accelerate development of domestic capability to
produce an economically renewable energy source in sufficient
quantities to reduce the Nation's dependence on conventional fuels. As
a result of Senator Matsunaga's vision, the Department of Energy has
been conducting research that will advance technologies for cost-
effective production, storage, and utilization of hydrogen.
The Hydrogen Future Act of 1996, which followed the Matsunaga
Hydrogen Act, expanded the research, development, and demonstration
program under the original Act. It authorized activities leading to
production, storage, transformation, and use of hydrogen for
industrial, residential, transportation, and utility applications. It
enjoyed bipartisan support in Congress.
Today we are introducing legislation that reauthorizes and amends the
Hydrogen Future Act of 1996. It highlights the potential of hydrogen as
an efficient and environmentally friendly source of energy, the need
for a strong partnership between the Federal government, industry, and
academia, and the importance of continued support for hydrogen
research. It fosters collaboration between Federal agencies, State and
local governments, universities, and industry, and it encourages
private sector investment and cost sharing in the development of
hydrogen as an energy source. It adds provisions for the demonstration
of hydrogen technologies at government facilities to expedite wider
application of these technologies.
The bill we are introducing today supports the recommendations of the
President's Council of Advisors on Science and Technology, PCAST. In
its report issued in November 1997, PCAST proposed a substantial
increase in Federal spending for applied energy technology R&D, with
the largest share going to energy efficiency and renewable energy
technologies. The PCAST report, ``Federal Energy Research and
Development for the Challenges of the Twenty-First Century,''
acknowledged and supported advances in a wide range of both hydrogen-
producing and hydrogen-using technologies.
The current Hydrogen Program, administered by the Department of
Energy, supports a broad range of research and development projects in
the areas of hydrogen production, storage, and use in a safe and cost-
effective manner. Some of these new technologies may become available
for wider use in the next few years. The most promising include
advanced natural gas- and biomass-based hydrogen production
technologies, high pressure gaseous and cryogas storage systems, and
reversible PEM fuel cell systems. Other projects lay the groundwork for
long range opportunities. These activities need continued support if
the nation is to enjoy the benefits of a clean energy source.
The Hydrogen Program utilizes the talents of our national
laboratories and our universities. The National Renewable Energy
Laboratory, Sandia, Lawrence Livermore, Los Alamos, and Oak Ridge
National Laboratories, as well as Jet Propulsion Laboratory are
involved in the program. The DOE Field Office at Golden, Colorado, and
Nevada Operations Office in Nevada are also involved. University-led
centers-of-excellence have been established at the University of Miami
and the University of Hawaii. U.S. participation in the International
Energy Agency contributes to

[[Page S6333]]

the advancement of DOE hydrogen research through international
cooperation. The program has also built strong links with the industry.
This has resulted in strong industry participation and cost sharing.
Cooperation between government, industry, universities, and the
national laboratories is key to the successful development and
commercialization of new and environmentally friendly energy
technologies.

The legislation we are introducing today authorizes $350 million over
the next five years for research and development for hydrogen
production, storage and use. This will allow advancement of
technologies such as smaller-scale production systems that are
applicable to distributed-generation and vehicle applications, advanced
pressure vessels, photobiological and photocatalytic production of
hydrogen, and carbon nanotubes, graphite nanofibers, and fullerenes.
The bill also authorizes $150 million for conducting integrated
demonstrations of hydrogen technologies at government facilities. This
provision will help secure industry participation through competitive
solicitations for technology development and testing. It will test the
viability of hydrogen production, storage, and use, and lead to the
development of hydrogen-based operating experience acceptance to meet
safety codes and standards.
By supporting this bill, we will be ushering in a new era of non-
polluting energy. I urge my colleagues to support this important
legislation.
______

By Mr. KOHL (for himself and Mr. Reid):
S. 1054. A bill to amend titles XVIII and XIX of the Social Security
Act to prevent abuse of recipients of long-term care services under the
Medicare and Medicaid programs; to the Committee on Finance.
Mr. KOHL. Mr. President, I rise today to re-introduce the Patient
Abuse Prevention Act. I am pleased to be joined in this effort by
Senator Reid, who has worked tirelessly with me on this important
legislation.
There is absolutely no excuse for abuse or neglect of the elderly and
disabled at the hands of those who are supposed to care for them. Our
parents and grandparents made our country what it is today, and they
deserve to live with dignity and the highest quality care.
Unfortunately, this is not always the case. We know that the majority
of caregivers are dedicated, professional, and do their best under
difficult circumstances. But we also know that too often, the elderly
are starved, shamed, abused, neglected and exploited by the very people
charged with their care. And the systems that are in place today are
not enough to protect them.
It is estimated that more than 43 percent of Americans over the age
of 65 will likely spend time in a nursing home. The number of people
needing long-term care services will continue to increase as the Baby
Boom generation ages. While most long-term care workers do an excellent
job, it only takes a few abusive staff to cast a dark shadow over what
should be a healing environment.
A disturbing number of cases have been reported where workers with
criminal backgrounds have been cleared to work in direct patient care,
and have subsequently abused patients in their care. In 1997, the
Milwaukee Journal-Sentinel ran a series of articles describing this
problem, which led my home State of Wisconsin to pass a criminal
background check law for health care workers. The legislation I
introduce today follows their example and builds on their efforts.
Current State and National safeguards are inadequate to screen out
abusive workers. All States are required to maintain registries of
abusive nurse aides. But nurse aides are not the only workers involved
in abuse, and other workers are not tracked at all. Even worse, there
is no system to coordinate information about abusive nurse aides
between States. A known abuser in Iowa would have little trouble moving
to Wisconsin and continuing to work with patients there.
In addition, there is no Federal requirement that long-term care
facilities conduct criminal background checks on prospective employees.
People with violent criminal backgrounds, people who have already been
convicted of murder, rape, and assault, could easily get a job in a
nursing home or other health care setting without their past ever being
discovered.
Our legislation will go a long way toward solving this problem.
First, it will create a National Registry of abusive long-term care
employees. States will be required to submit information from their
current State registries to the National Registry. Facilities will be
required to check the National Registry before hiring a prospective
worker. Any worker with a substantiated finding of patient abuse will
be prohibited from working in long-term care.
Second, the bill provides a second line of defense to protect
patients from violent criminals. If the National Registry does not
contain information about a prospective worker, the facility is then
required to initiate an FBI background check. Any conviction for
patient abuse or a relevant violent crime would bar that applicant from
working with patients.
There is clear evidence that this is needed. In 1998, at my request,
the Senate Special Committee on Aging held a hearing that focused on
how easy it is for known abusers to find work in long-term care and
continue to prey on patients. At that hearing, the HHS Inspector
General presented a report which found that, in the two States they
studied, between 5-10 percent of employees currently working in nursing
homes had serious criminal convictions in their past. They also found
that among aides who had abused patients, 15-20 percent of them had at
least one conviction in their past.
But even more compelling, we heard from Richard Meyer of
Libertyville, Illinois, whose 92-year old mother was raped by a nursing
home worker who had a previous conviction for child sexual abuse. A
criminal background check could have prevented this tragedy. But even
more appalling, there is nothing in current law that prevents her
assailant from travelling 50 miles to my home town of Milwaukee and
finding another job in a home health agency.
There's no greater illustration of the need for background checks
than this. But for those who need more hard data, there is more
evidence. In 1998, I offered an amendment which became law that allowed
long-term care providers to voluntarily use the FBI system for
background checks. So far, 7 percent of those checks have come back
with criminal convictions, including rape and kidnapping.
Clearly, this is a critical tool that long-term care providers should
have, they don't want abusive caregivers working for them any more than
families do. The current voluntary system was a good first step, but if
we're serious about protecting our seniors, and I believe that every
Member of the Senate is, then we have to do more than make it
voluntary. We should make it a national priority to require all long-
term care providers who participate in Medicare and Medicaid to conduct
these checks. And we should make the investment necessary to cover the
costs of the checks, just like we reimburse providers for other costs
of providing care to Medicare and Medicaid beneficiaries. This is a
common-sense, inexpensive step we can take to protect patients by
helping long-term care providers thoroughly screen potential
caregivers.
I realize that this legislation will not solve all instances of
abuse. We still need to do more to stop abuse from occurring in the
first place. But this bill will ensure that those who have already
abused an elderly or disabled patient, and those who have committed
violent crimes against people in the past, are kept away from
vulnerable patients.
I want to repeat that I strongly believe that most long-term care
providers and their staff work hard to deliver the highest quality
care. However, it is imperative that Congress act immediately to get
rid of those that don't. When a patient checks into a nursing home or
hospice, or receives home health care, they should not have to give up
their right to be free from abuse, neglect, or mistreatment.
This bill is the product of collaboration and input from the health
care industry, patient and employee advocates who all have the same
goal I do: protecting patients in long-term care. I look forward to
continuing to work with my colleagues, the Administration, and the
health care industry in

[[Page S6334]]

this effort. Our nation's seniors and disabled deserve nothing less
than our full attention.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1054

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Patient Abuse Prevention
Act''.

SEC. 2. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE OF NURSING
FACILITY RESIDENTS.

(a) Nursing Facility and Skilled Nursing Facility
Requirements.--
(1) Medicaid program.--Section 1919(b) of the Social
Security Act (42 U.S.C. 1396r(b)) is amended by adding at the
end the following new paragraph:
``(8) Screening of nursing facility workers.--
``(A) Background checks on applicants.--Subject to
subparagraph (B)(ii), before hiring a nursing facility
worker, a nursing facility shall--
``(i) give the worker written notice that the facility is
required to perform background checks with respect to
applicants;
``(ii) require, as a condition of employment, that such
worker--

``(I) provide a written statement disclosing any conviction
for a relevant crime or finding of patient or resident abuse;
``(II) provide a statement signed by the worker authorizing
the facility to request the search and exchange of criminal
records;
``(III) provide in person a copy of the worker's
fingerprints or thumb print, depending upon available
technology; and
``(IV) provide any other identification information the
Secretary may specify in regulation;

``(iii) initiate a check of the data collection system
established under section 1128E in accordance with
regulations promulgated by the Secretary to determine whether
such system contains any disqualifying information with
respect to such worker; and
``(iv) if that system does not contain any such
disqualifying information--

``(I) request that the State initiate a State and national
criminal background check on such worker in accordance with
the provisions of subsection (e)(8); and
``(II) furnish to the State the information described in
subclauses (II) through (IV) of clause (ii) not more than 7
days (excluding Saturdays, Sundays, and legal public holidays
under section 6103(a) of title 5, United States Code) after
completion of the check against the system initiated under
clause (iii).

``(B) Prohibition on hiring of abusive workers.--
``(i) In general.--A nursing facility may not knowingly
employ any nursing facility worker who has any conviction for
a relevant crime or with respect to whom a finding of patient
or resident abuse has been made.
``(ii) Provisional employment.--After complying with the
requirements of clauses (i), (ii), and (iii) of subparagraph
(A), a nursing facility may provide for a provisional period
of employment for a nursing facility worker pending
completion of the check against the data collection system
described under subparagraph (A)(iii) and the background
check described under subparagraph (A)(iv). Such facility
shall maintain direct supervision of the worker during the
worker's provisional period of employment.
``(C) Reporting requirements.--A nursing facility shall
report to the State any instance in which the facility
determines that a nursing facility worker has committed an
act of resident neglect or abuse or misappropriation of
resident property in the course of employment by the
facility.
``(D) Use of information.--
``(i) In general.--A nursing facility that obtains
information about a nursing facility worker pursuant to
clauses (iii) and (iv) of subparagraph (A) may use such
information only for the purpose of determining the
suitability of the worker for employment.
``(ii) Immunity from liability.--A nursing facility that,
in denying employment for an applicant (including during the
period described in subparagraph (B)(ii)), reasonably relies
upon information about such applicant provided by the State
pursuant to subsection (e)(8) or section 1128E shall not be
liable in any action brought by such applicant based on the
employment determination resulting from the information.
``(iii) Criminal penalty.--Whoever knowingly violates the
provisions of clause (i) shall be fined in accordance with
title 18, United States Code, imprisoned for not more than 2
years, or both.
``(E) Civil penalty.--
``(i) In general.--A nursing facility that violates the
provisions of this paragraph shall be subject to a civil
penalty in an amount not to exceed--

``(I) for the first such violation, $2,000; and
``(II) for the second and each subsequent violation within
any 5-year period, $5,000.

``(ii) Knowing retention of worker.--In addition to any
civil penalty under clause (i), a nursing facility that--

``(I) knowingly continues to employ a nursing facility
worker in violation of subparagraph (A) or (B); or
``(II) knowingly fails to report a nursing facility worker
under subparagraph (C),

shall be subject to a civil penalty in an amount not to
exceed $5,000 for the first such violation, and $10,000 for
the second and each subsequent violation within any 5-year
period.
``(F) Definitions.--In this paragraph:
``(i) Conviction for a relevant crime.--The term
`conviction for a relevant crime' means any Federal or State
criminal conviction for--

``(I) any offense described in paragraphs (1) through (4)
of section 1128(a); and
``(II) such other types of offenses as the Secretary may
specify in regulations, taking into account the severity and
relevance of such offenses, and after consultation with
representatives of long-term care providers, representatives
of long-term care employees, consumer advocates, and
appropriate Federal and State officials.

``(ii) Disqualifying information.--The term `disqualifying
information' means information about a conviction for a
relevant crime or a finding of patient or resident abuse.
``(iii) Finding of patient or resident abuse.--The term
`finding of patient or resident abuse' means any
substantiated finding by a State agency under subsection
(g)(1)(C) or a Federal agency that a nursing facility worker
has committed--

``(I) an act of patient or resident abuse or neglect or a
misappropriation of patient or resident property; or
``(II) such other types of acts as the Secretary may
specify in regulations.

``(iv) Nursing facility worker.--The term `nursing facility
worker' means any individual (other than any volunteer) that
has direct access to a patient of a nursing facility under an
employment or other contract, or both, with such facility.
Such term includes individuals who are licensed or certified
by the State to provide such services, and nonlicensed
individuals providing such services, as defined by the
Secretary, including nurse assistants, nurse aides, home
health aides, and personal care workers and attendants.''.
(2) Medicare program.--Section 1819(b) of the Social
Security Act (42 U.S.C. 1395i-3(b)) is amended by adding at
the end the following:
``(8) Screening of skilled nursing facility workers.--
``(A) Background checks on applicants.--Subject to
subparagraph (B)(ii), before hiring a skilled nursing
facility worker, a skilled nursing facility shall--
``(i) give the worker written notice that the facility is
required to perform background checks with respect to
applicants;
``(ii) require, as a condition of employment, that such
worker--

``(I) request that the State initiate a State and national
criminal background check on such worker in accordance with
the provisions of subsection (e)(6); and
``(II) furnish to the State the information described in
subclauses (II) through (IV) of clause (ii) not more than 7
days (excluding Saturdays, Sundays, and legal public holidays
under section 6103(a) of title 5, United States Code) after
completion of the check against the system initiated under
clause (iii).

