[Congressional Record Volume 148, Number 137 (Thursday, October 17, 2002)]
[Senate]
[Pages S10678-S10729]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. REED (for himself and Mr. Fitzgerald):
S. 3127. A bill to amend the Safe Drinking Water Act to provide
assistance to States to support testing of private wells in areas of
suspected contamination to limit or prevent human exposure to
contaminated groundwater; to the Committee on Environment and Public
Works.
Mr. REED. Mr. President, today I am proud to be joined by my
colleague Senator Fitzgerald in introducing the Private Well Testing
Assistance Act of 2002. This legislation seeks to protect the health of
our Nation's rural families by providing Federal assistance to State
health and environmental agencies for sampling of drinking water wells
near suspected areas of groundwater contamination.
More than 15.1 million households are served by private drinking
water wells in the United States. At times, these wells are affected by
serious groundwater contaminants, including industrial solvents,
petroleum, nitrates, radon, arsenic, beryllium, chloroform, and
gasoline additives such as MTBE.
While private well owners generally are responsible for regular
testing of drinking water wells, cases of serious or potentially
widespread groundwater contamination often require State agencies to
conduct costly tests on numerous wells. Many of these sites are
included in the Environmental Protection Agency's Comprehensive
Environmental Response, Compensation, and Liability Information System,
or CERCLIS, for which Federal funding is available for initial site
assessments, but not for subsequent regular sampling to ensure that
contaminants have not migrated to additional household wells.
With many State budgets across the country in fiscal crisis, State
governments often do not have the resources to provide regular,
reliable testing of wells in proximity to suspected areas of
contamination. By authorizing EPA
[[Page S10679]]
to provide up to $20 million per year to assist State well testing
programs, subject to a 20 percent State match, the Private Well Testing
Assistance Act will create an incentive for states to improve well
monitoring near both new and existing areas of groundwater
contamination.
I urge my colleagues to help ensure the health and safety of American
families that rely on groundwater for their drinking water needs by
supporting this legislation.
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. 3127
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 ``Private Well Testing
Assistance Act''.
SEC. 2. ASSISTANCE FOR TESTING OF PRIVATE WELLS.
Part E of the Safe Drinking Water Act (42 U.S.C. 300j et
seq.) is amended by adding at the end the following:
``SEC. 1459. ASSISTANCE FOR TESTING OF PRIVATE WELLS.
``(a) Findings.--Congress finds that--
``(1) more than 15,100,000 households in the United States
are served by private drinking water wells;
``(2) while private well owners generally are responsible
for regular testing of drinking water wells for the presence
of contaminants, cases of serious or potentially widespread
groundwater contamination often require State health and
environmental agencies to conduct costly tests on numerous
drinking water well sites;
``(3) many of those sites are included in the Comprehensive
Environmental Response, Compensation, and Liability
Information System of the Environmental Protection Agency,
through which Federal funding is available for testing of
private wells during initial site assessments but not for
subsequent regular sampling to ensure that contaminants have
not migrated to other wells;
``(4) many State governments do not have the resources to
provide regular, reliable testing of drinking water wells
that are located in proximity to areas of suspected
groundwater contamination;
``(5) State fiscal conditions, already in decline before
the terrorist attacks of September 11, 2001, are rapidly
approaching a state of crisis;
``(6) according to the National Conference of State
Legislatures--
``(A) revenues in 43 States are below estimates; and
``(B) 36 States have already planned or implemented cuts in
public services;
``(7) as a result of those economic conditions, most States
do not have drinking water well testing programs in place,
and many State well testing programs have been discontinued,
placing households served by private drinking water wells at
increased risk; and
``(8) the provision of Federal assistance, with a State
cost-sharing requirement, would establish an incentive for
States to provide regular testing of drinking water wells in
proximity to new and existing areas of suspected groundwater
contamination.
``(b) Definitions.--In this section:
``(1) Administrator.--The term `Administrator' means the
Administrator of the Environmental Protection Agency, acting
in consultation with appropriate State agencies.
``(2) Area of concern.--The term `area of concern' means a
geographic area in a State the groundwater of which may, as
determined by the State--
``(A) be contaminated or threatened by a release of 1 or
more substances of concern; and
``(B) present a serious threat to human health.
``(3) Hazardous substance.--The term `hazardous substance'
has the meaning given the term in section 101 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601).
``(4) Pollutant or contaminant.--The term `pollutant or
contaminant' has the meaning given the term in section 101 of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601).
``(5) Substance of concern.--The term `substance of
concern' means--
``(A) a hazardous substance;
``(B) a pollutant or contaminant;
``(C) petroleum (including crude oil and any fraction of
crude oil);
``(D) methyl tertiary butyl ether; and
``(E) such other naturally-occurring or other substances
(including arsenic, beryllium, and chloroform) as the
Administrator, in consultation with appropriate State
agencies, may identify by regulation.
``(c) Establishment of Program.--Not later than 90 days
after the date of enactment of this section, the
Administrator shall establish a program to provide funds to
each State for use in testing private wells in the State.
``(d) Determination of Areas of Concern.--Not later than 30
days after the date of enactment of this section, the
Administrator shall promulgate regulations that describe
criteria to be used by a State in determining whether an area
in the State is an area of concern, including a definition of
the term `threat to human health'.
``(e) Application Process.--
``(1) In general.--A State that seeks to receive funds
under this section shall submit to the Administrator, in such
form and containing such information as the Administrator may
prescribe, an application for the funds.
``(2) Certification.--A State application described in
paragraph (1) shall include a certification by the Governor
of the State of the potential threat to human health posed by
groundwater in each area of concern in the State, as
determined in accordance with the regulations promulgated by
the Administrator under subsection (d).
``(3) Processing.--Not later than 15 days after the
Administrator receives an application under this subsection,
the Administrator shall approve or disapprove the
application.
``(f) Provision of Funding.--
``(1) In general.--If the Administrator approves an
application of a State under subsection (e)(3), the
Administrator shall provide to the State an amount of funds
to be used to test private wells in the State that--
``(A) is determined by the Administrator based on--
``(i) the number of private wells to be tested;
``(ii) the prevailing local cost of testing a well in each
area of concern in the State; and
``(iii) the types of substances of concern for which each
well is to be tested; and
``(B) consists of not more than $500 per well, unless the
Administrator determines that 1 or more wells to be tested
warrant the provision of a greater amount.
``(2) Cost sharing.--
``(A) In general.--The Federal share of the cost of any
test described in paragraph (1) shall not exceed 80 percent.
``(B) Non-federal share.--The non-Federal share of the cost
of any test described in paragraph (1) may be provided in
cash or in kind.
``(g) Number and Frequency of Tests.--
``(1) In general.--Subject to paragraph (2), in determining
the number and frequency of tests to be conducted under this
section with respect to any private well in an area of
concern, a State shall take into consideration--
``(A) typical and potential seasonal variations in
groundwater levels; and
``(B) resulting fluctuations in contamination levels.
``(2) Limitation.--Except in a case in which at least 2
years have elapsed since the last date on which a private
well was tested using funds provided under this section, no
funds provided under this section may be used to test any
private well--
``(A) more than 4 times; or
``(B) on or after the date that is 1 year after the date on
which the well is first tested.
``(h) Other Assistance.--Assistance provided to test
private wells under this section shall be in addition to any
assistance provided for a similar purpose under this Act or
any other Federal law.
``(i) Report.--Not later than 1 year after the date of
enactment of this section, the Administrator, in cooperation
with the National Ground Water Association, shall submit to
Congress a report that describes the progress made in
carrying out this section.
``(j) Authorization of Appropriations.--
``(1) In general.--There is authorized to be appropriated
to carry out this section $20,000,000 for each of fiscal
years 2003 through 2006, to remain available until expended.
``(2) Minimum allocation.--The Administrator shall ensure
that, for each fiscal year, each State receives not less than
0.25 percent of the amount made available under paragraph (1)
for the fiscal year.''.
______
By Mr. VOINOVICH (for himself and Mr. DeWine):
S. 3128. A bill to authorize the Pyramid of Remembrance Foundation to
establish a memorial in the District of Columbia and its environs to
honor members of the Armed Forces of the United States who have lost
their lives during peacekeeping operations, humanitarian efforts,
training, terrorist attacks, or covert operations; to the Committee on
Energy and Natural Resources.
Mr. VOINOVICH. Mr. President, nearly ten years ago, a group of
students at Riverside High School in Painesville, OH watched with
horror as a U.S. soldier in Somalia was dragged through the streets of
Mogadishu. The students, concerned that there was no memorial in our
Nation's capital to honor members of our armed forces who lost their
lives during peacekeeping missions such as the one in Somalia, felt
compelled to take action.
This group of motivated young people spearheaded a campaign to
establish a Pyramid of Remembrance in Washington, DC to honor U.S.
servicemen and women who have lost their lives during peacekeeping
operations, humanitarian efforts, training, terrorist attacks, or
convert operations. The students not only proposed the memorial, they
created a private non-
[[Page S10680]]
profit foundation to raise the money to construct the memorial. The
community pulled together, providing legal counsel for the students and
private donations to help fund the project. Thanks to their hard work,
the proposed Pyramid of Remembrance would be built at no cost to the
taxpayer.
In April 2001, the National Capital Memorial Commission, charged with
overseeing monument construction in Washington, DC, held hearings about
the proposed Pyramid of Remembrance. The Commission recommended that
the memorial be constructed on Defense Department land, possibly at
Fort McNair. The commissioners also noted that such a memorial would
indeed fill a void in our Nation's military monuments.
On May 6, 1999, I spoke on the Senate floor in honor of two brave
American soldiers, Chief Warrant Officer Kevin L. Reichert and Chief
Warrant Officer David A. Gibbs, who lost their lives when their Apache
helicopter crashed into the Albanian mountains during a routine
training exercise on May 5, 1999, as U.S. troops joined with our NATO
allies in a military campaign against Slobodan Milosevic. As I remarked
at that time, the United States owes David, Kevin and so many other
service members a debt of gratitude that we will never be able to
repay, for they have paid the ultimate sacrifice. As the Bible says in
John chapter 15:13, ``Greater love has no man than this, that a man lay
down his life for his friends.''
I support the vision of the students at Riverside High School and
applaud the work they have done to make the Pyramid of Remembrance a
reality. I believe it is our duty to honor American men and women in
uniform who have lost their lives while serving their country, whether
in peacetime or during war.
I am pleased to introduce in the Senate a companion measure to H.R.
282, introduced in the House of Representatives by Congressman Steve
LaTourette, which would authorize the Pyramid of Remembrance Foundation
to establish a memorial in the District of Columbia or its environs to
soldiers who have lost their lives during peacekeeping operations,
humanitarian efforts, training, terrorist attacks, or covert
operations.
A monument honoring members of our Armed Forces who have lost their
lives in peacetime deserves a place of honor in our Nation's capital. I
commend and thank the students in Painesville, their parents, and the
teachers and community leaders who have supported them for their hard
work and dedication to this cause. The proposed Pyramid of Remembrance
would fill a void among memorials in Washington, DC. I encourage my
colleagues to support their worthy endeavor and to join me in support
of this bill.
I ask unanimous consent 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. 3128
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. DEFINITIONS.
In this Act:
(1) Map.--The term ``map'' means the map referred to in
section 2(e) of the Commemorative Works Act (40 U.S.C.
1002(e)).
(2) Memorial.--The term ``memorial'' means the memorial
authorized to be established under section 2(a).
SEC. 2. AUTHORITY TO ESTABLISH MEMORIAL.
(a) In General.--The Pyramid of Remembrance Foundation may
establish a memorial on Federal land in the area depicted on
the map as ``Area II'' to honor members of the Armed Forces
of the United States who have lost their lives during
peacekeeping operations, humanitarian efforts, training,
terrorist attacks, or covert operations.
(b) Compliance With Standards for Commemorative Works.--
(1) In general.--Except as provided in paragraph (2), the
establishment of the memorial shall be in accordance with the
Commemorative Works Act (40 U.S.C. 1001 et seq.).
(2) Exception.--Subsections (b) and (c) of section 3 of the
Commemorative Works Act (40 U.S.C. 1003) shall not apply to
the establishment of the memorial.
SEC. 3. FUNDS FOR MEMORIAL.
(a) Use of Federal Funds Prohibited.--Except as provided by
the Commemorative Works Act (40 U.S.C. 1001 et seq.), no
Federal funds may be used to pay any expense incurred from
the establishment of the memorial.
(b) Deposit of Excess Funds.--The Pyramid of Remembrance
Foundation shall transmit to the Secretary of the Treasury
for deposit in the account provided for in section 8(b)(1) of
the Commemorative Works Act (40 U.S.C. 1008(b)(1))--
(1) any funds that remain after payment of all expenses
incurred from the establishment of the memorial (including
payment of the amount for maintenance and preservation
required under section 8(b) of the Commemorative Works Act
(40 U.S.C. 1008(b))); or
(2) any funds that remain on expiration of the authority
for the memorial under section 10(b) of that Act (40 U.S.C.
1010(b)).
______
By Mr. VOINOVICH (for himself and Mr. Feingold):
S. 3131. A bill to balance the budget and protect the Social Security
Trust Fund surpluses; to the Committee on the Budget and the Committee
on Governmental Affairs, jointly, pursuant to the order of August 4,
1977, with instructions that if one Committee reports, the other
Committee have thirty days to report or be discharged.
Mr. VOINOVICH. 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. 3131
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Truth in
Budgeting and Social Security Protection Act of 2002''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--GENERAL REFORMS
Sec. 101. Extension of the discretionary spending caps.
Sec. 102. Extension of pay-as-you-go requirement.
Sec. 103. Automatic budget enforcement for measures considered on the
floor.
Sec. 104. Point of order to require compliance with the caps and pay-
as-you-go.
Sec. 105. Disclosure of interest costs.
Sec. 106. Executive branch report on fiscal exposures.
Sec. 107. Budget Committee sets 302(b) allocations.
Sec. 108. Long-Term Cost Recognition Point of Order.
Sec. 109. Protection of Social Security surpluses by budget
enforcement.
TITLE II--REFORM OF BUDGETARY TREATMENT OF FEDERAL INSURANCE PROGRAMS
Sec. 201. Federal insurance programs.
TITLE III--BIENNIAL BUDGETING AND APPROPRIATIONS
Sec. 301. Revision of timetable.
Sec. 302. Amendments to the Congressional Budget and Impoundment
Control Act of 1974.
Sec. 303. Amendments to title 31, United States Code.
Sec. 304. Two-year appropriations; title and style of appropriations
Acts.
Sec. 305. Multiyear authorizations.
Sec. 306. Government plans on a biennial basis.
Sec. 307. Biennial appropriations bills.
Sec. 308. Report on two-year fiscal period.
Sec. 309. Effective date.
TITLE IV--COMMISSION ON FEDERAL BUDGET CONCEPTS
Sec. 401. Establishment of Commission on Federal Budget Concepts.
Sec. 402. Powers and duties of Commission.
Sec. 403. Membership.
Sec. 404. Staff and support services.
Sec. 405. Report.
Sec. 406. Termination.
Sec. 407. Funding.
TITLE I--GENERAL REFORMS
SEC. 101. EXTENSION OF THE DISCRETIONARY SPENDING CAPS.
(a) In General.--Section 251(c) of the Balanced Budget and
Emergency Deficit Control Act of 1985 is amended by striking
paragraphs (7) through (16) and inserting the following:
``(7) with respect to fiscal years 2004 through 2009 an
amount equal to the appropriated amount of discretionary
spending in budget authority and outlays for fiscal year 2003
adjusted to reflect inflation;''.
(b) Expiration.--Section 275(b) of the Balanced Budget and
Emergency Deficit Control Act of 1985 (2 U.S.C. 900 note) is
amended by striking subsection (b).
(c) Additional Enforcement.--Section 205(g) of H. Con. Res.
290 (106th Congress) is repealed.
SEC. 102. EXTENSION OF PAY-AS-YOU-GO REQUIREMENT.
Section 252(a) of the Balanced Budget and Emergency Deficit
Control Act of 1985 is amended by striking ``enacted before
October 1, 2002,'' both places it appears.
