[Congressional Record Volume 148, Number 58 (Thursday, May 9, 2002)]
[Senate]
[Pages S4147-S4165]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BIDEN (for himself, Mr. Helms, Mr. Kennedy, and Mr.
Frist):
S. 2487. A bill to provide for global pathogen surveillance and
response; to the Committee on Foreign Relations.
Mr. BIDEN. Mr. President, Senator Helms and I are proud to introduce
today the Global Pathogen Surveillance Act of 2002. Senator Helms is
recovering from his heart surgery and is unable to be here today, but
let me note our joint efforts in recognizing the importance of disease
surveillance and preparing this bill for introduction. In recent years,
we have joined forces on a number of sensible foreign policy
initiatives and I am proud that we are doing so once again. I am also
especially pleased that Senators Kennedy and Frist, the chairman and
ranking member of the Public Health Subcommittee of the Senate Health,
Education, Labor, and Pensions Committee, have also agreed to be
original cosponsors of this bill.
This bill authorizes $150 million over the next 2 years to provide
assistance to developing nations to improve global disease surveillance
to help prevent and contain both biological weapons attacks and
naturally occurring infectious disease outbreaks around the world. As
the ranking member and chairman of the Foreign Relations Committee,
respectively, Senator Helms and I recognize all too well that
biological weapons are a global threat with no respect for borders. A
terrorist group could launch a biological weapons attack in Mexico in
the expectation that the epidemic would quickly spread to the United
States. A rogue state might experiment with new disease strains in
another country, intending later to release them here. A biological
weapons threat need not begin in the United States to reach our shores.
For that reason, our response to the biological weapons threat cannot
be limited to the United States alone. Global disease surveillance, a
systematic approach to tracking disease outbreaks as they occur and
evolve around the world, is essential to any real international
response.
This country is making enormous advances on the domestic front in
bioterrorism defense. $3 billion has been appropriated for this purpose
in FY 2002, including $1.1 billion to improve State and local public
health infrastructure. Delaware's share will include $6.7 million from
the Centers for Disease Control and Prevention to improve the public
health infrastructure and $548,000 to improve hospital readiness in my
State.
The House and Senate are currently in conference to reconcile
competing versions of a comprehensive bioterrorism bill drafted last
fall following the anthrax attacks via the U.S. postal system. Those
attacks, which killed five individuals and infected more than twenty
people, highlighted our domestic vulnerabilities to a biological
weapons attack. We need to further strengthen our Nation's public
health system, improve Federal public health laboratories, and fund the
necessary research and procurement for vaccines and treatments to
respond better to future bioterrorist attacks. As an original co-
sponsor of the Senate bill, I know the final package taking shape in
conference will achieve those goals and I look forward to its enactment
into law.
Nevertheless, any effective response to the challenge of biological
weapons must also have an international component. Limiting our
response to U.S. territory would be shortsighted and doomed to failure.
A dangerous pathogen released on another continent can quickly spread
to the United States in a matter of days, if not hours. This is the
dark side of globalization. International trade, travel, and migration
patterns offer unlimited opportunities for pathogens to spread across
national borders and to move from one continent to another. Moreover,
an overseas epidemic could give us our first warning of a new disease
strain that was developed by a country or by terrorists for use as a
biological weapon, or that could be used by others for that purpose.
We should make no mistake: in today's world, all infectious disease
epidemics, wherever they occur and whether they are deliberately
engineered or are naturally occurring, are a potential threat to all
nations, including the United States.
How does disease surveillance fit into all of this? A biological
weapons attack succeeds partly through the element of surprise. As Dr.
Alan P. Zelicoff of the Sandia National Laboratory testified before the
Foreign Relations Committee in March, early warning of a biological
weapons attact can prevent illness and death in all but a small
fraction of those infected. A cluster of flu-like symptoms in a city or
region may be dismissed by individual physicians as just the flu when
in fact it may be anthrax, plague, or another biological weapon. Armed
with the knowledge, however, that a biological weapons attack has in
fact occurred, doctors and nurses can examine their patients in a
different light and, in many cases, effectively treat infected
individuals.
Disease surveillance, a comprehensive reporting system to quickly
identify and communicate abnormal patterns of symptoms and illnesses,
can quickly alert doctors across a region that a suspicious disease
outbreak has occurred. Epidemiological specialists can then investigate
and combat the outbreak. And if it's a new disease or strain, we can
begin to develop treatments that much earlier.
A good surveillance system requires trained epidemiological
personnel, adequate laboratory tools for quick diagnosis, and
communications equipment to circulate information. Even in the United
States today, many States and localities rely on old-fashioned pencil
and paper methods of tracking disease patterns. Thankfully, we are
addressing those domestic deficiencies through the bioterrorism bill in
conference.
For example, in Delaware, we are developing the first, comprehensive,
state-wide electronic reporting system for infectious diseases. This
system will be used as a prototype for other states, and will enable
much earlier detection of infectious disease outbreaks, both natural
and bioterrorist. I and my congressional colleagues in the delegation
have been working for over two years to get this project up and
running, and we were successful in obtaining $2.6 million in funding
for this
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project over the past 2 years. I and my colleagues have requested $1.4
million for additional funding in FY 2003, and we are extremely
optimistic that this funding will be forthcoming.
It is vitally important that we extend these initiatives into the
international arena. However, as many developing countries are way
behind us in terms of public health resources, laboratories, personnel,
and communications, these countries will need help just to get to the
starting point we have already reached in this country.
An effective disease surveillance system is beneficial even in the
absence of biological weapons attacks. Bubonic plague is bubonic
plague, whether it is deliberately engineered or naturally occurring.
Just as disease surveillance can help contain a biological weapons
attack, it can also help contain a naturally occurring outbreak of
infectious disease. According to the World Health Organization, 30 new
infectious diseases have emerged over the past thirty years; between
1996 and 2001 alone, more than 800 infectious disease outbreaks
occurred around the world, on every continent. With better
surveillance, we can do a better job of mitigating the consequences of
these disease outbreaks.
In 2000, the World Health Organization established the first truly
global disease surveillance system, the Global Alert and Response
Network, to monitor and track infectious disease outbreaks in every
region of the world. The WHO has done an impressive job so far with
this initiative, working on a shoestring budget. But this global
network is only as good as its components, individual nations.
Unfortunately, developing nations, those nations most likely to
experience rapid disease outbreaks, simply do not possess the trained
personnel, the laboratory equipment, or the public health
infrastructure to track evolving disease patterns and detect emerging
pathogens.
According to a report by the National Intelligence Council,
developing nations in Africa and Asia have established only rudimentary
systems, if any at all, for disease surveillance, response, and
prevention. The World Health Organization reports that more than sixty
percent of laboratory equipment in developing countries is either
outdated or non-functioning.
This lack of preparedness can lead to tragic results. In August 1994
in Surat, a city in western India, a surge of complaints on flea
infestation and a growing rat population was followed by a cluster of
reports on patients exhibiting the symptoms of pneumonic plague.
However, authorities were unable to connect the dots until the plague
had spread to seven states across India, ultimately killing 56 people
and costing the Indian economy $600 million. Had the Indian authorities
employed better surveillance tools, they may well have contained the
epidemic, limited the loss of life, and surely avoided the panic that
led to economically disastrous embargoes on trade and travel. An
outbreak of pneumonic plague in India this February was detected more
quickly and contained with only a few deaths, and no costly panic.
Developing nations are the weak links in any comprehensive global
disease surveillance network. Unless we take action to shore up their
capabilities to detect and contain disease outbreaks, we leave the
entire world vulnerable to a deliberate biological weapons attack or a
virulent natural epidemic.
It is for these reasons that Senator Helms and I have worked together
in recent months to craft the Global Pathogen Surveillance Act of 2002.
This bill will authorize $150 million in FY 2003 and FY 2004 to
strengthen the disease surveillance capabilities of developing nations.
First, the bill seeks to ensure in developing nations a greater number
of personnel trained in basic epidemiological techniques. It offers
enhanced in-country training for medical and laboratory personnel and
the opportunity for select personnel to come to the United States to
receive training in our Centers for Disease Control laboratories and
Master of Public Health programs in American universities. Second, the
bill provides assistance to developing nations to acquire basic
laboratory equipment, including items as mundane as microscopes, to
facilitate the quick diagnosis of pathogens. Third, the bill enables
developing nations to obtain communications equipment to quickly
transmit data on disease patterns and pathogen diagnoses, both inside a
nation and to regional organizations and the WHO. Again, we're not
talking about fancy high-tech equipment, but basics like fax machines
and Internet-equipped computers. Finally, the bill gives preference to
countries that agree to let experts from the United States or
international organizations investigate any suspicious disease
outbreaks.
If passed, the Global Pathogen Surveillance Act of 2002 will go a
long way in ensuring that developing nations acquire the basic disease
surveillance capabilities to link up effectively with the WHO's global
network. This bill offers an inexpensive and common sense solution to a
problem of global proportions, the dual threat of biological weapons
and naturally occurring infectious diseases. The funding authorized is
only a tiny fraction of what we will spend domestically on bioterrorism
defenses, but this investment will pay enormous dividends in terms of
our national security.
Let me close with an excerpt of testimony from the Foreign Relations
Committee hearing last September on bioterrorism. Dr. D.A. Henderson,
the man who spearheaded the successful international campaign to
eradicate smallpox in the 1970's, recently stepped down from a short-
term position as the director of the Office of Emergency Preparedness
in the Department of Health and Human Services. In that position, he
was vested with the responsibility for helping organize the U.S.
government's response to future bioterrorist attacks. Dr. Henderson,
who at the time of the hearing was the head of the Johns Hopkins
University Center for Civilian Biodefense Strategies, was very clear on
the value of global disease surveillance:
In cooperation with the WHO and other countries, we need to
strengthen greatly our intelligence gathering capability. A
focus on international surveillance and on scientist-to-
scientist communication will be necessary if we are to have
an early warning about the possible development and
production of biological weapons by rogue nations or groups.
Dr. Henderson is exactly right. We cannot leave the rest of the world
to fend for itself in combating biological weapons and infectious
diseases if we are to ensure America's security.
I ask unanimous consent that the text of the Global Pathogen
Surveillance Act of 2002 be printed in the the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2487
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 ``Global Pathogen Surveillance
Act of 2002''.
SEC. 2. FINDINGS; PURPOSE.
(a) Findings.--Congress makes the following findings:
(1) Bioterrorism poses a grave national security threat to
the United States. The insidious nature of the threat, the
likely delayed recognition in the event of an attack, and the
underpreparedness of the domestic public health
infrastructure may produce catastrophic consequences
following a biological weapons attack upon the United States.
(2) A contagious pathogen engineered as a biological weapon
and developed, tested, produced, or released in another
country can quickly spread to the United States. Given the
realities of international travel, trade, and migration
patterns, a dangerous pathogen released anywhere in the world
can spread to United States territory in a matter of days,
before any effective quarantine or isolation measures can be
implemented.
(3) To effectively combat bioterrorism and ensure that the
United States is fully prepared to prevent, diagnose, and
contain a biological weapons attack, measures to strengthen
the domestic public health infrastructure and improve
domestic surveillance and monitoring, while absolutely
essential, are not sufficient.
(4) The United States should enhance cooperation with the
World Health Organization, regional health organizations, and
individual countries to help detect and quickly contain
infectious disease outbreaks or bioterrorism agents before
they can spread.
(5) The World Health Organization (WHO) has done an
impressive job in monitoring infectious disease outbreaks
around the world, particularly with the establishment in
April 2000 of the Global Outbreak Alert and Response network.
(6) The capabilities of the World Health Organization are
inherently limited in that its
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disease surveillance and monitoring is only as good as the
data and information the World Health Organization receives
from member countries and are further limited by the narrow
range of diseases (plague, cholera, and yellow fever) upon
which its disease surveillance and monitoring is based, and
the consensus process used by the World Health Organization
to add new diseases to the list. Developing countries in
particular often cannot devote the necessary resources to
build and maintain public health infrastructures.
(7) In particular, developing countries could benefit
from--
(A) better trained public health professionals and
epidemiologists to recognize disease patterns;
(B) appropriate laboratory equipment for diagnosis of
pathogens;
(C) disease reporting that is based on symptoms and signs
(known as ``syndrome surveillance'') enabling the earliest
possible opportunity to conduct an effective response;
(D) a narrowing of the existing technology gap in syndrome
surveillance capabilities, based on reported symptoms, and
real-time information dissemination to public health
officials; and
(E) appropriate communications equipment and information
technology to efficiently transmit information and data
within national and regional health networks, including
inexpensive, Internet-based Geographic Information Systems
(GIS) for early recognition and diagnosis of diseases.
(8) An effective international capability to monitor and
quickly diagnose infectious disease outbreaks will offer
dividends not only in the event of biological weapons
development, testing, production, and attack, but also in the
more likely cases of naturally occurring infectious disease
outbreaks that could threaten the United States. Furthermore,
a robust surveillance system will serve to deter terrorist
use of biological weapons, as early detection will help
mitigate the intended effects of such malevolent uses.
(b) Purpose.--The purposes of this Act are as follows:
(1) To enhance the capability of the international
community, through the World Health Organization and
individual countries, to detect, identify, and contain
infectious disease outbreaks, whether the cause of those
outbreaks is intentional human action or natural in origin.
(2) To enhance the training of public health professionals
and epidemiologists from eligible developing countries in
advanced Internet-based syndrome surveillance systems, in
addition to traditional epidemiology methods, so that they
may better detect, diagnose, and contain infectious disease
outbreaks, especially those due to pathogens most likely to
be used in a biological weapons attack.
(3) To provide assistance to developing countries to
purchase appropriate public health laboratory equipment
necessary for infectious disease surveillance and diagnosis.
(4) To provide assistance to developing countries to
purchase appropriate communications equipment and information
technology, including appropriate computer equipment and
Internet connectivity mechanisms, to facilitate the exchange
of Geographic Information Systems-based syndrome surveillance
information and to effectively gather, analyze, and transmit
public health information for infectious disease surveillance
and diagnosis.
(5) To make available greater numbers of United States
Government public health professionals to international
health organizations, regional health networks, and United
States diplomatic missions where appropriate.
(6) To establish ``lab-to-lab'' cooperative relationships
between United States public health laboratories and
established foreign counterparts.
(7) To expand the training and outreach activities of
overseas United States laboratories, including Centers for
Disease Control and Prevention and Department of Defense
entities, to enhance the public health capabilities of
developing countries.
(8) To provide appropriate technical assistance to existing
regional health networks and, where appropriate, seed money
for new regional networks.
SEC. 3. DEFINITIONS.
In this Act:
(1) Eligible developing country.--The term ``eligible
developing country'' means any developing country that--
(A) has agreed to the objective of fully complying with
requirements of the World Health Organization on reporting
public health information on outbreaks of infectious
diseases;
(B) has not been determined by the Secretary, for purposes
of section 40 of the Arms Export Control Act (22 U.S.C.
2780), section 620A of the Foreign Assistance Act of 1961 (22
U.S.C. 2371), or section 6(j) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405), to have repeatedly
provided support for acts of international terrorism, unless
the Secretary exercises a waiver certifying that it is in the
national interest of the United States to provide assistance
under the provisions of this Act; and
(C) is a state party to the Biological Weapons Convention.
(2) Eligible national.--The term ``eligible national''
means any citizen or national of an eligible developing
country who does not have a criminal background, who is not
on any immigration or other United States watch list, and who
is not affiliated with any foreign terrorist organization.
(3) International health organization.--The term
``international health organization'' includes the World
Health Organization and the Pan American Health Organization.
(4) Laboratory.--The term ``laboratory'' means a facility
for the biological, microbiological, serological, chemical,
immuno-hematological, hematological, biophysical,
cytological, pathological, or other examination of materials
derived from the human body for the purpose of providing
information for the diagnosis, prevention, or treatment of
any disease or impairment of, or the assessment of the health
of, human beings.
(5) Secretary.--Unless otherwise provided, the term
``Secretary'' means the Secretary of State.
(6) Select agent.--The term ``select agent'' has the
meaning given such term for purposes of section 72.6 of title
42, Code of Federal Regulations.
(7) Syndrome surveillance.--The term ``syndrome
surveillance'' means the recording of symptoms (patient
complaints) and signs (derived from physical examination)
combined with simple geographic locators to track the
emergence of a disease in a population.
SEC. 4. PRIORITY FOR CERTAIN COUNTRIES.
Priority in the provision of United States assistance for
eligible developing countries under all the provisions of
this Act shall be given to those countries that permit
personnel from the World Health Organization and the Centers
for Disease Control and Prevention to investigate outbreaks
of infectious diseases on their territories.
SEC. 5. RESTRICTION.
Notwithstanding any other provision of this Act, no foreign
nationals participating in programs authorized under this Act
shall have access, during the course of such participation,
to select agents that may be used as, or in, a biological
weapon, except in a supervised and controlled setting.
SEC. 6. FELLOWSHIP PROGRAM.
(a) Establishment.--There is established a fellowship
program (in this section referred to as the ``program'')
under which the Secretary, in consultation with the Secretary
of Health and Human Services, and, subject to the
availability of appropriations, award fellowships to eligible
nationals of developing countries to pursue public health
education or training, as follows:
(1) Master of public health degree.--Graduate courses of
study leading to a master of public health degree with a
concentration in epidemiology from an institution of higher
education in the United States with a Center for Public
Health Preparedness, as determined by the Centers for Disease
Control and Prevention.
(2) Advanced public health epidemiology training.--Advanced
public health training in epidemiology for public health
professionals from eligible developing countries to be
carried out at the Centers for Disease Control and Prevention
(or equivalent State facility), or other Federal facility
(excluding the Department of Defense or United States
National Laboratories), for a period of not less than 6
months or more than 12 months.