``(B) Prohibition on hiring of abusive workers.--
``(i) In general.--A skilled nursing facility may not
knowingly employ any skilled nursing facility worker who has
any conviction for a relevant crime or with respect to whom a
finding of patient or resident abuse has been made.
``(ii) Provisional employment.--After complying with the
requirements of clauses (i), (ii), and (iii) of subparagraph
(A), a skilled nursing facility may provide for a provisional
period of employment for a skilled nursing facility worker
pending completion of the check against the data collection
system described under subparagraph (A)(iii) and the
background check described under subparagraph (A)(iv). Such
facility shall maintain direct supervision of the covered
individual during the worker's provisional period of
employment.
``(C) Reporting requirements.--A skilled nursing facility
shall report to the State any instance in which the facility
determines that a skilled nursing facility worker has
committed an act of resident neglect or abuse or
misappropriation of resident property in the course of
employment by the facility.
``(D) Use of information.--
``(i) In general.--A skilled nursing facility that obtains
information about a skilled nursing facility worker pursuant
to clauses

[[Page S6335]]

(iii) and (iv) of subparagraph (A) may use such information
only for the purpose of determining the suitability of the
worker for employment.
``(ii) Immunity from liability.--A skilled nursing facility
that, in denying employment for an applicant (including
during the period described in subparagraph (B)(ii)),
reasonably relies upon information about such applicant
provided by the State pursuant to subsection (e)(6) or
section 1128E shall not be liable in any action brought by
such applicant based on the employment determination
resulting from the information.
``(iii) Criminal penalty.--Whoever knowingly violates the
provisions of clause (i) shall be fined in accordance with
title 18, United States Code, imprisoned for not more than 2
years, or both.
``(E) Civil penalty.--
``(i) In general.--A skilled nursing facility that violates
the provisions of this paragraph shall be subject to a civil
penalty in an amount not to exceed--

``(I) for the first such violation, $2,000; and
``(II) for the second and each subsequent violation within
any 5-year period, $5,000.

``(ii) Knowing retention of worker.--In addition to any
civil penalty under clause (i), a skilled nursing facility
that--

``(I) knowingly continues to employ a skilled nursing
facility worker in violation of subparagraph (A) or (B); or
``(II) knowingly fails to report a skilled nursing facility
worker under subparagraph (C),

``(I) an act of patient or resident abuse or neglect or a
misappropriation of patient or resident property; or
``(II) such other types of acts as the Secretary may
specify in regulations.

``(iv) Skilled nursing facility worker.--The term `skilled
nursing facility worker' means any individual (other than any
volunteer) that has direct access to a patient of a skilled
nursing facility under an employment or other contract, or
both, with such facility. Such term includes individuals who
are licensed or certified by the State to provide such
services, and nonlicensed individuals providing such
services, as defined by the Secretary, including nurse
assistants, nurse aides, home health aides, and personal care
workers and attendants.''.
(3) Technical Amendments.--Effective as if included in the
enactment of section 941 of the Medicare, Medicaid, and SCHIP
Benefits Improvement and Protection Act of 2000 (114 Stat.
2763A-585), as enacted into law by section 1(a)(6) of Public
Law 106-554, sections 1819(b) and 1919(b) of the Social
Security Act (42 U.S.C. 1395i-3(b), 1396r(b)), as amended by
such section 941 (as so enacted into law) are each amended by
redesignating the paragraph (8) added by such section as
paragraph (9).
(b) State Requirements.--
(1) Medicaid program.--
(A) Expansion of state registry to collect information
about nursing facility employees other than nurse aides.--
Section 1919 of the Social Security Act (42 U.S.C. 1396r) is
amended--
(i) in subsection (e)(2)--

(I) in the paragraph heading, by striking ``Nurse aide
registry'' and inserting ``Nursing facility employee
registry'';
(II) in subparagraph (A)--

(aa) by striking ``By not later than January 1, 1989, the''
and inserting ``The'';
(bb) by striking ``a registry of all individuals'' and
inserting ``a registry of (I) all individuals''; and
(cc) by inserting before the period ``, and (II) all other
nursing facility employees with respect to whom the State has
made a finding described in subparagraph (B)'';

(III) in subparagraph (B), by striking ``involving an
individual listed in the registry'' and inserting ``involving
a nursing facility employee''; and
(IV) in subparagraph (C), by striking ``nurse aide'' and
inserting ``nursing facility employee or applicant for
employment''; and

(ii) in subsection (g)(1)--

(I) in subparagraph (C)--

(aa) in the first sentence, by striking ``nurse aide'' and
inserting ``nursing facility employee''; and
(bb) in the third sentence, by striking ``nurse aide'' each
place it appears and inserting ``nursing facility employee'';
and

(II) in subparagraph (D)--

(aa) in the subparagraph heading, by striking ``nurse aide
registry'' and inserting ``nursing facility employee
registry''; and
(bb) by striking ``nurse aide'' each place it appears and
inserting ``nursing facility employee''.
(B) Federal and state requirement to conduct background
checks.--Section 1919(e) of the Social Security Act (42
U.S.C. 1396r(e)) is amended by adding at the end the
following:
``(8) Federal and state requirements concerning criminal
background checks on nursing facility employees.--
``(A) In general.--Upon receipt of a request by a nursing
facility pursuant to subsection (b)(8) that is accompanied by
the information described in subclauses (II) through (IV) of
subsection (b)(8)(A)(ii), a State, after checking appropriate
State records and finding no disqualifying information (as
defined in subsection (b)(8)(F)(ii)), shall submit such
request and information to the Attorney General and shall
request the Attorney General to conduct a search and exchange
of records with respect to the individual as described in
subparagraph (B).
``(B) Search and exchange of records by attorney general.--
Upon receipt of a submission pursuant to subparagraph (A),
the Attorney General shall direct a search of the records of
the Federal Bureau of Investigation for any criminal history
records corresponding to the fingerprints and other positive
identification information submitted. The Attorney General
shall provide any corresponding information resulting from
the search to the State.
``(C) State reporting of information to nursing facility.--
Upon receipt of the information provided by the Attorney
General pursuant to subparagraph (B), the State shall--
``(i) review the information to determine whether the
individual has any conviction for a relevant crime (as
defined in subsection (b)(8)(F)(i));
``(ii) report to the nursing facility the results of such
review; and
``(iii) in the case of an individual with a conviction for
a relevant crime, report the existence of such conviction of
such individual to the database established under section
1128E.
``(D) Fees for performance of criminal background checks.--
``(i) Authority to charge fees.--

``(I) Attorney general.--The Attorney General may charge a
fee to any State requesting a search and exchange of records
pursuant to this paragraph and subsection (b)(8) for
conducting the search and providing the records. The amount
of such fee shall not exceed the lesser of the actual cost of
such activities or $50. Such fees shall be available to the
Attorney General, or, in the Attorney General's discretion,
to the Federal Bureau of Investigation, until expended.
``(II) State.--A State may charge a nursing facility a fee
for initiating the criminal background check under this
paragraph and subsection (b)(8), including fees charged by
the Attorney General, and for performing the review and
report required by subparagraph (C). The amount of such fee
shall not exceed the actual cost of such activities.

``(ii) Prohibition on charging applicants or employees.--An
entity may not impose on an applicant for employment or an
employee any charges relating to the performance of a
background check under this paragraph.
``(E) Regulations.--
``(i) In general.--In addition to the Secretary's authority
to promulgate regulations under this title, the Attorney
General, in consultation with the Secretary, may promulgate
such regulations as are necessary to carry out the Attorney
General's responsibilities under this paragraph and
subsection (b)(8), including regulations regarding the
security, confidentiality, accuracy, use, destruction, and
dissemination of information, audits and recordkeeping, and
the imposition of fees.
``(ii) Appeal procedures.--The Attorney General, in
consultation with the Secretary, shall promulgate such
regulations as are necessary to establish procedures by which
an applicant or employee may appeal or dispute the accuracy
of the information obtained in a background check conducted
under this paragraph. Appeals shall be limited to instances
in which an applicant or employee is incorrectly identified
as the subject of the background check, or when information
about the applicant or employee has not been updated to
reflect changes in the applicant's or employee's criminal
record.
``(F) Report.--Not later than 2 years after the date of
enactment of this paragraph, the Attorney General shall
submit a report to Congress on--
``(i) the number of requests for searches and exchanges of
records made under this section;
``(ii) the disposition of such requests; and
``(iii) the cost of responding to such requests.''.
(2) Medicare program.--
(A) Expansion of state registry to collect information
about skilled nursing facility employees other than nurse
aides.--Section 1819 of the Social Security Act (42 U.S.C.
1395i-3) is amended--
(i) in subsection (e)(2)--

(I) in the paragraph heading, by striking ``Nurse aide
registry'' and inserting

[[Page S6336]]

``Skilled nursing care employee registry'';
(II) in subparagraph (A)--

(aa) by striking ``By not later than January 1, 1989, the''
and inserting ``The'';
(bb) by striking ``a registry of all individuals'' and
inserting ``a registry of (I) all individuals''; and
(cc) by inserting before the period ``, and (II) all other
skilled nursing facility employees with respect to whom the
State has made a finding described in subparagraph (B)'';

(III) in subparagraph (B), by striking ``involving an
individual listed in the registry'' and inserting ``involving
a skilled nursing facility employee''; and
(IV) in subparagraph (C), by striking ``nurse aide'' and
inserting ``skilled nursing facility employee or applicant
for employment''; and

(ii) in subsection (g)(1)--

(I) in subparagraph (C)--

(aa) in the first sentence, by striking ``nurse aide'' and
inserting ``skilled nursing facility employee''; and
(bb) in the third sentence, by striking ``nurse aide'' each
place it appears and inserting ``skilled nursing facility
employee''; and

(II) in subparagraph (D)--

(aa) in the subparagraph heading, by striking ``nurse aide
registry'' and inserting ``nursing facility employee
registry''; and
(bb) by striking ``nurse aide'' each place it appears and
inserting ``nursing facility employee''.
(B) Federal and state requirement to conduct background
checks.--Section 1819(e) of the Social Security Act (42
U.S.C. 1395i-3(e)) is amended by adding at the end the
following:
``(6) Federal and state requirements concerning criminal
background checks on skilled nursing facility employees.--
``(A) In general.--Upon receipt of a request by a skilled
nursing facility pursuant to subsection (b)(8) that is
accompanied by the information described in subclauses (II)
through (IV) of subsection (b)(8)(A)(ii), a State, after
checking appropriate State records and finding no
disqualifying information (as defined in subsection
(b)(8)(F)(ii)), shall submit such request and information to
the Attorney General and shall request the Attorney General
to conduct a search and exchange of records with respect to
the individual as described in subparagraph (B).
``(B) Search and exchange of records by attorney general.--
Upon receipt of a submission pursuant to subparagraph (A),
the Attorney General shall direct a search of the records of
the Federal Bureau of Investigation for any criminal history
records corresponding to the fingerprints and other positive
identification information submitted. The Attorney General
shall provide any corresponding information resulting from
the search to the State.
``(C) State reporting of information to skilled nursing
facility.--Upon receipt of the information provided by the
Attorney General pursuant to subparagraph (B), the State
shall--
``(i) review the information to determine whether the
individual has any conviction for a relevant crime (as
defined in subsection (b)(8)(F)(i));
``(ii) report to the skilled nursing facility the results
of such review; and
``(iii) in the case of an individual with a conviction for
a relevant crime, report the existence of such conviction of
such individual to the database established under section
1128E.
``(D) Fees for performance of criminal background checks.--
``(i) Authority to charge fees.--

``(I) Attorney general.--The Attorney General may charge a
fee to any State requesting a search and exchange of records
pursuant to this paragraph and subsection (b)(8) for
conducting the search and providing the records. The amount
of such fee shall not exceed the lesser of the actual cost of
such activities or $50. Such fees shall be available to the
Attorney General, or, in the Attorney General's discretion,
to the Federal Bureau of Investigation until expended.
``(II) State.--A State may charge a skilled nursing
facility a fee for initiating the criminal background check
under this paragraph and subsection (b)(8), including fees
charged by the Attorney General, and for performing the
review and report required by subparagraph (C). The amount of
such fee shall not exceed the actual cost of such activities.

``(ii) Prohibition on charging applicants or employees.--An
entity may not impose on an applicant for employment or an
employee any charges relating to the performance of a
background check under this paragraph.
``(E) Regulations.--
``(i) In general.--In addition to the Secretary's authority
to promulgate regulations under this title, the Attorney
General, in consultation with the Secretary, may promulgate
such regulations as are necessary to carry out the Attorney
General's responsibilities under this paragraph and
subsection (b)(9), including regulations regarding the
security confidentiality, accuracy, use, destruction, and
dissemination of information, audits and recordkeeping, and
the imposition of fees.
``(ii) Appeal procedures.--The Attorney General, in
consultation with the Secretary, shall promulgate such
regulations as are necessary to establish procedures by which
an applicant or employee may appeal or dispute the accuracy
of the information obtained in a background check conducted
under this paragraph. Appeals shall be limited to instances
in which an applicant or employee is incorrectly identified
as the subject of the background check, or when information
about the applicant or employee has not been updated to
reflect changes in the applicant's or employee's criminal
record.
``(F) Report.--Not later than 2 years after the date of
enactment of this paragraph, the Attorney General shall
submit a report to Congress on--
``(i) the number of requests for searches and exchanges of
records made under this section;
``(ii) the disposition of such requests; and
``(iii) the cost of responding to such requests.''.
(c) Application to Other Entities Providing Home Health or
Long-Term Care Services.--
(1) Medicaid.--Section 1902(a) of the Social Security Act
(42 U.S.C. 1396a) is amended--
(A) in paragraph (65), by striking the period and inserting
``; and''; and
(B) by inserting after paragraph (65) the following:
``(66) provide that any entity that is eligible to be paid
under the State plan for providing home health services or
long-term care services for which medical assistance is
available under the State plan to individuals requiring long-
term care complies with the requirements of subsections
(b)(8) and (e)(8) of section 1919.''.
(2) Medicare.--Part D of title XVIII of the Social Security
Act (42 U.S.C. 1395x et seq.) is amended by adding at the end
the following:

``APPLICATION OF SKILLED NURSING FACILITY PREVENTIVE ABUSE PROVISIONS
TO ANY PROVIDER OF SERVICES OR OTHER ENTITY PROVIDING HOME HEALTH OR
LONG-TERM CARE SERVICES

``Sec. 1897. The requirements of subsections (b)(8) and
(e)(6) of section 1819 shall apply to any provider of
services or any other entity that is eligible to be paid
under this title for providing home health services or long-
term care services to an individual entitled to benefits
under part A or enrolled under part B (including an
individual provided with a Medicare+Choice plan offered by a
Medicare+Choice organization under part C).''.
(d) Reimbursement of Reasonable Costs for Background
Checks.--The Secretary of Health and Human Services shall
factor into any payment system under titles XVIII and XIX of
the Social Security Act the reasonable costs of the
requirements of sections 1819(b)(8) and 1919(b)(8) of such
Act, as added by this section, incurred by any entity subject
to such requirements.

SEC. 3. INCLUSION OF ABUSIVE WORKERS IN THE DATABASE
ESTABLISHED AS PART OF NATIONAL HEALTH CARE
FRAUD AND ABUSE DATA COLLECTION PROGRAM.