SEC. 103. AUTOMATIC BUDGET ENFORCEMENT FOR MEASURES
CONSIDERED ON THE FLOOR.
(a) In General.--Title III of the Congressional Budget Act
of 1974 is amended by inserting at the end the following:
[[Page S10681]]
``budget evasion point of order
``Sec. 316. (a) Discretionary Caps.--It shall not be in
order to consider any bill or resolution (or amendment,
motion, or conference report on that bill or resolution) that
waives or suspends the enforcement of section 251 of the
Balanced Budget and Emergency Deficit Control Act of 1985 or
otherwise would alter the spending limits set forth in that
section.
``(b) Pay-as-You-Go.--It shall not be in order to consider
any bill or resolution (or amendment, motion, or conference
report on that bill or resolution) that waives or suspends
the enforcement of section 252 of the Balanced Budget and
Emergency Deficit Control Act of 1985 or otherwise would
alter the balances of the pay-as-you-go scorecard pursuant to
that section.
``(c) Directed Scoring.--It shall not be in order in the
Senate to consider any bill or resolution (or amendment,
motion, or conference report on that bill or resolution) that
directs the scorekeeping of any bill or resolution.
``(d) Waiver and Appeal.--This section may be waived or
suspended in the Senate only by an affirmative vote of three-
fifths of the Members, duly chosen and sworn. An affirmative
vote of three-fifths of the Members of the Senate, duly
chosen and sworn, shall be required in the Senate to sustain
an appeal of the ruling of the Chair on a point of order
raised under this section.''.
(b) Table of Contents.--The table of contents for the
Congressional Budget Act of 1974 is amended by inserting
after the item for section 315 the following:
Sec. 316. Budget evasion point of order.''.
SEC. 104. POINT OF ORDER TO REQUIRE COMPLIANCE WITH THE CAPS
AND PAY-AS-YOU-GO.
Section 312(b) of the Congressional Budget Act of 1974 (2
U.S.C. 643(b)) is amended to read as follows:
``(b) Discretionary Spending and Pay-as-You-Go Point of
Order in the Senate.--
``(1) In general.--Except as otherwise provided in this
subsection, it shall not be in order in the Senate to
consider any bill or resolution or any separate provision of
a bill or resolution (or amendment, motion, or conference
report on that bill or resolution) that would--
``(A) exceed any of the discretionary spending limits in
section 251(c) of the Balanced Budget and Emergency Deficit
Control Act of 1985; or
``(B) for direct spending or revenue legislation, would
cause or increase an on-budget deficit for any one of the
following three applicable time periods--
(i) the first year covered by the most recently adopted
concurrent resolution on the budget;
(ii) the period of the first 5 fiscal years covered by the
most recently adopted concurrent resolution on the budget; or
(iii) the period of the 5 fiscal years following the first
five fiscal years covered in the most recently adopted
concurrent resolution on the budget.
``(2) Point of order against a specific provision.--If the
Presiding Officer sustains a point of order under paragraph
(1) with respect to any separate provision of a bill or
resolution, that provision shall be stricken from the measure
and may not be offered as an amendment from the floor.
``(3) Form of the point of order.--A point of order under
this section may be raised by a Senator as provided in
section 313(e) of the Congressional Budget Act of 1974.
``(4) Conference reports.--If a point of order is sustained
under this section against a conference report the report
shall be disposed of as provided in section 313(d) of the
Congressional Budget Act of 1974.
``(5) Enforcement by the presiding officer.--In the Senate,
if a point of order lies against a bill or resolution (or
amendment, motion, or conference report on that bill or
resolution) under this section, and no Senator has raised the
point of order, and the Senate has not waived the point of
order, then before the Senate may vote on the bill or
resolution (or amendment, motion, or conference report on
that bill or resolution), the Presiding Officer shall on his
or her own motion raise a point of order under this section.
``(6) Exceptions.--This subsection shall not apply if a
declaration of war by the Congress is in effect or if a joint
resolution pursuant to section 258 of the Balanced Budget and
Emergency Deficit Control Act of 1985 has been enacted.''.
SEC. 105. DISCLOSURE OF INTEREST COSTS.
Section 308(a)(1) of the Congressional Budget Act of 1974
(2 U.S.C. 639(a)(1)) is amended--
(1) in subparagraph (B), by striking ``and'' after the
semicolon;
(2) in subparagraph (C), by striking the period and
inserting ``; and''; and
(3) by adding at the end the following:
``(D) containing a projection by the Congressional Budget
Office of the cost of the debt servicing that would be caused
by such measure for such fiscal year (or fiscal years) and
each of the 4 ensuing fiscal years.''.
SEC. 106. EXECUTIVE BRANCH REPORT ON FISCAL EXPOSURES.
(a) In General.--The President shall submit to the
Committees on Appropriations, Budget, Finance, and
Governmental Affairs of the Senate, and the Committees on
Appropriations, Budget, Government Reform, and Ways and Means
of the House of Representatives, not later than 2 weeks
before the first Monday in February of each year, a report
(in this section referred to as the ``report'') on the fiscal
exposures of the United States Federal Government and their
implications for long-term financial health. The report shall
also be included as part of the Consolidated Financial
Statement of the United States Government.
(b) Contents.--
(1) In general.--The report shall include fiscal exposures
for the following categories of fiscal exposures:
(A) Debt.--Debt, including--
(i) total gross debt;
(ii) publicly held debt; and
(iii) debt held by Government accounts.
(B) Other financial liabilities.--Other financial
liabilities, including--
(i) civilian and military pensions;
(ii) post-retirement health benefits;
(iii) environmental liabilities;
(iv) accounts payable;
(v) loan guarantees; and
(vi) Social Security benefits due and payable.
(C) Financial commitments.--Financial commitments,
including--
(i) undelivered orders; and
(ii) long-term operating leases.
(D) Financial contingencies and other exposure.--Financial
contingencies and other exposures, including--
(i) unadjudicated claims;
(ii) Federal insurance programs (including both the
financial contingency for and risk assumed by such programs);
(iii) net future benefits under Social Security, Medicare
Part A, Medicare Part B, and other social insurance programs;
(iv) life cycle costs, including deferred and future
maintenance and operating costs associated with operating
leases and the maintenance of capital assets;
(v) unfunded portions of incrementally funded capital
projects;
(vi) disaster relief; and
(vii) others as deemed appropriate.
(2) Estimates.--Where available, estimates for each
exposure should be included. Where reasonable estimates are
not available, a range of estimates may be appropriate.
(3) Other exposures.--Exposures that are analogous to those
specified in paragraph (1) shall also be included in the
exposure categories identified in such paragraph.
(c) Format.--The report shall include a 1-page list of all
exposures. Additional disclosures shall include descriptions
of exposures, the estimation methodologies and significant
assumptions used, and an analysis of the implications of the
exposures for the long-term financial outlook. Additional
analysis deemed informative may be provided on subsequent
pages.
(d) Review With Congress.--Following the submission of the
report on fiscal exposures to the Senate and the House of
Representatives, the Comptroller General shall review and
report to the committee reviewing the report on the report,
discussing--
(1) the extent to which all required disclosures under this
section have been made;
(2) the quality of the cost estimates;
(3) the scope of the information;
(4) the long-range financial outlook; and
(5) any other matters deemed appropriate.
(e) Definitions.--In this section:
(1) Liabilities.--The terms ``liabilities'',
``commitments'', and ``contingencies'' shall be defined in
accordance with generally accepted accounting principles and
standards of the United States Federal Government.
(2) Risk assumed.--The term ``risk assumed'' means the full
portion of the risk premium based on the expected cost of
losses inherent in the Government's commitment that is not
charged to the insured. For example, the present value of
unpaid expected losses net of associated premiums, based on
the risk assumed as a result of insurance coverage.
(3) Net future benefit payments.--The term ``net future
benefit payments'' means the net present value of negative
cashflow. Negative cashflow is to be calculated as the
current amount of funds needed to cover projected shortfalls,
excluding trust fund balances, over a 75-year period. This
estimate should include births during the period and
individuals below age 15 as of January 1 of the valuation
year.
SEC. 107. BUDGET COMMITTEE SETS 302(B) ALLOCATIONS.
The Congressional Budget Act of 1974 (2 U.S.C. 621 et seq.)
is amended--
(1) in section 301(e)(2)(F) (2 U.S.C. 632(e)(2)(F)), by
striking ``section 302(a)'' and inserting ``subsections (a)
and (b) of section 302''; and
(2) in section 302 (2 U.S.C. 633), by striking subsection
(b) and inserting the following:
``(b) Suballocations for Appropriations Committee.--The
joint explanatory statement accompanying a conference report
on a concurrent resolution on the budget shall include
suballocations of amounts allocated to the Committees on
Appropriations of each amount allocated to those committees
under subsection (a) among each of the subcommittees of those
committees.''.
SEC. 108. LONG-TERM COST RECOGNITION POINT OF ORDER.
(a) In General.--Title III of the Congressional Budget Act
of 1974 is amended by adding at the end the following:
``long-term cost recognition point of order
``Sec. 318. (a) Congressional Budget Office Analysis.--
``(1) In general.--CBO shall, in conjunction with the
analysis required by section 402, prepare and submit to the
Committees
[[Page S10682]]
on the Budget of the House of Representatives and Senate a
report on each bill, joint resolution, amendment, motion, or
conference report reported by any committee of the House of
Representatives or the Senate that contains any cost drivers
that CBO concludes are likely to have the effect of
increasing the cost path of that measure such that the
estimated discounted cash flows of the measure in the 10
years following the 10th year after the measure takes effect
would be 150 percent or greater of the level of the estimated
discounted cash flows of the measure at the end of the 10
years following the enactment of the measure.
``(2) Projections.--Where possible, CBO should use existing
long-term projections of cost drivers prepared by the
appropriate Federal agency.
``(3) Limit.--Nothing in this section requires CBO to
develop cost estimates for a measure beyond the 10th year
after the measure takes effect.
``(b) Cost Drivers.--Cost drivers CBO shall consider under
subsection (a) include--
``(1) demographic changes;
``(2) new technologies; and
``(3) environmental factors.
``(c) Point of Order.--It shall not be in order in the
House of Representatives or the Senate to consider any bill,
joint resolution, amendment, motion, or conference report
that CBO determines will increase the level of the estimated
discounted cash flows of that measure as reported in
subsection (a) by 150 percent or more.''.
SEC. 109. PROTECTION OF SOCIAL SECURITY SURPLUSES BY BUDGET
ENFORCEMENT.
(a) Revision of Enforcing Deficit Targets.--Section 253 of
the Balanced Budget and Emergency Deficit Control Act of 1985
(2 U.S.C. 903) is amended--
(1) in subsection (a), by striking ``(if any remains) if it
exceeds the margin'';
(2) by striking subsection (b) and inserting the following:
``(b) Excess Deficit.--The excess deficit is the deficit
for the budget year.'';
(3) by striking subsection (c) and inserting the following:
``(c) Eliminating Excess Deficit.--Each non-exempt account
shall be reduced by a dollar amount calculated by multiplying
the baseline level of sequesterable budgetary resources in
that account at that time by the uniform percentage necessary
to eliminate an excess deficit.''; and
(4) by striking subsections (g) and (h).
(b) Medicare Exempt.--
(1) Amendments.--The Balanced Budget and Emergency Deficit
Control Act of 1985 is amended--
(A) in section 253(e)(3)(A), by striking clause (i) and
inserting the following:
``(i) the medicare program specified in section 256(d)
shall not be reduced; and'';
(B) in section 255(g)(1)(A), by inserting ``Medicare (for
purposes of section 253)'' after the item relating to
``Medical facilities''; and
(C) in section 256(d)(1), by striking ``sections 252 and
253'' and inserting ``section 252''.
(2) Exemption.--Medicare shall not be subject to sequester
under section 253 of the Balanced Budget and Emergency
Deficit Control Act of 1985, as amended by this section.
(c) Economic and Technical Assumptions.--Notwithstanding
section 254(j) of the Balanced Budget and Emergency Deficit
Control Act of 1985 (2 U.S.C. 904(j)), the Office of
Management and Budget shall use the economic and technical
assumptions underlying the report issued pursuant to section
1106 of title 31, United States Code, for purposes of
determining the excess deficit under section 253(b) of the
Balanced Budget and Emergency Deficit Control Act of 1985, as
added by subsection (a).
(d) Application of Sequestration to Budget Accounts.--
Section 256(k) of the Balanced Budget and Emergency Deficit
Control Act of 1985 (2 U.S.C. 906(k)) is amended by--
(1) striking paragraph (2); and
(2) redesignating paragraphs (3) through (6) as paragraphs
(2) through (5), respectively.
(e) Strengthening Social Security Points of Order..--
(1) In general.--Section 312 of the Congressional Budget
Act of 1974 (2 U.S.C. 643) is amended by inserting at the end
the following:
``(g) Strengthening Social Security Point of Order.--It
shall not be in order in the House of Representatives or the
Senate to consider a concurrent resolution on the budget (or
any amendment thereto or conference report thereon) or any
bill, joint resolution, amendment, motion, or conference
report that would violate or amend section 13301 of the
Budget Enforcement Act of 1990.''.
(2) Super majority requirement.--
(A) Point of order.--Section 904(c)(1) of the Congressional
Budget Act of 1974 is amended by inserting ``312(g),'' after
``310(d)(2),''.
(B) Waiver.--Section 904(d)(2) of the Congressional Budget
Act of 1974 is amended by inserting ``312(g),'' after
``310(d)(2),''.
(3) Enforcement in each fiscal year.--The Congressional
Budget Act of 1974 is amended in--
(A) section 301(a)(7) (2 U.S.C. 632(a)(7)), by striking
``for the fiscal year'' through the period and inserting
``for each fiscal year covered by the resolution''; and
(B) section 311(a)(3) (2 U.S.C. 642(a)(3)), by striking
beginning with ``for the first fiscal year'' through the
period and insert the following: ``for any of the fiscal
years covered by the concurrent resolution.''.
(f) Effective Date.--Section 275(b) of the Balanced Budget
and Emergency Deficit Control Act of 1985 (2 U.S.C. 900 note)
is amended by striking ``253,''.
TITLE II--REFORM OF BUDGETARY TREATMENT OF FEDERAL INSURANCE PROGRAMS
SEC. 201. FEDERAL INSURANCE PROGRAMS.
(a) In General.--The Congressional Budget Act of 1974 is
amended by adding after title V the following new title:
``TITLE VI--BUDGETARY TREATMENT OF FEDERAL INSURANCE PROGRAMS
``SEC. 601. SHORT TITLE.
``This title may be cited as the `Federal Insurance
Budgeting Act of 2002'.
``SEC. 602. BUDGETARY TREATMENT.
``(a) President's Budget.--Beginning with fiscal year 2008,
the budget of the Government submitted pursuant to section
1105(a) of title 31, United States Code, shall be based on
the risk-assumed cost of Federal insurance programs.
``(b) Budget Accounting.--For any Federal insurance
program--
``(1) the program account shall--
``(A) pay the risk-assumed cost borne by taxpayers to the
financing account; and
``(B) pay actual insurance program administrative costs;
and
``(2) the financing account shall--
``(A) receive premiums and other income;
``(B) pay all claims for insurance and receive all
recoveries; and
``(C) transfer to the program account on not less than an
annual basis amounts necessary to pay insurance program
administrative costs; and
``(3) a negative risk-assumed cost shall be transferred
from the financing account to the program account, and shall
be transferred from the program account to the general fund;
``(4) all payments by or receipts of the financing accounts
shall be treated in the budget as a means of financing.
``(c) Appropriations Required.--(1) Notwithstanding any
other provision of law, insurance commitments may be made for
fiscal year 2006 and thereafter only to the extent that new
budget authority to cover their risk-assumed cost is provided
in advance in an appropriation Act.
``(2) An outstanding insurance commitment shall not be
modified in a manner that increases its risk-assumed cost
unless budget authority for the additional cost has been
provided in advance.
``(3) Paragraph (1) shall not apply to Federal insurance
programs that constitute entitlements.