(b) Specialization in Bioterrorism.--In addition to the
education or training specified in subsection (a), each
recipient of a fellowship under this section (in this section
referred to as a ``fellow'') may take courses of study at the
Centers for Disease Control and Prevention or at an
equivalent facility on diagnosis and containment of likely
bioterrorism agents.
(c) Fellowship Agreement.--
(1) In general.--In awarding a fellowship under the
program, the Secretary, in consultation with the Secretary of
Health and Human Services, shall require the recipient to
enter into an agreement under which, in exchange for such
assistance, the recipient--
(A) will maintain satisfactory academic progress (as
determined in accordance with regulations issued by the
Secretary and confirmed in regularly scheduled updates to the
Secretary from the institution providing the education or
training on the progress of the recipient's education or
training);
(B) will, upon completion of such education or training,
return to the recipient's country of nationality or last
habitual residence (so long as it is an eligible developing
country) and complete at least four years of employment in a
public health position in the government or a
nongovernmental, not-for-profit entity in that country or,
with the approval of the Secretary and the government
concerned, in an international health organization; and
(C) agrees that, if the recipient is unable to meet the
requirements described in subparagraph (A) or (B), the
recipient will reimburse the United States for the value of
the assistance provided to the recipient under the
fellowship, together with interest at a rate determined in
accordance with regulations issued by the Secretary but not
higher than the rate generally applied in connection with
other Federal loans.
(2) Waivers.--The Secretary may waive the application of
paragraph (1)(B) and (1)(C) if the Secretary determines that
it is in the national interest of the United States to do so.
(d) Implementation.--The Secretary, in consultation with
the Secretary of Health and Human Services, is authorized to
enter into an agreement with any eligible developing country
under which the developing country agrees--
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(1) to establish a procedure for the nomination of eligible
nationals for fellowships under this section;
(2) to guarantee that a fellow will be offered a
professional public health position within the developing
country upon completion of his studies; and
(3) to certify to the Secretary when a fellow has concluded
the minimum period of employment in a public health position
required by the fellowship agreement, with an explanation of
how the requirement was met.
(e) Participation of United States Citizens.--On a case-by-
case basis, the Secretary may provide for the participation
of United States citizens under the provisions of this
section if the Secretary determines that it is in the
national interest of the United States to do so. Upon
completion of such education or training, a United States
recipient shall complete at least five years of employment in
a public health position in an eligible developing country or
the World Health Organization.
SEC. 7. IN-COUNTRY TRAINING IN LABORATORY TECHNIQUES AND
SYNDROME SURVEILLANCE.
(a) In General.--In conjunction with the Centers for
Disease Control and Prevention and the Department of Defense,
the Secretary shall, subject to the availability of
appropriations, support short training courses in-country
(not in the United States) to laboratory technicians and
other public health personnel (who are eligible persons) from
developing countries in laboratory techniques relating to the
identification, diagnosis, and tracking of pathogens
responsible for possible infectious disease outbreaks.
Training under this section may be conducted in overseas
facilities of the Centers for Disease Control and Prevention
or in Overseas Medical Research Units of the Department of
Defense, as appropriate. The Secretary shall coordinate such
training courses, where appropriate, with the existing
programs and activities of the World Health Organization.
(b) Training in Syndrome Surveillance.--In conjunction with
the Centers for Disease Control and Prevention and the
Department of Defense, the Secretary shall, subject to the
availability of appropriations, establish and support short
training courses in-country (not in the United States) for
health care providers and other public health personnel from
eligible developing countries in techniques of syndrome
surveillance reporting and rapid analysis of syndrome
information using Geographic Information System (GIS) tools.
Training under this subsection may be conducted via the
Internet or in appropriate facilities as determined by the
Secretary. The Secretary shall coordinate such training
courses, where appropriate, with the existing programs and
activities of the World Health Organization.
SEC. 8. ASSISTANCE FOR THE PURCHASE AND MAINTENANCE OF PUBLIC
HEALTH LABORATORY EQUIPMENT.
(a) Authorization.--The President is authorized, on such
terms and conditions as the President may determine, to
furnish assistance to eligible developing countries to
purchase and maintain public health laboratory equipment
described in subsection (b).
(b) Equipment Covered.--Equipment described in this
subsection is equipment that is--
(1) appropriate, where possible, for use in the intended
geographic area;
(2) necessary to collect, analyze, and identify
expeditiously a broad array of pathogens, including mutant
strains, which may cause disease outbreaks or may be used as
a biological weapon;
(3) compatible with general standards set forth by the
World Health Organization and, as appropriate, the Centers
for Disease Control and Prevention, to ensure
interoperability with regional and international public
health networks; and
(4) not defense articles, defense services, or training as
defined under the Arms Export Control Act.
(c) Rule of Construction.--Nothing in this section shall be
construed to exempt the exporting of goods and technology
from compliance with applicable provisions of the Export
Administration Act of 1979 (or successor statutes).
(d) Limitation.--Amounts appropriated to carry out this
section shall not be made available for the purchase from a
foreign country of equipment that, if made in the United
States, would be subject to the Arms Export Control Act or
likely be barred or subject to special conditions under the
Export Administration Act of 1979 (or successor statutes).
(e) Procurement Preference.--In the use of grant funds
authorized under subsection (a), preference should be given
to the purchase of equipment of United States manufacture.
The use of amounts appropriated to carry out this section
shall be subject to section 604 of the Foreign Assistance Act
of 1961.
(f) Host Country's Commitments.--The assistance provided
under this section shall be contingent upon the host
country's commitment to provide the resources,
infrastructure, and other assets required to house, maintain,
support, secure, and maximize use of this equipment and
appropriate technical personnel.
SEC. 9. ASSISTANCE FOR IMPROVED COMMUNICATION OF PUBLIC
HEALTH INFORMATION.
(a) Assistance for Purchase of Communication Equipment and
Information Technology.--The President is authorized to
provide, on such terms and conditions as the President may
determine, assistance to eligible developing countries for
the purchase and maintenance of communications equipment and
information technology described in subsection (b), and
supporting equipment, necessary to effectively collect,
analyze, and transmit public health information.
(b) Covered Equipment.--Equipment described in this
subsection is equipment that--
(1) is suitable for use under the particular conditions of
the area of intended use;
(2) meets appropriate World Health Organization standards
to ensure interoperability with like equipment of other
countries and international organizations; and
(3) is not defense articles, defense services, or training
as defined under the Arms Export Control Act.
(c) Rule of Construction.--Nothing in this section shall be
construed to exempt the exporting of goods and technology
from compliance with applicable provisions of the Export
Administration Act of 1979 (or successor statutes).
(d) Limitation.--Amounts appropriated to carry out this
section shall not be made available for the purchase from a
foreign country of equipment that, if made in the United
States, would be subject to the Arms Export Control Act or
likely be barred or subject to special conditions under the
Export Administration Act of 1979 (or successor statutes).
(e) Procurement Preference.--In the use of grant funds
under subsection (a), preference should be given to the
purchase of communications (and information technology)
equipment of United States manufacture. The use of amounts
appropriated to carry out this section shall be subject to
section 604 of the Foreign Assistance Act of 1961.
(f) Assistance for Standardization of Reporting.--The
President is authorized to provide, on such terms and
conditions as the President may determine, technical
assistance and grant assistance to international health
organizations (including regional international health
organizations) to facilitate standardization in the reporting
of public health information between and among developing
countries and international health organizations.
(g) Host Country's Commitments.--The assistance provided
under this section shall be contingent upon the host
country's commitment to provide the resources,
infrastructure, and other assets required to house, support,
maintain, secure, and maximize use of this equipment and
appropriate technical personnel.
SEC. 10. ASSIGNMENT OF PUBLIC HEALTH PERSONNEL TO UNITED
STATES MISSIONS AND INTERNATIONAL
ORGANIZATIONS.
(a) In General.--Upon the request of a United States chief
of diplomatic mission or an international health
organization, and with the concurrence of the Secretary of
State, the head of a Federal agency may assign to the
respective United States mission or organization any officer
or employee of the agency occupying a public health position
within the agency for the purpose of enhancing disease and
pathogen surveillance efforts in developing countries.
(b) Reimbursement.--The costs incurred by a Federal agency
by reason of the detail of personnel under subsection (a) may
be reimbursed to that agency out of the applicable
appropriations account of the Department of State if the
Secretary determines that the relevant agency may otherwise
be unable to assign such personnel on a non-reimbursable
basis.
SEC. 11. LABORATORY-TO-LABORATORY EXCHANGE PROGRAM.
(a) Authority.--The head of a Federal agency, with the
concurrence of the Secretary, is authorized to provide by
grant, contract, or otherwise for educational exchanges by
financing educational activities--
(1) of United States public health personnel in approved
public health and research laboratories in eligible
developing countries; and
(2) of public health personnel of eligible developing
countries in United States public health and research
laboratories.
(b) Approved Public Health Laboratories Defined.--In this
section, the term ``approved public health and research
laboratories'' means non-United States Government affiliated
public health laboratories that the Secretary determines are
well-established and have a demonstrated record of
excellence.
SEC. 12. EXPANSION OF CERTAIN UNITED STATES GOVERNMENT
LABORATORIES ABROAD.
(a) In General.--Subject to the availability of
appropriations, the Centers for Disease Control and
Prevention and the Department of Defense shall each--
(1) increase the number of personnel assigned to
laboratories of the Centers or the Department, as
appropriate, located in eligible developing countries that
conduct research and other activities with respect to
infectious diseases; and
(2) expand the operations of those laboratories, especially
with respect to the implementation of on-site training of
foreign nationals and activities affecting neighboring
countries.
(b) Cooperation and Coordination between Laboratories.--
Subsection (a) shall be carried out in such a manner as to
foster cooperation and avoid duplication between and among
laboratories.
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(c) Relation to Core Missions and Security.--The expansion
of the operations of overseas laboratories of the Centers or
the Department under this section shall not--
(1) detract from the established core missions of the
laboratories; or
(2) compromise the security of those laboratories, as well
as their research, equipment, expertise, and materials.
SEC. 13. ASSISTANCE FOR REGIONAL HEALTH NETWORKS AND
EXPANSION OF FOREIGN EPIDEMIOLOGY TRAINING
PROGRAMS.
(a) Authority.--The President is authorized, on such terms
and conditions as the President may determine, to provide
assistance for the purposes of--
(1) enhancing the surveillance and reporting capabilities
for the World Health Organization and existing regional
health networks; and
(2) developing new regional health networks.
(b) Expansion of Foreign Epidemiology Training Programs.--
The Secretary of Health and Human Services is authorized to
establish new country or regional Foreign Epidemiology
Training Programs in eligible developing countries.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations.--
(1) In general.--Subject to subsection (c), there are
authorized to be appropriated $70,000,000 for the fiscal year
2003 and $80,000,000 for fiscal year 2004, to carry out this
Act.
(2) Allocation of funds.--Of the amounts made available
under paragraph (1)--
(A) $50,000,000 for the fiscal year 2003 and $50,000,000
for the fiscal year 2004 are authorized to be available to
carry out sections 6, 7, 8, and 9;
(B) not more than $2,000,000 shall be available for each of
the fiscal years 2003 and 2004 for the specific training
programs authorized in section 6, of which not more than
$500,000 shall be available to carry out subsection (a)(1) of
such section and not more than $1,500,000 shall be available
to carry out subsection (a)(2) of such section;
(C) $5,000,000 for the fiscal year 2003 and $5,000,000 for
the fiscal year 2004 are authorized to be available to carry
out section 10;
(D) $2,000,000 for the fiscal year 2003 and $2,000,000 for
the fiscal year 2004 are authorized to be available to carry
out section 11;
(E) $8,000,000 for the fiscal year 2003 and $18,000,000 for
the fiscal year 2004 are authorized to be available to carry
out section 12; and
(F) $5,000,000 for the fiscal year 2003 and $5,000,000 for
the fiscal year 2004 are authorized to be available to carry
out section 13.
(b) Availability of Funds.--The amount appropriated
pursuant to subsection (a) is authorized to remain available
until expended.
(c) Reporting Requirement.--
(1) Report.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall submit a report,
in conjunction with the Secretary of Health and Human
Services and the Secretary of Defense, containing--
(A) a description of the implementation of programs under
this Act; and
(B) an estimate of the level of funding required to carry
out those programs at a sufficient level.
(2) Limitation on Obligation of Funds.--Not more than 10
percent of the amount appropriated pursuant to subsection (a)
may be obligated before the date on which a report is
submitted, or required to be submitted, whichever first
occurs, under paragraph (1).
Mr. FRIST. Mr. President, I rise to join with my colleagues Senators
Biden, Helms, and Kennedy in introducing the Global Pathogen
Surveillance Act of 2002. This bipartisan legislation will help ensure
that we are better prepared globally to deal with biological threats
and attacks.
The Global Pathogen Surveillance Act of 2002 authorizes enhanced
bilateral and multilateral activities to improve the capacity of the
United States and our partners in the international community to detect
and contain infectious diseases and biological weapons. The Global
Pathogen Surveillance Act will enhance the training, upgrade equipment
and communications systems, and provide additional American expertise
and assistance in international surveillance.
To better prepare our nation to meet the growing threat of
bioterrorism, we must put in place and maintain a comprehensive
framework including prevention, preparedness and consequence
management. To accomplish this goal, we not only need to strengthen our
local public health infrastructure domestically, but to work with our
friends and neighbors in the global community to prevent, detect, and
appropriately contain and respond to bioterrorist activities outside
our borders. This is truly a global responsibility. Infectious
diseases, such as smallpox, do not respect borders. If we can prevent
their spread in other countries around the world, we can better protect
our citizens here at home.
I applaud Senators Helms and Biden for their leadership in this area.
I look forward to working with them, and all of my colleagues to ensure
that we provide appropriate authorities and funding to improve our
international efforts to detect and contain infectious diseases and
offensive biological threats.
______
By Mrs. CLINTON (for herself, Ms. Snowe, Ms. Mikulski, and Mr.
Breaux):
S. 2489. A bill to amend the Public Health Service Act to establish a
program to assist family caregivers in accessing affordable and high-
quality respite care, and for other purposes; to the Committee on
Health, Education, Labor, and Pensions.
Mrs. CLINTON. Mr. President, 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. 2489
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 ``Lifespan Respite Care Act of
2002''.
SEC. 2. LIFESPAN RESPITE CARE.
The Public Health Service Act (42 U.S.C. 201 et seq.) is
amended by adding at the end the following:
``TITLE XXVIII--LIFESPAN RESPITE CARE
``SEC. 2801. FINDINGS AND PURPOSES.
``(a) Findings.--Congress finds that--
``(1) an estimated 26,000,000 individuals in the United
States care each year for 1 or more adult family members or
friends who are chronically ill, disabled, or terminally ill;
``(2) an estimated 18,000,000 children in the United States
have chronic physical, developmental, behavioral, or
emotional conditions that demand caregiver monitoring,
management, supervision, or treatment beyond that required of
children generally;
``(3) approximately 6,000,000 children in the United States
live with a grandparent or other relative because their
parents are unable or unwilling to care for them;
``(4) an estimated 165,000 children with disabilities in
the United States live with a foster care parent;
``(5) nearly 4,000,000 individuals in the United States of
all ages who have mental retardation or another developmental
disability live with their families;
``(6) almost 25 percent of the Nation's elders experience
multiple chronic disabling conditions that make it necessary
to rely on others for help in meeting their daily needs;
``(7) every year, approximately 600,000 Americans die at
home and many of these individuals rely on extensive family
caregiving before their death;
``(8) of all individuals in the United States needing
assistance in daily living, 42 percent are under age 65;
``(9) there are insufficient resources to replace family
caregivers with paid workers;
``(10) if services provided by family caregivers had to be
replaced with paid services, it would cost approximately
$200,000,000,000 annually;
``(11) the family caregiver role is personally rewarding
but can result in substantial emotional, physical, and
financial hardship;
``(12) approximately 75 percent of family caregivers are
women;
``(13) family caregivers often do not know where to find
information about available respite care or how to access it;
``(14) available respite care programs are insufficient to
meet the need and are directed at primarily lower income
populations and family caregivers of the elderly, leaving
large numbers of family caregivers without adequate support;
and
``(15) the limited number of available respite care
programs find it difficult to recruit appropriately trained
respite workers.
``(b) Purposes.--The purposes of this title are--
``(1) to encourage States to establish State and local
lifespan respite care programs;
``(2) to improve and coordinate the dissemination of
respite care information and resources to family caregivers;
``(3) to provide, supplement, or improve respite care
services to family caregivers;
``(4) to promote innovative, flexible, and comprehensive
approaches to--
``(A) the delivery of respite care;
``(B) respite care worker and volunteer recruitment and
training programs; and
``(C) training programs for family caregivers to assist
such family caregivers in making informed decisions about
respite care services;
``(5) to support evaluative research to identify effective
respite care services that alleviate, reduce, or minimize any
negative consequences of caregiving; and
``(6) to promote the dissemination of results, findings,
and information from programs and research projects relating
to respite care delivery, family caregiver strain, respite
care worker and volunteer recruitment and training, and
training programs for family caregivers that assist such
family caregivers in making informed decisions about respite
care services.
[[Page S4152]]
``SEC. 2802. DEFINITIONS.
``In this title:
``(1) Associate administrator.--The term `Associate
Administrator' means the Associate Administrator of the
Maternal and Child Health Bureau of the Health Resources and
Services Administration.