(a) Inclusion of Abusive Acts Within a Long-Term Care
Facility or Provider.--Section 1128E(g)(1)(A) of the Social
Security Act (42 U.S.C. 1320a-7e(g)(1)(A)) is amended--
(1) by redesignating clause (v) as clause (vi); and
(2) by inserting after clause (iv), the following:
``(v) A finding of abuse or neglect of a patient or a
resident of a long-term care facility, or misappropriation of
such a patient's or resident's property.''.
(b) Coverage of Long-Term Care Facility or Provider
Employees.--Section 1128E(g)(2) of the Social Security Act
(42 U.S.C. 1320a-7e(g)(2)) is amended by inserting ``, and
includes any individual of a long-term care facility or
provider (other than any volunteer) that has direct access to
a patient or resident of such a facility under an employment
or other contract, or both, with the facility or provider
(including individuals who are licensed or certified by the
State to provide services at the facility or through the
provider, and nonlicensed individuals, as defined by the
Secretary, providing services at the facility or through the
provider, including nurse assistants, nurse aides, home
health aides, and personal care workers and attendants)''
before the period.
(c) Reporting by Long-Term Care Facilities or Providers.--
(1) In general.--Section 1128E(b)(1) of the Social Security
Act (42 U.S.C. 1320a-7e(b)(1)) is amended by striking ``and
health plan'' and inserting ``, health plan, and long-term
care facility or provider''.
(2) Correction of information.--Section 1128E(c)(2) of the
Social Security Act (42 U.S.C. 1320a-7e(c)(2)) is amended by
striking ``and health plan'' and inserting ``, health plan,
and long-term care facility or provider''.
(d) Access to Reported Information.--Section 1128E(d)(1) of
the Social Security Act (42 U.S.C. 1320a-7e(d)(1)) is amended
by striking ``and health plans'' and inserting ``, health
plans, and long-term care facilities or providers''.
(e) Mandatory Check of Database by Long-Term Care
Facilities or Providers.--Section 1128E(d) of the Social
Security Act (42 U.S.C. 1320a-7e(d)) is amended by adding at
the end the following:
``(3) Mandatory check of database by long-term care
facilities or providers.--A long-term care facility or
provider shall check the database maintained under this

[[Page S6337]]

section prior to hiring under an employment or other
contract, or both, any individual as an employee of such a
facility or provider who will have direct access to a patient
or resident of the facility or provider (including
individuals who are licensed or certified by the State to
provide services at the facility or through the provider, and
nonlicensed individuals, as defined by the Secretary, that
will provide services at the facility or through the
provider, including nurse assistants, nurse aides, home
health aides, and personal care workers and attendants).''.
(f) Definition of Long-Term Care Facility or Provider.--
Section 1128E(g) of the Social Security Act (42 U.S.C. 1320a-
7e(g)) is amended by adding at the end the following:
``(6) Long-term care facility or provider.--The term `long-
term care facility or provider' means a skilled nursing
facility (as defined in section 1819(a)), a nursing facility
(as defined in section 1919(a)), a home health agency, a
hospice facility, an intermediate care facility for the
mentally retarded (as defined in section 1905(d)), or any
other facility that provides, or provider of, long-term care
services or home health services and receives payment for
such services under the medicare program under title XVIII or
the medicaid program under title XIX.''.
(g) Authorization of Appropriations.--There is authorized
to be appropriated to carry out the amendments made by this
section, $10,200,000 for fiscal year 2002.

SEC. 4. PREVENTION AND TRAINING DEMONSTRATION PROJECT.

(a) Establishment.--The Secretary of Health and Human
Services shall establish a demonstration program to provide
grants to develop information on best practices in patient
abuse prevention training (including behavior training and
interventions) for managers and staff of hospital and health
care facilities.
(b) Eligibility.--To be eligible to receive a grant under
subsection (a), an entity shall be a public or private
nonprofit entity and prepare and submit to the Secretary of
Health and Human Services an application at such time, in
such manner, and containing such information as the Secretary
may require.
(c) Use of Funds.--Amounts received under a grant under
this section shall be used to--
(1) examine ways to improve collaboration between State
health care survey and provider certification agencies, long-
term care ombudsman programs, the long-term care industry,
and local community members;
(2) examine patient care issues relating to regulatory
oversight, community involvement, and facility staffing and
management with a focus on staff training, staff stress
management, and staff supervision;
(3) examine the use of patient abuse prevention training
programs by long-term care entities, including the training
program developed by the National Association of Attorneys
General, and the extent to which such programs are used; and
(4) identify and disseminate best practices for preventing
and reducing patient abuse.
(d) Authorization of Appropriations.--There is authorized
to be appropriated such sums as may be necessary to carry out
this section.

SEC. 5. EFFECTIVE DATE.

The provisions of and amendments made by the Act shall
apply, without regard to whether implementing regulations are
in effect, to any individual applying for employment or hired
for such employment--
(1) by any skilled nursing facility (as defined in section
1819(a) of the Social Security Act) or any nursing facility
(as defined in section 1919(a) of such Act), on or after the
date which is 6 months after the date of enactment of this
Act,
(2) by any home health agency, on or after the date which
is 12 months after such date of enactment, and
(3) by any hospice facility, any intermediate care facility
for the mentally retarded (as defined in section 1905(d) of
the Social Security Act), or any other facility that provides
long-term care services and receives payment for such
services under the medicare program under title XVIII of such
Act or the medicaid program under title XIX of such Act, on
or after the date which is 18 months after such date of
enactment.
______

By Mrs. FEINSTEIN:
S. 1055. A bill to require the consent of an individual prior to the
sale and marketing of such individual's personally identifiable
information, and for other purposes; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I am pleased today to introduce the
Privacy Act of 2001.
This legislation combats the growing scourge of identity theft and
other privacy abuses by setting a national standard for privacy
protection.
The bill has a simple goal. It is designed to give back to ordinary
citizens control over their personal information.
Under the Privacy Act of 2001, if a company intends to collect and
sell a customer's address, phone number, or other non-sensitive
information, the company must give the customer notice and an
opportunity to opt-out of the sale if they so choose.
For especially sensitive personal information such as financial,
health, driver's licenses, and Social Security Numbers, the legislation
establishes more stringent privacy protections.
Specifically, the bill requires an individual's opt-in prior to the
sale, licensing, or renting of their personal financial or health
information.
In other words, opt-in means that a person must give their explicit
and affirmative consent before an entity can use this type of personal
information.
The bill would also close loopholes in the Driver's Privacy
Protection Act, most recently amended last year, so that a State
Department of Motor Vehicles can no longer disclose the most sensitive
information on a driver's license, such as the driver's identification
number or physical characteristics, without the driver's opt-in.
Finally, the bill would restrict the purchase, sale, and display of
Social Security numbers to the general public.
Why do we need a Federal privacy law?
The new economy has exponentially increased the flow of personal
information, but the protections for individual privacy have not kept
pace.
With access to sensitive data so widely available, often just at the
touch of a keyboard, identity theft has become one of the country's
fastest growing crimes.
Identity theft is when a thief steals your personal information and
then uses it to run up huge bills on your credit cards, bank accounts
or other accounts. In some cases, identity theft has also resulted in
stalking and murder.
Recent statistics on the growth of identity theft suggest we have no
time to waste in protecting personal privacy.
The Federal Bureau of Investigation estimates 350,000 cases of
identity theft occur each year. That's one case every two minutes.
Not surprisingly, members of the public have flooded our Federal
agencies with pleas for assistance. Reports to the Social Security
Administration of Social Security number misuse have increased from
7,868 in 1997 to 46,839 in 2000, an astonishing increase of over 500
percent.
The Federal Trade Commission, FTC, has experienced a similar
explosion of cases. If recent trends continue, reports of identity
theft to the Federal Trade Commission will double between 2000 and
2001, to over 60,000 cases.
Fully 40 percent of all consumer fraud complaints received by the FTC
in the first three months of 2001 involved identity theft.
Unfortunately, the State most affected by these complaints is
California. Fully 17 percent of the identity theft complaints the FTC
received this past winter came from my home state.
Let me give some real-world examples of privacy abuses:
Social Security Number Privacy: Amy Boyer, a 20-year-old dental
assistant from Maine was killed in 1999 by a stalker who bought her
Social Security number off the Internet for $45, and then used it to
locate her work address.
Identity Theft No. 1: Michelle Brown of Los Angeles, California, had
her Social Security number stolen in 1999, and it was used to charge
$50,000 including a $32,000 truck, a $5,000 liposuction operation, and
a year-long residential lease.
While assuming the victim's name, the perpetrator also became the
object of an arrest warrant for drug smuggling in Texas.
Identity Theft No. 2: An identity theft ring in Riverside County
allegedly bilked eight victims of $700,000. The thieves stole personal
information of employees at a large phone company and drained their on-
line stock accounts.
One employee reportedly had $285,000 taken from his account when
someone was able to access his account by supplying the employee's name
and Social Security number.
Financial Privacy: In a September 14, 1999 editorial, the Los Angeles
Times described how a small San Fernando Valley bank, ``sold 3.7
million credit card numbers to a felon, who then bilked cardholders out
of millions of dollars.'' According to the article, the bank was not
held liable for this action.
It is also astonishing what some data marketers are now providing to
their customers.

[[Page S6338]]

According to the Los Angeles Times, some marketing companies have
started selling lists of as many as 120 million households which
include names, addresses, and phone numbers, estimated income, marital
status, buying habits and hobbies.
Similarly, a medical information service has made databases available
to its customers which contain the phone number, gender and address of:
3.3 million people with allergies, 3.0 million people with heartburn,
850,000 with yeast infections, 450,000 people with incontinence, and
368,000 people who suffer clinical depression.
As a result, we have seen privacy become the top consumer protection
issue.
The bill I am introducing today, the Privacy Act of 2001, contains
two bedrock principles.
Privacy legislation should not discriminate against any system of
communication.
If personal information deserves protection, it deserves protection
however it is collected. It should not matter whether personal data is
collected in person, over the phone, or on the Internet.
Nevertheless, some privacy bills have exclusively targeted Internet
transactions. There is no justification for discriminating against high
technology companies by imposing Internet-specific privacy rules.
Companies operating on the Internet should not have any more duties
to protect privacy than businesses extracting information from warranty
cards or mail catalogues.
Not all personal information deserves the same level of privacy
protection.
Some information like Social Security numbers, motor vehicle records,
personal financial information, and medical information deserve higher
levels of privacy protection.
With regard to the first principle, the Privacy Act of 2001 protects
the privacy of information regardless of the medium through which it is
collected.
Other privacy proposals have tried to confine privacy legislation to
the Internet.
These proposals unfairly discriminate against high technology users.
Put simply, companies and other entities can misuse personal
information from off-line sources just as easily as with on-line
sources.
Why should a company extracting data from a warranty card have any
less of a duty to protect personal privacy than a company collecting
personal data on-line?
For example, telemarketers who besiege consumers with phone calls
during the dinner hour get much of their personal information used from
consumers filling out and mailing back warranty and registration cards.
But these warranty cards give consumers no notice about how their
personal information will be used.
Consider the case of Anne Marie Levine, a Virginia resident, who
entered a raffle to win a new car.
The sponsor of the raffle, unbeknownst to Ms. Levine, sold the
personal information on her raffle ticket. In the next two weeks, she
received calls from a host of jeep dealers in the area.
While some may consider unsolicited marketing calls a mere annoyance,
Ms. Levine was outraged, as I'm sure many Americans would be, that the
auto dealer sold her personal information without her permission.
Moreover, with the advent of digital scanners, digital photography,
and data processing, the distinctions between on-line and off-line
transactions are already blurring.
With regard to the second principle, the Privacy Act of 2001
recognizes that not all categories of personal information merit the
same level of protection.
The bill requires businesses intending to collect and sell
nonsensitive personal information, eg. name, phone number, address, to
nonaffiliated third parties to give customers notice and the
opportunity to opt-out of the sale.
The opt-out standard for non-sensitive information ensures that if a
person fills out a warranty card, sign-up for a computer service, or
submit an entry for a sweepstakes, the business must notify him before
it sells his personal information to other businesses or marketers.
This framework guarantees basic privacy protections for consumers
without unduly impacting commerce.
To eliminate unnecessary burdens on businesses, the legislation sets
up a safe harbor for businesses which appropriately use nonsensitive
personal information. Industries and industry-sponsored seal programs
which have already adopted Notice-and-Opt Out information policies will
be exempt.
The bill also sets a national standard for the sale or marketing of
nonsensitive personal information.
Federal preemption is needed because a jumbled patchwork of State
privacy laws helps neither businesses nor consumers. Conflicting State
laws lead to consumer confusion about privacy rights.
For example, if one logs onto an Internet site, which State law
governs: the law of the State of the computer user, the law where the
website is being operated, or the law of the State of the manufacturer
of a product?
Similarly, a patchwork of 50 State privacy laws, would pose a
logistical nightmare for corporate America.
Without Federal preemption, businesses will face the unsavory choice
of either adopting, for consistency's sake, privacy guidelines that
comply with the strictest state privacy law, or dealing with the costs
and paperwork imposed by 50 different state privacy laws.
For especially sensitive personal data, like financial data, medical
data, or a driver's license, the bill pushes for an opt-in model of
consent.
I believe people should have control over how their most sensitive
information is used. In the absence of a customer's express permission,
company's should not market or sell sensitive personal data.
To create this opt-in standard, this legislation builds upon the
existing lattice-work of Federal privacy laws.
For example, the bill modifies the recently enacted Gramm-Leach-
Bliley Financial Services Modernization Act by requiring an opt-in for
the sale of personal financial information.
Presently, under the Gramm-Leach-Bliley Act, a bank must give a
customer notice and the opportunity to opt-out before the bank can
disclose private financial information to non-affiliated third parties.
This legislation would impose a stricter standard if the bank tries
to sell the information. Any bank that sells personal financial
information to non-affiliated third parties would have to get the prior
consent of the customer, OPT-in.
Similarly, this bill strengthens the privacy protections for personal
health data.
The newly enacted Department of Health and Human Services privacy
regulations set a basic opt-in framework for disclosure of health
information. I recognize that the rules are being revised by the Bush
administration, so any discussion of health privacy must necessarily
contemplate a moving target.
Nevertheless, the current version of the regulation has loopholes
that limit patient privacy.
The regulations only prohibit ``covered entities, namely health
insurers, health providers, and health care clearinghouses, from
selling a patient's health information without that patient's prior
consent, an Opt-in Model.
Meanwhile, non-covered entities such as business associates, health
researchers, schools or universities, and life insurers are not subject
to this opt-in requirement, except through contractual arrangements.
My bill would preserve the privacy of health information wherever the
information is sold. Any life insurer, school or non-covered entity
trying to sell protected health information would have to get the
patient's consent.
In addition, the bill would require entities to obtain a patient's
approval before using ``protected health information'' for marketing
purposes.
This legislation builds on existing law to protect the information on
our drivers' licenses.
With its recent amendments, the Driver's Privacy Protection Act,
DPPA, offers some meaningful protections for drivers privacy.
For example, under the DPPA, a State Department of Motor Vehicles
must obtain the prior consent, Opt-in of the driver before ``highly
restricted personal information, defined as the driver's photograph,
image, Social Security number, medical or disability information, can
be disclosed to a third party.

[[Page S6339]]

However, loopholes remain. Other sensitive information found on a
driver's license deserves equal protection.
This legislation would expand the definition of ``highly restricted
personal'' to include a physical copy of a driver's license, the driver
identification number, birth date, information on the driver's physical
characteristics and any biometric identifiers like a fingerprint that
are found on the driver's license.
Thus, this bill would ensure consumers have control over how their
motor vehicle records and driver's license data are used.
I would like to take a moment to highlight Title II of this
legislation, which reflects a compromise with Senator Gregg on the
privacy of Social Security numbers.
It is so crucial to protect Social Security Numbers because these are
the key to unlocking a person's identity.
Many identity theft cases start with the theft of a Social Security
number.
Once a thief has access to a victim's Social Security number, it is
only a short step to acquiring credit cards, driver's licenses, or
other crucial identification documents.
The Feinstein/Gregg compromise bars the sale or display of Social
Security numbers to the public except in a very narrow set of
circumstances.
Display or sale is permitted if the Social Security Number holder
gives consent or if there are compelling public safety needs.
For the first time, Federal, State, and local governments will have
to redact Social Security numbers on government records before these
records are provided to the public.
Thus, enterprising identity thieves no longer can scour bankruptcy
records, liens, marriage certificates, or other public documents to
steal Social Security Numbers.
Moreover, State governments will no longer be permitted to use the
Social Security number as the default driver's license number.
The legislation, however, recognizes that some industries, like
banks, rely on Social Security Numbers to exchange information between
databases and complete identification verification necessary for
certain transactions.
It permits the sale or purchase of Social Security Numbers to
facilitate business-to-business transactions so long as businesses put
appropriate safeguards in place and do not permit public access to the
number.
Some critics of privacy legislation argue it will impede commerce. I
disagree. A reasonable baseline of privacy laws will stimulate
commerce. On the Internet, for example, fear of identity theft has
impeded consumer transactions.
One study of e-commerce estimates consumer privacy fears prevented up
to $2.8 billion in online retail sales in 1999. Another study suggests
that, by 2002, over $18 billion of lost sales can be attributed to
consumer privacy concerns.
This legislation codifies steps Congress can take to protect citizens
from identity thieves and other predators of personal information.
It restores to individuals more control over their most sensitive
personal information such as Social Security numbers, driver's license
information, health information, and financial information.
The legislation sets reasonable guidelines for businesses that handle
our personal information every day, like credit card companies,
hospitals, and banks.
Our Nation is rushing toward an information economy that will yield
unprecedented economic efficiencies.
The commercial benefits of the new economy are unquestionable. But,
in our rush to embrace the new, we must remember to protect the core
Democratic values on which our country depends.
Every American has a fundamental right to privacy, no matter how fast
our technology grows or changes.
But our right to privacy only will remain vital, if we take strong
action to protect it.
I look forward to working with my colleagues to enact the Privacy Act
of 2001.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1055

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Privacy
Act of 2001''.
(b) Table of Contents.--The table of contents of this Act
is as follows:

Sec. 1. Short title; table of contents.