``(d) Reestimates.--
``(1) In general.--The risk-assumed cost for a fiscal year
shall be reestimated in each subsequent year. Such reestimate
can equal zero. In the case of a positive reestimate, the
amount of the reestimate shall be paid from the program
account to the financing account. In the case of a negative
reestimate, the amount of the reestimate shall be paid from
the financing account to the program account, and shall be
transferred from the program account to the general fund.
Reestimates shall be displayed as a distinct and separately
identified subaccount in the program account.
``(2) Appropriations.--There are appropriated such sums as
are necessary to fund a positive reestimate under paragraph
(1).
``(e) Administrative Expenses.--All funding for an agency's
administration of a Federal insurance program shall be
displayed as a distinct and separately identified subaccount
in the program account.
``SEC. 603. TIMETABLE FOR IMPLEMENTATION OF ACCRUAL BUDGETING
FOR FEDERAL INSURANCE PROGRAMS.
``(a) Agency Requirements.--Agencies with responsibility
for Federal insurance programs shall develop models to
estimate their risk-assumed cost by year through the budget
horizon and shall submit those models, all relevant data, a
justification for critical assumptions, and the annual
projected risk-assumed costs to OMB with their budget
requests each year starting with the request for fiscal year
2005. Agencies will likewise provide OMB with annual
estimates of modifications, if any, and reestimates of
program costs.
``(b) Disclosure.--When the President submits a budget of
the Government pursuant to section 1105(a) of title 31,
United States Code, for fiscal year 2005, OMB shall publish a
notice in the Federal Register advising interested persons of
the availability of information describing the models, data
(including sources), and critical assumptions (including
explicit or implicit discount rate assumptions) that it or
other executive branch entities would use to estimate the
risk-assumed cost of Federal insurance programs and giving
such persons an opportunity to submit comments. At the same
time, the chairman of the Committee on the Budget shall
publish a notice for CBO in the Federal Register advising
interested persons of the availability of information
describing the models, data (including sources), and critical
assumptions (including explicit or implicit discount rate
assumptions) that it would use to estimate the risk-assumed
cost of Federal insurance programs and giving such interested
persons an opportunity to submit comments.
``(c) Revision.--After consideration of comments pursuant
to subsection (b), and in consultation with the Committees on
the Budget of the House of Representatives and the Senate,
OMB and CBO shall revise the models, data, and major
assumptions they would
[[Page S10683]]
use to estimate the risk-assumed cost of Federal insurance
programs.
``(d) Display.--
``(1) In general.--For fiscal years 2005, 2006, and 2007
the budget submissions of the President pursuant to section
1105(a) of title 31, United States Code, and CBO's reports on
the economic and budget outlook pursuant to section 202(e)(1)
and the President's budgets, shall for display purposes only,
estimate the risk-assumed cost of existing or proposed
Federal insurance programs.
``(2) OMB.--The display in the budget submissions of the
President for fiscal years 2005, 2006, and 2007 shall
include--
``(A) a presentation for each Federal insurance program in
budget-account level detail of estimates of risk-assumed
cost;
``(B) a summary table of the risk-assumed costs of Federal
insurance programs; and
``(C) an alternate summary table of budget functions and
aggregates using risk-assumed rather than cash-based cost
estimates for Federal insurance programs.
``(3) CBO.--In the second session of the 108th Congress and
the 109th Congress, CBO shall include in its estimates under
section 308, for display purposes only, the risk-assumed cost
of existing Federal insurance programs, or legislation that
CBO, in consultation with the Committees on the Budget of the
House of Representatives and the Senate, determines would
create a new Federal insurance program.
``(e) OMB, CBO, and GAO Evaluations.--(1) Not later than 6
months after the budget submission of the President pursuant
to section 1105(a) of title 31, United States Code, for
fiscal year 2007, OMB, CBO, and GAO shall each submit to the
Committees on the Budget of the House of Representatives and
the Senate a report that evaluates the advisability and
appropriate implementation of this title.
``(2) Each report made pursuant to paragraph (1) shall
address the following:
``(A) The adequacy of risk-assumed estimation models used
and alternative modeling methods.
``(B) The availability and reliability of data or
information necessary to carry out this title.
``(C) The appropriateness of the explicit or implicit
discount rate used in the various risk-assumed estimation
models.
``(D) The advisability of specifying a statutory discount
rate (such as the Treasury rate) for use in risk-assumed
estimation models.
``(E) The ability of OMB, CBO, or GAO, as applicable, to
secure any data or information directly from any Federal
agency necessary to enable it to carry out this title.
``(F) The relationship between risk-assumed accrual
budgeting for Federal insurance programs and the specific
requirements of the Balanced Budget and Emergency Deficit
Control Act of 1985.
``(G) Whether Federal budgeting is improved by the
inclusion of risk-assumed cost estimates for Federal
insurance programs.
``(H) The advisability of including each of the programs
currently estimated on a risk-assumed cost basis in the
Federal budget on that basis.
``SEC. 604. DEFINITIONS.
``For purposes of this title:
``(1) The term `Federal insurance program' means a program
that makes insurance commitments and includes the list of
such programs as to be defined by the budget concepts
commission, as required by title IV of the Truth in Budgeting
and Social Security Protection Act of 2002.
``(2) The term `insurance commitment' means an agreement in
advance by a Federal agency to indemnify a non-Federal entity
against specified losses. This term does not include loan
guarantees as defined in title V or benefit programs such as
social security, medicare, and similar existing social
insurance programs.
``(3)(A) The term `risk-assumed cost' means the net present
value of the estimated cash flows to and from the Government
resulting from an insurance commitment or modification
thereof.
``(B) The cash flows associated with an insurance
commitment include--
``(i) expected claims payments inherent in the Government's
commitment;
``(ii) net premiums (expected premium collections received
from or on behalf of the insured less expected administrative
expenses);
``(iii) expected recoveries; and
``(iv) expected changes in claims, premiums, or recoveries
resulting from the exercise by the insured of any option
included in the insurance commitment.
``(C) The cost of a modification is the difference between
the current estimate of the net present value of the
remaining cash flows under the terms of the insurance
commitment, and the current estimate of the net present value
of the remaining cash flows under the terms of the insurance
commitment as modified.
``(D) The cost of a reestimate is the difference between
the net present value of the amount currently required by the
financing account to pay estimated claims and other
expenditures and the amount currently available in the
financing account. The cost of a reestimate shall be
accounted for in the current year in the budget of the
Government submitted pursuant to section 1105(a) of title 31,
United States Code.
``(E) For purposes of this definition, expected
administrative expenses shall be construed as the amount
estimated to be necessary for the proper administration of
the insurance program. This amount may differ from amounts
actually appropriated or otherwise made available for the
administration of the program.
``(4) The term `program account' means the budget account
for the risk-assumed cost, and for paying all costs of
administering the insurance program, and is the account from
which the risk-assumed cost is disbursed to the financing
account.
``(5) The term `financing account' means the nonbudget
account that is associated with each program account which
receives payments from or makes payments to the program
account, receives premiums and other payments from the
public, pays insurance claims, and holds balances.
``(6) The term `modification' means any Government action
that alters the risk-assumed cost of an existing insurance
commitment from the current estimate of cash flows. This
includes any action resulting from new legislation, or from
the exercise of administrative discretion under existing law,
that directly or indirectly alters the estimated cost of
existing insurance commitments.
``(7) The term `model' means any actuarial, financial,
econometric, probabilistic, or other methodology used to
estimate the expected frequency and magnitude of loss-
producing events, expected premiums or collections from or on
behalf of the insured, expected recoveries, and
administrative expenses.
``(8) The term `current' has the same meaning as in section
250(c)(9) of the Balanced Budget and Emergency Deficit
Control Act of 1985.
``(9) The term `OMB' means the Director of the Office of
Management and Budget.
``(10) The term `CBO' means the Director of the
Congressional Budget Office.
``(11) The term `GAO' means the Comptroller General of the
United States.
``SEC. 605. AUTHORIZATIONS TO ENTER INTO CONTRACTS; ACTUARIAL
COST ACCOUNT.
``(a) Authorization of Appropriations.--There is authorized
to be appropriated $600,000 for each of fiscal years 2002
through 2007 to the Director of the Office of Management and
Budget and each agency responsible for administering a
Federal program to carry out this title.
``(b) Treasury Transactions With the Financing Accounts.--
The Secretary of the Treasury shall borrow from, receive
from, lend to, or pay the insurance financing accounts such
amounts as may be appropriate. The Secretary of the Treasury
may prescribe forms and denominations, maturities, and terms
and conditions for the transactions described above. The
authorities described above shall not be construed to
supersede or override the authority of the head of a Federal
agency to administer and operate an insurance program. All
the transactions provided in this subsection shall be subject
to the provisions of subchapter II of chapter 15 of title 31,
United States Code. Cash balances of the financing accounts
in excess of current requirements shall be maintained in a
form of uninvested funds, and the Secretary of the Treasury
shall pay interest on these funds.
``(c) Appropriation of Amount Necessary to Cover Risk-
Assumed Cost of Insurance Commitments at Transition Date.--
(1) A financing account is established on September 30, 2007,
for each Federal insurance program.
``(2) There is appropriated to each financing account the
amount of the risk-assumed cost of Federal insurance
commitments outstanding for that program as of the close of
September 30, 2007.
``(3) These financing accounts shall be used in
implementing the budget accounting required by this title.
``SEC. 606. EFFECTIVE DATE.
``(a) In General.--This title shall take effect immediately
and shall expire on September 30, 2009.
``(b) Special Rule.--If this title is not reauthorized by
September 30, 2009, then the accounting structure and
budgetary treatment of Federal insurance programs shall
revert to the accounting structure and budgetary treatment in
effect immediately before the date of enactment of this
title.''.
(b) Conforming Amendment.--The table of contents set forth
in section 1(b) of the Congressional Budget and Impoundment
Control Act of 1974 is amended by inserting after the item
relating to section 507 the following new items:
``TITLE VI--BUDGETARY TREATMENT OF FEDERAL INSURANCE PROGRAMS
``Sec. 601. Short title.
``Sec. 602. Budgetary treatment.
``Sec. 603. Timetable for implementation of accrual budgeting for
Federal insurance programs.
``Sec. 604. Definitions.
``Sec. 605. Authorizations to enter into contracts; actuarial cost
account.
``Sec. 606. Effective date.''.
TITLE III--BIENNIAL BUDGETING AND APPROPRIATIONS
SEC. 301. REVISION OF TIMETABLE.
Section 300 of the Congressional Budget Act of 1974 (2
U.S.C. 631) is amended to read as follows:
``timetable
``Sec. 300. (a) In General.--Except as provided by
subsection (b), the timetable with respect to the
congressional budget process for any Congress (beginning with
the One Hundred Eighth Congress) is as follows:
[[Page S10684]]
``First Session
``On or before: Action to be completed:
First Monday in President submits budget recommendations.
February.
February 15............ Congressional Budget Office submits report to Budget Committees.
Not later than 6 weeks Committees submit views and estimates to Budget Committees.
after budget
submission.
April 1................ Budget Committees report concurrent resolution on the biennial budget.
May 15................. Congress completes action on concurrent resolution on the biennial
budget.
May 15................. Biennial appropriation bills may be considered in the House.
June 10................ House Appropriations Committee reports last biennial appropriation bill.
June 30................ House completes action on biennial appropriation bills.
August 1............... Congress completes action on reconciliation legislation.
October 1.............. Biennium begins.
``Second Session
``On or before: Action to be completed:
February 15............ President submits budget review.
Not later than 6 weeks Congressional Budget Office submits report to Budget Committees.
after President
submits budget review.
The last day of the Congress completes action on bills and resolutions authorizing new
session. budget authority for the succeeding biennium.
``(b) Special Rule.--In the case of any first session of
Congress that begins in any year immediately following a leap
year and during which the term of a President (except a
President who succeeds himself) begins, the following dates
shall supersede those set forth in subsection (a):
``First Session
``On or before: Action to be completed:
First Monday in April.. President submits budget recommendations.
April 20.............. Committees submit views and estimates to Budget Committees.
May 15................. Budget Committees report concurrent resolution on the biennial budget.
June 1................. Congress completes action on concurrent resolution on the biennial
budget.
July 1................. Biennial appropriation bills may be considered in the House.
July 20................ House completes action on biennial appropriation bills.
August 1............... Congress completes action on reconciliation legislation.
October 1.............. Biennium begins.''.
SEC. 302. AMENDMENTS TO THE CONGRESSIONAL BUDGET AND
IMPOUNDMENT CONTROL ACT OF 1974.
(a) Declaration of Purpose.--Section 2(2) of the
Congressional Budget and Impoundment Control Act of 1974 (2
U.S.C. 621(2)) is amended by striking ``each year'' and
inserting ``biennially''.
(b) Definitions.--
(1) Budget resolution.--Section 3(4) of such Act (2 U.S.C.
622(4)) is amended by striking ``fiscal year'' each place it
appears and inserting ``biennium''.
(2) Biennium.--Section 3 of such Act (2 U.S.C. 622) is
further amended by adding at the end the following new
paragraph:
``(11) The term `biennium' means the period of 2
consecutive fiscal years beginning on October 1 of any odd-
numbered year.''.
(c) Biennial Concurrent Resolution on the Budget.--
(1) Contents of resolution.--Section 301(a) of such Act (2
U.S.C. 632(a)) is amended--
(A) in the matter preceding paragraph (1) by--
(i) striking ``April 15 of each year'' and inserting ``May
15 of each odd-numbered year'';
(ii) striking ``the fiscal year beginning on October 1 of
such year'' the first place it appears and inserting ``the
biennium beginning on October 1 of such year''; and
(iii) striking ``the fiscal year beginning on October 1 of
such year'' the second place it appears and inserting ``each
fiscal year in such period'';
(B) in paragraph (6), by striking ``for the fiscal year''
and inserting ``for each fiscal year in the biennium''; and
(C) in paragraph (7), by striking ``for the first fiscal
year'' and inserting ``for each fiscal year in the
biennium''.
(2) Additional matters.--Section 301(b)(3) of such Act (2
U.S.C. 632(b)) is amended by striking ``for such fiscal
year'' and inserting ``for either fiscal year in such
biennium''.
(3) Views of other committees.--Section 301(d) of such Act
(2 U.S.C. 632(d)) is amended by inserting ``(or, if
applicable, as provided by section 300(b))'' after ``United
States Code''.
(4) Hearings.--Section 301(e)(1) of such Act (2 U.S.C.
632(e)) is amended by--
(A) striking ``fiscal year'' and inserting ``biennium'';
and
(B) inserting after the second sentence the following: ``On
or before April 1 of each odd-numbered year (or, if
applicable, as provided by section 300(b)), the Committee on
the Budget of each House shall report to its House the
concurrent resolution on the budget referred to in subsection
(a) for the biennium beginning on October 1 of that year.''.
(5) Goals for reducing unemployment.--Section 301(f) of
such Act (2 U.S.C. 632(f)) is amended by striking ``fiscal
year'' each place it appears and inserting ``biennium''.
(6) Economic assumptions.--Section 301(g)(1) of such Act (2
U.S.C. 632(g)(1)) is amended by striking ``for a fiscal
year'' and inserting ``for a biennium''.
(7) Section heading.--The section heading of section 301 of
such Act is amended by striking ``annual'' and inserting
``biennial''.
(8) Table of contents.--The item relating to section 301 in
the table of contents set forth in section 1(b) of such Act
is amended by striking ``Annual'' and inserting ``Biennial''.
(d) Committee Allocations.--Section 302 of such Act (2
U.S.C. 633) is amended--
(1) in subsection (a)(1) by--
(A) striking ``for the first fiscal year of the
resolution,'' and inserting ``for each fiscal year in the
biennium,'';
(B) striking ``for that period of fiscal years'' and
inserting ``for all fiscal years covered by the resolution'';
and
(C) striking ``for the fiscal year of that resolution'' and
inserting ``for each fiscal year in the biennium'';
(2) in subsection (f)(1), by striking ``for a fiscal year''
and inserting ``for a biennium'';
[[Page S10685]]
(3) in subsection (f)(1), by striking ``first fiscal year''
and inserting ``each fiscal year of the biennium'';
(4) in subsection (f)(2)(A), by--
(A) striking ``first fiscal year'' and inserting ``each
fiscal year of the biennium''; and
(B) striking ``the total of fiscal years'' and inserting
``the total of all fiscal years covered by the resolution'';
and
(5) in subsection (g)(1)(A), by striking ``April'' and
inserting ``May''.