``(2) Condition.--The term `condition' includes--
``(A) Alzheimer's disease and related disorders;
``(B) developmental disabilities;
``(C) mental retardation;
``(D) physical disabilities;
``(E) chronic illness, including cancer;
``(F) behavioral, mental, and emotional conditions;
``(G) cognitive impairments;
``(H) situations in which there exists a high risk of abuse
or neglect or of being placed in the foster care system due
to abuse and neglect;
``(I) situations in which a child's parent is unavailable
due to the parent's death, incapacitation, or incarceration;
or
``(J) any other conditions as the Associate Administrator
may establish by regulation.
``(3) Eligible recipient.--The term `eligible recipient'
means--
``(A) a State agency;
``(B) any other public entity that is capable of operating
on a statewide basis;
``(C) a private, nonprofit organization that is capable of
operating on a statewide basis;
``(D) a political subdivision of a State that has a
population of not less than 3,000,000 individuals; or
``(E) any recognized State respite coordinating agency that
has--
``(i) a demonstrated ability to work with other State and
community-based agencies;
``(ii) an understanding of respite care and family
caregiver issues; and
``(iii) the capacity to ensure meaningful involvement of
family members, family caregivers, and care recipients.
``(4) Family caregiver.--The term `family caregiver' means
an unpaid family member, a foster parent, or another unpaid
adult, who provides in-home monitoring, management,
supervision, or treatment of a child or adult with a special
need.
``(5) Lifespan respite care.--The term `lifespan respite
care' means a coordinated system of accessible, community-
based respite care services for family caregivers of
individuals regardless of the individual's age, race,
ethnicity, or special need.
``(6) Respite care.--The term `respite care' means planned
or emergency care provided to an individual with a special
need--
``(A) in order to provide temporary relief to the family
caregiver of that individual; or
``(B) when the family caregiver of that individual is
unable to provide care.
``(7) Special need.--The term `special need' means the
particular needs of an individual of any age who requires
care or supervision because of a condition in order to meet
the individual's basic needs or to prevent harm to the
individual.
``SEC. 2803. LIFESPAN RESPITE CARE GRANTS AND COOPERATIVE
AGREEMENTS.
``(a) Purposes.--The purposes of this section are--
``(1) to expand and enhance respite care services to family
caregivers;
``(2) to improve the statewide dissemination and
coordination of respite care; and
``(3) to provide, supplement, or improve access and quality
of respite care services to family caregivers, thereby
reducing family caregiver strain.
``(b) Authorization.--Subject to subsection (f), the
Associate Administrator is authorized to award grants or
cooperative agreements to eligible recipients who submit an
application pursuant to subsection (d).
``(c) Federal Lifespan Approach.--In carrying out this
section, the Associate Administrator shall work in
cooperation with the National Family Caregiver Support
Program Officer of the Administration on Aging, and respite
care program officers in the Administration for Children and
Families, the Administration on Developmental Disabilities,
and the Substance Abuse and Mental Health Services
Administration, to ensure coordination of respite care
services for family caregivers of individuals of all ages
with special needs.
``(d) Application.--
``(1) Submission.--Each eligible recipient desiring to
receive a grant or cooperative agreement under this section
shall submit an application to the Associate Administrator at
such time, in such manner, and containing such information as
the Associate Administrator shall require.
``(2) Contents.--Each application submitted under this
section shall include--
``(A) a description of the applicant's--
``(i) understanding of respite care and family caregiver
issues;
``(ii) capacity to ensure meaningful involvement of family
members, family caregivers, and care recipients; and
``(iii) collaboration with other State and community-based
public, nonprofit, or private agencies;
``(B) with respect to the population of family caregivers
to whom respite care information or services will be provided
or for whom respite care workers and volunteers will be
recruited and trained, a description of--
``(i) the population;
``(ii) the extent and nature of the respite care needs of
the population;
``(iii) existing respite care services for the population,
including numbers of family caregivers being served and
extent of unmet need;
``(iv) existing methods or systems to coordinate respite
care information and services to the population at the State
and local level and extent of unmet need;
``(v) how respite care information dissemination and
coordination, respite care services, respite care worker and
volunteer recruitment and training programs, or training
programs for family caregivers that assist such family
caregivers in making informed decisions about respite care
services will be provided using grant or cooperative
agreement funds;
``(vi) a plan for collaboration and coordination of the
proposed respite care activities with other related services
or programs offered by public or private, nonprofit entities,
including area agencies on aging;
``(vii) how the population, including family caregivers,
care recipients, and relevant public or private agencies,
will participate in the planning and implementation of the
proposed respite care activities;
``(viii) how the proposed respite care activities will make
use, to the maximum extent feasible, of other Federal, State,
and local funds, programs, contributions, other forms of
reimbursements, personnel, and facilities;
``(ix) respite care services available to family caregivers
in the applicant's State or locality, including unmet needs
and how the applicant's plan for use of funds will improve
the coordination and distribution of respite care services
for family caregivers of individuals of all ages with special
needs;
``(x) the criteria used to identify family caregivers
eligible for respite care services;
``(xi) how the quality and safety of any respite care
services provided will be monitored, including methods to
ensure that respite care workers and volunteers are
appropriately screened and possess the necessary skills to
care for the needs of the care recipient in the absence of
the family caregiver; and
``(xii) the results expected from proposed respite care
activities and the procedures to be used for evaluating those
results; and
``(C) assurances that, where appropriate, the applicant
shall have a system for maintaining the confidentiality of
care recipient and family caregiver records.
``(e) Review of Applications.--
``(1) Establishment of review panel.--The Associate
Administrator shall establish a panel to review applications
submitted under this section.
``(2) Meetings.--The panel shall meet as often as may be
necessary to facilitate the expeditious review of
applications.
``(3) Function of panel.--The panel shall--
``(A) review and evaluate each application submitted under
this section; and
``(B) make recommendations to the Associate Administrator
concerning whether the application should be approved.
``(f) Awarding of Grants or Cooperative Agreements.--
``(1) In general.--The Associate Administrator shall award
grants or cooperative agreements from among the applications
approved by the panel under subsection (e)(3).
``(2) Priority.--When awarding grants or cooperative
agreements under this subsection, the Associate Administrator
shall give priority to applicants that show the greatest
likelihood of implementing or enhancing lifespan respite care
statewide.
``(g) Use of Grant or Cooperative Agreement Funds.--
``(1) In general.--
``(A) Mandatory uses of funds.--Each eligible recipient
that is awarded a grant or cooperative agreement under this
section shall use the funds for, unless such a program is in
existence--
``(i) the development of lifespan respite care at the State
and local levels; and
``(ii) an evaluation of the effectiveness of such care.
``(B) Discretionary uses of funds.--Each eligible recipient
that is awarded a grant or cooperative agreement under this
section may use the funds for--
``(i) respite care services;
``(ii) respite care worker and volunteer training programs;
or
``(iii) training programs for family caregivers to assist
such family caregivers in making informed decisions about
respite care services.
``(C) Evaluation.--If an eligible recipient uses funds
awarded under this section for an activity described in
subparagraph (B), the eligible recipient shall use funds for
an evaluation of the effectiveness of the activity.
``(2) Subcontracts.--Each eligible recipient that is
awarded a grant or cooperative agreement under this section
may use the funds to subcontract with a public or nonprofit
agency to carry out the activities described in paragraph
(1).
``(h) Term of Grants or Cooperative Agreements.--
``(1) In general.--The Associate Administrator shall award
grants or cooperative agreements under this section for terms
that do not exceed 5 years.
``(2) Renewal.--The Associate Administrator may renew a
grant or cooperative agreement under this section at the end
of the term of the grant or cooperative agreement determined
under paragraph (1).
``(i) Supplement, Not Supplant.--Funds made available under
this section shall be used to supplement and not supplant
other Federal, State, and local funds available for respite
care services.
``(j) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section--
[[Page S4153]]
``(1) $90,500,000 for fiscal year 2003;
``(2) $118,000,000 for fiscal year 2004;
``(3) $145,500,000 for fiscal year 2005;
``(4) $173,000,000 for fiscal year 2006; and
``(5) $200,000,000 for fiscal year 2007.
``SEC. 2804. NATIONAL LIFESPAN RESPITE RESOURCE CENTER.
``(a) Establishment.--From funds appropriated under
subsection (c), the Associate Administrator shall award a
grant or cooperative agreement to a public or private
nonprofit entity to establish a National Resource Center on
Lifespan Respite Care (referred to in this section as the
`center').
``(b) Purposes of the Center.--The center shall--
``(1) maintain a national database on lifespan respite
care;
``(2) provide training and technical assistance to State,
community, and nonprofit respite care programs; and
``(3) provide information, referral, and educational
programs to the public on lifespan respite care.
``(c) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section
$500,000 for each of fiscal years 2003 through 2007.''.
______
By Mr. TORRICELLI (for himself and Mr. Smith of Oregon):
S. 2490. A bill to amend title XVIII of the Social Security Act to
ensure the quality of, and access to, skilled nursing facility services
under the Medicare Program; to the Committee on Finance.
Mr. SMITH of Oregon. Mr. President, I rise today to join my
colleague, Senator Torricelli, in introducing the Medicare Skilled
Nursing Beneficiary Protection Act of 2002, a bill that will bring
better care to thousands of Oregon seniors.
Nursing homes across America are in trouble, and it's not just Wall
Street analysts who will tell you that. The people who rely on nursing
home services the most can share with you their concerns about the
future of skilled nursing care. Impending cuts to Medicare benefits for
skilled nursing facilities will jeopardize the health and safety of
some of our most vulnerable seniors and people with disabilities, and
we cannot in good conscience allow these cuts to occur. The Medicare
Skilled Nursing Beneficiary Protection Act of 2002 will prevent cuts to
Medicare funding for nursing homes and will ensure that Medicare pays
for the full cost of care rather than short-changing nursing
facilities.
This bill will be particularly important for Oregon. My State of
Oregon is home to an ever growing population of senior citizens, and we
are predicted to be the 4th oldest State in the union by the year 2020.
As our citizens age, and I am among that aging group, it will be
essential that we have the capacity to care for our most needy seniors.
Unfortunately, instead of increasing capacity we are seeing skilled
nursing facilities close all over the country. This could have
disastrous consequences for an already over-taxed health care system.
Without the Medicare Skilled Nursing Beneficiary Protection Act,
Oregon's nursing homes will lose $37.58 per patient per day, and it is
difficult to offer high quality services under those circumstances. We
must work together to pass this important legislation to protect our
seniors, and to ensure that skilled nursing facilities will still be
there when the rest of us need them in only a few short years.
______
By Mr. INHOFE:
S. 2491. A bill to authorize the President to award a gold medal on
behalf of Congress to the Choctaw and Comanche code talkers in
recognition of the contributions provided by those individuals to the
United States; to the Committee on Banking, Housing, and Urban Affairs.
Mr. INHOFE. Mr. President, today I rise to introduce a bill to honor
a group of men who bravely served this country. I am proud to recognize
the Choctaw and Comanche Code Talkers who joined the United States
Armed Forces on foreign soil in the fight for freedom in two world
wars.
During World War I, the Germans began tapping American lines,
creating the need to provide secure communications. Despite the fact
that American Indians were not citizens, 18 members of the Choctaw
Nation enlisted to become the first American Indian soldiers to use
their native language to transmit messages between the Allied forces.
At least one Choctaw man was placed in each field company
headquarters. He would translate radio messages into the Choctaw
language and then write field orders to be carried by messengers
between different companies on the battle line. Fortunately, because
Choctaw was an unwritten language only understood by those who spoke
it, the Germans were never able to break the code.
The 18 Choctaw Code Talkers who served in the 142nd Infantry Company
of the 36th Division were: Albert Billy, Victor Brown, Mitchell Bobb,
Ben Carterby, George Davenport, Joe Davenport, James Edwards, Tobias
Frazier, Ben Hampton, Noel Johnson, Otis Leader, Soloman Louis, Pete
Maytubby, Jeff Nelson, Joseph Oklahombi, Robert Taylor, Walter Veach,
and Calvin Wilson.
Similarly, the Comanche Code Talkers played an important role during
World War II. Once again, the enemy began tapping American lines. In
order to establish the secure transmission of messages, the United
States enlisted fourteen Comanche Code Talkers who served overseas in
the 4th Signal Company of the 4th Infantry Division. They were: Charles
Chibitty, Haddon Codynah, Robert Holder, Forrest Kassanavoid,
Wellington Mihecoby, Albert Nahquaddy, Jr., Clifford Ototivo, Simmons
Parker, Melvin Permansu, Elgin Red Elk, Roderick Red Elk, Larry
Saupitty, Morris Tabbyetchy, and Willis Yackeshi.
The Army chose the Comanches because their language was thought to be
the least known to the Germans. Second Lieutenant Hugh Foster worked
with them to develop their own unique code for military words. He gave
the Indians a list of military words and then worked with them to
develop a Comanche word or phrase for those words.
On June 6, 1944, just after landing in Normandy, a Comanche trained
by Lt. Foster and serving as a driver and radio operator under
Brigadier General Theodore Roosevelt, Jr, sent one of the first
messages from Utah Beach. These communications efforts, by the
Comanches, helped the Allies win the war in Europe.
It is time Congress officially recognizes these men. My bill directs
the Secretary of the Treasury to award the Choctaw and Comanche Code
Talkers a gold medal as a result of their great commitment and service
on behalf of the United States during World Wars I and II. I welcome my
colleagues to join me in saluting this group of heroes for contributing
to the fight for freedom for our country and around the world.
______
By Mr. CLELAND:
S. 2492. A bill to amend title 5, United States Code, to require that
agencies, in promulgating rules, take into consideration the impact of
such rules on the privacy of individuals, and for other purposes; to
the Committee on Governmental Affairs.
Mr. CLELAND. Mr. President, I rise today to introduce legislation,
the Federal Agency Protection of Privacy Act, that will require Federal
agencies to carefully consider the impact of proposed regulations on
individual privacy. In the aftermath of the terrorist attacks of
September 11, we are being forced to fight a new kind of war; a war in
which we have not only physical battlefields, but battlefields of
principle.
Not only must we have troops on the ground protecting our physical
well-being, but we must also insure that we protect the American way of
life. Ours is a country based on individual rights--rights to pursue
life, liberty, and happiness, as Thomas Jefferson mentioned in the
manner in which each of us sees fit.
While we are obligated, as a Government, to protect the physical
safety of the American people, we also are obligated to remember our
history, our struggles, and the principles for which our great Nation
stands. While we enhance and strengthen our investigatory tools and
physical arsenal, we cannot allow the terrorists to prevail in
undermining our civil liberties.
Therefore, today, I am introducing the Federal Agency Protection of
Privacy Act in the Senate as companion legislation to H.R. 4561, which
was introduced by Representative Bob Barr, a long-time champion of
civil liberties in the U.S. Congress. It will impose a mandate that
when Federal agencies are required to publish a general notice of
proposed rulemaking, they must publish an accompanying ``privacy impact
statement.'' This initial privacy
[[Page S4154]]
impact statement, written in terms which all of us can understand,
would be subject to public notice and comment. After receiving
and evaluating any comments, the agency would then be required to
include a final privacy impact statement with the regulation.
These initial and final privacy impact statements would include: the
type of information to be collected and how it would be used;
mechanisms through which individuals could correct inaccuracies in the
collected information; assurances that the information would not be
used for a purpose other than initially specified; and a description of
how the information will be secured by the agency. For example, the
Financial Crime Enforcement Network of the Department of the Treasury
has proposed a rule implementing provisions of the USA PATRIOT Act of
2001 which would encourage financial institutions and Federal law
enforcement agencies to share information in order to identify and
deter money laundering and terrorist activity. While I fully support
the Patriot Act and recognize the benefits of such a rule, the
sensitivity of such information necessitates that we insure that the
agency consider the ramifications of such an invasion on an
individual's privacy. The American people must know specifically how
this financial information would be used and how it would be protected.
The purpose, importance, and timeliness of this legislation have
brought together a wide variety of supporting organizations, ranging
from the American Civil Liberties Union to the National Rifle
Association to Public Citizen.
While I have been and continue to be a strong supporter of the war on
terrorism, I am also well aware that we face a multi-faceted enemy. My
experience has taught me that diverse threats necessitate diverse
responses. We have planned for our offensives on the ground and in the
air, and we have begun to mount a stronger homeland defense. But our
efforts will be incomplete and will indeed run the risk of undermining
all else we may accomplish in the fight against terrorism if we neglect
to mount a successful defense of the American way. I believe that this
legislation is necessary to protect the American people from attacks
seen and unseen, and I encourage other Senators to join me in
protecting the liberties for which I know we all stand.
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. 2492
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 ``Federal Agency Protection of
Privacy Act''.
SEC. 2. REQUIREMENT THAT AGENCY RULEMAKING TAKE INTO
CONSIDERATION IMPACTS ON INDIVIDUAL PRIVACY.
(a) In General.--Title 5, United States Code, is amended by
adding after section 553 the following:
``Sec. 553a. Privacy impact analysis in rulemaking
``(a) Initial Privacy Impact Analysis.--
``(1) In general.--Whenever an agency is required by
section 553 of this title, or any other law, to publish a
general notice of proposed rulemaking for any proposed rule,
or publishes a notice of proposed rulemaking for an
interpretative rule involving the internal revenue laws of
the United States, the agency shall prepare and make
available for public comment an initial privacy impact
analysis. Such analysis shall describe the impact of the
proposed rule on the privacy of individuals. The initial
privacy impact analysis or a summary shall be signed by the
senior agency official with primary responsibility for
privacy policy and be published in the Federal Register at
the time of the publication of a general notice of proposed
rulemaking for the rule.