TITLE I--COMMERCIAL SALE AND MARKETING OF PERSONALLY IDENTIFIABLE
INFORMATION

Sec. 101. Collection and distribution of personally identifiable
information.
Sec. 102. Enforcement.
Sec. 103. Safe harbor.
Sec. 104. Definitions.
Sec. 105. Preemption.
Sec. 106. Effective Date.

TITLE II--LIMITATIONS ON USE OF SOCIAL SECURITY NUMBERS

Sec. 201. Findings.
Sec. 202. Prohibition of the display, sale, or purchase of social
security numbers.
Sec. 203. No prohibition with respect to public records.
Sec. 204. Rulemaking authority of the Attorney General.
Sec. 205. Treatment of social security numbers on government documents.
Sec. 206. Limits on personal disclosure of a social security number for
consumer transactions.
Sec. 207. Extension of civil monetary penalties for misuse of a social
security number.

TITLE III--LIMITATIONS ON SALE AND SHARING OF NONPUBLIC PERSONAL
FINANCIAL INFORMATION

Sec. 301. Definition of sale.
Sec. 302. Rules applicable to sale of nonpublic personal information.
Sec. 303. Exceptions to sale prohibition.
Sec. 304. Effective date.

TITLE IV--LIMITATIONS ON THE PROVISION OF PROTECTED HEALTH INFORMATION

Sec. 401. Definitions.
Sec. 402. Prohibition against selling protected health information.
Sec. 403. Authorization for sale of protected health information.
Sec. 404. Prohibition against retaliation.
Sec. 405. Prohibition against marketing protected health information.
Sec. 406. Rule of construction.
Sec. 407. Regulations.
Sec. 408. Enforcement.

TITLE V--DRIVER'S LICENSE PRIVACY

Sec. 501. Driver's license privacy.

TITLE VI--MISCELLANEOUS

Sec. 601. Enforcement by State Attorneys General.
Sec. 602. Federal injunctive authority.

TITLE I--COMMERCIAL SALE AND MARKETING OF PERSONALLY IDENTIFIABLE
INFORMATION

SEC. 101. COLLECTION AND DISTRIBUTION OF PERSONALLY
IDENTIFIABLE INFORMATION.

(a) Prohibition.--
(1) In general.--It is unlawful for a commercial entity to
collect personally identifiable information and disclose such
information to any nonaffiliated third party for marketing
purposes or sell such information to any nonaffiliated third
party, unless the commercial entity provides--
(A) notice to the individual to whom the information
relates in accordance with the requirements of subsection
(b); and
(B) an opportunity for such individual to restrict the
disclosure or sale of such information.
(2) Exception.--A commercial entity may collect personally
identifiable information and use such information to market
to potential customers such entity's product.
(b) Notice.--
(1) In general.--A notice under subsection (a) shall
contain statements describing the following:
(A) The identity of the commercial entity collecting the
personally identifiable information.
(B) The types of personally identifiable information that
are being collected on the individual.
(C) How the commercial entity may use such information.
(D) A description of the categories of potential recipients
of such personally identifiable information.
(E) Whether the individual is required to provide
personally identifiable information in order to do business
with the commercial entity.
(F) How an individual may decline to have such personally
identifiable information used or sold as described in
subsection (a).
(2) Time of notice.--Notice shall be conveyed prior to the
sale or use of the personally identifiable information as
described in subsection (a) in such a manner as to allow the
individual a reasonable period of time to consider the notice
and limit such sale or use.
(3) Medium of notice.--The medium for providing notice must
be--
(A) the same medium in which the personally identifiable
information is or will be collected, or a medium approved by
the individual; or
(B) in the case of oral communication, notice may be
conveyed orally or in writing.
(4) Form of notice.--The notice shall be clear and
conspicuous.

[[Page S6340]]

(c) Opt-Out.--
(1) Opportunity to opt-out of sale or marketing.--The
opportunity provided to limit the sale of personally
identifiable information to nonaffiliated third parties or
the disclosure of such information for marketing purposes,
shall be easy to use, accessible and available in the medium
the information is collected, or in a medium approved by the
individual.
(2) Duration of limitation.--An individual's limitation on
the sale or marketing of personally identifiable information
shall be considered permanent, unless otherwise specified by
the individual.
(3) Revocation of consent.--After an individual grants
consent to the use of that individual's personally
identifiable information, the individual may revoke the
consent at any time, except to the extent that the commercial
entity has taken action in reliance thereon. The commercial
entity shall provide the individual an opportunity to revoke
consent that is easy to use, accessible, and available in the
medium the information was or is collected.
(4) Not applicable.--This section shall not apply to
disclosure of personally identifiable information--
(A) that is necessary to facilitate a transaction
specifically requested by the consumer;
(B) is used for the sole purpose of facilitating this
transaction; and
(C) in which the entity receiving or obtaining such
information is limited, by contract, to use such formation
for the purpose of completing the transaction.

SEC. 102. ENFORCEMENT.

(a) In General.--In accordance with the provisions of this
section, the Federal Trade Commission shall have the
authority to enforce any violation of section 101 of this
Act.
(b) Violations.--The Federal Trade Commission shall treat a
violation of section 101 as a violation of a rule under
section 18a(a)(1)(B) of the Federal Trade Commission Act (15
U.S.C. 57a(a)(1)(B)).
(c) Transfer of Enforcement Authority.--The Federal Trade
Commission shall promulgate rules in accordance with section
553 of title 5, United States Code, allowing for the transfer
of enforcement authority from the Federal Trade Commission to
a Federal agency regarding section 101 of this Act. The
Federal Trade Commission may permit a Federal agency to
enforce any violation of section 101 if such agency submits a
written request to the Commission to enforce such violations
and includes in such request--
(1) a description of the entities regulated by such agency
that will be subject to the provisions of section 101;
(2) an assurance that such agency has sufficient authority
over the entities to enforce violations of section 101; and
(3) a list of proposed rules that such agency shall use in
regulating such entities and enforcing section 101.
(d) Actions by the Commission.--Absent transfer of
enforcement authority to a Federal agency under subsection
(c), the Federal Trade Commission shall prevent any person
from violating section 101 in the same manner, by the same
means, and with the same jurisdiction, powers, and duties as
provided to such Commission under the Federal Trade
Commission Act (15 U.S.C. 41 et seq.). Any entity that
violates section 101 is subject to the penalties and entitled
to the privileges and immunities provided in such Act in the
same manner, by the same means, and with the same
jurisdiction, power, and duties under such Act.
(e) Relationship to Other Laws.--
(1) Commission authority.--Nothing contained in this title
shall be construed to limit authority provided to the
Commission under any other law.
(2) Communications act.--Nothing in section 101 requires an
operator of a website to take any action that is inconsistent
with the requirements of section 222 or 631 of the
Communications Act of 1934 (47 U.S.C. 222 and 5551).
(3) Other acts.--Nothing in this title is intended to
affect the applicability or the enforceability of any
provision of, or any amendment made by--
(A) the Children's Online Privacy Protection Act of 1998
(15 U.S.C. 6501 et seq.);
(B) title V of the Gramm-Leach-Bliley Act;
(C) the Health Insurance Portability and Accountability Act
of 1996; or
(D) the Fair Credit Reporting Act.
(f) Public Records.--Nothing in this title shall be
construed to restrict commercial entities from obtaining or
disclosing personally identifying information from public
records.
(g) Civil Penalties.--In addition to any other penalty
applicable to a violation of section 101(a), a penalty of up
to $25,000 may be issued for each violation.
(h) Enforcement Regarding Programs.--
(1) In general.--A Federal agency or department providing
financial assistance to any entity required to comply with
section 101 of this Act shall issue regulations requiring
that such entity comply with such section or forfeit some or
all of such assistance. Such regulations shall prescribe
sanctions for noncompliance, require that such department or
agency provide notice of failure to comply with such section
prior to any action being taken against such recipient, and
require that a determination be made prior to any action
being taken against such recipient that compliance cannot be
secured by voluntary means.
(2) Federal financial assistance.--The term ``Federal
financial assistance'' means assistance through a grant,
cooperative agreement, loan, or contract other than a
contract of insurance or guaranty.

SEC. 103. SAFE HARBOR.

A commercial entity may not be held to have violated any
provision of this title if such entity complies with self-
regulatory guidelines that--
``(1) are issued by seal programs or representatives of the
marketing or online industries or by any other person; and
``(2) are approved by the Federal Trade Commission, after
public comment has been received on such guidelines by the
Commission, as meeting the requirements of this title.

SEC. 104. DEFINITIONS.

In this title:
(1) Commercial entity.--The term ``commercial entity''--
(A) means any person offering products or services
involving commerce--
(i) among the several States or with 1 or more foreign
nations;
(ii) in any territory of the United States or in the
District of Columbia, or between any such territory and--

(I) another such territory; or
(II) any State or foreign nation; or

(iii) between the District of Columbia and any State,
territory, or foreign nation; and
(B) does not include--
(i) any nonprofit entity that would otherwise be exempt
from coverage under section 5 of the Federal Trade Commission
Act (15 U.S.C. 45);
(ii) any financial institution that is subject to title V
of the Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.); or
(iii) any group health plan, health insurance issuer, or
other entity that is subject to the Health Insurance
Portability and Accountability Act of 1996 (42 U.S.C. 201
note).
(2) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(3) Individual.--The term ``individual'' means a person
whose personally identifying information has been, is, or
will be collected by a commercial entity.
(4) Marketing.--The term ``marketing'' means to make a
communication about a product or service a purpose of which
is to encourage recipients of the communication to purchase
or use the product or service.
(5) Medium.--The term ``medium'' means any channel or
system of communication including oral, written, and online
communication.
(6) Nonaffiliated third party.--The term ``nonaffiliated
third party'' means any entity that is not related by common
ownership or affiliated by corporate control with, the
commercial entity, but does not include a joint employee of
such institution.
(7) Personally identifiable information.--The term
``personally identifiable information'' means individually
identifiable information about the individual that is
collected including--
(A) a first, middle, or last name, whether given at birth
or adoption, assumed, or legally changed;
(B) a home or other physical address, including the street
name, zip code, and name of a city or town;
(C) an e-mail address;
(D) a telephone number;
(E) a photograph or other form of visual identification;
(F) a birth date, birth certificate number, or place of
birth for that person; or
(G) information concerning the individual that is combined
with any other identifier in this paragraph.
(8) Sale; Sell; Sold.--The terms ``sale'', ``sell'', and
``sold'', with respect to personally identifiable
information, mean the exchanging of such information for any
thing of value, directly or indirectly, including the
licensing, bartering, or renting of such information.
(9) Writing.--The term ``writing'' means writing in either
a paper-based or computer-based form, including electronic
and digital signatures.

SEC. 105. PREEMPTION.

The provisions of this title shall supersede any statutory
and common law of States and their political subdivisions
insofar as that law may now or hereafter relate to the--
(1) collection and disclosure of personally identifiable
information for marketing purposes; and
(2) collection and sale of personally identifiable
information.

SEC. 106. EFFECTIVE DATE.

This title and the amendments made by this title shall take
effect 1 year after the date of enactment of this Act.

TITLE II--LIMITATIONS ON USE OF SOCIAL SECURITY NUMBERS

SEC. 201. FINDINGS.

Congress makes the following findings:
(1) The inappropriate display, sale, or purchase of social
security numbers has contributed to a growing range of
illegal activities, including fraud, identity theft, and, in
some cases, stalking and other violent crimes.
(2) While financial institutions, health care providers,
and other entities have often used social security numbers to
confirm the identity of an individual, the general display to
the public, sale, or purchase of these numbers has been used
to commit crimes, and also can result in serious invasions of
individual privacy.
(3) The Federal Government requires virtually every
individual in the United States to obtain and maintain a
social security number in order to pay taxes, to qualify for

[[Page S6341]]

social security benefits, or to seek employment. An
unintended consequence of these requirements is that social
security numbers have become tools that can be used to
facilitate crime, fraud, and invasions of the privacy of the
individuals to whom the numbers are assigned. Because the
Federal Government created and maintains this system, and
because the Federal Government does not permit individuals to
exempt themselves from those requirements, it is appropriate
for the Federal Government to take steps to stem the abuse of
this system.
(4) A social security number does not contain, reflect, or
convey any publicly significant information or concern any
public issue. The display, sale, or purchase of such numbers
in no way facilitates uninhibited, robust, and wide-open
public debate, and restrictions on such display, sale, or
purchase would not affect public debate.
(5) No one should seek to profit from the display, sale, or
purchase of social security numbers in circumstances that
create a substantial risk of physical, emotional, or
financial harm to the individuals to whom those numbers are
assigned.
(6) Consequently, this Act offers each individual that has
been assigned a social security number necessary protection
from the display, sale, and purchase of that number in any
circumstance that might facilitate unlawful conduct.

SEC. 202. PROHIBITION OF THE DISPLAY, SALE, OR PURCHASE OF
SOCIAL SECURITY NUMBERS.