(e) Section 303 Point of Order.--
(1) In general.--Section 303(a) of such Act (2 U.S.C.
634(a)) is amended by striking ``first fiscal year'' and
inserting ``each fiscal year of the biennium''.
(2) Exceptions in the house.--Section 303(b)(1) of such Act
(2 U.S.C. 634(b)) is amended--
(A) in subparagraph (A), by striking ``the budget year''
and inserting ``the biennium''; and
(B) in subparagraph (B), by striking ``the fiscal year''
and inserting ``the biennium''.
(3) Application to the senate.--Section 303(c)(1) of such
Act (2 U.S.C. 634(c)) is amended by--
(A) striking ``fiscal year'' and inserting ``biennium'';
and
(B) striking ``that year'' and inserting ``each fiscal year
of that biennium''.
(f) Permissible Revisions of Concurrent Resolutions on the
Budget.--Section 304(a) of such Act (2 U.S.C. 635) is
amended--
(1) by striking ``fiscal year'' the first two places it
appears and inserting ``biennium'';
(2) by striking ``for such fiscal year''; and
(3) by inserting before the period ``for such biennium''.
(g) Procedures for Consideration of Budget Resolutions.--
Section 305(a)(3) of such Act (2 U.S.C. 636(b)(3)) is amended
by striking ``fiscal year'' and inserting ``biennium''.
(h) Completion of House Action on Appropriation Bills.--
Section 307 of such Act (2 U.S.C. 638) is amended--
(1) by striking ``each year'' and inserting ``each odd-
numbered year'';
(2) by striking ``annual'' and inserting ``biennial'';
(3) by striking ``fiscal year'' and inserting ``biennium'';
and
(4) by striking ``that year'' and inserting ``each odd-
numbered year''.
(i) Completion of Action on Regular Appropriation Bills.--
Section 309 of such Act (2 U.S.C. 640) is amended--
(1) by inserting ``of any odd-numbered calendar year''
after ``July'';
(2) by striking ``annual'' and inserting ``biennial''; and
(3) by striking ``fiscal year'' and inserting ``biennium''.
(j) Reconciliation Process.--Section 310(a) of such Act (2
U.S.C. 641(a)) is amended--
(1) in the matter preceding paragraph (1), by striking
``any fiscal year'' and inserting ``any biennium''; and
(2) in paragraph (1) by striking ``such fiscal year'' each
place it appears and inserting ``any fiscal year covered by
such resolution''.
(k) Section 311 Point of Order.--
(1) In the house.--Section 311(a)(1) of such Act (2 U.S.C.
642(a)) is amended--
(A) by striking ``for a fiscal year'' and inserting ``for a
biennium'';
(B) by striking ``the first fiscal year'' each place it
appears and inserting ``either fiscal year of the biennium'';
and
(C) by striking ``that first fiscal year'' and inserting
``each fiscal year in the biennium''.
(2) In the senate.--Section 311(a)(2) of such Act is
amended--
(A) in subparagraph (A), by striking ``for the first fiscal
year'' and inserting ``for either fiscal year of the
biennium''; and
(B) in subparagraph (B)--
(i) by striking ``that first fiscal year'' the first place
it appears and inserting ``each fiscal year in the
biennium''; and
(ii) by striking ``that first fiscal year and the ensuing
fiscal years'' and inserting ``all fiscal years''.
(3) Social security levels.--Section 311(a)(3) of such Act
is amended by--
(A) striking ``for the first fiscal year'' and inserting
``each fiscal year in the biennium''; and
(B) striking ``that fiscal year and the ensuing fiscal
years'' and inserting ``all fiscal years''.
(l) MDA Point of Order.--Section 312(c) of the
Congressional Budget Act of 1974 (2 U.S.C. 643) is amended--
(1) by striking ``for a fiscal year'' and inserting ``for a
biennium'';
(2) in paragraph (1), by striking ``first fiscal year'' and
inserting ``either fiscal year in the biennium'';
(3) in paragraph (2), by striking ``that fiscal year'' and
inserting ``either fiscal year in the biennium''; and
(4) in the matter following paragraph (2), by striking
``that fiscal year'' and inserting ``the applicable fiscal
year''.
SEC. 303. AMENDMENTS TO TITLE 31, UNITED STATES CODE.
(a) Definition.--Section 1101 of title 31, United States
Code, is amended by adding at the end thereof the following
new paragraph:
``(3) `biennium' has the meaning given to such term in
paragraph (11) of section 3 of the Congressional Budget and
Impoundment Control Act of 1974 (2 U.S.C. 622(11)).''.
(b) Budget Contents and Submission to the Congress.--
(1) Schedule.--The matter preceding paragraph (1) in
section 1105(a) of title 31, United States Code, is amended
to read as follows:
``(a) On or before the first Monday in February of each
odd-numbered year (or, if applicable, as provided by section
300(b) of the Congressional Budget Act of 1974), beginning
with the One Hundred Seventh Congress, the President shall
transmit to the Congress, the budget for the biennium
beginning on October 1 of such calendar year. The budget
transmitted under this subsection shall include a budget
message and summary and supporting information. The President
shall include in each budget the following:''.
(2) Expenditures.--Section 1105(a)(5) of title 31, United
States Code, is amended by striking ``the fiscal year for
which the budget is submitted and the 4 fiscal years after
that year'' and inserting ``each fiscal year in the biennium
for which the budget is submitted and in the succeeding 4
years''.
(3) Receipts.--Section 1105(a)(6) of title 31, United
States Code, is amended by striking ``the fiscal year for
which the budget is submitted and the 4 fiscal years after
that year'' and inserting ``each fiscal year in the biennium
for which the budget is submitted and in the succeeding 4
years''.
(4) Balance statements.--Section 1105(a)(9)(C) of title 31,
United States Code, is amended by striking ``the fiscal
year'' and inserting ``each fiscal year in the biennium''.
(5) Functions and activities.--Section 1105(a)(12) of title
31, United States Code, is amended in subparagraph (A), by
striking ``the fiscal year'' and inserting ``each fiscal year
in the biennium''.
(6) Allowances.--Section 1105(a)(13) of title 31, United
States Code, is amended by striking ``the fiscal year'' and
inserting ``each fiscal year in the biennium''.
(7) Allowances for uncontrolled expenditures.--Section
1105(a)(14) of title 31, United States Code, is amended by
striking ``that year'' and inserting ``each fiscal year in
the biennium for which the budget is submitted''.
(8) Tax expenditures.--Section 1105(a)(16) of title 31,
United States Code, is amended by striking ``the fiscal
year'' and inserting ``each fiscal year in the biennium''.
(9) Future years.--Section 1105(a)(17) of title 31, United
States Code, is amended--
(A) by striking ``the fiscal year following the fiscal
year'' and inserting ``each fiscal year in the biennium
following the biennium'';
(B) by striking ``that following fiscal year'' and
inserting ``each such fiscal year''; and
(C) by striking ``fiscal year before the fiscal year'' and
inserting ``biennium before the biennium''.
(10) Prior year outlays.--Section 1105(a)(18) of title 31,
United States Code, is amended--
(A) by striking ``the prior fiscal year'' and inserting
``each of the 2 most recently completed fiscal years,'';
(B) by striking ``for that year'' and inserting ``with
respect to those fiscal years''; and
(C) by striking ``in that year'' and inserting ``in those
fiscal years''.
(11) Prior year receipts.--Section 1105(a)(19) of title 31,
United States Code, is amended--
(A) by striking ``the prior fiscal year'' and inserting
``each of the 2 most recently completed fiscal years'';
(B) by striking ``for that year'' and inserting ``with
respect to those fiscal years''; and
(C) by striking ``in that year'' each place it appears and
inserting ``in those fiscal years''.
(c) Estimated Expenditures of Legislative and Judicial
Branches.--Section 1105(b) of title 31, United States Code,
is amended by striking ``each year'' and inserting ``each
even-numbered year''.
(d) Recommendations To Meet Estimated Deficiencies.--
Section 1105(c) of title 31, United States Code, is amended--
(1) by striking ``the fiscal year for'' the first place it
appears and inserting ``each fiscal year in the biennium
for'';
(2) by striking ``the fiscal year for'' the second place it
appears and inserting ``each fiscal year of the biennium, as
the case may be,''; and
(3) by striking ``that year'' and inserting ``for each year
of the biennium''.
(e) Capital Investment Analysis.--Section 1105(e)(1) of
title 31, United States Code, is amended by striking
``ensuing fiscal year'' and inserting ``biennium to which
such budget relates''.
(f) Supplemental Budget Estimates and Changes.--
(1) In general.--Section 1106(a) of title 31, United States
Code, is amended--
(A) in the matter preceding paragraph (1), by--
(i) striking ``Before July 16 of each year,'' and inserting
``Before February 15 of each even numbered year,''; and
(ii) striking ``fiscal year'' and inserting ``biennium'';
(B) in paragraph (1), by striking ``that fiscal year'' and
inserting ``each fiscal year in such biennium'';
(C) in paragraph (2), by striking ``4 fiscal years
following the fiscal year'' and inserting ``4 fiscal years
following the biennium''; and
(D) in paragraph (3), by striking ``fiscal year'' and
inserting ``biennium''.
(2) Changes.--Section 1106(b) of title 31, United States
Code, is amended by--
(A) striking ``the fiscal year'' and inserting ``each
fiscal year in the biennium'';
(B) striking ``April 11 and July 16 of each year'' and
inserting ``February 15 of each even-numbered year''; and
(C) striking ``July 16'' and inserting ``February 15 of
each even-numbered year.''.
(g) Current Programs and Activities Estimates.--
[[Page S10686]]
(1) In general.--Section 1109(a) of title 31, United States
Code, is amended--
(A) by striking ``On or before the first Monday after
January 3 of each year (on or before February 5 in 1986)''
and inserting ``At the same time the budget required by
section 1105 is submitted for a biennium''; and
(B) by striking ``the following fiscal year'' and inserting
``each fiscal year of such period''.
(2) Joint economic committee.--Section 1109(b) of title 31,
United States Code, is amended by striking ``March 1 of each
year'' and inserting ``within 6 weeks of the President's
budget submission for each odd-numbered year (or, if
applicable, as provided by section 300(b) of the
Congressional Budget Act of 1974)''.
(h) Year-Ahead Requests for Authorizing Legislation.--
Section 1110 of title 31, United States Code, is amended by--
(1) striking ``May 16'' and inserting ``March 31''; and
(2) striking ``year before the year in which the fiscal
year begins'' and inserting ``calendar year preceding the
calendar year in which the biennium begins''.
SEC. 304. TWO-YEAR APPROPRIATIONS; TITLE AND STYLE OF
APPROPRIATIONS ACTS.
Section 105 of title 1, United States Code, is amended to
read as follows:
``Sec. 105. Title and style of appropriations Acts
``(a) The style and title of all Acts making appropriations
for the support of the Government shall be as follows: `An
Act making appropriations (here insert the object) for each
fiscal year in the biennium of fiscal years (here insert the
fiscal years of the biennium).'.
``(b) All Acts making regular appropriations for the
support of the Government shall be enacted for a biennium and
shall specify the amount of appropriations provided for each
fiscal year in such period.
``(c) For purposes of this section, the term `biennium' has
the same meaning as in section 3(11) of the Congressional
Budget and Impoundment Control Act of 1974 (2 U.S.C.
622(11)).''.
SEC. 305. MULTIYEAR AUTHORIZATIONS.
(a) In General.--Title III of the Congressional Budget Act
of 1974 is amended by adding at the end the following new
section:
``authorizations of appropriations
``Sec. 319. (a) Point of Order.--It shall not be in order
in the House of Representatives or the Senate to consider--
``(1) any bill, joint resolution, amendment, motion, or
conference report that authorizes appropriations for a period
of less than 2 fiscal years, unless the program, project, or
activity for which the appropriations are authorized will
require no further appropriations and will be completed or
terminated after the appropriations have been expended; and
``(2) in any odd-numbered year, any authorization or
revenue bill or joint resolution until Congress completes
action on the biennial budget resolution, all regular
biennial appropriations bills, and all reconciliation bills.
``(b) Applicability.--In the Senate, subsection (a) shall
not apply to--
``(1) any measure that is privileged for consideration
pursuant to a rule or statute;
``(2) any matter considered in Executive Session; or
``(3) an appropriations measure or reconciliation bill.''.
(b) Amendment to Table of Contents.--The table of contents
set forth in section 1(b) of the Congressional Budget and
Impoundment Control Act of 1974 is amended by adding after
the item relating to section 313 the following new item:
``Sec. 319. Authorizations of appropriations.''.
SEC. 306. GOVERNMENT PLANS ON A BIENNIAL BASIS.
(a) Strategic Plans.--Section 306 of title 5, United States
Code, is amended--
(1) in subsection (a), by striking ``September 30, 1997''
and inserting ``September 30, 2003'';
(2) in subsection (b)--
(A) by striking ``at least every three years'' and
inserting ``at least every 4 years''; and
(B) by striking ``five years forward'' and inserting ``six
years forward''; and
(3) in subsection (c), by inserting a comma after
``section'' the second place it appears and adding
``including a strategic plan submitted by September 30, 2003
meeting the requirements of subsection (a)''.
(b) Budget Contents and Submission to Congress.--Paragraph
(28) of section 1105(a) of title 31, United States Code, is
amended by striking ``beginning with fiscal year 1999, a''
and inserting ``beginning with fiscal year 2004, a
biennial''.
(c) Performance Plans.--Section 1115 of title 31, United
States Code, is amended--
(1) in subsection (a)--
(A) in the matter before paragraph (1)--
(i) by striking ``section 1105(a)(29)'' and inserting
``section 1105(a)(28)''; and
(ii) by striking ``an annual'' and inserting ``a
biennial'';
(B) in paragraph (1) by inserting after ``program
activity'' the following: ``for both years 1 and 2 of the
biennial plan'';
(C) in paragraph (5) by striking ``and'' after the
semicolon,
(D) in paragraph (6) by striking the period and inserting a
semicolon; and inserting ``and'' after the inserted
semicolon; and
(E) by adding after paragraph (6) the following:
``(7) cover a 2-year period beginning with the first fiscal
year of the next biennial budget cycle.'';
(2) in subsection (d) by striking ``annual'' and inserting
``biennial''; and
(3) in paragraph (6) of subsection (f) by striking
``annual'' and inserting ``biennial''.
(d) Managerial Accountability and Flexibility.--Section
9703 of title 31, United States Code, relating to managerial
accountability, is amended--
(1) in subsection (a)--
(A) in the first sentence by striking ``annual''; and
(B) by striking ``section 1105(a)(29)'' and inserting
``section 1105(a)(28)'';
(2) in subsection (e)--
(A) in the first sentence by striking ``one or'' before
``years'';
(B) in the second sentence by striking ``a subsequent
year'' and inserting ``for a subsequent 2-year period''; and
(C) in the third sentence by striking ``three'' and
inserting ``four''.
(e) Pilot Projects for Performance Budgeting.--Section 1119
of title 31, United States Code, is amended--
(1) in paragraph (1) of subsection (d), by striking
``annual'' and inserting ``biennial''; and
(2) in subsection (e), by striking ``annual'' and inserting
``biennial''.
(f) Strategic Plans.--Section 2802 of title 39, United
States Code, is amended--
(1) is subsection (a), by striking ``September 30, 1997''
and inserting ``September 30, 2003'';
(2) in subsection (b), by striking ``at least every three
years'' and inserting ``at least every 4 years'';
(3) by striking ``five years forward'' and inserting ``six
years forward''; and
(4) in subsection (c), by inserting a comma after
``section'' the second place it appears and inserting
``including a strategic plan submitted by September 30, 2003
meeting the requirements of subsection (a)''.