``(2) Contents.--Each initial privacy impact analysis
required under this subsection shall contain the following:
``(A) A description and assessment of the extent to which
the proposed rule will impact the privacy interests of
individuals, including the extent to which the proposed
rule--
``(i) provides notice of the collection of personally
identifiable information, and specifies what personally
identifiable information is to be collected and how it is to
be collected, maintained, used, and disclosed;
``(ii) allows access to such information by the person to
whom the personally identifiable information pertains and
provides an opportunity to correct inaccuracies;
``(iii) prevents such information, which is collected for
one purpose, from being used for another purpose; and
``(iv) provides security for such information.
``(B) A description of any significant alternatives to the
proposed rule which accomplish the stated objectives of
applicable statutes and which minimize any significant
privacy impact of the proposed rule on individuals.
``(b) Final Privacy Impact Analysis.--
``(1) In general.--Whenever an agency promulgates a final
rule under section 553 of this title, after being required by
that section or any other law to publish a general notice of
proposed rulemaking, or promulgates a final interpretative
rule involving the internal revenue laws of the United
States, the agency shall prepare a final privacy impact
analysis, signed by the senior agency official with primary
responsibility for privacy policy.
``(2) Contents.--Each final privacy impact analysis
required under this subsection shall contain the following:
``(A) A description and assessment of the extent to which
the final rule will impact the privacy interests of
individuals, including the extent to which the proposed
rule--
``(i) provides notice of the collection of personally
identifiable information, and specifies what personally
identifiable information is to be collected and how it is to
be collected, maintained, used, and disclosed;
``(ii) allows access to such information by the person to
whom the personally identifiable information pertains and
provides an opportunity to correct inaccuracies;
``(iii) prevents such information, which is collected for
one purpose, from being used for another purpose; and
``(iv) provides security for such information.
``(B) A summary of the significant issues raised by the
public comments in response to the initial privacy impact
analysis, a summary of the assessment of the agency of such
issues, and a statement of any changes made in the proposed
rule as a result of such issues.
``(C) A description of the steps the agency has taken to
minimize the significant privacy impact on individuals
consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in the final
rule and why each one of the other significant alternatives
to the rule considered by the agency which affect the privacy
interests of individuals was rejected.
``(3) Availability to public.--The agency shall make copies
of the final privacy impact analysis available to members of
the public and shall publish in the Federal Register such
analysis or a summary thereof.
``(c) Procedure for Waiver or Delay of Completion.--An
agency head may waive or delay the completion of some or all
of the requirements of subsections (a) and (b) to the same
extent as the agency head may, under section 608, waive or
delay the completion of some or all of the requirements of
sections 603 and 604, respectively.
``(d) Procedures for Gathering Comments.--When any rule is
promulgated which may have a significant privacy impact on
individuals, or a privacy impact on a substantial number of
individuals, the head of the agency promulgating the rule or
the official of the agency with statutory responsibility for
the promulgation of the rule shall assure that individuals
have been given an opportunity to participate in the
rulemaking for the rule through techniques such as--
``(1) the inclusion in an advance notice of proposed
rulemaking, if issued, of a statement that the proposed rule
may have a significant privacy impact on individuals, or a
privacy impact on a substantial number of individuals;
``(2) the publication of a general notice of proposed
rulemaking in publications of national circulation likely to
be obtained by individuals;
``(3) the direct notification of interested individuals;
``(4) the conduct of open conferences or public hearings
concerning the rule for individuals, including soliciting and
receiving comments over computer networks; and
``(5) the adoption or modification of agency procedural
rules to reduce the cost or complexity of participation in
the rulemaking by individuals.
``(e) Periodic Review of Rules.--
``(1) In general.--Each agency shall carry out a periodic
review of the rules promulgated by the agency that have a
significant privacy impact on individuals, or a privacy
impact on a substantial number of individuals. Under such
periodic review, the agency shall determine, for each such
rule, whether the rule can be amended or rescinded in a
manner that minimizes any such impact while remaining in
accordance with applicable statutes. For each such
determination, the agency shall consider the following
factors:
``(A) The continued need for the rule.
``(B) The nature of complaints or comments received from
the public concerning the rule.
``(C) The complexity of the rule.
``(D) The extent to which the rule overlaps, duplicates, or
conflicts with other Federal rules, and, to the extent
feasible, with State and local governmental rules.
[[Page S4155]]
``(E) The length of time since the rule was last reviewed
under this subsection.
``(F) The degree to which technology, economic conditions,
or other factors have changed in the area affected by the
rule since the rule was last reviewed under this subsection.
``(2) Plan required.--Each agency shall carry out the
periodic review required by paragraph (1) in accordance with
a plan published by such agency in the Federal Register. Each
such plan shall provide for the review under this subsection
of each rule promulgated by the agency not later than 10
years after the date on which such rule was published as the
final rule and, thereafter, not later than 10 years after the
date on which such rule was last reviewed under this
subsection. The agency may amend such plan at any time by
publishing the revision in the Federal Register.
``(3) Annual publication.--Each year, each agency shall
publish in the Federal Register a list of the rules to be
reviewed by such agency under this subsection during the
following year. The list shall include a brief description of
each such rule and the need for and legal basis of such rule
and shall invite public comment upon the determination to be
made under this subsection with respect to such rule.
``(f) Judicial Review.--
``(1) In general.--For any rule subject to this section, an
individual who is adversely affected or aggrieved by final
agency action is entitled to judicial review of agency
compliance with the requirements of subsections (b) and (c)
in accordance with chapter 7. Agency compliance with
subsection (d) shall be judicially reviewable in connection
with judicial review of subsection (b).
``(2) Jurisdiction.--Each court having jurisdiction to
review such rule for compliance with section 553, or under
any other provision of law, shall have jurisdiction to review
any claims of noncompliance with subsections (b) and (c) in
accordance with chapter 7. Agency compliance with subsection
(d) shall be judicially reviewable in connection with
judicial review of subsection (b).
``(3) Limitations.--
``(A) An individual may seek such review during the period
beginning on the date of final agency action and ending 1
year later, except that where a provision of law requires
that an action challenging a final agency action be commenced
before the expiration of 1 year, such lesser period shall
apply to an action for judicial review under this subsection.
``(B) In the case where an agency delays the issuance of a
final privacy impact analysis pursuant to subsection (c), an
action for judicial review under this section shall be filed
not later than--
``(i) 1 year after the date the analysis is made available
to the public; or
``(ii) where a provision of law requires that an action
challenging a final agency regulation be commenced before the
expiration of the 1-year period, the number of days specified
in such provision of law that is after the date the analysis
is made available to the public.
``(4) Relief.--In granting any relief in an action under
this subsection, the court shall order the agency to take
corrective action consistent with this section and chapter 7,
including, but not limited to--
``(A) remanding the rule to the agency; and
``(B) deferring the enforcement of the rule against
individuals, unless the court finds that continued
enforcement of the rule is in the public interest.
``(5) Rule of construction.--Nothing in this subsection
shall be construed to limit the authority of any court to
stay the effective date of any rule or provision thereof
under any other provision of law or to grant any other relief
in addition to the requirements of this subsection.
``(6) Record of agency action.--In an action for the
judicial review of a rule, the privacy impact analysis for
such rule, including an analysis prepared or corrected
pursuant to paragraph (4), shall constitute part of the
entire record of agency action in connection with such
review.
``(7) Exclusivity.--Compliance or noncompliance by an
agency with the provisions of this section shall be subject
to judicial review only in accordance with this subsection.
``(8) Savings clause.--Nothing in this subsection bars
judicial review of any other impact statement or similar
analysis required by any other law if judicial review of such
statement or analysis is otherwise permitted by law.
``(g) Definition.--In this section, the term `personally
identifiable information'--
``(1) means information that can be used to identify an
individual, including such individual's name, address,
telephone number, photograph, social security number or other
identifying information; and
``(2) includes information about such individual's medical
or financial condition.''.
(b) Periodic Review Transition Provisions.--
(1) Initial plan.--For each agency, the plan required by
subsection (e) of section 553a of title 5, United States Code
(as added by subsection (a)), shall be published not later
than 180 days after the date of enactment of this Act.
(2) Prior rules.--In the case of a rule promulgated by an
agency before the date of the enactment of this Act, such
plan shall provide for the periodic review of such rule
before the expiration of the 10-year period beginning on the
date of the enactment of this Act. For any such rule, the
head of the agency may provide for a 1-year extension of such
period if the head of the agency, before the expiration of
the period, certifies in a statement published in the Federal
Register that reviewing such rule before the expiration of
the period is not feasible. The head of the agency may
provide for additional 1-year extensions of the period
pursuant to the preceding sentence, but in no event may the
period exceed 15 years.
(c) Congressional Review.--Section 801(a)(1)(B) of title 5,
United States Code, is amended--
(1) by redesignating clauses (iii) and (iv) as clauses (iv)
and (v), respectively; and
(2) by inserting after clause (ii) the following new
clause:
``(iii) the agency's actions relevant to section 553a;''.
(d) Clerical Amendment.--The table of sections at the
beginning of chapter 5 of title 5, United States Code, is
amended by adding after the item relating to section 553 the
following:
``553a. Privacy impact analysis in rulemaking.''.
______
By Mr. DASCHLE (for himself, Mr. Kennedy, and Mr. Dodd):
S. 2493. A bill to amend the immigration and Nationality Act to
provide a limited extension of the program under section 245(i) of that
Act; to the Committee on the Judiciary.
Mr. DASCHLE. Mr. President, yesterday, the House passed the border
security legislation, and I expect it will become law very soon.
Passage of the border security bill was an important first step in
moving forward with comprehensive immigration reform, and it was one of
the Democratic Principles that Representative Gephardt and I introduced
last fall.
Unfortunately, another important provision was not included in the
border security legislation, the extension of section 245(i). It would
allow families to stay together in this country while waiting to become
permanent residents.
As I have said on many occasions, I am strongly committed to a
meaningful 245(i) extension. Regrettably, the House waited 6 months to
act on 245(i) legislation that the Senate passed last September. This
delay meant that key provisions in the bill became unworkable. The
House-passed version contained hard deadlines that would have required
applicants to have established familial or employment relationships
before August 2001. These deadlines would have imposed impractical
hurdles for immigrant families to overcome.
Today, I am pleased to announce that I am introducing a new 245(i)
extension bill that would remove these hard deadlines. My bill would
move the application deadline to April 30, 2003, and maintain current
prohibitions against fraudulent marriages and national security
protections.
This bill mirrors the version that was introduced by Senators Hagel
and Kennedy last spring, and it should receive strong bipartisan
support. I know both the President and Senator Lott have repeatedly
expressed their desire to pass 245(i) legislation. It is my hope that
they will work with me to help get it passed very soon.
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. 2493
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 ``Uniting Families Act of
2002''.
SEC. 2. LIMITED EXTENSION OF SECTION 245(I) PROGRAM.
(a) Extension of Filing Deadline.--Section 245(i)(1)(B)(i)
of the Immigration and Nationality Act (8 U.S.C.
1255(i)(1)(B)(i)) is amended by striking ``on or before April
30, 2001'' and inserting ``on or before April 30, 2003''.
(b) Exclusion of Certain Inadmissible and Deportable
Aliens.--The amendment made by subsection (a) shall not apply
to any alien who is--
(1) inadmissible under section 212(a)(3), or deportable
under section 237(a)(4), of the Immigration and Nationality
Act (relating to security and related grounds); or
(2) deportable under section 237(a)(1)(G) of such Act
(relating to marriage fraud).
(c) Effective Date.--The amendment made by subsection (a)
shall apply to applicants for adjustment of status who are
beneficaries of petitions for classification or applications
for labor certifications filed before, on, or after the date
of enactment of this Act.
[[Page S4156]]
Mr. KENNEDY. Mr. President, since September 11, Congress has taken
significant steps to strengthen the security of our borders and improve
our immigration system. Last month, the Senate passed important
legislation to strengthen border security, improve our ability to
screen foreign nationals, and enhance our ability to deter potential
terrorists. In addition, Senator Brownback and I recently introduced
legislation to restructure the Immigration and Naturalization Service
so that the agency is better prepared to address security concerns.
As we work to respond to the security issues before us, we can't lose
sight of the other immigration issues that are still a priority. I'm
pleased to join Senator Daschle in moving forward with one of those
issues today by introducing the Uniting Families Act of 2002. This
legislation extends section 245(i), a vital provision of U.S.
immigration law which allows individuals who already legally qualify
for permanent residency to process their applications in the United
States, without returning to their homes countries.
Without 245(i), immigrants are forced to leave their families here in
the U.S. and risk separation from them for up to 10 years. Seventy-five
percent of the people who have used 245(i) are the spouses and children
of U.S. citizens and permanent residents. Extending this critical
provision will help keep families together and help businesses retain
critical workers. In addition, the INS will receive millions of dollars
in additional revenues, at no cost to taxpayers.
Extending 245(i) does not provide any loopholes for potential
terrorists. Instead, it will improve the monitoring of immigrants
already residing in this country. Individuals who qualify for permanent
residency and process their applications in the U.S. are subject to
rigorous background checks and interviews. This process provides the
government a good opportunity to investigate individuals who are in
this country and determine whether they should be allowed to remain
here.
Section 245(i) does not provide amnesty to immigrants or any benefits
to anyone suspected of marriage fraud. The provision provides no
protection from deportation if someone is here illegally and no right
to surpass other immigrants waiting for visas.
The House passed legislation recently to extend section 245(i), but
it was too restrictive to provide any meaningful assistance. The
Uniting Families Act will extend the filing deadline to April 30, 2003,
and provide needed and well-deserved relief to members of our immigrant
communities.
I urge my colleagues to join us in supporting this needed extension.
______
By Mr. McCAIN:
S. 2494. A bill to revise the boundary of the Petrified Forest
National Park in the State of Arizona and for other purposes; to the
Committee on Energy and Natural Resources.
Mr. McCAIN. Mr. President, I rise to introduce legislation to
authorize expansion of the Petrified Forest National Park in Arizona.
The Petrified Forest National Park is a national treasure among the
Nation's parks, renowned for its large concentration of highly colored
petrified wood, fossilized remains, and spectacular landscapes.
However, it is much more than a colorful, scenic vista, for the
Petrified Forest has been referred to as ``one of the world's greatest
storehouses of knowledge about life on earth when the Age of the
Dinosaurs was just beginning.''
For anyone who has ever visited this Park, one is quick to recognize
the wealth of scenic, scientific, and historical values of this Park.
Preserved deposits of petrified wood and related fossils are among the
most valuable representations of Triassic-period terrestrial ecosystems
in the world. These natural formations were deposited more than 220
million years ago. Scenic vistas, designated wilderness areas, and
other historically significant sites of pictographs and Native American
ruins are added dimensions to the Park.
The Petrified Forest was originally designated as a National Monument
by former President Theodore Roosevelt in 1906 to protect the important
natural and cultural resources of the Park, and later re-designated as
a National Park in 1962. While several boundary adjustments were made
to the Park, a significant portion of unprotected resources remain in
outlying areas adjacent to the Park.
A proposal to expand the Park's boundaries was recommended in the
Park's General Management Plan in 1992, in response to concerns about
the long-term protection needs of globally significant resources and
the Park's viewshed in nearby areas. For example, one of the most
concentrated deposits of petrified wood is found within the Chinle
encarpment, of which only thirty percent is included within the current
Park boundaries.
Increasing reports of theft and vandalism around the Park have
activated the Park, local communities, and other interested entities to
seek additional protections through a proposed boundary expansion. It
has been estimated that visitors to the Park steal about 12 tons of
petrified wood every year. Other reports of destruction to
archaeological sites and gravesites have also been documented. Based on
these continuing threats to resources intrinsic to the Park, the
National Parks Conservation Association listed the Petrified Forest
National Park on its list of Top Ten Most Endangered Parks in 2000.
Support for this proposed boundary expansion is extraordinary, from
the local community of Holbrook, scientific and research institutions,
state tourism agencies, and environmental groups, such as the National
Park Conservation Association, NPCA. I ask unanimous consent that a
resolution from the City of Holbrook and a letter of support from NPCA
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Resolution No. 00-15
a resolution of the city of holbrook, arizona endorsing the expansion
of petrified forest national park
Whereas, Petrified Forest National Park, first established
in 1906, is a priceless and irreplaceable part of America's
heritage; and
Whereas, Petrified Forest National Park contains a variety
of significant natural and cultural resources, including
portions of the Painted Desert and some of the most valuable
paleontological resources in the world; and
Whereas, Petrified Forest National Park has inspired and
educated millions of visitors from all over the world, and is
cherished as a national treasure to be protected for the
benefit and enjoyment of present and future generations; and
Whereas, the Chinle Formation which creates the
spectacularly beautiful landscapes of the Painted Desert,
Blue Mesas, and other park features, is probably the best
place in the world for studying the Triassic period of the
earth's history; and
Whereas, globally and nationally significant
paleontological, archaeological, and scenic resources
directly related to the resource values of Petrified Forest
National Park, including approximately 70 percent of the
Chinle Formation, are not included within the current
boundary; and
Whereas, the newly approved General Management Plan for the
park, prepared by the National Park Service with broad public
input, has identified about 97,000 acres of land that, if
included as part of the park, would lead to protection of the
remainder of this globally significant Chinle Formation,
along with highly significant archaeological resources, and
would protect the beautiful, expansive vistas seen from the
park; and
Whereas, land use patterns in the area of the park are
beginning to change, potentially threatening the protection
of the park and the broader setting in which it is placed;
and
Whereas, implementing the General Management Plan is
essential to carry out a vision for Petrified Forest National
Park that will better protect park resources, enhance
research opportunities, broaden and diversify visitor
experiences, improve visitor service, and help contribute to
the sustainability of the regional economy into the 21st
century; and
Whereas, an excellent opportunity now exists to include
adjacent areas of significant resources inside the park
boundary because other landowners in the region, including
the State of Arizona, and the Bureau of Land Management, and
other private landowners recognize the significance of the
resources on their lands and have expressed interest in
seeing them preserved in perpetuity for the benefit and
inspiration of this and future generations: Now, therefore,
be it
Resolved, That the City of Holbrook, Arizona, hereby
recommends and supports the inclusion within Petrified Forest
National Park of all lands identified in the park's General
Management Plan as desirable boundary additions, and supports
all continuing efforts to enact legislation to accomplish
this task and to complete the federal acquisition of this
land. Be it further
Resolved, That the Clerk of the City of Holbrook is
directed to immediately transmit this Resolution to the
Governor of the State of Arizona, Arizona's Congressional
delegation, and the Director of the National Park
[[Page S4157]]
Service, together with a letter requesting prompt and ongoing
support for completing the park expansion.