(a) Prohibition.--
(1) In general.--Chapter 47 of title 18, United States
Code, is amended by inserting after section 1028 the
following:

``Sec. 1028A. Prohibition of the display, sale, or purchase
of social security numbers

``(a) Definitions.--In this section:
``(1) Display.--The term `display' means to intentionally
communicate or otherwise make available (on the Internet or
in any other manner) to the general public an individual's
social security number.
``(2) Person.--The term `person' means any individual,
partnership, corporation, trust, estate, cooperative,
association, or any other entity.
``(3) Purchase.--The term `purchase' means providing
directly or indirectly, anything of value in exchange for a
social security number.
``(4) Sale.--The term `sale' means obtaining, directly or
indirectly, anything of value in exchange for a social
security number.
``(5) State.--The term `State' means any State of the
United States, the District of Columbia, Puerto Rico, the
Northern Mariana Islands, the United States Virgin Islands,
Guam, American Samoa, and any territory or possession of the
United States.
``(b) Limitation on Display.--Except as provided in section
1028B, no person may display any individual's social security
number to the general public without the affirmatively
expressed consent of the individual.
``(c) Limitation on Sale or Purchase.--Except as otherwise
provided in this section, no person may sell or purchase any
individual's social security number without the affirmatively
expressed consent of the individual.
``(d) Prohibition of Wrongful Use as Personal
Identification Number.--No person may obtain any individual's
social security number for purposes of locating or
identifying an individual with the intent to physically
injure, harm, or use the identity of the individual for any
illegal purpose.
``(e) Prerequisites for Consent.--In order for consent to
exist under subsection (b) or (c), the person displaying or
seeking to display, selling or attempting to sell, or
purchasing or attempting to purchase, an individual's social
security number shall--
``(1) inform the individual of the general purpose for
which the number will be used, the types of persons to whom
the number may be available, and the scope of transactions
permitted by the consent; and
``(2) obtain the affirmatively expressed consent
(electronically or in writing) of the individual.
``(f) Exceptions.--
``(1) In general.--Except as provided in subsection (d),
nothing in this section shall be construed to prohibit or
limit the display, sale, or purchase of a social security
number--
``(A) permitted, required, or excepted, expressly or by
implication, under section 205(c)(2), 1124A(a)(3), or 1141(c)
of the Social Security Act (42 U.S.C. 405(c)(2), 1320a-
3a(a)(3), and 1320b-11(c)), section 7(a)(2) of the Privacy
Act of 1974 (5 U.S.C. 552a note), section 6109(d) of the
Internal Revenue Code of 1986, or section 6(b)(1) of the
Professional Boxing Safety Act of 1996 (15 U.S.C.
6305(b)(1));
``(B) for a public health purpose, including the protection
of the health or safety of an individual in an emergency
situation;
``(C) for a national security purpose;
``(D) for a law enforcement purpose, including the
investigation of fraud, as required under subchapter II of
chapter 53 of title 31, United States Code, and chapter 2 of
title I of Public Law 91-508 (12 U.S.C. 1951-1959), and the
enforcement of a child support obligation;
``(E) if the display, sale, or purchase of the number is
for a business-to-business use, including, but not limited
to--
``(i) the prevention of fraud (including fraud in
protecting an employee's right to employment benefits);
``(ii) the facilitation of credit checks or the
facilitation of background checks of employees, prospective
employees, and volunteers;
``(iii) compliance with any requirement related to the
social security program established under title II of the
Social Security Act (42 U.S.C. 401 et seq.); or
``(iv) the retrieval of other information from, or by,
other businesses, commercial enterprises, or private
nonprofit organizations,

except that, nothing in this subparagraph shall be construed
as permitting a professional or commercial user to display or
sell a social security number to the general public;
``(F) if the transfer of such a number is part of a data
matching program under the Computer Matching and Privacy
Protection Act of 1988 (5 U.S.C. 552a note) or any similar
computer data matching program involving a Federal, State, or
local agency; or
``(G) if such number is required to be submitted as part of
the process for applying for any type of Federal, State, or
local government benefit or program.
``(g) Civil Action in United States District Court;
Damages; Attorney's Fees and Costs.--
``(1) In general.--Any individual aggrieved by any act of
any person in violation of this section may bring a civil
action in a United States district court to recover--
``(A) such preliminary and equitable relief as the court
determines to be appropriate; and
``(B) the greater of--
``(i) actual damages;
``(ii) liquidated damages of $2,500; or
``(iii) in the case of a violation that was willful and
resulted in profit or monetary gain, liquidated damages of
$10,000.
``(2) Statute of limitations.--No action may be commenced
under this subsection more than 3 years after the date on
which the violation was or should reasonably have been
discovered by the aggrieved individual.
``(3) Nonexclusive remedy.--The remedy provided under this
subsection shall be in addition to any other remedy available
to the individual.
``(h) Civil Penalties.--
``(1) In general.--Any person who the Attorney General
determines has violated this section shall be subject, in
addition to any other penalties that may be prescribed by
law--
``(A) to a civil penalty of not more than $5,000 for each
such violation; and
``(B) to a civil penalty of not more than $50,000, if the
violations have occurred with such frequency as to constitute
a general business practice.
``(2) Determination of violations.--Any willful violation
committed contemporaneously with respect to the social
security numbers of 2 or more individuals by means of mail,
telecommunication, or otherwise, shall be treated as a
separate violation with respect to each such individual.
``(3) Enforcement procedures.--The provisions of section
1128A of the Social Security Act (42 U.S.C. 1320a-7a), other
than subsections (a), (b), (f), (h), (i), (j), (m), and (n)
and the first sentence of subsection (c) of such section, and
the provisions of subsections (d) and (e) of section 205 of
such Act (42 U.S.C. 405) shall apply to a civil penalty under
this subsection in the same manner as such provisions apply
to a penalty or proceeding under section 1128A(a) of such Act
(42 U.S.C. 1320a-7a(a)), except that, for purposes of this
paragraph, any reference in section 1128A of such Act (42
U.S.C. 1320a-7a) to the Secretary shall be deemed to be a
reference to the Attorney General.''.
(2) Conforming amendment.--The chapter analysis for chapter
47 of title 18, United States Code, is amended by inserting
after the item relating to section 1028 the following:

``1028A. Prohibition of the display, sale, or purchase of social
security numbers.''.

(b) Criminal Sanctions.--Section 208(a) of the Social
Security Act (42 U.S.C. 408(a)) is amended--
(1) in paragraph (8), by inserting ``or'' after the
semicolon; and
(2) by inserting after paragraph (8) the following new
paragraphs:
``(9) except as provided in paragraph (5) of section
1028A(a) of title 18, United States Code, knowingly and
willfully displays, sells, or purchases (as those terms are
defined in paragraph (1) of such section) any individual's
social security number (as defined in such paragraph) without
the affirmatively expressed consent of that individual after
having met the prerequisites for consent under paragraph (4)
of such section, electronically or in writing, with respect
to that individual; or
``(10) obtains any individual's social security number for
the purpose of locating or identifying the individual with
the intent to injure or to harm that individual, or to use
the identity of that individual for an illegal purpose;''.
(c) Effective Date.--Section 1028A of title 18, United
States Code (as added by subsection (a)), and section 208 of
the Social Security Act (42 U.S.C. 408) (as amended by
subsection (b)) shall take effect 30 days after the date on
which the final regulations promulgated under section 204(b)
are published in the Federal Register.

SEC. 203. NO PROHIBITION WITH RESPECT TO PUBLIC RECORDS.

(a) Public Records Exception.--
(1) In general.--Chapter 47 of title 18, United States Code
(as amended by section

[[Page S6342]]

202(a)(1)), is amended by inserting after section 1028A the
following:

``Sec. 1028B. No prohibition of the display, sale, or
purchase of social security numbers included in public
records

``(a) In General.--Nothing in section 1028A shall be
construed to prohibit or limit the display, sale, or purchase
of any public record which includes a social security number
that--
``(1) is incidentally included in a public record, as
defined in subsection (d);
``(2) is intended to be purchased, sold, or displayed
pursuant to an exception contained in section 1028A(f);
``(3) is intended to be purchased, sold, or displayed
pursuant to the consent provisions of subsections (b), (c),
and (e) of section 1028A; or
``(4) includes a redaction of the nonincidental occurrences
of the social security numbers when sold or displayed to
members of the general public.
``(b) Agency Requirements.--Each agency in possession of
documents that contain social security numbers which are
nonincidental, shall, with respect to such documents--
``(1) ensure that access to such numbers is restricted to
persons who may obtain them in accordance with applicable
law;
``(2) require an individual who is not exempt under section
1028A(f) to provide the social security number of the person
who is the subject of the document before making such
document available; or
``(3) redact the social security number from the document
prior to providing a copy of the requested document to an
individual who is not exempt under section 1028A(f) and who
is unable to provide the social security number of the person
who is the subject of the document.
``(c) Rule of Construction.--Nothing in this section shall
be used as a basis for permitting or requiring a State or
local government entity or other repository of public
documents to expand or to limit access to documents
containing social security numbers to entities covered by the
exception in section 1028A(f).
``(d) Definitions.--In this section:
``(1) Incidental.--The term `incidental' means that the
social security number is not routinely displayed in a
consistent and predictable manner on the public record by a
government entity, such as on the face of a document.
``(2) Public record.--The term `public record' means any
item, collection, or grouping of information about an
individual that is maintained by a Federal, State, or local
government entity and that is made available to the
public.''.
(2) Conforming amendment.--The chapter analysis for chapter
47 of title 18, United States Code (as amended by section
202(a)(2)), is amended by inserting after the item relating
to section 1028A the following:

``1028B. No prohibition of the display, sale, or purchase of social
security numbers included in public records.''.

SEC. 204. RULEMAKING AUTHORITY OF THE ATTORNEY GENERAL.

(a) In General.--Except as provided in subsection (b), the
Attorney General may prescribe such rules and regulations as
the Attorney General deems necessary to carry out the
provisions of section 202.
(b) Business-to-Business Commercial Display, Sale, or
Purchase Rulemaking.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Attorney General, in consultation
with the Commissioner of Social Security, the Federal Trade
Commission, and such other Federal agencies as the Attorney
General determines appropriate, may conduct such rulemaking
procedures in accordance with subchapter II of chapter 5 of
title 5, United States Code, as are necessary to promulgate
regulations to implement and clarify the business-to-business
provisions pertaining to section 1028A(f)(1)(E) of title 18,
United States Code (as added by section 202(a)(1)). The
Attorney General shall consult with other agencies to ensure,
where possible, that these provisions are consistent with
other privacy laws, including title V of the Gramm-Leach-
Bliley Act (15 U.S.C. 6801 et seq.).
(2) Factors to be considered.--In promulgating the
regulations required under paragraph (1), the Attorney
General shall, at a minimum, consider the following factors:
(A) The benefit to a particular business practice and to
the general public of the sale or purchase of an individual's
social security number.
(B) The risk that a particular business practice will
promote the use of the social security number to commit
fraud, deception, or crime.
(C) The presence of adequate safeguards to prevent the
misappropriation of social security numbers by the general
public, while permitting internal business uses of such
numbers.
(D) The implementation of procedures to prevent identity
thieves, stalkers, and others with ill intent from posing as
legitimate businesses to obtain social security numbers.

SEC. 205. TREATMENT OF SOCIAL SECURITY NUMBERS ON GOVERNMENT
DOCUMENTS.

(a) Prohibition of Use of Social Security Account Numbers
on Checks Issued for Payment by Governmental Agencies.--
(1) In general.--Section 205(c)(2)(C) of the Social
Security Act (42 U.S.C. 405(c)(2)(C)) is amended by adding at
the end the following new clause:
``(x) No Federal, State, or local agency may display the
social security account number of any individual, or any
derivative of such number, on any check issued for any
payment by the Federal, State, or local agency.''.
(2) Effective date.--The amendment made by this subsection
shall apply with respect to violations of section
205(c)(2)(C)(x) of the Social Security Act (42 U.S.C.
405(c)(2)(C)(x)), as added by paragraph (1), occurring after
the date that is 3 years after the date of enactment of this
Act.
(b) Prohibition of Appearance of Social Security Account
Numbers on Driver's Licenses or Motor Vehicle Registration.--
(1) In general.--Section 205(c)(2)(C)(vi) of the Social
Security Act (42 U.S.C. 405(c)(2)(C)(vi)) is amended--
(A) by inserting ``(I)'' after ``(vi)''; and
(B) by adding at the end the following new subclause:
``(II)(aa) An agency of a State (or political subdivision
thereof), in the administration of any driver's license or
motor vehicle registration law within its jurisdiction, may
not disclose the social security account numbers issued by
the Commissioner of Social Security, or any derivative of
such numbers, on any driver's license or motor vehicle
registration or any other document issued by such State (or
political subdivision thereof) to an individual for purposes
of identification of such individual.
``(bb) Nothing in this subclause shall be construed as
precluding an agency of a State (or political subdivision
thereof), in the administration of any driver's license or
motor vehicle registration law within its jurisdiction, from
using a social security account number for an internal use or
to link with the database of an agency of another State that
is responsible for the administration of any driver's license
or motor vehicle registration law.''.
(2) Effective date.--The amendment made by this subsection
shall apply with respect to licenses, registrations, and
other documents issued or reissued after the date that is 1
year after the date of enactment of this Act.
(c) Prohibition of Inmate Access to Social Security Account
Numbers.--
(1) In general.--Section 205(c)(2)(C) of the Social
Security Act (42 U.S.C. 405(c)(2)(C)) (as amended by
subsection (b)) is amended by adding at the end the following
new clause:
``(xi) No Federal, State, or local agency may employ, or
enter into a contract for the use or employment of, prisoners
in any capacity that would allow such prisoners access to the
social security account numbers of other individuals. For
purposes of this clause, the term `prisoner' means an
individual confined in a jail, prison, or other penal
institution or correctional facility pursuant to such
individual's conviction of a criminal offense.''.
(2) Effective date.--The amendment made by this subsection
shall apply with respect to employment of prisoners, or entry
into contract with prisoners, after the date that is 1 year
after the date of enactment of this Act.

SEC. 206. LIMITS ON PERSONAL DISCLOSURE OF A SOCIAL SECURITY
NUMBER FOR CONSUMER TRANSACTIONS.

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

``SEC. 1150A. LIMITS ON PERSONAL DISCLOSURE OF A SOCIAL
SECURITY NUMBER FOR CONSUMER TRANSACTIONS.

``(a) In General.--A commercial entity may not require an
individual to provide the individual's social security number
when purchasing a commercial good or service or deny an
individual the good or service for refusing to provide that
number except--
``(1) for any purpose relating to--
``(A) obtaining a consumer report for any purpose permitted
under the Fair Credit Reporting Act;
``(B) a background check of the individual conducted by a
landlord, lessor, employer, voluntary service agency, or
other entity as determined by the Attorney General;
``(C) law enforcement; or
``(D) a Federal or State law requirement; or
``(2) if the social security number is necessary to verify
identity and to prevent fraud with respect to the specific
transaction requested by the consumer and no other form of
identification can produce comparable information.
``(b) Other Forms of Identification.--Nothing in this
section shall be construed to prohibit a commercial entity
from--
``(1) requiring an individual to provide 2 forms of
identification that do not contain the social security number
of the individual; or
``(2) denying an individual a good or service for refusing
to provide 2 forms of identification that do not contain such
number.
``(c) Application of Civil Money Penalties.--A violation of
this section shall be deemed to be a violation of section
1129(a)(3)(F).
``(d) Application of Criminal Penalties.--A violation of
this section shall be deemed to be a violation of section
208(a)(8).''.
(b) Effective Date.--The amendment made by subsection (a)
shall apply to requests to provide a social security number
made on or after the date of enactment of this Act.

[[Page S6343]]

SEC. 207. EXTENSION OF CIVIL MONETARY PENALTIES FOR MISUSE OF
A SOCIAL SECURITY NUMBER.