(g) Performance Plans.--Section 2803(a) of title 39, United
States Code, is amended--
(1) in the matter before paragraph (1), by striking ``an
annual'' and inserting ``a biennial'';
(2) in paragraph (1), by inserting after ``program
activity'' the following: ``for both years 1 and 2 of the
biennial plan'';
(3) in paragraph (5), by striking ``and'' after the
semicolon;
(4) in paragraph (6), by striking the period and inserting
``; and''; and
(5) by adding after paragraph (6) the following:
``(7) cover a 2-year period beginning with the first fiscal
year of the next biennial budget cycle.''.
(h) Committee Views of Plans and Reports.--Section 301(d)
of the Congressional Budget Act (2 U.S.C. 632(d)) is amended
by adding at the end ``Each committee of the Senate or the
House of Representatives shall review the strategic plans,
performance plans, and performance reports, required under
section 306 of title 5, United States Code, and sections 1115
and 1116 of title 31, United States Code, of all agencies
under the jurisdiction of the committee. Each committee may
provide its views on such plans or reports to the Committee
on the Budget of the applicable House.''.
(i) Effective Date.--
(1) In general.--The amendments made by this section shall
take effect on March 1, 2003.
(2) Agency actions.--Effective on and after the date of
enactment of this Act, each agency shall take such actions as
necessary to prepare and submit any plan or report in
accordance with the amendments made by this Act.
SEC. 307. BIENNIAL APPROPRIATIONS BILLS.
(a) In General.--Title III of the Congressional Budget Act
of 1974 (2 U.S.C. 631 et seq.) is amended by adding at the
end the following:
``consideration of biennial appropriations bills
``Sec. 320. It shall not be in order in the House of
Representatives or the Senate in any odd-numbered year to
consider any regular bill providing new budget authority or a
limitation on obligations under the jurisdiction of any of
the subcommittees of the Committees on Appropriations for
only the first fiscal year of a biennium, unless the program,
project, or activity for which the new budget authority or
obligation limitation is provided will require no additional
authority beyond 1 year and will be completed or terminated
after the amount provided has been expended.''.
(b) Amendment to Table of Contents.--The table of contents
set forth in section 1(b) of the Congressional Budget and
Impoundment Control Act of 1974 is amended by adding after
the item relating to section 313 the following new item:
``Sec. 320. Consideration of biennial appropriations bills.''.
SEC. 308. REPORT ON TWO-YEAR FISCAL PERIOD.
Not later than 180 days after the date of enactment of this
subpart, the Director of OMB shall--
(1) determine the impact and feasibility of changing the
definition of a fiscal year and the budget process based on
that definition to a 2-year fiscal period with a biennial
budget process based on the 2-year period; and
(2) report the findings of the study to the Committees on
the Budget of the House of Representatives and the Senate.
SEC. 309. EFFECTIVE DATE.
(a) In General.--Except as provided in sections 306 and 308
and subsection (b), this title
[[Page S10687]]
and the amendments made by this title shall take effect on
January 1, 2003, and shall apply to budget resolutions and
appropriations for the biennium beginning with fiscal year
2004.
(b) Authorizations for the Biennium.--For purposes of
authorizations for the biennium beginning with fiscal year
2004, the provisions of this title and the amendments made by
this title relating to 2-year authorizations shall take
effect January 1, 2003.
TITLE IV--COMMISSION ON FEDERAL BUDGET CONCEPTS
SEC. 401. ESTABLISHMENT OF COMMISSION ON FEDERAL BUDGET
CONCEPTS.
There is established a commission to be known as the
Commission on Federal Budget Concepts (referred to in this
title as the ``Commission'').
SEC. 402. POWERS AND DUTIES OF COMMISSION.
(a) Duties of the Commission.--
(1) In general.--The duties of the Commission shall
include--
(A) a review of the 1967 report of the President's
Commission on Budget Concepts and assessment of the
implementation of the recommendations of that report;
(B) identification and evaluation of the structure,
concepts, classifications, and bases of accounting of the
Federal budget;
(C) identification of any applicable general accounting
principles and practices in the private sector and evaluation
of their value to budget practices in the Federal sector;
(D) a report that shall include recommendations for
modifications to the structure, concepts, classifications,
and bases of accounting of the Federal budget that would
enhance the usefulness of the budget for public policy and
financial planning.
(2) Specific areas of consideration.--Specific areas for
consideration by the Commission shall include the following:
(A) Should part ownership by the Government be sufficient
to make an entity Federal and to include it in the budget?
(B) When is Federal control of an entity, including control
exercised through Federal regulations, sufficient to cause it
to be included in the budget?
(C) Are privately owned assets under long-term leases to
the Federal Government effectively purchased by the
Government during the lease period?
(D) Should there be an ``off-budget'' section of the
budget? How should the Federal Government differentiate
between spending and receipts?
(E) Should the total costs of refundable tax credits belong
on the spending side of the budget?
(F) When should Federal Reserve earnings be reported as
receipts or offsetting receipts (negative spending) in the
net interest portion of the budget?
(G) What is a ``user fee'' and under what circumstances is
it properly an offset to spending or a governmental receipt?
What uses do trust funds have?
(H) Do trust fund balances provide misleading information?
Do the roughly 200 trust funds add clarity or confusion to
the budget process?
(I) Are there better ways than trust fund accounting to
identify long-term liabilities?
(J) Should accrual budgetary accounting be adopted for
Federal retirement, military retirement, or Social Security
and other entitlements?
(K) Are off-budget accounts suitable for capturing accruals
in the budget?
(L) What is the appropriate budgetary treatment of--
(i) purchases and sales of financial assets, including
equities, bonds, and foreign currencies;
(ii) emergency spending;
(iii) the cost of holding fixed assets (cost of capital);
(iv) sales of physical assets; and
(v) seigniorage on coins and currency?
(M) When policy changes have strong but indirect feedback
effects on revenues and other aggregates, should they be
reported in budget estimates?
(N) How should the policies that are one-sided bets on
economic events (probabilistic scoring) be represented in the
budget?
(b) Powers of the Commission.--
(1) Conduct of business.--The Commission may hold hearings,
take testimony, receive evidence, and undertake such other
activities necessary to carry out its duties.
(2) Access to information.--The Commission may secure
directly from any department of agency of the United States
information necessary to carry out its duties. Upon request
of the Chair of the Commission, the head of that department
or agency shall furnish that information to the Commission.
(3) Postal service.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the United States.
SEC. 403. MEMBERSHIP.
(a) Membership.--The Commission shall be composed of 12
members as follows:
(1) Three members appointed by the chairman of the
Committee on the Budget of the Senate.
(2) Three members appointed by the chairman of the
Committee on the Budget of the House of Representatives.
(3) Three members appointed by the ranking member of the
Committee on the Budget of the Senate.
(4) Three members appointed by the ranking member of the
Committee on the Budget of the House of Representatives.
(b) Qualifications and Term.--
(1) Qualifications.--Members appointed to the Commission
pursuant to subsection (a) shall--
(A) have expertise and experience in the fields or
disciplines related to the subject areas to be considered by
the Commission; and
(B) not be Members of Congress.
(2) Term of appointment.--The term of an appointment to the
Commission shall be for the life of the Commission.
(3) Chair and vice chair.--The Chair and Vice Chair may be
elected from among the members of the Commission. The Vice
Chair shall assume the duties of the Chair in the Chair's
absence.
(c) Meetings; Quorum; and Vacancies.--
(1) Meetings.--The Commission shall meet at least once a
month on a day to be decided by the Commission. The
Commission may meet at such other times at the call of the
Chair or of a majority of its voting members. The meetings of
the Commission shall be open to the public, unless by public
vote, the Commission shall determine to close a meeting or
any portion of a meeting to the public.
(2) Quorum.--A majority of the voting membership shall
constitute a quorum of the Commission, except that 3 or more
voting members may conduct hearings.
(3) Vacancies.--A vacancy on the Commission shall be filled
in the same manner in which the original appointment was
filled under subsection (a).
(d) Compensation and Expenses.--Members of the Commission
shall serve without pay for their service on the Commission,
but may receive travel expenses, including per diem in lieu
of subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code.
SEC. 404. STAFF AND SUPPORT SERVICES.
(a) Staff.--With the advance approval of the Commission,
the executive director may appoint such personnel as is
appropriate. The staff of the Commission shall be appointed
without regard to political affiliation and without regard to
the provisions of title 5, United States Code, governing
appointments in the competitive service, and may be paid
without regard to the provisions of chapter 51 and subchapter
III of chapter 53 of such title relating to classifications
and General Schedule pay rates.
(b) Executive Director.--The Chairman shall appoint an
executive director, who shall be paid the rate of basic pay
for level II of the Executive Schedule.
(c) Experts and Consultants.--With the advance approval of
the Commission, the executive director may procure temporary
and intermittent services under section 3109(b) of title 5,
United States Code.
(d) Technical and Administrative Assistance.--Upon the
request of the Commission--
(1) the head of any agency, office, or establishment within
the executive or legislative branches of the United States
shall provide, without reimbursement, such technical
assistance as the Commission determines is necessary to carry
out its duties; and
(2) the Administrator of the General Services
Administration shall provide, on a reimbursable basis, such
administrative support services as the Commission may
require.
(e) Detail of Federal Personnel.--Upon the request of the
Commission, the head of an agency, office, or establishment
in the executive or legislative branch of the United States
is authorized to detail, without reimbursement, any of the
personnel of that agency, office, or establishment to the
Commission to assist the Commission in carrying out its
duties. Any such detail shall not interrupt or otherwise
affect the employment status or privileges of that employee.
(f) CBO.--The Director of the Congressional Budget Office
shall provide the Commission with its latest research on the
accuracy of its past budget and economic projections as
compared to those of the Office of Management and Budget and,
if possible, those of private sector forecasters. The
Commission shall work with the Directors of the Congressional
Budget Office and the Office of Management and Budget in
their efforts to explain the factors affecting the accuracy
of budget projections.
SEC. 405. REPORT.
Not later than _____, the Commission shall transmit a
report to the President and to each House of Congress. The
report shall contain a detailed statement of the findings and
conclusions of the Commission, together with its
recommendations for such legislative or administrative
actions as it considers appropriate. No finding, conclusion,
or recommendation may be made by the Commission unless
approved by a majority of those voting, a quorum being
present. At the request of any Commission member, the report
shall include that member's dissenting findings, conclusions,
or recommendations.
SEC. 406. TERMINATION.
The Commission shall terminate 30 days after the date of
transmission of the report required in section 405.
SEC. 407. FUNDING.
There are authorized to be appropriated not more than
$1,000,000 to carry out this title. Sums so appropriated
shall remain available until expended.
Mr. FEINGOLD. Mr. President, I am pleased to join today with my
Colleague from Ohio, Mr. Voinovich, to introduce the Truth in Budgeting
and Social Security Protection Act of 2002.
[[Page S10688]]
This bill collects a variety of budget process ideas to help protect
Social Security, promote balanced budgets, and improve government
accounting practices. I hope that this effort will help spur greater
debate and action to restore fiscal discipline.
Our government's finances have taken a dire turn in the last year-
and-a-half. While in January of last year the Congressional Budget
Office projected that, in the fiscal year just ended, fiscal year 2002,
the government would run a unified budget surplus of $313 billion, now
it projects a unified budget deficit of $157 billion.
And not counting Social Security surpluses, the picture is even
worse. While in January of last year CBO projected that for fiscal year
2002, the government would run a surplus of $142 billion, without using
Social Security surpluses, now it projects a deficit of $314 billion,
not counting Social Security.
We must stop running deficits because they cause the government to
use the surpluses of the Social Security Trust Fund for other
government purposes, rather than to pay down the debt and help our
Nation prepare for the coming retirement of the Baby Boom generation.
And we must stop running deficits because every dollar that we add to
the Federal debt is another dollar that we are forcing our children to
pay back in higher taxes or fewer government benefits. When the
government in this generation chooses to spend on current consumption
and to accumulate debt for our children's generation to pay, it does
nothing less than rob our children of their own choices. We make our
choices to spend on our wants, but we saddle them with debts that they
must pay from their tax dollars and their hard work. And the government
should not do that.
That is why I am joining with my Colleague from Ohio to introduce
this bill to improve the budget process today. We need to strengthen
the budget process. We need to do more.
Our bill would: extend the discretionary spending caps and the pay-
as-you-go rules for 5 years, strengthen the enforcement of those budget
rules, help protect Social Security surpluses, institute biennial
budgeting, improve accounting for long-term costs of legislation,
improve accounting for federal insurance programs, highlight the full
expenses, including interest costs, of spending or tax cuts, and create
a new commission to study the budget process.
Together, these budget process proposals would go a long way toward
increasing the responsibility of the Federal budget. I hope that
between now and the beginning of the next Congress, my Colleagues and
observers of the budget process will review these proposals, perhaps
build on them, and then join with us in a major effort to strengthen
the budget process next year.
We must stop using Social Security surpluses to fund other government
programs. We must stop piling up debt for our children to pay off. We
must enact major reforms of the budget process.
I hope that this effort will contribute to those ends.
______
By Mr. BAUCUS (for himself, Mr. Crapo, and Mr. Craig):
S. 3132. A bill to improve the economy and the quality of life for
all citizens by authorizing funds for Federal-aid highways, and for
other purposes; to the Committee on Environment and Public Works.
______
By Mr. BAUCUS (for himself, Mr. Crapo, and Mr. Craig):
S. 3133. A bill to amend the Internal Revenue Code of 1986 to make
funding available to carry out the Maximum Economic Growth for America
Through Highway Funding Act; to the Committee on Finance.
Mr. BAUCUS. Mr. President, I rise today to introduce two bills, the
Maximum Economic Growth for America Through Highway Funding Act'', or
``MEGA FUND ACT''--Parts one and two.
The MEGA FUND ACT is intended to do exactly what its name suggest,
increase Federal investment in our Nation's highway system. That is an
important objective. Highway investments create jobs, increase the
productivity of our economy, and improve the quality of life for all
Americans.
In 1998 Congress passed one of the most successful and bipartisan
bills in recent memory, the ``Transportation Equity Act for the 21st
Century'', better known as ``TEA-21.'' I am honored to have been an
author of that piece of legislation.
The MEGA FUND ACT builds on the success of the highway elements of
TEA-21, keeping nearly all of its structure in place and increasing
funding levels.
There are several major aspects of this legislation.
First, the MEGA FUND ACT significantly increases highway program
levels. The principal feature of the bill is its increased funding for
the program, something that will help all States and all citizens.
Under TEA-21, as amended, the total obligation authority for FY 2003 is
$28.485 billion.
Under the 6 years of the MEGA FUND ACT, the comparable program level
would grow to $34.839 billion in FY 2004 and to $41.839 billion by FY
2009.
These funding increases will be enabled by enactment of legislation
that I have already introduced with Senator Crapo, S. 2678, the Mega
Trust Act and S. 3097, MEGA INNOVATE ACT.
While these program levels represent a substantial increase, the
needs of our highway system are even greater. So, the program levels in
the bill represent only a down payment on the investment in highways
that is needed to improve our economy through commerce and job
creation, increase personal mobility and make our roads safer.
Second, the MEGA FUND ACT continues the basic program structure and
formulas from TEA-21. The current TEA-21 minimum guarantee formula is
extended.
Also, the bill would continue to focus funding on the core programs
administered by the States: Interstate Maintenance, National Highway
System, Surface Transportation Program, Bridge, Congestion Mitigation
and Air Quality Improvement, and the Minimum Guarantee. These key
programs would constitute approximately the same proportion of the
overall program as under TEA-21.
Third, a new category is added to aid states in overcoming economic
and demographic barriers. The bill would create a new program, at $2
billion annually, to assist States in dealing with certain economic and
demographic hardships.
This would be a new type of program, not subject to the minimum
guarantee. It is not keyed to specific project types but to types of
problems facing States. States with very high growth rates, high
population density, low population density, or low per capita incomes,
for example, face real challenges.
This different approach lets States facing those problems receive
funds and pick the projects. Every one of the 50 States would receive
significant funding under this program every year.