____
National Parks
Conservation Association,
Washington, DC, May 9, 2002.
Hon. John McCain,
U.S. Senate, Russell Senate Office Bldg., Washington, DC.
Dear Senator McCain: The National Parks Conservation
Association (NPCA) commends you for your leadership and
vision in introducing the Petrified Forest National Park
Expansion Act of 2002. Ever since NPCA published a Park
Boundary Study for various national parks in 1988, we have
been advocating the need for this expansion. With private
landowners anxious to sell their land, we believe the time is
ripe for this expansion.
It is hard to imagine a better example of an outdoor
classroom than Petrified Forest National Park. This boundary
expansion will ensure long-term protection of globally
significant paleontological resources, potentially nationally
significant archaeological resources where there is
substantial evidence of early habitation, and the park's
viewshed. It will also alleviate the threat of encroaching
incompatible development and will greatly enhance the
National Park Service's capability to protect the resources
from vandalism and illegal pothunting.
Just as Theodore Roosevelt recognized the importance of
preserving this land when he proclaimed Petrified Forest a
national monument in 1906, your legislation would ensure that
future generations can learn even more from this amazing
landscape that capture's the world's best record of Triassic-
period terrestrial ecosystems and prehistoric human
occupation through an array of artifacts and ``trees turned
to stone.''
NPCA looks forward to working with you and your staff to
advance this legislation.
Sincerely,
Thomas C. Kiernan.
Mr. McCAIN. Mr. President, editorials from Arizona State newspapers
also encourage a boundary expansion for the Park. I ask unanimous
consent that articles from the Arizona Republic and the Holbrook
Tribune News regarding the park expansion proposal be printed in the
Record.
There being no objection, the editorials were ordered to be printed
in the Record, as follows:
[From the Arizona Republic, May 3, 2002]
Expanding Petrified Forest Can Save Treasures--Pothunters, Looters
Ravaging Park Area
Looters and pothunters are ravaging the land around
Petrified Forest National Park.
The property should be inside the park. A decade ago, the
Park Service decided Petrified Forest's boundaries should be
expanded to include the priceless paleontology, archaeology
and other resources in adjoining areas.
But the proposal has rarely gotten off the congressional
back burner.
Until now.
Arizona Republicans Rep. J.D. Hayworth and Sen. John McCain
are preparing bills to expand Petrified Forest. The plan is
to add 140,000 acres, more than doubling the 93,500-acre
park.
They can't move too fast.
The assets they're trying to protect are under heavy
assault.
A pothunter recently smashed through an 800-year-old
prehistoric Indian site while searching for booty. Someone
else unearthed a massive petrified tree, nearly 5 feet in
diameter, and prepared to hack it into marketable chunks.
Last year, we urged Congress to approve the park expansion.
Since then, looters have wrecked about 400 gravesites near
the park's eastern boundary.
Congress has been understandably preoccupied with other
issues. But a critical window of opportunity is about to
close.
Elections are coming up, and Arizona's new, larger
delegation could take time to come together on this issue.
Landowners around Petrified Forest are tired of waiting to
sell to the government and are beginning to subdivide their
land. The National Parks Conservation Association, and
Albuquerque-based non-profit group, is running out of
resources to push for the expansion.
And the destruction, of course, continues unabated.
boundaries misjudged
When Petrified Forest was protected almost a century ago,
originally as a national monument, the goal was simple: Save
some pretty fossilized wood. And that's how the boundaries
were picked.
Now we realize that area in northeastern Arizona is a
treasure chest, with world-class paleontology, pueblo ruins,
striking petroglyphs and, of course, the marvelous trees that
turned to stone millions of years ago.
But without a park expansion, many of these treasures will
remain outside the protection of federal law. Among them:
The Chinle Escarpment, now only partially within the park,
has the world's best terrestrial fossils of plants and
animals from the late Triassic period, including early di-
nosaurs. The escarpment has yielded the earliest known
sample of amber.
Rainbow Forest Badlands are rich in fossils and include
grazing land for the national park's herd of pronghorn
antelope
Dead Wash Petroglyphs has panels of rock art and pueblo
sites of prehistoric people.
Canyon Butte, a dramatic landmark, includes pueblo ruins
with signs of warfare.
Expanding the park's boundaries appears unlikely to stir
controversy in Congress. Sen. Jon Kyl, R-Ariz., previously
landed $2 million in federal funding for land purchases.
But we all know that the best ideas can get lost in the
blizzard of bills in Congress.
We applaud Hayworth and McCain for pressing forward with
the park expansion. While there's still something left to
save.
____
[From the Holbrook (AZ) Tribune-News, Oct. 27, 2000]
Park's Proposed Expansion
Now under study is a plan to expand the Petrified Forest
National Park's boundaries by about 97,000 acres to afford
protection to this priceless natural treasure. It deserves
our interest and support.
Thanks to the efforts of President Theodore Roosevelt and
others back in 1906, the park has been preserved for us to
enjoy nearly a century later. Now it is time to take the
necessary steps to protect the park for our posterity.
The land involved surrounds the existing park. Some of it
is publicly owned, and some is privately owned.
Presumably the public agencies owning property adjacent to
the park understand how important it is to enlarge the park
and offer protection to its resources. It is my understanding
that most, if not all, of the major private property owners
also support this expansion plan.
The problem is that as these privately owned parcels are
subdivided, it makes it more and more difficult to acquire
the property for the expansion. And each year, the issue will
become more difficult, with more owners to deal with.
The addition of this acreage to the Petrified Forest
National Park will help preserve these natural and cultural
heritage areas, and it is my hope that necessary steps will
be taken to accomplish this program.
We have been fortunate to have foresighted people in the
past who have maintained this wonderful place for us, and we
must be equally diligent now to see that our children and
grandchildren will have it to enjoy for years in the future.
Mr. McCAIN. The legislation I am introducing today is intended to
serve as a placeholder bill for further development of a boundary
expansion proposal. Several key issues remain that require resolution,
including the exact definition of the expanded boundary acreage, and
the disposition, and possible acquisition, of private, Federal, and
State lands within the proposed expansion area.
It's encouraging to note that the four major landowners within the
proposed boundary expansion area have expressed interest in the Park
expansion. Other public landowners, primarily the State of Arizona and
the Bureau of Land Management, have recognized the significance of the
paleontological resources on its lands adjacent to the Park. The
Arizona State Trust Land Department closed nearby State trust lands to
both surface and subsurface applications. Additionally, the Bureau of
Land Management has identified its land-holdings within the proposed
expansion area for disposal and possible transfer to the Park.
Other issues involving additional private landholders and State trust
lands must still be resolved. In particular, the State of Arizona has
specific concerns which must be addressed as the legislation moves
through the process, particularly with regard to compensation to the
State for any acquisitions of State trust lands by the Secretary of
Interior, in keeping with the requirements of State law.
I fully intend to address these issues in consultation with affected
entities and resolve any additional questions within a reasonable time-
frame. A historic opportunity exists to alleviate major threats to
these nationally significant resources and preserve them for our
posterity.
I look forward to working with my colleagues on both sides of the
aisle to ensure swift consideration and enactment of this proposal.
Time is of the essence to ensure the long-term protection of these rare
and important resources for the enjoyment and educational value for
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. 2494
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 ``Petrified Forest National
Park Expansion Act of 2002''.
[[Page S4158]]
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) the Petrified Forest National Park was established--
(A) to preserve and interpret the globally significant
paleontological resources of the Park that are generally
regarded as the most important record of the Triassic period
in natural history; and
(B) to manage those resources to retain significant
cultural, natural, and scenic values;
(2) significant paleontological, archaeological, and scenic
resources directly related to the resource values of the Park
are located in land areas adjacent to the boundaries of the
Park;
(3) those resources not included within the boundaries of
the Park--
(A) are vulnerable to theft and desecration; and
(B) are disappearing at an alarming rate;
(4) the general management plan for the Park includes a
recommendation to expand the boundaries of the Park and
incorporate additional globally significant paleontological
deposits in areas adjacent to the Park--
(A) to further protect nationally significant
archaeological sites; and
(B) to protect the scenic integrity of the landscape and
viewshed of the Park; and
(5) a boundary adjustment at the Park will alleviate major
threats to those nationally significant resources.
(b) Purpose.--The purpose of this Act is to authorize the
Secretary of the Interior to acquire 1 or more parcels of
land--
(1) to expand the boundaries of the Park; and
(2) to protect the rare paleontological and archaeological
resources of the Park.
SEC. 3. DEFINITIONS.
In this Act:
(1) Map.--The term ``map'' means the map entitled
``Proposed Boundary Adjustments, Petrified Forest National
Park'', numbered ____, and dated ________.
(2) Park.--The term ``Park'' means the Petrified Forest
National Park in the State.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(4) State.--The term ``State'' means the State of Arizona.
SEC. 4. BOUNDARY REVISION.
(a) In General.--The boundary of the Park is revised to
include approximately ______ acres, as generally depicted on
the map.
(b) Availability of Map.--The map shall be on file and
available for public inspection in the appropriate offices of
the National Park Service.
SEC. 5. ACQUISITION OF ADDITIONAL LAND.
(a) Private Land.--The Secretary may acquire from a willing
seller, by purchase, exchange, or by donation, any private
land or interests in private land within the revised boundary
of the Park.
(b) State Land.--
(1) In general.--The Secretary may, with the consent of the
State and in accordance with State law, acquire from the
State any State land or interests in State land within the
revised boundary of the Park by purchase or exchange.
(2) Plan.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall, in coordination
with the State, develop a plan for acquisition of State land
or interests in State land identified for inclusion within
the revised boundary of the Park.
SEC. 6. ADMINISTRATION.
(a) In General.--Subject to applicable laws, all land and
interests in land acquired under this Act shall be
administered by the Secretary as part of the Park.
(b) Transfer of Jurisdiction.--The Secretary shall transfer
to the National Park Service administrative jurisdiction over
any land under the jurisdiction of the Secretary that--
(1) is depicted on the map as being within the boundaries
of the Park; and
(2) is not under the administrative jurisdiction of the
National Park Service on the date of enactment of this Act.
(c) Grazing.--
(1) In general.--The Secretary shall permit the
continuation of grazing on land transferred to the Secretary
under this Act, subject to applicable laws (including
regulations) and Executive orders.
(2) Termination of leases or permits.--Nothing in this
subsection prohibits the Secretary from accepting the
voluntary termination of a grazing permit or grazing lease
within the Park.
(d) Amendment to General Management Plan.--Not later than 1
year after the date of enactment of this Act, the Secretary
shall amend the general management plan for the Park to
address the use and management of any additional land
acquired under this Act.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this Act.
______
By Mr. DOMENICI (for himself, Mr. Biden, Mr. Lott, Mr. Daschle,
Mr. Shelby, Mr. Reid, Mr. Nickles, Mr. Torricelli, Mr. Burns,
Mr. Schumer, Mr. Gregg, Mrs. Clinton, Mr. DeWine, Mr. McCain,
Mr. McConnell, Mr. Chafee, Mr. Allard, Mr. Brownback, Mr.
Crapo, Mr. Santorum, Mr. Cochran, Mr. Bond, Mrs. Hutchison, Mr.
Thompson, Ms. Collins, Mr. Craig, Mr. Kyl, Mr. Ensign, Mr.
Inhofe, Mr. Allen, Mr. Hagel, Mr. Voinovich, Mr. Stevens, Mr.
Warner, Mr. Specter, Mr. Smith of Oregon, Mr. Bunning, Mr.
Smith of New Hampshire, and Mr. Inouye):
S. 2495. A bill to designate the United States courthouse located at
100 Federal Plaza in Central Islip, New York, as the ``Alfonse M.
D'Amato United States Courthouse''; to the Committee on Environment and
Public Works.
Mr. DOMENICI. Mr. President, I rise today to introduce a bill in
honor of former Senator Alfonse M. D'Amato on behalf of myself and 40
of my colleagues thus far. I am sure there will be more.
It recently came to my attention that the Federal courthouse in
Central Islip, Long Island, did not have a name so I thought to myself:
What a shame. This beautiful new courthouse does not even have a name,
and I concluded that it was time to rectify the oversight. Who better
than Alfonse D'Amato, a great Senator from New York, who had more than
a little bit to do with providing the people of the Empire State with
public buildings to conduct the business of government and justice.
Forty of my colleagues concur that we ought to name this U.S.
courthouse the ``Alfonse M. D'Amato United States Courthouse.'' I
believe that is the right thing to do. I understand the U.S.
Representatives from New York are moving similar legislation through
their body.
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. 2495
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. DESIGNATION.
The United States courthouse located at 100 Federal Plaza
in Central Islip, New York, shall be known and designated as
the ``Alfonse M. D'Amato United States Courthouse''.
SEC. 2. REFERENCES.
Any reference in a law, map, regulation, document, paper,
or other record of the United States to the United States
courthouse referred to in section 1 shall be deemed to be a
reference to the ``Alfonse M. D'Amato United States
Courthouse''.
______
By Mr. BAUCUS (for himself and Mr. Grassley):
S. 2498. A bill to amend the Internal Revenue Code of 1986 to require
adequate disclosure of transactions which have a potential for tax
avoidance or evasion, and for other purposes; to the Committee on
Finance.
Mr. BAUCUS. Mr. President, Garrison Keillor is quoted as saying, ``I
believe in looking reality straight in the eye and denying it.'' That
approach is perhaps what some would like us to do with respect to the
increasing problem of the use of abusive tax shelters to avoid or evade
taxes. But I do not agree.
The Tax Shelter Transparency Act that I introduce today doesn't deny
reality, rather, it shines some transparency on reality so that we have
a better understanding of what is going on out there. Following Enron's
bankruptcy, I think that all Americans have a greater appreciation for
the need for greater transparency in complex tax transactions.
The legislation is the product of over 2 years of review and public
comment. The Tax Shelter Transparency Act also incorporates tax shelter
proposals released by the Department of the Treasury the day before the
Senate Finance Committee's March 21, 2002 hearing on the subject.
As I stated at the hearing, ``the Finance Committee is committed to
helping combat these carefully engineered transactions. These
transactions have little or no economic substance, are designed to
achieve unwarranted tax benefits rather than business profit, and place
honest corporate competitors at a disadvantage.''
The proliferation of tax shelters has been called ``the most
significant compliance problem currently confronting our system of
self-assessment.'' Less than 2 years ago, there was a more positive
outlook regarding the Government's ability to curb the promotion and
use of abusive tax shelters. The Department of the Treasury and the IRS
[[Page S4159]]
issued regulations requiring disclosure of certain transactions and
requiring developers and promoters of tax-engineered transactions to
maintain customer lists. Also, the IRS had prevailed in several court
cases against the use of transactions lacking in economic substance.
Unfortunately, the honesty and integrity of our tax system has
suffered significant blows over the past 2 years. Court decisions have
shifted from decisions tough on tax avoidance and evasion to court
defeats for the IRS. Also, there appears to be a lack of compliance
with the disclosure legislation passed in 1997 and the subsequent
regulations.
The corporate tax returns filed in 2001 are the first returns filed
under the new tax shelter disclosure requirements. The administration
provided the Finance Committee with the results of their analysis of
the disclosure data, including their analysis of what was not
disclosed.
Only 272 transactions were disclosed by 99 corporate taxpayers. There
are approximately 100,000 corporate taxpayers under the Large and
Midsize Business Division at the IRS yet only 99 of them made a
disclosure under the current regime. Based on the Finance Committee
hearing, it is safe to say that the administration, as did Congress,
thought the number of disclosures would be much greater.
Clearly, the past method of reactive, ad-hoc closing down of abusive
transactions does little to discourage the creation and exploitation of
many shelters.
These transactions may be good for a corporation's bottom line, but
they are bad for the economy. Here's why: abusive corporate tax
shelters create a tax benefit without any corresponding economic
benefit. There's no new product. No technological innovation. Just a
tax break.
As with the Senate Finance Committee draft legislation released last
August, the Tax Shelter Transparency Act emphasizes disclosure.
Disclosure is critical to the Government's ability to identify and
address abusive tax avoidance and evasion arrangements. Under the bill,
if the taxpayer has entered into a questionable transaction and fails
to disclose the transaction, then the taxpayer is subject to tough
penalties for not disclosing and higher penalties if an understatement
results.
The legislation separates transactions into one of three types of
transactions for purposes of disclosure and penalties: Reportable
Listed Transactions, Reportable Avoidance Transactions, and a catch-all
category for Other Transactions. The legislation also addresses the
role of each of the players involved in abusive tax shelters: including
the taxpayer who buys, the promoter who markets, and the tax advisor
who provides an opinion ``endorsing'' the tax-engineered arrangement.
The legislation focuses on each of these participants and contains
proposals to discourage their participation in abusive tax
transactions.