(a) Treatment of Withholding of Material Facts.--
(1) Civil penalties.--The first sentence of section
1129(a)(1) of the Social Security Act (42 U.S.C. 1320a-
8(a)(1)) is amended--
(A) by striking ``who'' and inserting ``who--'';
(B) by striking ``makes'' and all that follows through
``shall be subject to'' and inserting the following:
``(A) makes, or causes to be made, a statement or
representation of a material fact, for use in determining any
initial or continuing right to or the amount of monthly
insurance benefits under title II or benefits or payments
under title VIII or XVI, that the person knows or should know
is false or misleading;
``(B) makes such a statement or representation for such use
with knowing disregard for the truth; or
``(C) omits from a statement or representation for such
use, or otherwise withholds disclosure of, a fact which the
individual knows or should know is material to the
determination of any initial or continuing right to or the
amount of monthly insurance benefits under title II or
benefits or payments under title VIII or XVI and the
individual knows, or should know, that the statement or
representation with such omission is false or misleading or
that the withholding of such disclosure is misleading,

shall be subject to'';
(C) by inserting ``or each receipt of such benefits while
withholding disclosure of such fact'' after ``each such
statement or representation'';
(D) by inserting ``or because of such withholding of
disclosure of a material fact'' after ``because of such
statement or representation''; and
(E) by inserting ``or such a withholding of disclosure''
after ``such a statement or representation''.
(2) Administrative procedure for imposing penalties.--The
first sentence of section 1129A(a) of the Social Security Act
(42 U.S.C. 1320a-8a(a)) is amended--
(A) by striking ``who'' and inserting ``who--''; and
(B) by striking ``makes'' and all that follows through
``shall be subject to'' and inserting the following new
paragraphs:
``(1) makes, or causes to be made, a statement or
representation of a material fact, for use in determining any
initial or continuing right to or the amount of monthly
insurance benefits under title II or benefits or payments
under title VIII or XVI, that the person knows or should know
is false or misleading;
``(2) makes such a statement or representation for such use
with knowing disregard for the truth; or
``(3) omits from a statement or representation for such
use, or otherwise withholds disclosure of, a fact which the
individual knows or should know is material to the
determination of any initial or continuing right to or the
amount of monthly insurance benefits under title II or
benefits or payments under title VIII or XVI and the
individual knows, or should know, that the statement or
representation with such omission is false or misleading or
that the withholding of such disclosure is misleading,

shall be subject to''.
(b) Application of Civil Money Penalties to Elements of
Criminal Violations.--Section 1129(a) of the Social Security
Act (42 U.S.C. 1320a-8(a)), as amended by subsection (a)(1),
is amended--
(1) by redesignating paragraph (2) as paragraph (4);
(2) by redesignating the last sentence of paragraph (1) as
paragraph (2) and inserting such paragraph after paragraph
(1); and
(3) by inserting after paragraph (2) (as so redesignated)
the following new paragraph:
``(3) Any person (including an organization, agency, or
other entity) who--
``(A) uses a social security account number that such
person knows or should know has been assigned by the
Commissioner of Social Security (in an exercise of authority
under section 205(c)(2) to establish and maintain records) on
the basis of false information furnished to the Commissioner
by any person;
``(B) falsely represents a number to be the social security
account number assigned by the Commissioner of Social
Security to any individual, when such person knows or should
know that such number is not the social security account
number assigned by the Commissioner to such individual;
``(C) knowingly alters a social security card issued by the
Commissioner of Social Security, or possesses such a card
with intent to alter it;
``(D) knowingly displays, sells, or purchases a card that
is, or purports to be, a card issued by the Commissioner of
Social Security, or possesses such a card with intent to
display, purchase, or sell it;
``(E) counterfeits a social security card, or possesses a
counterfeit social security card with intent to display,
sell, or purchase it;
``(F) discloses, uses, compels the disclosure of, or
knowingly displays, sells, or purchases the social security
account number of any person in violation of the laws of the
United States;
``(G) with intent to deceive the Commissioner of Social
Security as to such person's true identity (or the true
identity of any other person) furnishes or causes to be
furnished false information to the Commissioner with respect
to any information required by the Commissioner in connection
with the establishment and maintenance of the records
provided for in section 205(c)(2);
``(H) offers, for a fee, to acquire for any individual, or
to assist in acquiring for any individual, an additional
social security account number or a number which purports to
be a social security account number; or
``(I) being an officer or employee of a Federal, State, or
local agency in possession of any individual's social
security account number, willfully acts or fails to act so as
to cause a violation by such agency of clause (vi)(II) or (x)
of section 205(c)(2)(C)

shall be subject to, in addition to any other penalties that
may be prescribed by law, a civil money penalty of not more
than $5,000 for each violation. Such person shall also be
subject to an assessment, in lieu of damages sustained by the
United States resulting from such violation, of not more than
twice the amount of any benefits or payments paid as a result
of such violation.''.
(c) Clarification of Treatment of Recovered Amounts.--
Section 1129(e)(2)(B) of the Social Security Act (42 U.S.C.
1320a-8(e)(2)(B)) is amended by striking ``In the case of
amounts recovered arising out of a determination relating to
title VIII or XVI,'' and inserting ``In the case of any other
amounts recovered under this section,''.
(d) Conforming Amendments.--
(1) Section 1129(b)(3)(A) of the Social Security Act (42
U.S.C. 1320a-8(b)(3)(A)) is amended by striking ``charging
fraud or false statements''.
(2) Section 1129(c)(1) of the Social Security Act (42
U.S.C. 1320a-8(c)(1)) is amended by striking ``and
representations'' and inserting ``, representations, or
actions''.
(3) Section 1129(e)(1)(A) of the Social Security Act (42
U.S.C. 1320a-8(e)(1)(A)) is amended by striking ``statement
or representation referred to in subsection (a) was made''
and inserting ``violation occurred''.
(e) Effective Dates.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall apply with respect to
violations of sections 1129 and 1129A of the Social Security
Act (42 U.S.C. 1320-8 and 1320a-8a), as amended by this
section, committed after the date of enactment of this Act.
(2) Violations by government agents in possession of social
security numbers.--Section 1129(a)(3)(I) of the Social
Security Act (42 U.S.C. 1320a-8(a)(3)(I)), as added by
subsection (b), shall apply with respect to violations of
that section occurring on or after the effective date under
section 202(c).

TITLE III--LIMITATIONS ON SALE AND SHARING OF NONPUBLIC PERSONAL
FINANCIAL INFORMATION

SEC. 301. DEFINITION OF SALE.

Section 509 of the Gramm-Leach-Bliley Act (15 U.S.C. 6809)
is amended by adding at the end the following:
``(12) Sale.--The terms `sale', `sell', and `sold', with
respect to nonpublic personal information, mean the exchange
of such information for any thing of value, directly or
indirectly, including the licensing, bartering, or renting of
such information.''.

SEC. 302. RULES APPLICABLE TO SALE OF NONPUBLIC PERSONAL
INFORMATION.

Section 502 of the Gramm-Leach-Bliley Act (15 U.S.C. 6802)
is amended--
(1) in the section heading, by inserting ``and sales''
after ``disclosures'';
(2) in subsection (a), by inserting ``or sell'' after
``disclose'';
(3) in subsection (b)--
(A) in the heading, by inserting ``for Certain
Disclosures'' before the period; and
(B) by adding at the end the following:
``(3) Limitation.--Paragraphs (1) and (2) do not apply to
the sale of nonpublic personal information.'';
(4) by striking subsection (e);
(5) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(6) by inserting after subsection (b) the following:
``(c) Opt-In for Sale of Information.--
``(1) Affirmative consent required.--Each agency or
authority described in section 504(a) shall, by rule
prescribed under that section, prohibit a financial
institution that is subject to its jurisdiction from selling
any nonpublic personal information to any nonaffiliated third
party, unless the consumer to whom the information pertains--
``(A) has affirmatively consented in accordance with such
rule to the sale of such information; and
``(B) has not withdrawn the consent.
``(2) Denial of service prohibited.--The rule prescribed
pursuant to paragraph (1) shall prohibit a financial
institution from denying any consumer a financial product or
a financial service for the refusal by the consumer to grant
the consent required by such rule.''.

SEC. 303. EXCEPTIONS TO SALE PROHIBITION.

Section 502 of the Gramm-Leach-Bliley Act (15 U.S.C. 6802),
as amended by this title, is amended by adding at the end the
following:
``(f) General Exceptions.--This section does not prohibit--
``(1) the sale or other disclosure of nonpublic personal
information to a nonaffiliated third party--
``(A) as necessary to effect, administer, or enforce a
transaction requested or authorized by the consumer to whom
the information pertains, or in connection with--
``(i) servicing or processing a financial product or
service requested or authorized by the consumer;

[[Page S6344]]

``(ii) maintaining or servicing the account of the consumer
with the financial institution, or with another entity as
part of a private label credit card program or other
extension of credit on behalf of such entity; or
``(iii) a proposed or actual securitization, secondary
market sale (including sales of servicing rights), or similar
transaction related to a transaction of the consumer;
``(B) with the consent or at the direction of the consumer,
in accordance with applicable rules prescribed under this
subtitle;
``(C) to the extent specifically permitted or required
under other provisions of law and in accordance with the
Right to Financial Privacy Act of 1978; or
``(D) to law enforcement agencies (including a Federal
functional regulator, the Secretary of the Treasury, with
respect to subchapter II of chapter 53 of title 31, United
States Code, and chapter 2 of title I of Public Law 91-508
(12 U.S.C. 1951-1959), a State insurance authority, or the
Federal Trade Commission), self-regulatory organizations, or
for an investigation on a matter related to public safety; or
``(2) the disclosure, other than the sale, of nonpublic
personal information--
``(A) to protect the confidentiality or security of the
records of the financial institution pertaining to the
consumer, the service or product, or the transaction therein;
``(B) to protect against or prevent actual or potential
fraud, unauthorized transactions, claims, or other liability;
``(C) for required institutional risk control, or for
resolving customer disputes or inquiries;
``(D) to persons holding a legal or beneficial interest
relating to the consumer;
``(E) to persons acting in a fiduciary or representative
capacity on behalf of the consumer;
``(F) to provide information to insurance rate advisory
organizations, guaranty funds or agencies, applicable rating
agencies of the financial institution, persons assessing the
compliance of the institution with industry standards, or the
attorneys, accountants, or auditors of the institution;
``(G) to a consumer reporting agency, in accordance with
the Fair Credit Reporting Act or from a consumer report
reported by a consumer reporting agency, as those terms are
defined in that Act;
``(H) in connection with a proposed or actual sale, merger,
transfer, or exchange of all or a portion of a business or
operating unit if the disclosure of nonpublic personal
information concerns solely consumers of such business or
unit;
``(I) to comply with Federal, State, or local laws, rules,
or other applicable legal requirements, or with a properly
authorized civil, criminal, or regulatory investigation or
subpoena or summons by Federal, State, or local authorities;
or
``(J) to respond to judicial process or government
regulatory authorities having jurisdiction over the financial
institution for examination, compliance, or other purposes,
as authorized by law.''.

SEC. 304. EFFECTIVE DATE.

This title shall take effect 6 months after the date on
which the rules are required to be prescribed under section
504(a)(3).

TITLE IV--LIMITATIONS ON THE PROVISION OF PROTECTED HEALTH INFORMATION

SEC. 401. DEFINITIONS.

In this title:
(1) Business associate.--
(A) In general.--Except as provided in subparagraph (B),
the term ``business associate'' means, with respect to a
covered entity, a person who--
(i) on behalf of such covered entity or of an organized
health care arrangement in which the covered entity
participates, but other than in the capacity of a member of
the workforce of such covered entity or arrangement,
performs, or assists in the performance of--

(I) a function or activity involving the use or disclosure
of individually identifiable health information, including
claims processing or administration, data analysis,
processing or administration, utilization review, quality
assurance, billing, benefit management, practice management,
and repricing; or
(II) any other function or activity regulated under parts
160 through 164 of title 45, Code of Federal Regulations; or

(ii) provides, other than in the capacity of a member of
the workforce of such covered entity, legal, actuarial,
accounting, consulting, data aggregation, management,
administrative, accreditation, or financial services to or
for such covered entity, or to or for an organized health
care arrangement in which the covered entity participates,
where the provision of the service involves the disclosure of
individually identifiable health information from such
covered entity or arrangement, or from another business
associate of such covered entity or arrangement, to the
person.
(B) Limitations.--
(i) In general.--A covered entity participating in an
organized health care arrangement that performs a function or
activity as described by subparagraph (A)(i) for or on behalf
of such organized health care arrangement, or that provides a
service as described in subparagraph (A)(ii) to or for such
organized health care arrangement, does not, simply through
the performance of such function or activity or the provision
of such service, become a business associate of other covered
entities participating in such organized health care
arrangement.
(ii) Limitation.--A covered entity may be a business
associate of another covered entity.
(2) Covered entity.--The term ``covered entity'' means--
(A) a health plan;
(B) a health care clearinghouse; and
(C) a health care provider who transmits any health
information in electronic form in connection with a
transaction covered by parts 160 through 164 of title 45,
Code of Federal Regulations.
(3) Disclosure.--The term ``disclosure'' means the release,
transfer, provision of access to, or divulging in any other
manner of information outside the entity holding the
information.
(4) Employer.--The term ``employer'' means a person or
organization for whom an individual performs or has performed
any service, of whatever nature, as the employee of that
person or organization, except that--
(A) if the person for whom the individual performs or has
performed the service does not have control of the payment of
wages for such service, the term ``employer'' means the
person having control of the payment of those wages; and
(B) in the case of a person paying wages on behalf of a
nonresident alien individual, foreign partnership, or foreign
corporation, not engaged in trade or business within the
United States, the term ``employer'' means that person.
(5) Group health plan.--The term ``group health plan''
means an employee welfare benefit plan (as defined in section
3(1) of the Employee Retirement Income and Security Act of
1974 (29 U.S.C. 1002(1)), including insured and self-insured
plans, to the extent that the plan provides medical care (as
defined in section 2791(a)(2) of the Public Health Service
Act, 42 U.S.C. 300gg-91(a)(2)), including items and services
paid for as medical care, to employees or their dependents
directly or through insurance, reimbursement, or otherwise,
that--
(A) has 50 or more participants (as defined in section 3(7)
of Employee Retirement Income and Security Act of 1974, 29
U.S.C. 1002(7)); or
(B) is administered by an entity other than the employer
that established and maintains the plan.
(6) Health care.--The term ``health care'' means care,
services, or supplies related to the health of an individual,
including--
(A) preventive, diagnostic, therapeutic, rehabilitative,
maintenance, or palliative care and counseling services,
assessment, or procedure with respect to the physical or
mental condition, or functional status, of an individual or
that affects the structure or function of the body; and
(B) a sale or dispensing of a drug, device, equipment, or
other item in accordance with a prescription.
(7) Health care clearinghouse.--The term ``health care
clearinghouse'' means a public or private entity, including a
billing service, repricing company, community health
management information system or community health information
system, and value-added networks and switches, that--
(A) processes or facilitates the processing of health
information received from another entity in a nonstandard
format or containing nonstandard data content into standard
data elements or a standard transaction; or
(B) receives a standard transaction from another entity and
processes or facilitates the processing of health information
into nonstandard format or nonstandard data content for the
receiving entity.
(8) Health care provider.--The term ``health care
provider'' has the same meaning given the terms ``provider of
services'' and ``provider of medical or health services'' in
subsections (u) and (s) of section 1861 of the Social
Security Act (42 U.S.C. 1395x), and includes any other person
or organization who furnishes, bills, or is paid for health
care in the normal course of business.
(9) Health information.--The term ``health information''
means any information, whether oral or recorded in any form
or medium, that--
(A) is created or received by a health care provider,
health plan, public health authority, employer, life insurer,
school or university, or health care clearinghouse; and
(B) relates to the past, present, or future physical or
mental health or condition of an individual; the provision of
health care to an individual; or the past, present, or future
payment for the provision of health care to an individual.
(10) Health insurance issuer.--The term ``health insurance
issuer'' means a health insurance issuer (as defined in
section 2791(b)(2) of the Public Health Service Act, 42
U.S.C. 300gg-91(b)(2)) and used in the definition of health
plan in this section and includes an insurance company,
insurance service, or insurance organization (including an
HMO) that is licensed to engage in the business of insurance
in a State and is subject to State law that regulates
insurance. Such term does not include a group health plan.
(11) Health maintenance organization.--The term ``health
maintenance organization'' (HMO) (as defined in section
2791(b)(3) of the Public Health Service Act, 42 U.S.C. 300gg-
91 (b)(3)) and used in the definition of health plan in this
section, means a federally qualified HMO, an organization
recognized as an HMO under State law, or a similar
organization regulated for solvency under State law in the
same manner and to the same extent as such an HMO.