The MEGA FUND ACT continues firewalls and improves RABA. One of the
great contributions of TEA-21 is that it provides the highway program
protection under the budget procedures of Congress.
These ``firewall'' provisions enable our citizens to be confident
that highway taxes will be invested in highways, not saved or diverted.
TEA-21 also established Revenue Aligned Budget Authority, or RABA.
The principle of RABA is that, if funds available for the highway
program exceed expectations, then additional money can be put to work
in the highway program. This bill would continue those important
provisions with improvements.
One key improvement is the elimination of so-called ``negative
RABA.'' Under the bill, there are only automatic upward adjustments in
obligation levels under RABA. These adjustments would still take place
when the Highway Account balance is financially stronger than initially
estimated.
Another key reform would focus RABA calculations on the actual
balance in the Highway Account, rather than on annual revenues.
This important reform will help ensure that monies in the Highway
Account of the Highway Trust Fund are invested and not allowed to build
up to a large balance. Today's RABA did not preclude a build up of
funds in the
[[Page S10689]]
Highway Account, delaying the delivery of needed highway investments to
our citizens.
The MEGA FUND ACT increased the stability of distributions to states
under the allocation programs. The bill includes proposed revisions to
several so-called ``allocation'' programs that will increase funding
for all States.
Today, large portions of the program funds that are not apportioned
to States are distributed on a discretionary basis. This bill would
leave portions of the program subject to discretion, but move the
allocation programs, collectively, in a general direction that would
provide States greater certainty that they will be participating in
allocation program funds.
Specifically, the bill makes modest changes to the Intelligent
Transportation System, ITS, program and to the Transportation and
Community and System Preservation Pilot, TCSP, program, to ensure that
some of those funds find their way into every State.
Another modest change will ensure that each State with a border
receives at least some funding under the borders and corridors
programs, and that States with significant public lands receive at
least some public lands discretionary funding.
Let me say a few things about what is not addressed in this bill. The
MEGA FUND ACT sets forth an outline for the highway program. It does
not address the transit program that is within the jurisdiction of the
Banking Committee, or the highway safety programs within the
jurisdiction of the Commerce Committee, or the revenue for the highway
program that is within the jurisdiction of the Finance Committee.
My proposals for those issues are in previous bills that I have
introduced--MEGA RED TRANS, MEGA SAFE, MEGA STREAM, MEGA TRUST, MEGA
INNOVATE and today, MEGA FUND, Part II. Those are important matters
that also must be addressed as part of the final overall legislation
that will extend and build upon TEA-21.
As for MEGA FUND Part II, this bill although short and simple,
actually represents the most important step in any reauthorization
bill. MEGA FUND, Part II allows the funding program set forth in MEGA
FUND Part I to be spend from the Highway Trust Fund.
Without this important step, Congress can write formulas until
Christmas, but no money can actually be sent to the states and spent.
The ability to spend this money requires a change to the Internal
Revenue Code that makes those Highway Trust Funds available for
payment. MEGA FUND PART II takes care of that.
In summary, the MEGA FUND ACT stays close to the successful program
structure of TEA-21 and maintains its apportionment formulas. It would
significantly increase funding for the program as a whole, continue
budgetary firewalls and strengthen RABA, and provide some extra funds
to all States through the economic and demographic barriers program and
through some innovations in other programs not subject to the minimum
guarantee.
I ask unanimous consent that a section-by-section analysis of both
bills be printed in the Record.
There being no objection, the additional material was ordered to be
printed in the Record, as follows:
S. 3132
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 ``Maximum Economic Growth for
America Through Highway Funding Act'' or the ``MEGA Fund
Act''.
SEC. 2. AUTHORIZATION OF APPROPRIATIONS.
(a) Programs Subject to Minimum Guarantee.--The following
sums are authorized to be appropriated out of the Highway
Trust Fund (other than the Mass Transit Account):
(1) Interstate maintenance program.--For the Interstate
maintenance program under section 119 of title 23, United
States Code, $4,864,000,000 for fiscal year 2004,
$5,020,000,000 for fiscal year 2005, $5,176,000,000 for
fiscal year 2006, $5,333,000,000 for fiscal year 2007,
$5,645,000,000 for fiscal year 2008, and $5,958,000,000 for
fiscal year 2009.
(2) National highway system.--For the National Highway
System under section 103(b) of title 23, United States Code,
$5,836,000,000 for fiscal year 2004, $6,024,000,000 for
fiscal year 2005, $6,212,000,000 for fiscal year 2006,
$6,399,000,000 for fiscal year 2007, $6,774,000,000 for
fiscal year 2008, and $7,150,000,000 for fiscal year 2009.
(3) Bridge program.--For the bridge program under section
144 of title 23, United States Code, $4,173,000,000 for
fiscal year 2004, $4,307,000,000 for fiscal year 2005,
$4,442,000,000 for fiscal year 2006, $4,576,000,000 for
fiscal year 2007, $4,844,000,000 for fiscal year 2008, and
$5,112,000,000 for fiscal year 2009.
(4) Surface transportation program.--For the surface
transportation program under section 133 of title 23, United
States Code, $6,809,000,000 for fiscal year 2004,
$7,028,000,000 for fiscal year 2005, $7,247,000,000 for
fiscal year 2006, $7,466,000,000 for fiscal year 2007,
$7,903,000,000 for fiscal year 2008, and $8,341,000,000 for
fiscal year 2009.
(5) Congestion mitigation and air quality improvement
program.--For the congestion mitigation and air quality
improvement program under section 149 of title 23, United
States Code, $1,654,000,000 for fiscal year 2004,
$1,707,000,000 for fiscal year 2005, $1,760,000,000 for
fiscal year 2006, $1,813,000,000 for fiscal year 2007,
$1,919,000,000 for fiscal year 2008, and $2,026,000,000 for
fiscal year 2009.
(6) Appalachian development highway system program.--For
the Appalachian development highway system program under
section 14501 of title 40, United States Code, $450,000,000
for each of fiscal years 2004 through 2009.
(7) Recreational trails program.--For the recreational
trails program under section 206 of title 23, United States
Code, $75,000,000 for each of fiscal years 2004 through 2009.
(8) High priority projects program.--For the high priority
projects program under section 117 of title 23, United States
Code, $1,000,000,000 for each of fiscal years 2004 through
2009.
(b) Assistance in Overcoming Economic and Demographic
Barriers.--For the program to provide assistance in
overcoming economic and demographic barriers under section
139 of title 23, United States Code, there is authorized to
be appropriated out of the Highway Trust Fund (other than the
Mass Transit Account) $2,000,000,000 for each of fiscal years
2004 through 2009.
(c) Additional Programs.--The following sums are authorized
to be appropriated out of the Highway Trust Fund (other than
the Mass Transit Account):
(1) Federal lands highways program.--
(A) Indian reservation roads.--For Indian reservation roads
under section 204 of title 23, United States Code,
$300,000,000 for each of fiscal years 2004 through 2009.
(B) Public lands highways.--For public lands highways under
section 204 of title 23, United States Code, $350,000,000 for
each of fiscal years 2004 through 2009.
(C) Park roads and parkways.--For park roads and parkways
under section 204 of title 23, United States Code,
$300,000,000 for each of fiscal years 2004 through 2009.
(D) Refuge roads.--For refuge roads under section 204 of
title 23, United States Code, $35,000,000 for each of fiscal
years 2004 through 2009.
(2) National corridor planning and development program.--
For the national corridor planning and development program
under section 1118 of the Transportation Equity Act for the
21st Century (23 U.S.C. 101 note; 112 Stat. 161) $100,000,000
for each of fiscal years 2004 through 2009.
(3) Coordinated border infrastructure program.--For the
coordinated border infrastructure program under section 1119
of the Transportation Equity Act for the 21st Century (23
U.S.C. 101 note; 112 Stat. 163) $100,000,000 for each of
fiscal years 2004 through 2009.
(4) Construction of ferry boats and ferry terminal
facilities.--For construction of ferry boats and ferry
terminal facilities under section 1064 of the Intermodal
Surface Transportation Efficiency Act of 1991 (23 U.S.C. 129
note; 105 Stat. 2005) $50,000,000 for each of fiscal years
2004 through 2009.
(5) National scenic byways program.--For the national
scenic byways program under section 162 of title 23, United
States Code, $30,000,000 for each of fiscal years 2004
through 2009.
(6) Highway use tax evasion projects.--For highway use tax
evasion projects under section 143 of title 23, United States
Code, $40,000,000 for each of fiscal years 2004 through 2009.
(7) Commonwealth of puerto rico highway program.--For the
Commonwealth of Puerto Rico highway program under section
1214(r) of the Transportation Equity Act for the 21st Century
(112 Stat. 209) $130,000,000 for each of fiscal years 2004
through 2009.
(d) Transportation and Community and System Preservation
Pilot Program.--Section 1221(e)(1) of the Transportation
Equity Act for the 21st Century (23 U.S.C. 101 note; 112
Stat. 223) is amended--
(1) by striking ``1999 and'' and inserting ``1999,''; and
(2) by inserting before the period at the end the
following: ``, and $50,000,000 for each of fiscal years 2004
through 2009''.
(e) National Historic Covered Bridge Preservation.--Section
1224(d) of the Transportation Equity Act for the 21st Century
(112 Stat. 837) is amended by striking ``2003'' and inserting
``2009''.
(f) Safety Incentive Grants for Use of Seat Belts.--Section
157(g)(1) of title 23, United States Code, is amended--
(1) by striking ``2002, and'' and inserting ``2002,''; and
(2) by inserting before the period at the end the
following: ``, and $115,000,000 for each of fiscal years 2004
through 2009''.
(g) Research Programs.--The following sums are authorized
to be appropriated out
[[Page S10690]]
of the Highway Trust Fund (other than the Mass Transit
Account):
(1) Surface transportation research.--For carrying out
sections 502, 506, 507, and 508 of title 23, United States
Code, $103,000,000 for each of fiscal years 2004 through
2009.
(2) Technology deployment program.--For carrying out
section 503 of title 23, United States Code, $50,000,000 for
each of fiscal years 2004 through 2009.
(3) Training and education.--For carrying out section 504
of title 23, United States Code, $20,000,000 for each of
fiscal years 2004 through 2009.
(4) Bureau of transportation statistics.--For the Bureau of
Transportation Statistics to carry out section 111 of title
49, United States Code, $31,000,000 for each of fiscal years
2004 through 2009.
(5) ITS standards, research, operational tests, and
development.--For carrying out sections 5204, 5205, 5206, and
5207 of the Transportation Equity Act for the 21st Century
(23 U.S.C. 502 note; 112 Stat. 453) $110,000,000 for each of
fiscal years 2004 through 2009.
(6) ITS deployment.--For carrying out sections 5208 and
5209 of the Transportation Equity Act for the 21st Century
(23 U.S.C. 502 note; 112 Stat. 458) $140,000,000 for each of
fiscal years 2004 through 2009.
(7) University transportation research.--For carrying out
section 5505 of title 49, United States Code, $32,000,000 for
each of fiscal years 2004 through 2009.
(h) Future Strategic Highway Research Program.--Section 104
of title 23, United States Code, is amended by adding at the
end the following:
``(m) Future Strategic Highway Research Program.--
``(1) Deductions.--For each of fiscal years 2004 through
2009, whenever an apportionment is made of the sums made
available for expenditure on each of the surface
transportation program under section 133, the bridge program
under section 144, the congestion mitigation and air quality
improvement program under section 149, and the Interstate and
National Highway System program, the Secretary shall make
proportionate deductions from those programs, in a total
amount equal to $75,000,000, to be used to pay the costs of a
future strategic highway research program established under
paragraph (2).
``(2) Program.--The Secretary shall establish and carry out
a future strategic highway research program.
``(3) Federal share.--The Federal share of the cost of a
project carried out under the future strategic highway
research program shall be 80 percent (unless the Secretary
determines otherwise with respect to a project).
``(4) Availability of amounts.--The amounts deducted under
paragraph (1) shall be available for obligation in the same
manner as if the funds were apportioned under this chapter,
except that the funds shall remain available until
expended.''.
(i) Magnetic Levitation Transportation Technology
Deployment Program.--Section 322(h)(1)(B)(i) of title 23,
United States Code, is amended--
(1) by striking ``2002, and'' and inserting ``2002,''; and
(2) by inserting before the period at the end the
following: ``, and such sums as are necessary for fiscal year
2004 and each fiscal year thereafter''.
(j) TIFIA.--Section 188 of title 23, United States Code, is
amended--
(1) in subsection (a)--
(A) in paragraph (1)(E), by striking ``fiscal year 2003''
and inserting ``each of fiscal years 2003 through 2009''; and
(B) in paragraph (2), by striking ``2003'' and inserting
``2009''; and
(2) in the table contained in subsection (c), by striking
the item relating to fiscal year 2003 and inserting the
following:
``2003................................................$2,600,000,000
``2004................................................$2,600,000,000
``2005................................................$2,600,000,000
``2006................................................$2,600,000,000
``2007................................................$2,600,000,000
``2008................................................$2,600,000,000
``2009.............................................$2,600,000,000.''.
SEC. 3. OBLIGATION CEILING.
(a) In General.--Section 1102 of the Transportation Equity
Act for the 21st Century (23 U.S.C. 104 note; 112 Stat. 115)
is amended--
(1) in subsection (a)--
(A) in paragraph (5), by striking ``and'' at the end;
(B) in paragraph (6), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(7) $34,000,000,000 for fiscal year 2004;
``(8) $35,000,000,000 for fiscal year 2005;
``(9) $36,000,000,000 for fiscal year 2006;
``(10) $37,000,000,000 for fiscal year 2007;
``(11) $39,000,000,000 for fiscal year 2008; and
``(12) $41,000,000,000 for fiscal year 2009.'';
(2) in subsection (b)(8), by striking ``through 2007'' and
inserting ``through 2009'';
(3) in subsection (c)--
(A) by striking ``For each of fiscal years 1998 through
2003,'' and inserting ``Except as otherwise provided, for
fiscal year 1998 and each fiscal year thereafter,'';
(B) in paragraph (1)--
(i) by striking ``Code, and amounts'' and inserting ``Code,
amounts''; and
(ii) by inserting before the semicolon at the end the
following: ``or, for fiscal year 2004 and each fiscal year
thereafter, amounts authorized for the Indian reservation
roads program under section 204 of title 23, United States
Code''; and
(C) in paragraph (5), by striking ``this Act'' and
inserting ``this Act, the Maximum Economic Growth for America
Through Highway Funding Act,'';
(4) in subsection (d), by striking ``2003'' and inserting
``2009'';
(5) in subsection (e)--
(A) by striking ``Obligation'' and inserting the following:
``(1) In general.--Obligation'';
(B) in paragraph (1) (as designated by subparagraph (A)),
by striking ``and under title V of this Act'' and inserting
``under title V of this Act, and under the Maximum Economic
Growth for America Through Highway Funding Act''; and
(C) by adding at the end the following:
``(2) Limitation for fiscal years 2004 through 2009.--
Notwithstanding any other provision of law, the total of all
obligations from amounts made available from the Highway
Trust Fund (other than the Mass Transit Account) by section
2(f) of the Maximum Economic Growth for America Through
Highway Funding Act, and section 104(m) of title 23, United
States Code, shall not exceed $561,000,000 for each of fiscal
years 2004 through 2009.'';
(6) in the first sentence of subsection (f), by striking
``2003'' and inserting ``2009'';
(7) in subsection (h)--
(A) by striking ``Limitations on obligations imposed by
subsection (a)'' and inserting the following:
``(1) Fiscal years 1998 through 2003.--Limitations on
obligations imposed by paragraphs (1) through (6) of
subsection (a)''; and
(B) by adding at the end the following:
``(2) Fiscal years 2004 through 2009.--
``(A) In general.--Limitations on obligations imposed by
paragraphs (7) through (12) of subsection (a) for a fiscal
year shall be increased by an amount equal to the amount of
any increase for the fiscal year determined under section
4(b)(5) of the Maximum Economic Growth for America Through
Highway Funding Act.