Reportable Listed Transactions are transactions specifically
identified by the Department of the Treasury as ``tax avoidance
transactions.'' These are transactions specifically classified by
Treasury as bad transactions, essentially the worst of the worst.
Failure by the taxpayer to disclose the transaction results in a
separate strict liability, nonwaivable flat dollar penalty of $200,000
for large taxpayers and $100,000 for small taxpayers.
Additionally, if the taxpayer is required to file with the Securities
and Exchange Commission, the penalty must be reported to the SEC. If
the taxpayer discloses the questionable transaction, they are not
subject to the flat dollar penalty or the SEC reporting. The SEC
reporting requirement is a critical element to improving the disclosure
of transactions. The amount of tax penalty is relatively insignificant
to the tax benefits generated by abusive tax shelter transactions.
Corporations, however, have a strong incentive not to trigger a penalty
that must be reported to the SEC.
Failure to disclose a reportable listed transaction that results in a
tax understatement will be subject to a higher, 30 percent, strict
liability, nonwaivable accuracy-related penalty which must be reported
to the SEC.
Reportable Avoidance Transactions are transactions that fall into one
of the several objective criteria established by the Department of the
Treasury which have a potential for tax avoidance or evasion. Based on
current regulations and the proposals put forward by the
administration, we anticipate these transactions would include but
would not be limited to: significant loss transactions; transactions
with brief asset holding periods; transactions marketed under
conditions of confidentiality; transactions subject to indemnification
agreements; and transactions with a certain amount of book-tax
difference.
Failure by the taxpayer to disclose the questionable reportable
avoidance transaction results in a separate strict liability,
nonwaivable flat dollar penalty of $100,000 for large taxpayers and
$50,000 for small taxpayers.
Reportable Avoidance Transactions are then subject to a filter to
determine whether there is a significant purpose of tax avoidance.
Transactions entered into with a significant purpose of tax avoidance
are subject to harsher treatment in the form of higher penalties.
The legislation enhances the Government's ability to enjoin
promoters. Most significantly, the legislation increases the penalty
imposed on tax shelter promoters who refuse to maintain lists of their
tax shelter investors. If a promoter fails to provide the IRS with a
list of investors in a reportable transaction within 20 days after
receipt of a written request by the IRS to provide such a list, the
promoter would be subject to a penalty of $10,000 for each additional
business day that the requested information is not provided.
The legislation adds a provision authorizing the Treasury Department
to censure tax advisors or impose monetary sanctions against tax
advisors and firms that participate in tax shelter activities and
practice before the IRS.
I am pleased that this legislation is the product of working closely
with my good friend, and the ranking member of the Finance Committee,
Senator Grassley. I appreciate Senator Grassley's cosponsorship of the
Tax Shelter Transparency Act and his commitment to work as a bipartisan
front to shine some light on these abusive tax shelter transactions.
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. 2498
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; AMENDMENT OF 1986 CODE; TABLE OF
CONTENTS.
(a) Short Title.--This Act may be cited as the ``Tax
Shelter Transparency Act''.
(b) Amendment of 1986 Code.--Except as otherwise expressly
provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a
section or other provision, the reference shall be considered
to be made to a section or other provision of the Internal
Revenue Code of 1986.
(c) Table of Contents.--
Sec. 1. Short title; amendment of 1986 code; table of contents.
TITLE I--TAXPAYER-RELATED PROVISIONS
Sec. 101. Penalty for failing to disclose reportable transaction.
Sec. 102. Increase in accuracy-related penalties for listed
transactions and other reportable transactions having a
tax avoidance purpose.
Sec. 103. Modifications of substantial understatement penalty for
nonreportable transactions.
Sec. 104. Tax shelter exception to confidentiality privileges relating
to taxpayer communications.
TITLE II--PROMOTER AND PREPARER RELATED PROVISIONS
Subtitle A--Provisions Relating To Reportable Transactions
Sec. 201. Disclosure of reportable transactions.
Sec. 202. Modifications to penalty for failure to register tax
shelters.
Sec. 203. Modification of penalty for failure to maintain lists of
investors.
Sec. 204. Modification of actions to enjoin specified conduct related
to tax shelters and reportable transactions.
Subtitle B--Other Provisions
Sec. 211. Understatement of taxpayer's liability by income tax return
preparer.
Sec. 212. Report on effectiveness of penalty on failure to report
interests in foreign financial accounts.
Sec. 213. Frivolous tax submissions.
Sec. 214. Regulation of individuals practicing before the Department of
Treasury.
[[Page S4160]]
Sec. 215. Penalty on promoters of tax shelters.
TITLE I--TAXPAYER-RELATED PROVISIONS
SEC. 101. PENALTY FOR FAILING TO DISCLOSE REPORTABLE
TRANSACTION.
(a) In General.--Part I of subchapter B of chapter 68
(relating to assessable penalties) is amended by inserting
after section 6707 the following new section:
``SEC. 6707A. PENALTY FOR FAILURE TO INCLUDE REPORTABLE
TRANSACTION INFORMATION WITH RETURN OR
STATEMENT.
``(a) Imposition of Penalty.--Any person who fails to
include with any return or statement any information required
to be included under subchapter A of chapter 61 with respect
to a reportable transaction shall pay a penalty in the amount
determined under subsection (b).
``(b) Amount of Penalty.--
``(1) In general.--Except as provided in paragraphs (2) and
(3), the amount of the penalty under subsection (a) shall be
$50,000.
``(2) Listed transaction.--The amount of the penalty under
subsection (a) with respect to a listed transaction shall be
$100,000.
``(3) Increase in penalty for large entities and high net
worth individuals.--
``(A) In general.--In the case of a failure under
subsection (a) by--
``(i) a large entity, or
``(ii) a high net worth individual,
the penalty under paragraph (1) or (2) shall be twice the
amount determined without regard to this paragraph.
``(B) Large entity.--For purposes of subparagraph (A), the
term `large entity' means, with respect to any taxable year,
a person (other than a natural person) with gross receipts
for the taxable year or the preceding taxable year in excess
of $10,000,000. Rules similar to the rules of paragraph (2)
and subparagraphs (B), (C), and (D) of paragraph (3) of
section 448(c) shall apply for purposes of this subparagraph.
``(C) High net worth individual.--The term `high net worth
individual' means a natural person whose net worth exceeds
$2,000,000.
``(c) Definitions.--For purposes of this section--
``(1) Reportable transaction.--The term `reportable
transaction' means any transaction with respect to which
information is required under subchapter A of chapter 61 to
be included with a taxpayer's return or statement because, as
determined under regulations prescribed under section 6011,
such transaction is of a type which the Secretary determines
as having a potential for tax avoidance or evasion.
``(2) Listed transaction.--Except as provided in
regulations, the term `listed transaction' means a reportable
transaction--
``(A) which is the same as, or similar to, a transaction
specifically identified by the Secretary as a tax avoidance
transaction for purposes of section 6011, or
``(B) which is expected to produce a tax result which is
the same as, or similar to, the tax result in a transaction
which is so specified.
``(d) Penalty Reported to SEC.--In the case of a person--
``(1) which is required to file periodic reports under
section 13 or 15(d) of the Securities Exchange Act of 1934 or
is required to be consolidated with another person for
purposes of such reports, and
``(2) which--
``(A) is required to pay a penalty with respect to a listed
transaction under this section, or
``(B) is required to pay a penalty under section 6662(a)(2)
with respect to any reportable transaction at a rate
prescribed under section 6662(i)(3),
the requirement to pay such penalty shall be disclosed in
such reports filed by such person for such periods as the
Secretary shall specify. Failure to make a disclosure in
accordance with the preceding sentence shall be treated as a
failure to which the penalty under subsection (b)(2) applies.
``(e) Coordination With Other Penalties.--The penalty
imposed by this section is in addition to any penalty imposed
under section 6662.''
(b) Conforming Amendment.--The table of sections for part I
of subchapter B of chapter 68 is amended by inserting after
the item relating to section 6707 the following:
``Sec. 6707A. Penalty for failure to include reportable transaction
information with return or statement.''
(c) Effective Date.--The amendments made by this section
shall apply to transactions entered into after the date of
the enactment of this Act.
SEC. 102. INCREASE IN ACCURACY-RELATED PENALTIES FOR LISTED
TRANSACTIONS AND OTHER REPORTABLE TRANSACTIONS
HAVING A TAX AVOIDANCE PURPOSE.
(a) Increase in Penalty.--Subsection (a) of section 6662
(relating to imposition of penalty) is amended to read as
follows:
``(a) Imposition of Penalty.--
``(1) In general.--If this section applies to any portion
of an underpayment of tax required to be shown on a return,
there shall be added to the tax an amount equal to 20 percent
of the portion of the underpayment to which this section
applies.
``(2) Understatement of income tax attributable to listed
transactions or other reportable transactions having a
significant tax avoidance purpose.--If a taxpayer has a
reportable transaction income tax understatement (as defined
in subsection (i)) for any taxable year, there shall be added
to the tax an amount equal to 20 percent of the amount of the
understatement. Except as provided in subsection (i)(4)(B),
such understatement shall not be taken into account for
purposes of paragraph (1).''
(b) Reportable Transaction Income Tax Understatement.--
Section 6662 (relating to imposition of accuracy-related
penalty) is amended by adding at the end the following new
subsection:
``(i) Understatement of Income Tax Attributable to Listed
Transactions and Other Reportable Transactions Having a
Significant Tax Avoidance Purpose.--
``(1) Reportable transaction income tax understatement.--
For purposes of subsection (a)(2), the term `reportable
transaction income tax understatement' means the sum of--
``(A) the product of--
``(i) the amount of the increase (if any) in taxable income
which results from a difference between the taxpayer's
treatment of items to which this subsection applies (as shown
on the taxpayer's return of tax) and the proper tax treatment
of such items, and
``(ii) the highest rate of tax imposed by section 1
(section 11 in the case of a taxpayer which is a
corporation), and
``(B) the amount of the decrease (if any) in the credits
allowed against the tax imposed by subtitle A which results
from a difference between the taxpayer's treatment of items
to which this subsection applies (as shown on the taxpayer's
return of tax) and the proper tax treatment of such items.
For purposes of subparagraph (A), any reduction of the excess
of deductions allowed for the taxable year over gross income
for such year, and any reduction in the amount of capital
losses which would (without regard to section 1211) be
allowed for such year, shall be treated as an increase in
taxable income.
``(2) Items to which subsection applies.--This subsection
shall apply to any item which is attributable to--
``(A) any listed transaction, or
``(B) any reportable transaction (other than a listed
transaction) if a significant purpose of such transaction is
the avoidance or evasion of Federal income tax.
``(3) Higher penalty for nondisclosed listed and other
avoidance transactions.--In the case of any portion of a
reportable transaction income tax understatement attributable
to a transaction to which section 6664(c)(1) does not apply
by reason of section 6664(c)(2)(A), the rate of tax under
subsection (a)(2) shall be increased by 5 percent (10 percent
in the case of a listed transaction).
``(4) Definitions and special rules.--For purposes of this
subsection--
``(A) Reportable and listed transactions.--The terms
`reportable transaction' and `listed transaction' have the
respective meanings given to such terms by section 6707A(c).
``(B) Coordination with determinations of whether other
understatements are substantial.--Reportable transaction
income tax understatements shall be taken into account under
subsection (d)(1) in determining whether any understatement
(which is not a reportable transaction income tax
understatement) is a substantial understatement.
``(C) Special rule for amended returns.--Except as provided
in regulations, in no event shall any tax treatment included
with an amendment or supplement to a return of tax be taken
into account in determining the amount of any reportable
transaction income tax understatement if the amendment or
supplement is filed after the earlier of the date the
taxpayer is first contacted by the Secretary regarding the
examination of the return or such other date as is specified
by the Secretary.''
(c) Reasonable Cause Exception.--Subsection (c) of section
6664 (relating to reasonable cause exception) is amended by
redesignating paragraphs (2) and (3) as paragraphs (4) and
(5), respectively, and by inserting after paragraph (1) the
following new paragraphs:
``(2) Special rules for understatements attributable to
listed and certain other tax avoidance transactions.--
Paragraph (1) shall not apply to the portion of any
reportable transaction income tax understatement attributable
to an item referred to in section 6662(i)(2) unless--
``(A) the relevant facts affecting the tax treatment of
such item are adequately disclosed in accordance with the
regulations prescribed under section 6011,
``(B) there is or was substantial authority for such
treatment, and
``(C) the taxpayer reasonably believed that such treatment
was more likely than not the proper treatment.
``(3) Rules relating to reasonable belief.--For purposes of
paragraph (2)(C)--
``(A) In general.--A taxpayer shall be treated as having a
reasonable belief with respect to the tax treatment of an
item only if such belief--
``(i) is based on the facts and law that exist at the time
the return of tax which includes such tax treatment is filed,
and
``(ii) relates solely to the taxpayer's chances of success
on the merits of such treatment and does not take into
account the possibility that a return will not be audited,
such treatment will not be raised on
[[Page S4161]]
audit, or such treatment will be resolved through settlement
if it is raised.
``(B) Certain opinions may not be relied upon.--
``(i) In general.--An opinion of a tax advisor may not be
relied upon to establish the reasonable belief of a taxpayer
if--
``(I) the tax advisor is described in clause (ii), or
``(II) the opinion is described in clause (iii).
``(ii) Disqualified tax advisors.--A tax advisor is
described in this clause if the tax advisor is a material
advisor (within the meaning of section 6111(b)(1)) who--
``(I) is compensated directly or indirectly by another
material advisor with respect to the transaction,
``(II) has a contingent fee arrangement with respect to the
transaction,
``(III) has any type of referral agreement or other similar
agreement or understanding with another material advisor
which relates to the transaction, or
``(IV) has any other characteristic which, as determined
under regulations prescribed by the Secretary, is indicative
of a potential conflict of interest or compromise of
independence.
``(iii) Disqualified opinions.--An opinion is described in
this clause if the opinion--
``(I) is based on unreasonable factual or legal assumptions
(including assumptions as to future events),
``(II) unreasonably relies on representations, statements,
findings, or agreements of the taxpayer or any other person,
``(III) does not identify and consider all relevant facts,
or
``(IV) fails to meet any other requirement as the Secretary
may prescribe.''
(d) Conforming Amendments.--
(1) Subparagraph (C) of section 461(i)(3) is amended by
striking ``section 6662(d)(2)(C)(iii)'' and inserting
``section 1274(b)(3)(C)''.
(2) Paragraph (3) of section 1274(b) is amended--
(A) by striking ``(as defined in section
6662(d)(2)(C)(iii))'' in subparagraph (B)(i), and
(B) by adding at the end the following new subparagraph:
``(C) Tax shelter.--For purposes of subparagraph (B), the
term `tax shelter' means--
``(i) a partnership or other entity,
``(ii) any investment plan or arrangement, or
``(iii) any other plan or arrangement,
if a significant purpose of such partnership, entity, plan,
or arrangement is the avoidance or evasion of Federal income
tax.''
(3) Section 6662(d)(2) is amended by striking subparagraphs
(C) and (D).
(4) Subsection (b) of section 7525 is amended by striking
``section 6662(d)(2)(C)(iii)'' and inserting ``section
1274(b)(3)(C)''.
(e) Effective Date.--The amendments made by this section
shall apply to taxable years ending after the date of the
enactment of this Act.
SEC. 103. MODIFICATIONS OF SUBSTANTIAL UNDERSTATEMENT PENALTY
FOR NONREPORTABLE TRANSACTIONS.
(a) Substantial Understatement of Corporations.--Section
6662(d)(1)(B) (relating to special rule for corporations) is
amended to read as follows:
``(B) Special rule for corporations.--In the case of a
corporation other than an S corporation or a personal holding
company (as defined in section 542), there is a substantial
understatement of income tax for any taxable year if the
amount of the understatement for the taxable year exceeds the
lesser of--
``(i) 10 percent of the tax required to be shown on the
return for the taxable year, or
``(ii) $10,000,000.''
(b) Reduction for Understatement of Taxpayer Due to
Position of Taxpayer or Disclosed Item.--
(1) In general.--Section 6662(d)(2)(B)(i) (relating to
substantial authority) is amended to read as follows:
``(i) the tax treatment of any item by the taxpayer if the
taxpayer had reasonable belief that the tax treatment was
more likely than not the proper treatment, or''.
(2) Conforming amendment.--Section 6662(d) is amended by
adding at the end the following new paragraph:
``(3) Secretarial list.--For purposes of this subsection,
section 6664(c)(2), and section 6694(a)(1), the Secretary may
prescribe a list of positions--
``(A) for which the Secretary believes there is not
substantial authority or there is no reasonable belief that
the tax treatment is more likely than not the proper tax
treatment, and
``(B) which affect a significant number of taxpayers.
Such list (and any revisions thereof) shall be published in
the Federal Register or the Internal Revenue Bulletin.''
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after the date of the
enactment of this Act.
SEC. 104. TAX SHELTER EXCEPTION TO CONFIDENTIALITY PRIVILEGES
RELATING TO TAXPAYER COMMUNICATIONS.
(a) In General.--Section 7525(b) (relating to section not
to apply to communications regarding corporate tax shelters)
is amended to read as follows:
``(b) Section Not To Apply To Communications Regarding Tax
Shelters.--The privilege under subsection (a) shall not apply
to any written communication which is--
``(1) between a federally authorized tax practitioner and--
``(A) any person,
``(B) any director, officer, employee, agent, or
representative of the person, or
``(C) any other person holding a capital or profits
interest in the person, and
``(2) in connection with the promotion of the direct or
indirect participation of the person in any tax shelter (as
defined in section 1274(b)(3)(C)).''