[[Page S6345]]

(12) Health oversight agency.--The term ``health oversight
agency'' means an agency or authority of the United States, a
State, a territory, a political subdivision of a State or
territory, or an Indian tribe, or a person or entity acting
under a grant of authority from or contract with such public
agency, including the employees or agents of such public
agency or its contractors or persons or entities to whom it
has granted authority, that is authorized by law to oversee
the health care system (whether public or private) or
government programs in which health information is necessary
to determine eligibility or compliance, or to enforce civil
rights laws for which health information is relevant.
(13) Health plan.--The term ``health plan'' means an
individual or group plan that provides, or pays the cost of,
medical care, as defined in section 2791(a)(2) of the Public
Health Service Act (42 U.S.C. 300gg-91(a)(2))--
(A) including, singly or in combination--
(i) a group health plan;
(ii) a health insurance issuer;
(iii) an HMO;
(iv) part A or B of the medicare program under title XVIII
of the Social Security Act (42 U.S.C. 1395 et seq.);
(v) the medicaid program under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.);
(vi) an issuer of a medicare supplemental policy (as
defined in section 1882(g)(1) of the Social Security Act, 42
U.S.C. 1395ss(g)(1));
(vii) an issuer of a long-term care policy, excluding a
nursing home fixed-indemnity policy;
(viii) an employee welfare benefit plan or any other
arrangement that is established or maintained for the purpose
of offering or providing health benefits to the employees of
2 or more employers;
(ix) the health care program for active military personnel
under title 10, United States Code;
(x) the veterans health care program under chapter 17 of
title 38, United States Code;
(xi) the Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS) (as defined in section 1072(4)
of title 10, United States Code);
(xii) the Indian Health Service program under the Indian
Health Care Improvement Act (25 U.S.C. 1601 et seq.);
(xiii) the Federal Employees Health Benefits Program under
chapter 89 of title 5, United States Code;
(xiv) an approved State child health plan under title XXI
of the Social Security Act (42 U.S.C. 1397aa et seq.),
providing benefits for child health assistance that meet the
requirements of section 2103 of such Act (42 U.S.C. 1397cc);
(xv) the Medicare+Choice program under part C of title
XVIII of the Social Security Act (42 U.S.C. 1395w-21 et
seq.);
(xvi) a high risk pool that is a mechanism established
under State law to provide health insurance coverage or
comparable coverage to eligible individuals; and
(xvii) any other individual or group plan, or combination
of individual or group plans, that provides or pays for the
cost of medical care (as defined in section 2791(a)(2) of the
Public Health Service Act (42 U.S.C. 300gg-91(a)(2)); and
(B) excluding--
(i) any policy, plan, or program to the extent that it
provides, or pays for the cost of, excepted benefits that are
listed in section 2791(c)(1) of the Public Health Service Act
(42 U.S.C. 300gg-91(c)(1); and
(ii) a government-funded program (other than 1 listed in
clause (i) through (xvi) of paragraph (1)), whose principal
purpose is other than providing, or paying the cost of,
health care, or whose principal activity is the direct
provision of health care to persons, or the making of grants
to fund the direct provision of health care to persons.
(14) Individually identifiable health information.--The
term ``individually identifiable health information'' means
information that is a subset of health information, including
demographic information collected from an individual, that--
(A) is created or received by a covered entity or employer;
and
(B)(i) relates to the past, present, or future physical or
mental health or condition of an individual, the provision of
health care to an individual, or the past, present, or future
payment for the provision of health care to an individual;
and
(ii)(I) identifies an individual; or
(II) with respect to which there is a reasonable basis to
believe that the information can be used to identify an
individual.
(15) Law enforcement official.--The term ``law enforcement
official'' means an officer or employee of any agency or
authority of the United States, a State, a territory, a
political subdivision of a State or territory, or an Indian
tribe, who is empowered by law to--
(A) investigate or conduct an official inquiry into a
potential violation of law; or
(B) prosecute or otherwise conduct a criminal, civil, or
administrative proceeding arising from an alleged violation
of law.
(16) Life insurer.--The term ``life insurer'' means a life
insurance company (as defined in section 816 of the Internal
Revenue Code of 1986), including the employees and agents of
such company.
(17) Marketing.--
(A) In general.--The term ``marketing'' means to make a
communication about a product or service a purpose of which
is to encourage recipients of the communication to purchase
or use the product or service.
(B) Limitation.--Such term does not include communications
that meet the requirements of subparagraph (C) and that are
made by a covered entity--
(i) for the purpose of describing the entities
participating in a health care provider network or health
plan network, or for the purpose of describing if and the
extent to which a product or service (or payment for such
product or service) is provided by a covered entity or
included in a plan of benefits; or
(ii) that are tailored to the circumstances of a particular
individual and the communications are--

(I) made by a health care provider to an individual as part
of the treatment of the individual, and for the purpose of
furthering the treatment of that individual; or
(II) made by a health care provider to an individual in the
course of managing the treatment of that individual, or for
the purpose of directing or recommending to that individual
alternative treatments, therapies, health care providers, or
settings of care.

(C) Not included.--A communication described in
subparagraph (B) is not included in marketing if--
(i) the communication is made orally; or
(ii) the communication is in writing and the covered entity
does not receive direct or indirect remuneration from a third
party for making the communication.
(18) Noncovered entity.--
(A) In general.--The term ``noncovered entity'' means any
person or public or private entity, including but not limited
to a health researcher, school or university, life insurer,
employer, public health authority, health oversight agency,
or law enforcement official, or any person acting as an agent
of such entities or persons, that is not a covered entity.
(B) Limitation.--The term ``noncovered entity'' includes a
covered entity if such covered entity is acting as a business
associate.
(19) Organized health care arrangement.--The term
``organized health care arrangement'' means--
(A) a clinically integrated care setting in which
individuals typically receive health care from more than 1
health care provider;
(B) an organized system of health care in which more than 1
covered entity participates, and in which the participating
covered entities--
(i) hold themselves out to the public as participating in a
joint arrangement; and
(ii) participate in joint activities including at least--

(I) utilization review, in which health care decisions by
participating covered entities are reviewed by other
participating covered entities or by a third party on their
behalf;
(II) quality assessment and improvement activities, in
which treatment provided by participating covered entities is
assessed by other participating covered entities or by a
third party on their behalf; or
(III) payment activities, if the financial risk for
delivering health care is shared, in part or in whole, by
participating covered entities through the joint arrangement
and if protected health information created or received by a
covered entity is reviewed by other participating covered
entities or by a third party on their behalf for the purpose
of administering the sharing of financial risk;

(C) a group health plan and a health insurance issuer or
HMO with respect to such group health plan, but only with
respect to protected health information created or received
by such health insurance issuer or HMO that relates to
individuals who are or who have been participants or
beneficiaries in such group health plan;
(D) a group health plan and 1 or more other group health
plans each of which are maintained by the same plan sponsor;
or
(E) the group health plans described in subparagraph (D)
and health insurance issuers or HMOs with respect to such
group health plans, but only with respect to protected health
information created or received by such health insurance
issuers or HMOs that relates to individuals who are or have
been participants or beneficiaries in any of such group
health plans.
(20) Protected health information.--The term ``protected
health information'' means individually identifiable health
information that is in any form or medium. The term does not
include individually identifiable health information in
education records covered by section 444 of the General
Education Provisions Act (20 U.S.C. 1232g).
(21) Public health authority.--The term ``public health
authority'' means an agency or authority of the United
States, a State, a territory, a political subdivision of a
State or territory, or an Indian tribe, or a person or entity
acting under a grant of authority from or contract with such
public agency, including employees or agents of such public
agency or its contractors or persons or entities to whom it
has granted authority, that is responsible for public health
matters as part of its official mandate.
(22) School or university.--The term ``school or
university'' means an institution or place for instruction or
education, including an elementary school, secondary school,
or institution of higher learning, a college, or an
assemblage of colleges united under 1 corporate organization
or government.
(23) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(24) Sale; sell; sold.--The terms ``sale'', ``sell'', and
``sold'', with respect to protected health information, mean
the exchange of

[[Page S6346]]

such information for anything of value, directly or
indirectly, including the licensing, bartering, or renting of
such information.
(25) Use.--The term ``use'' means, with respect to
individually identifiable health information, the sharing,
employment, application, utilization, examination, or
analysis of such information within an entity that maintains
such information.
(26) Writing.--The term ``writing'' means writing in either
a paper-based or computer-based form, including electronic
and digital signatures.

SEC. 402. PROHIBITION AGAINST SELLING PROTECTED HEALTH
INFORMATION.

(a) In General.--A noncovered entity shall not sell the
protected health information of an individual without an
authorization that is valid under section 403. When a
noncovered entity obtains or receives authorization to sell
such information, such sale must be consistent with such
authorization.
(b) Scope.--A sale of protected health information as
described under subsection (a) shall be limited to the
minimum amount of information necessary to accomplish the
purpose for which the sale is made.
(c) Purpose.--A recipient of information sold pursuant to
this title may use or disclose such information solely to
carry out the purpose for which the information was sold.
(d) Not Required.--Nothing in this title permitting the
sale of protected health information shall be construed to
require such sale.
(e) Identification of Information as Protected Health
Information.--Information sold pursuant to this title shall
be clearly identified as protected health information.
(f) No Waiver.--Except as provided in this title, an
individual's authorization to sell protected health
information shall not be construed as a waiver of any rights
that the individual has under other Federal or State laws,
the rules of evidence, or common law.

SEC. 403. AUTHORIZATION FOR SALE OF PROTECTED HEALTH
INFORMATION.

(a) Valid Authorization.--A valid authorization is a
document that complies with all requirements of this section.
Such authorization may include additional information not
required under this section, provided that such information
is not inconsistent with the requirements of this section.
(b) Defective Authorization.--An authorization is not
valid, if the document submitted has any of the following
defects:
(1) The expiration date has passed or the expiration event
is known by the noncovered entity to have occurred.
(2) The authorization has not been filled out completely,
with respect to an element described in subsections (e) and
(f).
(3) The authorization is known by the noncovered entity to
have been revoked.
(4) The authorization lacks an element required by
subsections (e) and (f).
(5) Any material information in the authorization is known
by the noncovered entity to be false.
(c) Revocation of Authorization.--An individual may revoke
an authorization provided under this section at any time
provided that the revocation is in writing, except to the
extent that the noncovered entity has taken action in
reliance thereon.
(d) Documentation.--
(1) In general.--A noncovered entity must document and
retain any signed authorization under this section as
required under paragraph (2).
(2) Standard.--A noncovered entity shall, if a
communication is required by this title to be in writing,
maintain such writing, or an electronic copy, as
documentation.
(3) Retention period.--A noncovered entity shall retain the
documentation required by this section for 6 years from the
date of its creation or the date when it last was in effect,
whichever is later.
(e) Content of Authorization.--
(1) Content.--An authorization described in subsection (a)
shall--
(A) contain a description of the information to be sold
that identifies such information in a specific and meaningful
manner;
(B) contain the name or other specific identification of
the person, or class of persons, authorized to sell the
information;
(C) contain the name or other specific identification of
the person, or class of persons, to whom the information is
to be sold;
(D) include an expiration date or an expiration event
relating to the selling of such information that signifies
that the authorization is valid until such date or event;
(E) include a statement that the individual has a right to
revoke the authorization in writing and the exceptions to the
right to revoke, and a description of the procedure involved
in such revocation;
(F) be in writing and include the signature of the
individual and the date, or if the authorization is signed by
a personal representative of the individual, a description of
such representative's authority to act for the individual;
and
(G) include a statement explaining the purpose for which
such information is sold.
(2) Plain language.--The authorization shall be written in
plain language.
(f) Notice.--
(1) In general.--The authorization shall include a
statement that the individual may--
(A) inspect or copy the protected health information to be
sold; and
(B) refuse to sign the authorization.
(2) Copy to the individual.--A noncovered entity shall
provide the individual with a copy of the signed
authorization.
(g) Model Authorizations.--The Secretary, after notice and
opportunity for public comment, shall develop and disseminate
model written authorizations of the type described in this
section and model statements of the limitations on such
authorizations. Any authorization obtained on a model
authorization form developed by the Secretary pursuant to the
preceding sentence shall be deemed to satisfy the
requirements of this section.
(h) Noncoercion.--A covered entity or noncovered entity
shall not condition the purchase of a product or the
provision of a service to an individual based on whether such
individual provides an authorization to such entity as
described in this section.

SEC. 404. PROHIBITION AGAINST RETALIATION.

A noncovered entity that collects protected health
information, may not adversely affect another person,
directly or indirectly, because such person has exercised a
right under this title, disclosed information relating to a
possible violation of this title, or associated with, or
assisted, a person in the exercise of a right under this
title.

SEC. 405. PROHIBITION AGAINST MARKETING PROTECTED HEALTH
INFORMATION.

(a) In General.--Notwithstanding any other provision of
law, a covered entity or noncovered entity shall not use,
disclose, or sell protected health information for marketing
without an authorization that is valid under subsection (c),
except as provided in subsection (b).
(b) Exception.--A health care provider may use or disclose
protected health information for marketing without an
authorization when it uses or discloses such information to
make a marketing communication to an individual if the
communication occurs in a face-to-face encounter between the
health care provider and the individual.
(c) Authorization.--
(1) In general.--An authorization under subsection (a)
shall--
(A) contain a description of the information to be used,
disclosed, or sold that identifies such information in a
specific and meaningful manner;
(B) contain the name or other specific identification of
the person, or class of persons, authorized to use, disclose,
or sell the information;
(C) identify persons to whom the information is to be
provided or sold;
(D) include an expiration date or an expiration event
relating to the use, disclosure, or sale of such information
that signifies that the authorization is valid until such
date or event;
(E) include a statement that the individual has a right to
revoke the authorization in writing and that there are
exceptions to the right to revoke, and a description of the
procedure involved in such revocation;
(F) be in writing and include the signature of the
individual and the date, or if the authorization is signed by
a personal representative of the individual, a description of
such representative's authority to act for the individual;
and
(G) include a statement explaining the purpose for which
such information is used, disclosed, or sold.
(2) Plain language.--The authorization must be written in
plain language.
(d) Notice.--The authorization shall include a statement
that the individual may--
(1) inspect or copy the protected health information to be
marketed as provided under section 164.524 of title 45, Code
of Federal Regulations (or a successor regulation); and
(2) refuse to sign the authorization.
(e) Documentation.--A covered entity shall retain such
documentation as required for any use, disclosure, or sale,
as described under section 403(d).
(f) Rescission of Individually Identifiable Health
Information Regulation.--Effective as of December 28, 2000--
(1) section 164.514(e) of title 45, Code of Federal
Regulations (relating to standards for uses and disclosures
of protected health information for marketing), promulgated
by the Secretary of Health and Human Services in the final
rule entitled ``Standards for Privacy of Individually
Identifiable Health Information'' (65 Fed. Reg. 82462
(December 28, 2000)) is void; and
(2) section 164.514 shall take effect as if subsection (e)
of such section had not been included in the promulgation of
the final regulation.
(g) Noncoercion.--A covered entity or noncovered entity
shall not condition the purchase of a product or the
provision of a service to an individual based on whether such
individual provides an authorization to such entity as
described in this section.

SEC. 406. RULE OF CONSTRUCTION.

Except for the provisions of section 405, all requirements
of this title shall not be construed to impose any additional
requirements or in any way alter the requirements imposed
upon covered entities under parts 160 through 164 of title
45, Code of Federal Regulations.

SEC. 407. REGULATIONS.

(a) In General.--The Secretary shall promulgate regulations
implementing the provisions of this title.
(b) Timeframe.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall publish proposed
regulations in the Federal Register. With regard to such
proposed regulations, the Secretary shall provide an
opportunity for submission of comments by interested persons
during a period of not less than 90 days. Not later than

[[Page S6347]]

2 years after the date of enactment of this Act, the
Secretary shall publish final regulations in the Federal
Register.

SEC. 408. ENFORCEMENT.