``(B) Distribution of increases.--Any increase under
subparagraph (A) shall be distributed in accordance with this
section.''; and
(8) in subsection (i)--
(A) in paragraph (5), by striking ``and'' at the end;
(B) in paragraph (6), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(7) $450,000,000 for fiscal year 2004;
``(8) $470,000,000 for fiscal year 2005;
``(9) $490,000,000 for fiscal year 2006;
``(10) $510,000,000 for fiscal year 2007;
``(11) $530,000,000 for fiscal year 2008; and
``(12) $550,000,000 for fiscal year 2009.''.
(b) Deduction for Administrative Expenses.--Section
104(a)(1) of title 23, United States Code, is amended--
(1) by inserting ``the lesser of'' after ``in an amount not
to exceed'';
(2) in subparagraph (A)--
(A) by redesignating clauses (i) and (ii) as subclauses (I)
and (II), respectively, and indenting appropriately; and
(B) by striking ``(A) 1\1/6\ percent'' and inserting the
following:
``(A) the sum of--
``(i) 1\1/6\ percent'';
(3) by striking ``(B) one-third'' and inserting the
following:
``(ii) one-third'';
(4) in subparagraph (A)(ii) (as so designated), by striking
the period at the end and inserting ``; or''; and
(5) by adding at the end the following:
``(B) the amount specified for the applicable fiscal year
in section 1102(i) of the Transportation Equity Act for the
21st Century (23 U.S.C. 104 note; 112 Stat. 118) for use as
described in subparagraph (A).''.
SEC. 4. RELIABLE HIGHWAY PROGRAM LEVELS; REVISIONS TO REVENUE
ALIGNED BUDGET AUTHORITY.
(a) Sense of the Senate Relating to Reform of Revenue
Aligned Budget Authority.--
(1) Findings.--The Senate finds that--
(A) the experience under the Transportation Equity Act for
the 21st Century (112 Stat. 107) with respect to revenue
aligned budget authority (referred to in this subsection as
``RABA'') has been that, while RABA has produced increases in
highway program obligation levels in some fiscal years, RABA
also--
(i) has allowed the balance in the Highway Trust Fund
(other than the Mass Transit Account) to grow since the date
of enactment of the Transportation Equity Act for the 21st
Century;
(ii) does not provide a mechanism to allow that balance to
be expended for the benefit of the public; and
(iii) has resulted in unexpectedly large annual
differences, or estimated differences, in highway program
obligation authority as compared with the levels specified in
section 1102 of the Transportation Equity Act for the 21st
Century (23 U.S.C. 104 note; 112 Stat. 115); and
(B) Congress has taken legislative action to reject the
implementation of estimates that would have resulted in
``negative'' RABA.
(2) Sense of the senate.--It is the sense of the Senate
that the provisions of budget legislation pertaining to the
highway program should be amended--
(A) to improve predictability and stability in the levels
of highway program obligation authority;
[[Page S10691]]
(B) to facilitate the expenditure of funds in the Highway
Trust Fund (other than the Mass Transit Account); and
(C) to eliminate the possibility of reductions in the
levels of highway program obligation authority being imposed
automatically, so that any reductions are solely the
prerogative of Congress.
(b) Reliable Highway Program Levels.--
(1) In general.--Notwithstanding any other provision of
law, no spending limits other than the spending limits
specified in this subsection may be imposed, for any of
fiscal years 2004 through 2009, on budget accounts or
portions of budget accounts that are subject to the
obligation limitations and the exemptions from obligation
limitations that are specified in section 1102 of the
Transportation Equity Act for the 21st Century (23 U.S.C. 104
note; 112 Stat. 115).
(2) Amount of obligation authority.--For each of fiscal
years 2004 through 2009, the limitation on obligation
authority for the budget accounts described in paragraph (1)
shall be equal to the sum of--
(A) the limitation for that fiscal year specified in
section 1102(a) of the Transportation Equity Act for the 21st
Century;
(B) all amounts exempt from that limit under section
1102(b) of that Act; and
(C) the amount of any increase for the fiscal year under
paragraph (5).
(3) Outlays.--For each of fiscal years 2004 through 2009,
the limitation on outlays for the budget accounts described
in paragraph (1) shall be the level of outlays necessary to
accommodate outlays resulting from obligations for that
fiscal year under paragraph (2) and obligations from prior
fiscal years.
(4) Annual report on estimated balance in highway
account.--In the submission by the President of the budget of
the United States Government under section 1105 of title 31,
United States Code, for each of fiscal years 2005 through
2009, the President shall include an estimate of the balance
that will be in the Highway Account of the Highway Trust Fund
(as defined in section 9503(e)(5)(B) of the Internal Revenue
Code of 1986) at the end of fiscal year 2009.
(5) Increase based on fund balance.--
(A) Estimate for fiscal year 2005.--In the submission by
the President of the budget of the United States Government
under section 1105 of title 31, United States Code, for
fiscal year 2005, if the estimate described in paragraph (4)
is that, but for this subparagraph, the balance in the
Highway Account of the Highway Trust Fund at the end of
fiscal year 2009 will be in excess of $7,000,000,000, the
amount specified in section 1102(a)(8) of the Transportation
Equity Act for the 21st Century shall be deemed to have been
increased by an amount equal to 50 percent of the amount of
the estimated excess.
(B) Estimate for fiscal year 2006.--In the submission by
the President of the budget of the United States Government
under section 1105 of title 31, United States Code, for
fiscal year 2006, if the estimate described in paragraph (4)
is that, but for this subparagraph, the balance in the
Highway Account of the Highway Trust Fund at the end of
fiscal year 2009 will be in excess of $6,500,000,000, the
amount specified in section 1102(a)(9) of the Transportation
Equity Act for the 21st Century shall be deemed to have been
increased by an amount equal to 50 percent of the amount of
the estimated excess.
(C) Estimate for fiscal year 2007.--In the submission by
the President of the budget of the United States Government
under section 1105 of title 31, United States Code, for
fiscal year 2007, if the estimate described in paragraph (4)
is that, but for this subparagraph, the balance in the
Highway Account of the Highway Trust Fund at the end of
fiscal year 2009 will be in excess of $6,000,000,000, the
amount specified in section 1102(a)(10) of the Transportation
Equity Act for the 21st Century shall be deemed to have been
increased by an amount equal to 50 percent of the amount of
the estimated excess.
(D) Estimate for fiscal year 2008.--In the submission by
the President of the budget of the United States Government
under section 1105 of title 31, United States Code, for
fiscal year 2008, if the estimate described in paragraph (4)
is that, but for this subparagraph, the balance in the
Highway Account of the Highway Trust Fund at the end of
fiscal year 2009 will be in excess of $5,500,000,000, the
amount specified in section 1102(a)(11) of the Transportation
Equity Act for the 21st Century shall be deemed to have been
increased by an amount equal to 50 percent of the amount of
the estimated excess.
(E) Estimate for fiscal year 2009.--In the submission by
the President of the budget of the United States Government
under section 1105 of title 31, United States Code, for
fiscal year 2009, if the estimate described in paragraph (4)
is that, but for this subparagraph, the balance in the
Highway Account of the Highway Trust Fund at the end of
fiscal year 2009 will be in excess of $5,000,000,000, the
amount specified in section 1102(a)(12) of the Transportation
Equity Act for the 21st Century shall be deemed to have been
increased by an amount equal to the amount of the estimated
excess.
(6) No effect on byrd rule.--Nothing in this subsection
affects section 9503(d) of the Internal Revenue Code of 1986.
(c) Sense of the Senate Supporting Reliable Program Levels
in Additional Budget Accounts.--It is the sense of the Senate
that the Act reauthorizing highway, highway safety, and
transit programs for fiscal years beginning with fiscal year
2004 should include, in addition to the budgetary protections
for the highway program provided under subsection (b),
appropriate budgetary protections for highway safety and
transit programs.
(d) Conforming Amendments to Revenue Aligned Budget
Authority.--Section 110 of title 23, United States Code, is
amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) by inserting ``for fiscal years 2000 through 2003''
after ``Allocation''; and
(ii) by striking ``fiscal year 2000 and each fiscal year
thereafter'' and inserting ``each of fiscal years 2000
through 2003'';
(B) in paragraph (2)--
(i) by inserting ``for fiscal years 2001 through 2003''
after ``Reduction''; and
(ii) by striking ``fiscal year 2000 or any fiscal year
thereafter'' and inserting ``any of fiscal years 2000 through
2002''; and
(C) by adding at the end the following:
``(3) Allocations for fiscal years 2005 through 2009.--For
any of fiscal years 2005 through 2009, if an increase is made
to the level of obligation authority under section 4(b)(5) of
the Maximum Economic Growth for America Through Highway
Funding Act, the Secretary shall allocate for the fiscal year
an amount equal to the amount of the increase.''; and
(2) in subsection (b)--
(A) in paragraph (1)(A)--
(i) by striking ``for'' the second place it appears; and
(ii) by inserting ``(112 Stat. 107), the Maximum Economic
Growth for America Through Highway Funding Act'' after ``21st
Century'';
(B) in paragraph (2), by striking ``subsection (a)(1)'' and
inserting ``paragraph (1) or (3) of subsection (a), as
applicable,''; and
(C) in paragraph (4), by striking ``subsection (a)(1)'' and
inserting ``paragraph (1) or (3) of subsection (a), as
applicable,''.
SEC. 5. ASSISTANCE IN OVERCOMING ECONOMIC AND DEMOGRAPHIC
BARRIERS.
(a) In General.--Title 23, United States Code, is amended
by inserting after section 138 the following:
``Sec. 139. Assistance in overcoming economic and demographic
barriers
``(a) Definitions.--In this section:
``(1) High-growth state.--The term `high-growth State'
means a State that has a population according to the 2000
decennial census that is at least 25 percent greater than the
population for the State according to the 1990 decennial
census.
``(2) High-population-density state.--The term `high-
population-density State' means a State in which the number
of individuals per principal arterial mile is greater than 75
percent of the number of individuals per principal arterial
mile in the 50 States and the District of Columbia, as
determined using population according to the 2000 decennial
census.
``(3) Highway statistics.--
``(A) In general.--The term `Highway Statistics' means the
Highway Statistics published by the Federal Highway
Administration for the most recent calendar or fiscal year
for which data are available, which most recent calendar or
fiscal year shall be determined as of the first day of the
fiscal year for which any calculation using the Highway
Statistics is made.
``(B) Terms.--Any reference to a term that is used in the
Highway Statistics is a reference to the term as used in the
Highway Statistics as of September 30, 2002.
``(4) Low-income state.--The term `low-income State' means
a State that, according to Table PS-1 of the Highway
Statistics, has a per capita income that is less than the
national average per capita income.
``(5) Low-population-density state.--The term `low-
population-density State' means a State in which the number
of individuals per principal arterial mile is less than 75
percent of the number of individuals per principal arterial
mile in the 50 States and the District of Columbia, as
determined using population according to the 2000 decennial
census.
``(6) National average per capita income.--The term
`national average per capita income' means the average per
capita income for the 50 States and the District of Columbia,
as specified in the Highway Statistics.
``(7) Principal arterial miles.--The term `principal
arterial miles', with respect to a State, means the principal
arterial miles (including Interstate and other expressway or
freeway system miles) in the State, as specified in Table HM-
20 of the Highway Statistics.
``(8) State.--The term `State' means each of the 50 States.
``(9) State with extensive road ownership.--The term `State
with extensive road ownership' means a State that owns more
than 80 percent of the total Federal-aid and non-Federal-aid
mileage in the State according to Table HM-14 of the Highway
Statistics.
``(b) Establishment.--There is established a program to
assist States that face certain economic and demographic
barriers in meeting transportation needs.
``(c) Allocation of Funds.--For each of fiscal years 2004
through 2009, funds made available to carry out this section
shall be allocated as follows:
``(1) Low-income states.--For each fiscal year, each low-
income State shall receive an allocation under this paragraph
that is equal to the product obtained by multiplying--
``(A) $600,000,000; and
``(B) the ratio that--
``(i) the difference between--
[[Page S10692]]
``(I) the national average per capita income; and
``(II) the per capita income of the low-income State; bears
to
``(ii) the sum of the differences determined under clause
(i) for all low-income States.
``(2) High-growth states.--For each fiscal year, each high-
growth State shall receive an allocation under this paragraph
that is equal to the product obtained by multiplying--
``(A) $75,000,000; and
``(B) the ratio that--
``(i) the percentage by which the population of the high-
growth State according to the 2000 decennial census exceeds
the population of the high-growth State according to the 1990
decennial census; bears to
``(ii) the sum of the percentages determined under clause
(i) for all high-growth States.
``(3) Low-population-density states.--
``(A) In general.--Subject to subparagraph (B), for each
fiscal year, each low-population-density State shall receive
an allocation under this paragraph that is equal to the
product obtained by multiplying--
``(i) $625,000,000; and
``(ii) the ratio that--
``(I) the quotient obtained by dividing--
``(aa) the number of principal arterial miles in the State;
by
``(bb) the population of the low-population-density State
according to the 2000 decennial census; bears to
``(II) the sum of the quotients determined under subclause
(I) for all low-population-density States.
``(B) Maximum allocation.--
``(i) In general.--If the allocation for a low-population-
density State under subparagraph (A) is greater than
$35,000,000, the allocation of the low-population-density
State shall be reduced to $35,000,000.
``(ii) Use of excess allocations.--
``(I) Reallocation.--Subject to subclause (II), the funds
in addition to the $35,000,000 that would have been allocated
to a low-population-density State but for clause (i) shall be
reallocated among the low-population-density States that were
allocated less than $35,000,000 under subparagraph (A) in
accordance with the proportionate shares of those low-
population-density States under subparagraph (A).
``(II) Additional reallocations.--If a reallocation under
subclause (I) would result in the receipt by any low-
population-density State of an amount greater than
$35,000,000 under this paragraph--
``(aa) the allocation for the low-population-density State
shall be reduced to $35,000,000; and
``(bb) the amounts in excess of $35,000,000 shall be
subject to 1 or more further reallocations in accordance with
that subclause so that no low-population-density State is
allocated more than $35,000,000 under this paragraph.
``(4) High-population-density states.--
``(A) In general.--Subject to subparagraph (B), for each
fiscal year, each high-population-density State shall receive
an allocation under this paragraph that is equal to the
product obtained by multiplying--
``(i) $625,000,000; and
``(ii) the ratio that--
``(I) the quotient obtained by dividing--
``(aa) the population of the high-population-density State
according to the 2000 decennial census; by
``(bb) the number of principal arterial miles in the State;
bears to
``(II) the sum of the quotients determined under subclause
(I) for all high-population-density States.
``(B) Maximum allocation.--
``(i) In general.--If the allocation for a high-population-
density State under subparagraph (A) is greater than
$35,000,000, the allocation of the high-population-density
State shall be reduced to $35,000,000.
``(ii) Use of excess allocations.--
``(I) Reallocation.--Subject to subclause (II), the funds
in addition to the $35,000,000 that would have been allocated
to a high-population-density State but for clause (i) shall
be reallocated among the high-population-density States that
were allocated less than $35,000,000 under subparagraph (A)
in accordance with the proportionate shares of those high-
population-density States under subparagraph (A).
``(II) Additional reallocations.--If a reallocation under
subclause (I) would result in the receipt by any high-
population-density State of an amount greater than
$35,000,000 under this paragraph--
``(aa) the allocation for the high-population-density State
shall be reduced to $35,000,000; and
``(bb) the amounts in excess of $35,000,000 shall be
subject to 1 or more further reallocations in accordance with
that subclause so that no high-population-density State is
allocated more than $35,000,000 under this paragraph.
``(5) States with extensive road ownership.--For each
fiscal year, each State with extensive road ownership shall
receive an allocation under this paragraph that is equal to
the product obtained by multiplying--
``(A) $75,000,000; and
``(B) the ratio that--
``(i) the total Federal-aid and non-Federal-aid mileage
owned by each State with extensive road ownership according
to Table HM-14 of the Highway Statistics; bears to
``(ii) the sum of the mileages determined under clause (i)
for all States with extensive road ownership.