(b) Effective Date.--The amendment made by this section
shall apply to communications made on or after the date of
the enactment of this Act.
TITLE II--PROMOTER AND PREPARER RELATED PROVISIONS
Subtitle A--Provisions Relating To Reportable Transactions
SEC. 201. DISCLOSURE OF REPORTABLE TRANSACTIONS.
(a) In General.--Section 6111 (relating to registration of
tax shelters) is amended to read as follows:
``SEC. 6111. DISCLOSURE OF REPORTABLE TRANSACTIONS.
``(a) In General.--Each material advisor with respect to
any reportable transaction shall make a return (in such form
as the Secretary may prescribe) setting forth--
``(1) information identifying and describing the
transaction,
``(2) information describing the advice provided by such
advisor, including any potential tax benefits represented to
result from the transaction, and
``(3) such other information as the Secretary may
prescribe.
Such return shall be filed on the first business day
following the earliest date on which such advisor provides
any material aid, assistance, or advice with respect to
organizing, promoting, selling, implementing, or carrying out
the transaction (or such later date as the Secretary may
prescribe).
``(b) Definitions.--For purposes of this section--
``(1) Material advisor.--The term `material advisor' means
any person--
``(A) who provides any material aid, assistance, or advice
with respect to organizing, promoting, selling, implementing,
or carrying out any reportable transaction, and
``(B) who directly or indirectly derives gross income from
such advice or assistance.
``(2) Reportable transaction.--The term `reportable
transaction' has the meaning given to such term by section
6707A(c).
``(c) Regulations.--The Secretary may prescribe regulations
which provide--
``(1) that only 1 person shall be required to meet the
requirements of subsection (a) in cases in which 2 or more
persons would otherwise be required to meet such
requirements,
``(2) exemptions from the requirements of this section, and
``(3) such rules as may be necessary or appropriate to
carry out the purposes of this section.''
(b) Conforming Amendments.--
(1) The item relating to section 6111 in the table of
sections for subchapter B of chapter 61 is amended to read as
follows:
``Sec. 6111. Disclosure of reportable transactions.''
(2)(A) So much of section 6112 as precedes subsection (c)
thereof is amended to read as follows:
``SEC. 6112. MATERIAL ADVISORS OF REPORTABLE TRANSACTIONS
MUST KEEP LISTS OF ADVISEES.
``(a) In General.--Each material advisor (as defined in
section 6111) with respect to any reportable transaction (as
defined in section 6707A(c)) shall maintain (in such manner
as the Secretary may by regulations prescribe) a list--
``(1) identifying each person with respect to whom such
advisor acted as such a material advisor with respect to such
transaction, and
``(2) containing such other information as the Secretary
may by regulations require.''
(B) Section 6112 is amended by redesignating subsection (c)
as subsection (b).
(C) Section 6112(b)(1)(A), as redesignated by subparagraph
(B), is amending by inserting ``written'' before ``request''.
(D) The item relating to section 6112 in the table of
sections for subchapter B of chapter 61 is amended to read as
follows:
``Sec. 6112. Material advisors of reportable transactions must keep
lists of advisees.''
(3)(A) The heading for section 6708 is amended to read as
follows:
``SEC. 6708. FAILURE TO MAINTAIN LISTS OF ADVISEES WITH
RESPECT TO REPORTABLE TRANSACTIONS.''
(B) The item relating to section 6708 in the table of
sections for part I of subchapter B of chapter 68 is amended
to read as follows:
``Sec. 6708. Failure to maintain lists of advisees with respect to
reportable transactions.''
(c) Effective Date.--The amendments made by this section
shall apply to transactions entered into after the date of
the enactment of this Act.
SEC. 202. MODIFICATIONS TO PENALTY FOR FAILURE TO REGISTER
TAX SHELTERS.
(a) In General.--Section 6707 (relating to failure to
furnish information regarding tax shelters) is amended to
read as follows:
[[Page S4162]]
``SEC. 6707. FAILURE TO FURNISH INFORMATION REGARDING
REPORTABLE TRANSACTIONS.
``(a) In General.--If a person who is required to file a
return under section 6111(a) with respect to any reportable
transaction--
``(1) fails to file such return on or before the date
prescribed therefor, or
``(2) files false or incomplete information with the
Secretary with respect to such transaction,
such person shall pay a penalty with respect to such return
in the amount determined under subsection (b).
``(b) Amount of Penalty.--
``(1) In general.--Except as provided in paragraph (2), the
penalty imposed under subsection (a) with respect to any
failure shall be $50,000.
``(2) Listed transactions.--The penalty imposed under
subsection (a) with respect to any listed transaction shall
be an amount equal to the greater of--
``(A) $200,000, or
``(B) 50 percent of the fees paid to such person with
respect to aid, assistance, or advice which is provided with
respect to the reportable transaction before the date the
return is filed under section 6111.
Subparagraph (B) shall be applied by substituting `75
percent' for `50 percent' in the case of an intentional
failure or act described in subsection (a).
``(c) Reportable and Listed Transactions.--The terms
`reportable transaction' and `listed transaction' have the
respective meanings given to such terms by section
6707A(c).''
(b) Clerical Amendment.--The item relating to section 6707
in the table of sections for part I of subchapter B of
chapter 68 is amended by striking ``tax shelters'' and
inserting ``reportable transactions''.
(c) Effective Date.--The amendments made by this section
shall apply to failures occurring after the date of the
enactment of this Act.
SEC. 203. MODIFICATION OF PENALTY FOR FAILURE TO MAINTAIN
LISTS OF INVESTORS.
(a) In General.--Subsection (a) of section 6708 is amended
to read as follows:
``(a) Imposition of Penalty.--
``(1) In general.--If any person who is required to
maintain a list under section 6112(a) fails to make such list
available to the Secretary in accordance with section
6112(b)(1)(A) within 20 days after the date of the
Secretary's request, such person shall pay a penalty of
$10,000 for each day of such failure after such 20th day.
``(2) Reasonable cause exception.--No penalty shall be
imposed by paragraph (1) with respect to the failure on any
day if such failure is due to reasonable cause.''
(b) Effective Date.--The amendment made by this section
shall apply to failures occurring after the date of the
enactment of this Act.
SEC. 204. MODIFICATION OF ACTIONS TO ENJOIN SPECIFIED CONDUCT
RELATED TO TAX SHELTERS AND REPORTABLE
TRANSACTIONS.
(a) In General.--Section 7408 (relating to action to enjoin
promoters of abusive tax shelters, etc.) is amended by
redesignating subsection (c) as subsection (d) and by
striking subsections (a) and (b) and inserting the following
new subsections:
``(a) Authority To Seek Injunction.--A civil action in the
name of the United States to enjoin any person from further
engaging in specified conduct may be commenced at the request
of the Secretary. Any action under this section shall be
brought in the district court of the United States for the
district in which such person resides, has his principal
place of business, or has engaged in specified conduct. The
court may exercise its jurisdiction over such action (as
provided in section 7402(a)) separate and apart from any
other action brought by the United States against such
person.
``(b) Adjudication and Decree.--In any action under
subsection (a), if the court finds--
``(1) that the person has engaged in any specified conduct,
and
``(2) that injunctive relief is appropriate to prevent
recurrence of such conduct,
the court may enjoin such person from engaging in such
conduct or in any other activity subject to penalty under
this title.
``(c) Specified Conduct.--For purposes of this section, the
term `specified conduct' means any action, or failure to take
action, subject to penalty under section 6700, 6701, 6707, or
6708.''
(b) Conforming Amendments.--
(1) The heading for section 7408 is amended to read as
follows:
``SEC. 7408. ACTIONS TO ENJOIN SPECIFIED CONDUCT RELATED TO
TAX SHELTERS AND REPORTABLE TRANSACTIONS.''
(2) The table of sections for subchapter A of chapter 67 is
amended by striking the item relating to section 7408 and
inserting the following new item:
``Sec. 7408. Actions to enjoin specified conduct related to tax
shelters and reportable transactions.''
(c) Effective Date.--The amendment made by this section
shall take effect on the day after the date of the enactment
of this Act.
Subtitle B--Other Provisions
SEC. 211. UNDERSTATEMENT OF TAXPAYER'S LIABILITY BY INCOME
TAX RETURN PREPARER.
(a) Standards Conformed to Taxpayer Standards.--Section
6694(a) (relating to understatements due to unrealistic
positions) is amended--
(1) by striking ``realistic possibility of being sustained
on its merits'' in paragraph (1) and inserting ``reasonable
belief that the tax treatment in such position was more
likely than not the proper treatment'',
(2) by striking ``or was frivolous'' in paragraph (3) and
inserting ``or there was no reasonable basis for the tax
treatment of such position'', and
(3) by striking ``Unrealistic'' in the heading and
inserting ``Improper''.
(b) Amount of Penalty.--Section 6694 is amended--
(1) by striking ``$250'' in subsection (a) and inserting
``$1,000'', and
(2) by striking ``$1,000'' in subsection (b) and inserting
``$5,000''.
(c) Effective Date.--The amendments made by this section
shall apply to documents prepared after the date of the
enactment of this Act.
SEC. 212. REPORT ON EFFECTIVENESS OF PENALTY ON FAILURE TO
REPORT INTERESTS IN FOREIGN FINANCIAL ACCOUNTS.
The Secretary of the Treasury or his delegate shall report
each year to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate
on--
(1) the number of civil and criminal penalties imposed on
failures to meet the reporting and recordkeeping requirements
of section 5314 of title 31, United States Code, with respect
to interests held in foreign financial accounts, and
(2) the average amount of monetary penalties so imposed.
The Secretary shall include with such report an analysis of
the effectiveness of such reporting and recordkeeping
requirements in preventing the avoidance or evasion of
Federal income taxes and any recommendations to improve such
requirements and the enforcement of such requirements.
SEC. 213. FRIVOLOUS TAX SUBMISSIONS.
(a) Civil Penalties.--Section 6702 is amended to read as
follows:
``SEC. 6702. FRIVOLOUS TAX SUBMISSIONS.
``(a) Civil Penalty for Frivolous Tax Returns.--A person
shall pay a penalty of $5,000 if--
``(1) such person files what purports to be a return of a
tax imposed by this title but which--
``(A) does not contain information on which the substantial
correctness of the self-assessment may be judged, or
``(B) contains information that on its face indicates that
the self-assessment is substantially incorrect; and
``(2) the conduct referred to in paragraph (1)--
``(A) is based on a position which the Secretary has
identified as frivolous under subsection (c), or
``(B) reflects a desire to delay or impede the
administration of Federal tax laws.
``(b) Civil Penalty for Specified Frivolous Submissions.--
``(1) Imposition of Penalty.--Except as provided in
paragraph (3), any person who submits a specified frivolous
submission shall pay a penalty of $5,000.
``(2) Specified frivolous submission.--For purposes of this
section--
``(A) Specified frivolous submission.--The term `specified
frivolous submission' means a specified submission if any
portion of such submission--
``(i) is based on a position which the Secretary has
identified as frivolous under subsection (c), or
``(ii) reflects a desire to delay or impede the
administration of Federal tax laws.
``(B) Specified submission.--The term `specified
submission' means--
``(i) a request for a hearing under--
``(I) section 6320 (relating to notice and opportunity for
hearing upon filing of notice of lien), or
``(II) section 6330 (relating to notice and opportunity for
hearing before levy), and
``(ii) an application under--
``(I) section 7811 (relating to taxpayer assistance
orders),
``(II) section 6159 (relating to agreements for payment of
tax liability in installments), or
``(III) section 7122 (relating to compromises).
``(3) Opportunity to withdraw submission.--If the Secretary
provides a person with notice that a submission is a
specified frivolous submission and such person withdraws such
submission promptly after such notice, the penalty imposed
under paragraph (1) shall not apply with respect to such
submission.
``(c) Listing of Frivolous Positions.--The Secretary shall
prescribe (and periodically revise) a list of positions which
the Secretary has identified as being frivolous for purposes
of this subsection. The Secretary shall not include in such
list any position that the Secretary determines meets the
requirement of section 6662(d)(2)(B)(ii)(II).
``(d) Reduction of Penalty.--The Secretary may reduce the
amount of any penalty imposed under this section if the
Secretary determines that such reduction would promote
compliance with and administration of the Federal tax laws.
``(e) Penalties in Addition to Other Penalties.--The
penalties imposed by this section shall be in addition to any
other penalty provided by law.''
(b) Treatment of Frivolous Requests for Hearings Before
Levy.--
[[Page S4163]]
(1) Frivolous requests disregarded.--Section 6330 (relating
to notice and opportunity for hearing before levy) is amended
by adding at the end the following new subsection:
``(g) Frivolous Requests for Hearing, Etc.--Notwithstanding
any other provision of this section, if the Secretary
determines that any portion of a request for a hearing under
this section or section 6320 meets the requirement of clause
(i) or (ii) of section 6702(b)(2)(A), then the Secretary may
treat such portion as if it were never submitted and such
portion shall not be subject to any further administrative or
judicial review.''
(2) Preclusion from raising frivolous issues at hearing.--
Section 6330(c)(4) is amended--
(A) by striking ``(A)'' and inserting ``(A)(i)'';
(B) by striking ``(B)'' and inserting ``(ii)'';
(C) by striking the period at the end of the first sentence
and inserting ``; or''; and
(D) by inserting after subparagraph (A)(ii) (as so
redesignated) the following:
``(B) the issue meets the requirement of clause (i) or (ii)
of section 6702(b)(2)(A).''
(3) Statement of grounds.--Section 6330(b)(1) is amended by
striking ``under subsection (a)(3)(B)'' and inserting ``in
writing under subsection (a)(3)(B) and states the grounds for
the requested hearing''.
(c) Treatment of Frivolous Requests for Hearings Upon
Filing of Notice of Lien.--Section 6320 is amended--
(1) in subsection (b)(1), by striking ``under subsection
(a)(3)(B)'' and inserting ``in writing under subsection
(a)(3)(B) and states the grounds for the requested hearing'',
and
(2) in subsection (c), by striking ``and (e)'' and
inserting ``(e), and (g)''.
(d) Treatment of Frivolous Applications for Offers-in-
Compromise and Installment Agreements.--Section 7122 is
amended by adding at the end the following new subsection:
``(e) Frivolous Submissions, Etc.--Notwithstanding any
other provision of this section, if the Secretary determines
that any portion of an application for an offer-in-compromise
or installment agreement submitted under this section or
section 6159 meets the requirement of clause (i) or (ii) of
section 6702(b)(2)(A), then the Secretary may treat such
portion as if it were never submitted and such portion shall
not be subject to any further administrative or judicial
review.''
(e) Clerical Amendment.--The table of sections for part I
of subchapter B of chapter 68 is amended by striking the item
relating to section 6702 and inserting the following new
item:
``Sec. 6702. Frivolous tax submissions.''
(f) Effective Date.--The amendments made by this section
shall apply to submissions made and issues raised after the
date on which the Secretary first prescribes a list under
section 6702(c) of the Internal Revenue Code of 1986, as
amended by subsection (a).
SEC. 214. REGULATION OF INDIVIDUALS PRACTICING BEFORE THE
DEPARTMENT OF TREASURY.
(a) Censure; Imposition of Penalty.--
(1) In general.--Section 330(b) of title 31, United States
Code, is amended--
(A) by inserting ``, or censure,'' after ``Department'',
and
(B) by adding at the end the following new flush sentence:
``The Secretary may impose a monetary penalty on any
representative described in the preceding sentence. If the
representative was acting on behalf of an employer or any
firm or other entity in connection with the conduct giving
rise to such penalty, the Secretary may impose a monetary
penalty on such employer, firm, or entity if it knew, or
reasonably should have known, of such conduct. Such penalty
shall not exceed the gross income derived (or to be derived)
from the conduct giving rise to the penalty and may be in
addition to, or in lieu of, any suspension, disbarment, or
censure.''
(2) Effective date.--The amendments made by this subsection
shall apply to actions taken after the date of the enactment
of this Act.
(b) Tax Shelter Opinions, Etc.--Section 330 of such title
31 is amended by adding at the end the following new
subsection:
``(d) Nothing in this section or in any other provision of
law shall be construed to limit the authority of the
Secretary of the Treasury to impose standards applicable to
the rendering of written advice with respect to any entity,
transaction plan or arrangement, or other plan or
arrangement, which is of a type which the Secretary
determines as having a potential for tax avoidance or
evasion.''
SEC. 215. PENALTY ON PROMOTERS OF TAX SHELTERS.
(a) Penalty on Promoting Abusive Tax Shelters.--Section
6700(a) is amended by adding at the end the following new
sentence: ``Notwithstanding the first sentence, if an
activity with respect to which a penalty imposed under this
subsection involves a statement described in paragraph
(2)(A), the amount of the penalty shall be equal to 50
percent of the gross income derived (or to be derived) from
such activity by the person on which the penalty is
imposed.''
(b) Effective Date.--The amendment made by this section
shall apply to activities after the date of the enactment of
this Act.
Mr. GRASSLEY. Mr. President, I rise today to co-sponsor legislation,
the ``Tax Shelter Transparency Act'' which will arrest the
proliferation of tax shelters.
We have known for many years that abusive tax shelters, which are
structured to exploit unintended consequences of our complicated
Federal income tax system, erode the Federal tax base and the public's
confidence in the tax system. Such transactions are patently unfair to
the vast majority of taxpayers who do their best to comply with the
letter and spirit of the tax law. As a result, the Finance Committee
has worked exceedingly hard over the past several years to develop
three legislative discussion drafts for public review and comment.
Thoughtful and well-considered comments on these drafts have been
greatly appreciated by the staff and members of the Finance Committee.