(a) In General.--A covered entity or noncovered entity that
knowingly violates section 402 or 405 shall be subject to a
civil money penalty under this section.
(b) Amount.--The civil money penalty described in
subsection (a) shall not exceed $100,000. In determining the
amount of any penalty to be assessed, the Secretary shall
take into account the previous record of compliance of the
entity being assessed with the applicable provisions of this
title and the gravity of the violation.
(c) Administrative Review.--
(1) Opportunity for hearing.--The entity assessed shall be
afforded an opportunity for a hearing by the Secretary upon
request made within 30 days after the date of the issuance of
a notice of assessment. In such hearing the decision shall be
made on the record pursuant to section 554 of title 5, United
States Code. If no hearing is requested, the assessment shall
constitute a final and unappealable order.
(2) Hearing procedure.--If a hearing is requested, the
initial agency decision shall be made by an administrative
law judge, and such decision shall become the final order
unless the Secretary modifies or vacates the decision. Notice
of intent to modify or vacate the decision of the
administrative law judge shall be issued to the parties
within 30 days after the date of the decision of the judge. A
final order which takes effect under this paragraph shall be
subject to review only as provided under subsection (d).
(d) Judicial Review.--
(1) Filing of action for review.--Any entity against whom
an order imposing a civil money penalty has been entered
after an agency hearing under this section may obtain review
by the United States district court for any district in which
such entity is located or the United States District Court
for the District of Columbia by filing a notice of appeal in
such court within 30 days from the date of such order, and
simultaneously sending a copy of such notice by registered
mail to the Secretary.
(2) Certification of administrative record.--The Secretary
shall promptly certify and file in such court the record upon
which the penalty was imposed.
(3) Standard for review.--The findings of the Secretary
shall be set aside only if found to be unsupported by
substantial evidence as provided by section 706(2)(E) of
title 5, United States Code.
(4) Appeal.--Any final decision, order, or judgment of the
district court concerning such review shall be subject to
appeal as provided in chapter 83 of title 28 of such Code.
(e) Failure To Pay Assessment; Maintenance of Action.--
(1) Failure to pay assessment.--If any entity fails to pay
an assessment after it has become a final and unappealable
order, or after the court has entered final judgment in favor
of the Secretary, the Secretary shall refer the matter to the
Attorney General who shall recover the amount assessed by
action in the appropriate United States district court.
(2) Nonreviewability.--In such action the validity and
appropriateness of the final order imposing the penalty shall
not be subject to review.
(f) Payment of Penalties.--Except as otherwise provided,
penalties collected under this section shall be paid to the
Secretary (or other officer) imposing the penalty and shall
be available without appropriation and until expended for the
purpose of enforcing the provisions with respect to which the
penalty was imposed.

TITLE V--DRIVER'S LICENSE PRIVACY

SEC. 501. DRIVER'S LICENSE PRIVACY.

Section 2725 of title 18, United States Code, is amended by
striking paragraphs (2) and (3) and adding the following:
``(2) `person' means an individual, organization, or
entity, but does not include a State or agency thereof;
``(3) `personal information' means information that
identifies an individual, including an individual's
photograph, social security number, driver identification
number, name, address (but not the 5-digit zip code),
telephone number, medical or disability information, any
physical copy of a driver's license, birth date, information
on physical characteristics, including height, weight, sex or
eye color, or any biometric identifiers on a license,
including a finger print, but not information on vehicular
accidents, driving violations, and driver's status; and
``(4) `highly restricted personal information' means an
individual's photograph or image, social security number,
medical or disability information, any physical copy of a
driver's license, driver identification number, birth date,
information on physical characteristics, including height,
weight, sex, or eye color, or any biometric identifiers on a
license, including a finger print.''.

TITLE VI--MISCELLANEOUS

SEC. 601. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

(a) In General.--
(1) Civil actions.--In any case in which the attorney
general of a State has reason to believe that an interest of
the residents of that State has been or is threatened or
adversely affected by the engagement of any person in a
practice that is prohibited under title I, II, or IV of this
Act or under any amendment made by such a title, the State,
as parens patriae, may bring a civil action on behalf of the
residents of the State in a district court of the United
States of appropriate jurisdiction to--
(A) enjoin that practice;
(B) enforce compliance with such titles or such amendments;
(C) obtain damage, restitution, or other compensation on
behalf of residents of the State; or
(D) obtain such other relief as the court may consider to
be appropriate.
(2) Notice.--
(A) In general.--Before filing an action under paragraph
(1), the attorney general of the State involved shall provide
to the Attorney General--
(i) written notice of the action; and
(ii) a copy of the complaint for the action.
(B) Exemption.--
(i) In general.--Subparagraph (A) shall not apply with
respect to the filing of an action by an attorney general of
a State under this subsection, if the State attorney general
determines that it is not feasible to provide the notice
described in such subparagraph before the filing of the
action.
(ii) Notification.--In an action described in clause (i),
the attorney general of a State shall provide notice and a
copy of the complaint to the Attorney General at the same
time as the State attorney general files the action.
(b) Intervention.--
(1) In general.--On receiving notice under subsection
(a)(2), the Attorney General shall have the right to
intervene in the action that is the subject of the notice.
(2) Effect of intervention.--If the Attorney General
intervenes in an action under subsection (a), the Attorney
General shall have the right to be heard with respect to any
matter that arises in that action.
(c) Construction.--For purposes of bringing any civil
action under subsection (a), nothing in this Act shall be
construed to prevent an attorney general of a State from
exercising the powers conferred on such attorney general by
the laws of that State to--
(1) conduct investigations;
(2) administer oaths or affirmations; or
(3) compel the attendance of witnesses or the production of
documentary and other evidence.
(d) Actions by the Attorney General of the United States.--
In any case in which an action is instituted by or on behalf
of the Attorney General for violation of a practice that is
prohibited under title I, II, IV, or V of this Act or under
any amendment made by such a title, no State may, during the
pendency of that action, institute an action under subsection
(a) against any defendant named in the complaint in that
action for violation of that practice.
(e) Venue; Service of Process.--
(1) Venue.--Any action brought under subsection (a) may be
brought in the district court of the United States that meets
applicable requirements relating to venue under section 1391
of title 28, United States Code.
(2) Service of process.--In an action brought under
subsection (a), process may be served in any district in
which the defendant--
(A) is an inhabitant; or
(B) may be found.

SEC. 602. FEDERAL INJUNCTIVE AUTHORITY.

In addition to any other enforcement authority conferred
under this Act or under an amendment made by this Act, the
Federal Government shall have injunctive authority with
respect to any violation of any provision of title I, II, or
IV of this Act or of any amendment made by such a title,
without regard to whether a public or private entity violates
such provision.
______

By Mrs. MURRAY (for herself, Mrs. Boxer, Ms. Cantwell, Mr.
Kennedy, Ms. Landrieu, Mr. Schumer):
S. 1056. A bill to authorize grants for community telecommunications
infrastructure planning, and for other purposes; to the Committee on
Commerce, Science, and Transportation.
Mrs. MURRAY. Mr. President, I rise today to introduce legislation to
help rural and underserved communities across the country get connected
to the information economy.
Today I am introducing the Community Telecommunication Planning Act
of 2001. I am proud to have Senators Boxer, Landrieu, Kennedy,
Cantwell, and Schumer as original cosponsors. This bill will give small
and rural communities a new tool to attract high speed services and
economic development.
I am especially proud at how this legislation came about. Since last
year, I've been working with a group of community leaders in Washington
State to find ways to help communities get connected to advanced
telecommunications services.
I want to take a moment to thank the members of my Rural
Telecommunication Working Group for their hard work on this bill. The
members include: Brent Bahrenburg, Gregg Caudell, Dee Christensen, Dave
Danner, Louis Fox, Tami Garrow, Larry Hall, Rod Fleck, Ray King, Dale
King, Terry Lawhead, Dick Llarman, Jim Miller, Joe Poire, Skye
Richendrfer, Jim

[[Page S6348]]

Schmit, Fred Sexton, Ted Sprague, Barbara Tilly, Terry Vann, Ron
Yenney.
We met as a working group, and we held forums around the State that
attracted hundreds of people. We've tapped the ideas of experts,
service providers and people from across the State who are working to
get their communities connected. The result in this legislation, which
I am proud to say is part of Washington State's contribution to our
national effort to wire all parts of our country.
This bill addresses a real need in many communities. While urban and
suburban areas have strong competition between telecommunications
providers, many small and rural communities are far removed from the
services they need. We must ensure that all communities have access to
advanced telecommunications like high speed internet access. Just as
yesterday's infrastructure was built of roads and bridges, today our
infrastructure includes advanced telecom services. Advanced
telecommunications can enrich our lives through activities like
distance-learning, and they can even save lives through efforts like
telemedicine. The key is access. Access to these services is already
turning some small companies in rural communities into international
marketers of goods and services.
Unfortunately, many small and rural communities are having trouble
getting the access they need. Before areas can take advantage of some
of the help and incentives that are out there, they need to work
together and go through a community planning process. Community plans
identify the needs and level of demand, create a vision for the future,
and show what all the players must do to meet the telecom needs of
their community for today and tomorrow. These plans take resources to
develop. This bill would provide those funds.
Providers say they're more likely to invest in an area if it has a
plan that makes a business case for the costly infrastructure
investment. Communities want to provide them with that plan, but they
need help developing it. Unfortunately, many communities get stuck on
that first step. They don't have the resources to do the studies and
planning required to attract service. So the members of my Working
Group came up with a solution: have the federal government provide
competitive grants that local communities can use to develop their
plans. I took that idea and put it into this bill.
When you think about it, it just makes sense. Right now the federal
government already provides money to help communities plan other
infrastructure improvements--everything from roads and bridges to
wastewater facilities. The bill would provide rural and underserved
communities with grant money for creating community plans, technical
assessments and other analytical work that needs to be done.
With these grants, communities will be able to turn their desire for
access into real access that can improve their communities and
strengthen their economies. This bill can open the door for thousands
of small and rural areas across our state to tap the potential of the
information economy. I urge the Senate to support this bill and I look
forward to working with my colleagues to see it passed.
______

By Mr. AKAKA (for himself and Mr. Inouye):
S. 1067. A bill to authorize the addition of lands to Pu`uhonua o
Honaunau National Historical Park in the State of Hawaii, and for other
purposes; to the committee on Energy and Natural Resources.
Mr. AKAKA. Mr. President, I rise today along with my colleague
Senator Inouye to introduce legislation that is important for the
people of Hawaii, for the National Park Service, and for the nation as
a whole. I am offering legislation that would allow expansion of the
boundaries of Pu`uhonua o Honaunau National Historical Park on the
island of Hawaii by 238 acres. These lands are adjacent to and
contiguous with the park's current boundaries.
Pu`uhonua o Honaunau National Historical Park preserves a site with
great significance for Native Hawaiians, students of history,
archaeologists, and the people of Hawaii in general. It is nestled
along the coast of the island of Hawaii where, up until the early 19th
century, Hawaiians who broke kapu or one of the ancient laws against
the gods could avoid certain death by fleeing to this place of refuge
or ``pu`uhonua.'' The offender would be absolved by a priest and freed
to leave. Defeated warriors and non-combatants could also find refuge
here during times of battle. The grounds just outside the wall that
encloses the pu`uhonua were home to several generations of powerful
chiefs. The 182-acre park was established in 1961 and includes the
pu`uhonua and a complex of archeological areas including temple
platforms, royal fishponds, holua (sledding tracks), and coastal
village sites. The Haloe o Keawe temple and several other structures
have been reconstructed to provide visitors an understanding of life
during the early days of the royal families.
The park, on the famed Kona coast of the Big Island of Hawaii, is
appreciated by Native Hawaiians and the general public as a place where
the story and history of native culture are interpreted for all
Americans. It is worth mentioning that the National Park Service
oversees 384 units across the nation, including national parks,
battlefields, military parks, memorials, monuments and historic trails.
Of these nearly 400 sites, there are only a handful of national
historic parks that celebrate interpretations of contemporary native
cultures. I am pleased that two of these parks, Pu`uhonua o Honaunau
and Kaloko-Honokohau, are in Hawaii on the Big Island. I invite you all
to visit us for a truly remarkable immersion in Hawaiian cultural
history, something very close to my heart.
The proposed expansion has national significance from an
archaeological and historical perspective. The archeological resources
are very important. They illustrate that the Ki`ilae village complex,
with its numerous sites and features, represents one of the most
complete assemblages of the coastal component of the ancient Kona field
system. This system was not just an agricultural system utilized by the
early Kona chiefs, it was a complex economic system that supported a
dense population. Archaeological records have shown that this system
allowed the Kona chiefs to become very powerful for a period of at
least 200 years and most likely supported the growth and development of
Kamehameha the Great's army and thereby contributed to his rise to
power in the Hawaiian Islands. The cultural landscape here includes not
only residential features, but also religious, agricultural and
ceremonial sites. The unusually high number of heiau is believed to be
an indication of the importance of this area to the Hawaiian ruling
class.
Mr. President, the expansion of the park has widespread support from
local communities and county officials. There is a long history of
study and analysis of expansion possibilities for the park. The 1977
Master Plan for the Pu`uhonua o Honaunau National Historical Park
originally proposed boundary expansions in four contiguous areas.
Following the original master plan, in 1992 the National Park Service
conducted a feasibility study for protecting adjacent lands through
boundary expansions. Then in August of last year, given the
notification of the recent land transaction between the McCandless
Ranch and a private development corporation, the NPS prepared a special
report on the proposed park expansion to include the Ki`ilae village
parcel. The Service held three well-attended community meetings on the
Big Island, with enthusiastic support for the expansion.
The 238-acre expansion authorized by this bill is the preferred
option of the NPS, although additional acres could potentially be
acquired. The Ki`ilae village property meets the criterion of national
significance for historical and archaeological areas. The Trust for
Public Land (TPL) is providing funds for the appraisal of the property,
and has indicated an interest in helping facilitate the expansion of
the park. The TPL financial assistance is a departure from their normal
business practice, and they made the decision to commit the funds in
recognition of the unique conservation values that this property
presents for the National Park Service.
I submit for the Record a letter from Mayor Harry Kim of the County
of Hawaii which shows the depth of public support and appreciation for
the expansion, particularly from the Hawaiian

[[Page S6349]]

community. I ask unanimous consent that the letter and the text of the
bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 1057

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Pu`uhonau o Honaunau
National Historical Park Addition Act of 2001''.

SEC. 2. ADDITIONS TO PU`UONAU O HONAUNAU NATIONAL HISTORICAL
PARK.

The first section of the Act of July 26, 1955 (69 Stat.
376, ch. 385; 16 U.S.C. 397) is amended--
(1) by striking ``That when'' and inserting ``SECTION 1.
(s) When''; and
(2) by adding at the end thereof the following new
subsections:
``(b) The boundaries of Pu`uhonua o Honaunau National
Historical Park are hereby modified to include approximately
238 acres of lands and interests therein within the area
identified as ``Parcel A'' on the map entitled ``Pu`uhonua o
Honaunau National Historical Park Proposed Boundary
Additions, Ki`ilae Village'', numbered PUHO-P 415/82,013 and
dated May, 2001.
``(c) The Secretary of the Interior is authorized to
acquire approximately 159 acres of lands and interests
therein within the area identified as ``Parcel B'' on the map
referenced in subsection (b). Upon the acquisition of such
lands or interests therein, the Secretary shall modify the
boundaries of Pu`uhonua o Honaunau National Historical Park
to include such lands or interests therein.''.

SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated such sums as may be
necessary to carry out this Act.
____

County of Hawaii,

Hilo, HI, May 16, 2001.
Hon. Daniel Akaka,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Akaka: The purpose of this letter is to
request that you seek Congressional authorization to expand
the boundaries of Pu`u Honua O Honaunau National Park.
As I am sure you know, our local media have given a good
deal of attention to a development proposed on 800 acres
adjacent to Pu`u Honua O Honaunau. The community,
particularly the Hawaiian community, has been outspoken in
its desire to see this acreage preserved and the park
enhanced. Numerous historic sites have been identified on
this acreage, some or all related to the ancient Hawaiian
village of Ki`ilae.
My staff has spoken with Ms. Geri Bell, Park
Superintendent, and she has said that at least 238 acres (out
of the 800) are closely linked to the park and associated
with the village of Ki`ilae. Moreover, she has indicated that
the owner of the land would willingly sell the 238 acres to
the National Park. The next step is Congressional
authorization.
The acquisition could be 238 acres, 800 acres, or something
in between, and I would leave that determination to the
experts to decide. However, your support for acquisition of
at least the smaller portion would allow for a valuable
addition to the park and assure preservation of an important
part of our ancient Hawaiian heritage.
I fully support the expansion of the park by acquisition of
this acreage, and hope you will let me know if there is any
way in which I can be of assistance.
A similar letter has been sent to the other members of our
Congressional delegation.
Aloha,
Harry Kim,
Mayor.

____________________