The collaborative efforts of those involved in the discussion drafts
combined with the recent request for legislative assistance from the
Treasury Department and IRS produced today's revised approach for
dealing with abusive tax avoidance transactions.
Above all, the Tax Shelter Transparency Act encourages taxpayer
disclosure of potentially abusive tax avoidance transactions. It is
surprising and unfortunate that taxpayers, though required to disclose
tax shelter transactions under present law, have refused to comply. The
Treasury Department and IRS report that the 2001 tax filing season
produced a mere 272 tax shelter return disclosures from only 99
corporate taxpayers, a fraction of transactions requiring such
disclosure. The Tax Shelter Transparency Act will curb non-compliance
by providing clearer and more objective rules for the reporting of
potential tax shelters and by providing strong penalties for anyone who
refuses to comply with the revised disclosure requirements.
The legislation has been carefully structured to reward those who are
forthcoming with disclosure. I wholeheartedly agree with the remarks
offered by the recent Treasury Assistant Secretary for Tax Policy, that
``if a taxpayer is comfortable entering into a transaction, a promoter
is comfortable selling it, and an advisor is comfortable blessing it,
they all should be comfortable disclosing it to the IRS.'' Transparency
is essential to an evaluation by the IRS and ultimately by the Congress
of the United States as to whether the tax benefits generated by
complex business transactions are appropriate interpretations of
existing tax law. To the extent such interpretations were unintended,
the bill allows Congress to amend or clarify existing tax law. To the
extent such interpretations are appropriate, all taxpayers, from the
largest U.S. multinational conglomerate to the smallest local feedstore
owner in Iowa, will benefit when transactions are publicly sanctioned
in the form of an ``angel list'' of good transactions. This legislation
accomplishes both of these objectives.
______
By Mr. KENNEDY (for himself and Mrs. Clinton):
S. 2499. A bill to amend the Federal Food, Drug, and Cosmetic Act to
establish labeling requirements regarding allergenic substances in
food, and for other purposes; to the Committee on Health, Education,
Labor, and Pensions.
Mr. KENNEDY. Mr. President, I am pleased today to join my colleagues
Senator Clinton and Congresswoman Nita Lowey in introducing legislation
to improve the labeling of allergens in food.
American families deserve to feel confident about the safety of the
food on their tables. The Food Allergen Consumer Protection Act will
allow the seven million Americans with food allergies to identify more
easily a product's ingredients, avoid foods that may harm them, and
stay healthy. We anticipate that this legislation will reduce the
number, currently estimated to be 150 yearly, of Americans who die due
to the ingestion of allergenic foods.
The Food Allergen Consumer Production Act will require that food
ingredient statements on food packages identify in common language when
an ingredient, including a flavoring, coloring, or other additive, is
itself, or is derived from, one of the eight main food allergens, or
from grains containing gluten. This legislation will also make the
ingredient label on foods easier to read, and require it to include a
working telephone number, including one for telecommunication devices
for deaf persons.
[[Page S4164]]
The Food Allergen Consumer Protection Act will require food
manufacturers to minimize cross-contamination with food allergens
between foods produced in the same facility or on the same production
line. It will require the use of ``may contain'' or other advisory
language in food labeling when steps to reduce such cross-contamination
will not eliminate it. This legislation also preserves the Food and
Drug Administration's current authority to regulate the safety of
certain products that are bioengineered to contain proteins that cause
allergic reactions.
The Food Allergen Consumer Protection Act will also require the
Centers for Disease Control and Prevention to track deaths related to
food allergies, and it will direct the National Institutes of Health to
develop a plan for research activities concerning food allergies.
I urge my colleagues in the Senate to support this legislation that
will do so much to improve the lives of those with food allergies. 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. 2499
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 ``Food Allergen Consumer
Protection Act''.
SEC. 2. FINDINGS.
The Congress finds as follows:
(1) Approximately 7,000,000 Americans suffer from food
allergies. Every year roughly 30,000 people receive emergency
room treatment due to the ingestion of allergenic foods, and
an estimated 150 Americans die from anaphylactic shock caused
by a food allergy.
(2) Eight major foods--milk, egg, fish, Crustacea, tree
nuts, wheat, peanuts, and soybeans--cause 90 percent of
allergic reactions. At present, there is no cure for food
allergies. A food allergic consumer depends on a product's
label to obtain accurate and reliable ingredient information
so as to avoid food allergens.
(3) Current Food and Drug Administration regulations exempt
spices, flavorings, and certain colorings and additives from
ingredient labeling requirements that would allow consumers
to avoid those to which they are allergic. Such unlabeled
food allergens may pose a serious health threat to those
susceptible to food allergies.
(4) A recent Food and Drug Administration study found that
25 percent of bakery products, ice creams, and candies that
were inspected failed to list peanuts and eggs, which can
cause potentially fatal allergic reactions. The mislabeling
of foods puts those with a food allergy at constant risk.
(5) In that study, the Food and Drug Administration found
that only slightly more than half of inspected manufacturers
checked their products to ensure that all ingredients were
accurately reflected on the labels. Furthermore, the number
of recalls because of unlabeled allergens rose to 121 in 2000
from about 35 a decade earlier. In part, mislabeling occurs
because potentially fatal allergens are introduced into the
manufacturing process when production lines and cooking
utensils are shared or used to produce multiple products.
(6) Individuals who have food allergies may outgrow their
allergy if they strictly avoid consuming the allergen.
However, some scientists believe that because low levels of
allergens are unintentionally present in foods, those with an
allergy are unable to keep from being repeatedly exposed to
the very foods they are allergic to. Good manufacturing
practices can minimize the unintentional presence of food
allergens. In addition, when good manufacturing practices
cannot eliminate the potential for cross-contamination, an
advisory label on the product can provide additional consumer
protection.
(7) The Food and Drug Administration is the Nation's
principal consumer protection agency, charged with protecting
and promoting public health through premarket and postmarket
regulation of food. The agency must have both the necessary
authority to ensure that foods are properly labeled and
produced using good manufacturing practices and the ability
to penalize manufacturers who violate our food safety laws.
(8) Americans deserve to have confidence in the safety and
labeling of the food on their tables.
SEC. 3. FOOD LABELING; REQUIREMENT OF INFORMATION REGARDING
ALLERGENIC SUBSTANCES.
(a) In General.--Section 403 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 343) is amended by adding at the end
the following:
``(t)(1) If it is not a raw agricultural commodity and it
is, or it intentionally bears or contains, a known food
allergen, unless its label bears, in bold face type, the
common or usual name of the known food allergen and the
common or usual name of the food source described in
subparagraph (3)(A) from which the known food allergen is
derived, except that the name of the food source is not
required when the common or usual name of the known food
allergen plainly identifies the food source.
``(2) The information required under this paragraph may
appear in labeling other than the label only if the Secretary
finds that such other labeling is sufficient to protect the
public health. A finding by the Secretary under this
subparagraph is effective upon publication in the Federal
Register as a notice (including any change in an earlier
finding under this subparagraph).
``(3) For purposes of this Act, the term `known food
allergen' means any of the following:
``(A) Milk, egg, fish, Crustacea, tree nuts, wheat,
peanuts, and soybeans.
``(B) A proteinaceous substance derived from a food
specified in clause (A), unless the Secretary determines that
the substance does not cause an allergic response that poses
a risk to human health.
``(C) Other grains containing gluten (rye, barley, oats,
and triticale).
``(D) In addition, any food that the Secretary by
regulation determines causes an allergic or other adverse
response that poses a risk to human health.
``(4) Notwithstanding paragraph (g), (i), or (k), or any
other law, the labeling requirement under this paragraph
applies to spices, flavorings, colorings, or incidental
additives that are, or that bear or contain, a known food
allergen.
``(u) If it is a raw agricultural commodity that is, or
bears or contains, a known food allergen, unless it has a
label or other labeling that bears in bold face type the
common or usual name of the known food allergen and the
Secretary has found that the label or other labeling is
sufficient to protect the public health. A finding by the
Secretary under this paragraph is effective upon publication
in the Federal Register as a notice (including any change in
an earlier finding under this paragraph).
``(w) If the labeling required under paragraphs (g), (i),
(k), (t), (u), or (v)--
``(1) does not use a single, easy-to-read type style that
is black on a white background, using upper and lower case
letters and with no letters touching;
``(2) does not use at least 8 point type with at least one
point leading (i.e., space between two lines of text),
provided the total surface area of the food package available
to bear labeling exceeds 12 square inches; or
``(3) does not comply with regulations issued by the
Secretary to make it easy for consumers to read and use such
labeling by requiring a format that is comparable to the
format required for the disclosure of nutrition information
in the food label under section 101.9(d)(1) of title 21, Code
of Federal Regulations.''.
(b) Civil Penalties.--Section 303(g)(2) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 333(g)(2)) is
amended--
(1) in subparagraph (A), by striking ``section 402(a)(2)(B)
shall be subject'' and inserting the following: ``section
402(a)(2)(B) or regulations under this chapter to minimize
the unintended presence of allergens in food, or that is
misbranded within the meaning of section 403(t), 403(u),
403(v), or 403(w), shall be subject''; and
(2) in subparagraph (B), by inserting ``or misbranded''
after ``adulterated'' each place such term appears.
(c) Conforming Amendment.--Section 201 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321) is amended by adding
at the end the following:
``(ll) The term `known food allergen' has the meaning given
such term in section 403(t)(3).''.
(d) Effective Date.--The amendments made by this section
take effect upon the expiration of the 180-day period
beginning on the date of the enactment of this Act.
SEC. 4. UNINTENTIONAL PRESENCE OF KNOWN FOOD ALLERGENS.
(a) Food Labeling of Such Food Allergens.--Section 403 of
the Federal Food, Drug, and Cosmetic Act, as amended by
section 3(a) of this Act, is amended by inserting after
paragraph (u) the following:
``(v) If the presence of a known food allergen in the food
is unintentional and its labeling bears a statement that the
food may bear or contain the known food allergen, or any
similar statement, unless the statement is made in compliance
with regulations issued by the Secretary to provide for
advisory labeling of the known food allergen.''.
(b) Effective Date.--The amendment made by subsection (a)
takes effect upon the expiration of the four-year period
beginning on the date of the enactment of this Act, except
with respect to the authority of the Secretary of Health and
Human Services to engage in rulemaking in accordance with
section 5.
SEC. 5. REGULATIONS.
(a) In General.--
(1) Regulations.--Not later than one year after the date of
the enactment of this Act, the Secretary of Health and Human
Services (in this section referred to as the ``Secretary'')
shall issue a proposed rule under sections 402, 403, and
701(a) of the Federal Food, Drug, and Cosmetic Act to
implement the amendments made by this Act. Not later than two
years after such date of enactment, the Secretary shall
promulgate a final rule under such sections.
(2) Effective date.--The final rule promulgated under
paragraph (1) takes effect upon the expiration of the four-
year period beginning on the date of the enactment of this
Act. If a final rule under such paragraph has not been
promulgated as of the expiration of such period, then upon
such expiration the proposed rule under such paragraph
[[Page S4165]]
takes effect as if the proposed rule were a final rule.
(b) Unintentional Presence of Known Food Allergens.--
(1) Good manufacturing practices; records.--Regulations
under subsection (a) shall require the use of good
manufacturing practices to minimize, to the extent
practicable, the unintentional presence of allergens in food.
Such regulations shall include appropriate record keeping and
record inspection requirements.
(2) Advisory labeling.--In the regulations under subsection
(a), the Secretary shall authorize the use of advisory
labeling for a known food allergen when the Secretary has
determined that good manufacturing practices required under
the regulations will not eliminate the unintentional presence
of the known food allergen and its presence in the food poses
a risk to human health, and the regulations shall otherwise
prohibit the use of such labeling.
(c) Ingredient Labeling Generally.--In regulations under
subsection (a), the Secretary shall prescribe a format for
labeling, as provided for under section 403(w)(3) of the
Federal, Food, Drug, and Cosmetic Act.
(d) Review by Office of Management and Budget.--If the
Office of Management and Budget (in this section referred to
as ``OMB'') is to review proposed or final rules under this
Act, OMB shall complete its review in 10 working days, after
which the rule shall be published immediately in the Federal
Register. If OMB fails to complete its review of either the
proposed rule or the final rule in 10 working days, the
Secretary shall provide the rule to the Office of the Federal
Register, which shall publish the rule, and it shall have
full effect (subject to applicable effective dates specified
in this Act) without review by OMB. If the Secretary does not
complete the proposed or final rule so as to provide OMB with
10 working days to review the rule and have it published in
the Federal Register within the time frames for publication
of the rule specified in this section, the rule shall be
published without review by OMB.
SEC. 6. FOOD LABELING; INCLUSION OF TELEPHONE NUMBER.
(a) In General.--Section 403(e) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 343(e)) is amended--
(1) by striking ``and (2)'' and inserting the following:
``(2) in the case of a manufacturer, packer, or distributor
whose annual gross sales made or business done in sales to
consumers equals or exceeds $500,000, a toll-free telephone
number (staffed during reasonable business hours) for the
manufacturer, packer, or distributor (including one to
accommodate telecommunications devices for deaf persons,
commonly known as TDDs); or in the case of a manufacturer,
packer, or distributor whose annual gross sales made or
business done in sales are less than $500,000, the mailing
address or the address of the Internet site for the
manufacturer, packer, or distributor; and (3)''; and
(2) by striking ``clause (2)'' and inserting ``clause
(3)''.
(b) Effective Date.--The amendments made by subsection (a)
take effect upon the expiration of the 180-day period
beginning on the date of the enactment of this Act.
SEC. 7. DATA ON FOOD-RELATED ALLERGIC RESPONSES.
(a) In General.--Consistent with the findings of the study
conducted under subsection (b), the Secretary of Health and
Human Services (in this section referred to as the
``Secretary''), acting through the Director of the Centers
for Disease Control and Prevention and in consultation with
the Commissioner of Foods and Drugs, shall improve the
collection of, and (beginning 18 months after the date of the
enactment of this Act) annually publish, national data on--
(1) the prevalence of food allergies, and
(2) the incidence of deaths, injuries, including
anaphylactic shock, hospitalizations, and physician visits,
and the utilization of drugs, associated with allergic
responses to foods.
(b) Study.--Not later than one year after the date of the
enactment of this Act, the Secretary, in consultation with
consumers, providers, State governments, and other relevant
parties, shall complete a study for the purposes of--
(1) determining whether existing systems for the reporting,
collection and analysis of national data accurately capture
information on the subjects specified in subsection (a); and
(2) identifying new or alternative systems, or enhancements
to existing systems, for the reporting collection and
analysis of national data necessary to fulfill the purpose of
subsection (a).
(c) Public and Provider Education.--The Secretary shall,
directly or through contracts with public or private
entities, educate physicians and other health providers to
improve the reporting, collection, and analysis of data on
the subjects specified in subsection (a).
(d) Child Fatality Review Teams.--Insofar as is
practicable, activities developed or expanded under this
section shall include utilization of child fatality review
teams in identifying and assessing child deaths associated
with allergic responses to foods.
(e) Reports to Congress.--Not later than 18 months after
the date of the enactment of this Act, the Secretary shall
submit to the Congress a report on the progress made with
respect to subsections (a) through (d).
(f) Authorization of Appropriations.--For the purpose of
carrying out this section, there are authorized to be
appropriated $10,000,000 for fiscal year 2003, and such sums
as may be necessary for each subsequent fiscal year.
(g) Effective Date.--This section takes effect on the date
of the enactment of this Act.
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By Mr. ALLARD (for himself, Mr. Sessions, and Mrs. Hutchison):
S. 2501. A bill to establish requirements arising from the delay or
restriction on the shipment of special nuclear materials to the
Savannah River Site, Aiken, South Carolina; to the Committee on Armed
Services.
Mr. ALLARD. Mr. President, 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. 2501
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. REQUIREMENTS RELATING TO DELAY, RESTRICTION, OR
PROHIBITION ON SHIPMENT OF SPECIAL NUCLEAR
MATERIALS TO SAVANNAH RIVER SITE, AIKEN, SOUTH
CAROLINA.
(a) Requirements.--Subject to subsection (c), if as of the
date of the enactment of this Act, or at any time after that
date, the State of South Carolina acts to delay or restrict,
or seeks or enforces a judgment to prohibit, the shipment of
special nuclear materials (SNM) to the Savannah River Site,
Aiken, South Carolina, for processing by the proposed mixed
oxide (MOX) fuel fabrication facility at the Savannah River
Site, the Secretary of Energy shall--
(1) reopen the Record of Decision (ROD) on the mixed oxide
fuel fabrication facility for purposes of identifying and
evaluating alternative locations for the mixed oxide fuel
fabrication facility; and
(2) conduct a study of the costs and implications for the
national security of the United States of--
(A) converting the Savannah River site to an environmental
management (EM) closure site; and
(B) transferring all current and proposed national security
activities at the Savannah River Site from the Savannah River
Site to other facilities of the National Nuclear Security
Administration or the Department of Energy, as appropriate.
(b) Report on Study.--If the Secretary conducts a study
under subsection (a)(2), the Secretary shall submit to the
congressional defense committees a report on the study not
later than six months after the commencement of the study.
(c) Contingent Suspension of Applicability of
Requirements.--If at any time before the requirements in
subsection (a) otherwise go into effect, the Secretary and
the State of South Carolina enter into an agreement regarding
the shipment of special nuclear materials to the Savannah
River Site for processing by the proposed mixed oxide fuel
fabrication facility at the Savannah River Site, the
requirements in subsection (a) shall not go into effect as
long, as determined by the Secretary, as the Secretary and
the State of South Carolina comply with the agreement.
(d) Special Nuclear Materials.--In this section, the term
``special nuclear materials'' includes weapons grade
plutonium.
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