``(d) Treatment of Allocated Funds.--
``(1) In general.--Subject to paragraph (2), funds
allocated to a State under this section for a fiscal year
shall be treated for program administrative purposes as if
the funds--
``(A) were funds apportioned to the State under sections
104(b)(1), 104(b)(2), 104(b)(3), 104(b)(4), and 144; and
``(B) were apportioned to the State in the same ratio that
the State is apportioned funds under the sections specified
in subparagraph (A) for the fiscal year.
``(2) Program administrative purposes.--Program
administrative purposes referred to in paragraph (1)--
``(A) include--
``(i) the Federal share;
``(ii) availability for obligation; and
``(iii) except as provided in subparagraph (B),
applicability of deductions; and
``(B) exclude--
``(i) calculation of the minimum guarantee under section
105; and
``(ii) applicability of the deduction for the future
strategic highway research program under section 104(m).''.
(b) Conforming Amendment.--The analysis for subchapter I of
chapter 1 of title 23, United States Code, is amended by
inserting after the item relating to section 138 the
following:
``139. Assistance in overcoming economic and demographic barriers.''.
SEC. 6. EMERGENCY RELIEF.
Section 125 of title 23, United States Code, is amended--
(1) in subsection (c)(1), by striking ``Not more than
$100,000,000 is authorized to be obligated in any 1 fiscal
year commencing after September 30, 1980,'' and inserting
``Not more than $100,000,000 is authorized to be obligated in
any of fiscal years 1981 through 2003, and not more than
$200,000,000 is authorized to be obligated in fiscal year
2004 or any fiscal year thereafter,''; and
(2) by adding at the end the following:
``(g) Protection of Highway Trust Fund.--Effective
beginning on the earlier of October 1, 2003, or the date of
enactment of this subsection, notwithstanding any other
provision of law, if an Act is enacted that provides for an
amount in excess of $200,000,000 for any fiscal year for the
emergency fund authorized by this section (including any Act
that states that provision of that amount in excess of
$200,000,000 is `notwithstanding any other provision of
law'), that Act shall be applied so that all funds for that
fiscal year for the program established by this section in
excess of $200,000,000--
``(1) shall be derived from the general fund of the
Treasury, and not from the Highway Trust Fund (other than the
Mass Transit Account); but
``(2) shall be administered by the Secretary in all other
respects as if the funds were appropriated from the Highway
Trust Fund (other than the Mass Transit Account).''.
SEC. 7. INCREASED STABILITY OF DISTRIBUTION UNDER ALLOCATION
PROGRAMS.
(a) National Corridor Planning and Development Program.--
Section 1118 of the Transportation Equity Act for the 21st
Century (23 U.S.C. 101 note; 112 Stat. 161) is amended--
(1) by redesignating subsection (g) as subsection (h); and
(2) by inserting after subsection (f) the following:
``(g) Minimum Allocations to Border States.--
Notwithstanding any other provision of law, in allocating
funds under this section for fiscal year 2004 and each fiscal
year thereafter, the Secretary shall ensure that not less
than 2 percent of the funds made available to carry out the
program under this section are allocated to each border State
(as defined in section 1119(e)).''.
(b) Coordinated Border Infrastructure Program.--Section
1119 of the Transportation Equity Act for the 21st Century
(23 U.S.C. 101 note; 112 Stat. 163) is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following:
``(e) Minimum Allocations to Border States.--
Notwithstanding any other provision of law, in allocating
funds under this section for fiscal year 2004 and each fiscal
year thereafter, the Secretary shall ensure that not less
than 2 percent of the funds made available to carry out the
program under this section are allocated to each border
State.''.
(c) Transportation and Community and System Preservation
Pilot Program.--Section 1221 of the Transportation Equity Act
for the 21st Century (23 U.S.C. 101 note; 112 Stat. 221) is
amended by adding at the end the following:
``(f) Minimum Allocations to States.--Notwithstanding any
other provision of law, in allocating funds made available
under this section for fiscal year 2004 and each fiscal year
thereafter, the Secretary shall ensure that the total of the
allocations to each State (including allocations to the
metropolitan planning organizations and local governments in
the State) under this section is not less than the product
obtained by multiplying--
``(1) 50 percent of the percentage specified for the State
in section 105 of title 23, United States Code, for the
fiscal year; and
``(2) the total amount of funds made available to carry out
this section for the fiscal year.''.
(d) Minimum Allocations to States for ITS Deployment.--
(1) In general.--Notwithstanding any other provision of
law, for fiscal year 2004
[[Page S10693]]
and each fiscal year thereafter, in allocating funds made
available under section 2(f)(6), the Secretary shall ensure
that the total of the allocations to each State using those
funds is not less than the product obtained by multiplying--
(A) 50 percent of the percentage specified for the State in
section 105 of title 23, United States Code, for the fiscal
year; and
(B) the total amount of funds made available under section
2(f)(6).
(2) Use of funds for both types of projects.--In
administering funds available for allocation under section
2(f)(6), the Secretary shall encourage States to carry out
both--
(A) projects eligible under section 5208 of the
Transportation Equity Act for the 21st Century (23 U.S.C. 502
note; 112 Stat. 458); and
(B) projects eligible under section 5209 of that Act.
SEC. 8. HISTORIC PARK ROADS AND PARKWAYS.
(a) In General.--Section 202(c) of title 23, United States
Code, is amended--
(1) by striking ``(c) On'' and inserting the following:
``(c) Park Roads and Parkways.--
``(1) In general.--On''; and
(2) by adding at the end the following:
``(2) Historic park roads and parkways.--
``(A) Definitions.--In this paragraph:
``(i) National park.--The term `national park' means an
area of land or water administered by the National Park
Service that is designated as a national park.
``(ii) Recreation visit.--The term `recreation visit' means
the entry into a national park for a recreational purpose of
an individual who is not--
``(I) an employee of the Federal Government, or other
individual, who has business in the national park;
``(II) an individual passing through the national park for
a purpose other than visiting the national park; or
``(III) an individual residing in the national park.
``(iii) Recreation visitor day.--The term `recreation
visitor day' means a period of 12 hours spent in a national
park by an individual making a recreation visit to the
national park.
``(B) Allocation.--Notwithstanding paragraph (1), for
fiscal year 2004 and each fiscal year thereafter, the first
$100,000,000 authorized to be appropriated from the Highway
Trust Fund (other than the Mass Transit Account) for park
roads and parkways for the fiscal year shall be allocated for
projects to reconstruct, rehabilitate, restore, resurface, or
improve to applicable safety standards any highway that meets
the criteria specified in subparagraph (C).
``(C) Eligibility criteria.--The criteria referred to in
subparagraph (B) are that--
``(i) the highway provides access to or is located in a
national park;
``(ii) the highway was initially constructed before 1940;
and
``(iii) as determined using data provided by the National
Park Service averaged over the 3 most recent years for which
the data are available, the national park to which the
highway provides access or in which the highway is located is
used more than 1,000,000 recreation visitor days per year.
``(D) Priority.--In funding projects eligible under
subparagraphs (B) and (C), the Secretary shall give priority
to any project on a highway that is located in or provides
access to a national park that--
``(i) is adjacent to a national park of a foreign country;
or
``(ii) is located in more than 1 State.
``(E) Federal-state cooperation in project development.--
Projects to be carried out under this paragraph shall be
developed cooperatively by the Secretary and the State in
which a national park is located.
``(F) Support by the secretary.--The Secretary shall
provide the maximum feasible support to ensure prompt
development and implementation of projects under this
paragraph.
``(G) Reservation of funds for projects outside national
parks.--
``(i) In general.--For each fiscal year, not less than 40
percent of the funds allocated under this paragraph shall be
used for projects described in subparagraph (B) on highways
that are located outside national parks but provide access to
national parks.
``(ii) Use of excess funds.--If the Secretary determines
that funds set aside under clause (i) are in excess of the
needs for reconstruction, rehabilitation, restoration,
resurfacing, or improvement of the highways described in that
clause, the funds set aside under that clause may be used for
transit projects that serve national parks with highways
(including access highways) that meet the criteria specified
in subparagraph (C).
``(H) Availability of amounts.--Funds allocated under this
paragraph shall remain available until expended.
``(I) Relationship to other law.--Nothing in this paragraph
reduces the eligibility or priority of a project under any
other provision of this title or other law.''.
(b) Authorization of Appropriations.--There are authorized
to be appropriated such sums as are necessary to carry out
projects that--
(1) are eligible for funding under section 202(c)(2) of
title 23, United States Code; but
(2) are not fully funded from funds made available under
paragraph (1) or (2) of section 202(c) of that title.
SEC. 9. COOPERATIVE FEDERAL LANDS TRANSPORTATION PROGRAM.
(a) In General.--Chapter 2 of title 23, United States Code,
is amended by inserting after section 206 the following:
``Sec. 207. Cooperative Federal lands transportation program
``(a) In General.--
``(1) Establishment.--There is established the cooperative
Federal lands transportation program (referred to in this
section as the `program').
``(2) Projects.--
``(A) Locations.--Funds available for the program under
subsection (d) may be used for projects, or portions of
projects, on highways that--
``(i) are owned or maintained by States or political
subdivisions of States; and
``(ii) cross, are adjacent to, or lead to federally owned
land or Indian reservations (including Corps of Engineers
reservoirs), as determined by the State.
``(B) Selection.--The projects shall be selected by a State
after consultation with the Secretary and each affected local
or tribal government.
``(C) Types of projects.--A project selected by a State
under this section--
``(i) shall be on a highway or bridge owned or maintained
by the State or 1 or more political subdivisions of the
State; and
``(ii) may be--
``(I) a highway or bridge construction or maintenance
project eligible under this title; or
``(II) any eligible project under section 204(h).
``(b) Distribution of Funds for Projects.--
``(1) In general.--
``(A) Determinations by the secretary.--The Secretary--
``(i) after consultation with the Administrator of General
Services, the Secretary of the Interior, and the heads of
other agencies as appropriate (including the Chief of
Engineers), shall determine the percentage of the total land
in each State that is owned by the Federal Government or that
is held by the Federal Government in trust;
``(ii) shall determine the sum of the percentages
determined under clause (i) for States with respect to which
the percentage is 4.5 or greater; and
``(iii) shall determine for each State included in the
determination under clause (ii) the percentage obtained by
dividing--
``(I) the percentage for the State determined under clause
(i); by
``(II) the sum determined under clause (ii).
``(B) Adjustment.--The Secretary shall--
``(i) reduce any percentage determined under subparagraph
(A)(iii) that is greater than 7.5 percent to 7.5 percent; and
``(ii) redistribute the percentage points equal to any
reduction under clause (i) among other States included in the
determination under subparagraph (A)(ii) in proportion to the
percentages for those States determined under subparagraph
(A)(iii).
``(2) Availability to states.--For each fiscal year, the
Secretary shall make funds available to carry out eligible
projects in a State in an amount equal to the amount obtained
by multiplying--
``(A) the percentage for the State, if any, determined
under paragraph (1); by
``(B) the funds made available for the program under
subsection (d) for the fiscal year.
``(c) Transfers.--Notwithstanding any other provision of
law, a State and the Secretary may agree to transfer amounts
made available to a State under this section to the
allocations of the State under section 202 for use in
carrying out projects on any Federal lands highway that is
located in the State.
``(d) Funding.--
``(1) In general.--Notwithstanding section 202 or any other
provision of law, for fiscal year 2004 and each fiscal year
thereafter, the Secretary shall transfer for use in
accordance with this section an amount equal to 50 percent of
the funds that would otherwise be allocated for the fiscal
year under the first sentence of section 202(b).
``(2) Contract authority.--Funds transferred for use in
accordance with this section shall be available for
obligation in the same manner as if the funds were
apportioned under chapter 1.''.
(b) Conforming Amendment.--The analysis for chapter 2 of
title 23, United States Code, is amended by striking the item
relating to section 207 and inserting the following:
``207. Cooperative Federal lands transportation program.''.
SEC. 10. MISCELLANEOUS PROGRAM IMPROVEMENTS.
(a) Federal Share.--
(1) In general.--Section 120 of title 23, United States
Code, is amended--
(A) in subsection (b), by striking ``the percentage that
the area of all such lands in such State'' each place it
appears and inserting ``twice the percentage that the area of
all such lands in the State'';
(B) in subsection (f)--
(i) by striking ``and with the Department of the Interior''
and inserting ``, the Department of the Interior, and the
Department of Agriculture''; and
(ii) by striking ``and national parks and monuments under
the jurisdiction of the Department of the Interior'' and
inserting ``, national parks, national monuments, and
national forests under the jurisdiction of the Department of
the Interior or the Department of Agriculture''; and
(C) by adding at the end the following:
``(m) Multistate Weight Enforcement Improvements.--The
Federal share of the
[[Page S10694]]
cost of any project described in section 101(a)(3)(H) shall
be 100 percent if the project is to be used, or is carried
out jointly, by more than 1 State.''.
(2) High priority projects program.--Section 117(c) of
title 23, United States Code, is amended by striking ``80
percent'' and inserting ``the share applicable under section
120(b)''.
(3) Highway bridge replacement and rehabilitation
program.--Section 144 of title 23, United States Code, is
amended by striking subsection (f).
(4) National scenic byways program.--Section 162(f) of
title 23, United States Code, is amended by striking ``80
percent'' and inserting ``the share applicable under section
120(b)''.
(5) State planning and research.--Section 505(c) of title
23, United States Code, is amended by striking ``80 percent''
and inserting ``the share applicable under section 120(b),''.
(6) Intelligent transportation system integration
program.--Section 5208 of the Transportation Equity Act for
the 21st Century (23 U.S.C. 502 note; 112 Stat. 458) is
amended by striking subsection (f) and inserting the
following:
``(f) Federal Share.--The Federal share of the cost of a
project payable from funds made available to carry out this
section shall be the share applicable under section 120(b) of
title 23, United States Code.''.
(7) Commercial vehicle intelligent transportation system
infrastructure deployment.--Section 5209 of the
Transportation Equity Act for the 21st Century (23 U.S.C. 502
note; 112 Stat. 461) is amended by striking subsection (e)
and inserting the following:
``(e) Federal Share.--The Federal share of the cost of a
project payable from funds made available to carry out this
section shall be the share applicable under section 120(b) of
title 23, United States Code.''.
(b) Increased Flexibility in Addressing Railway-Highway
Crossings.--Section 130(e) of title 23, United States Code,
is amended by striking the first sentence and inserting the
following: ``Funds authorized for or expended under this
section may be used for installation of protective devices at
railway-highway crossings.''.
(c) Flexibility in Improving Air Quality.--Section 149(c)
of title 23, United States Code, is amended--
(1) in paragraph (1), by striking ``for any project
eligible under the surface transportation program under
section 133.'' and inserting the following: ``for any project
in the State that--
``(A) would be eligible under this section if the project
were carried out in a nonattainment or maintenance area; or
``(B) is eligible under the surface transportation program
under section 133.''; and
(2) in paragraph (2), by striking ``for any project in the
State eligible under section 133.'' and inserting the
following: ``for any project in the State that--
``(A) would be eligible under this section if the project
were carried out in a nonattainment or maintenance area; or
``(B) is eligible under the surface transportation program
under section 133.''.
(d) Broadened TIFIA Eligibility.--Section 182(a)(3) of
title 23, United States Code, is amended--
(1) in subparagraph (A)(i), by striking ``$100,000,000''
and inserting ``$25,000,000'';
(2) by striking ``project costs'' and all that follows
through ``to be eligible'' and inserting the following:
``project costs.--To be eligible'';
(3) by striking subparagraph (B); and
(4) by redesignating clauses (i) and (ii) as subparagraphs
(A) and (B), respectively, and indenting appropriately.
(e) State Role in Selection of Forest Highway Projects.--
Section 204(a) of title 23, United States Code, is amended by
adding at the end the following:
``(7) State role in selection of forest highway projects.--
Notwithstanding any other provision of this title, no forest
highway project may be carried out in a State under this
chapter unless the State concurs in the selection of the
project.''.
(f) Historic Bridge Eligibility.--Section 144(o) of title
23, United States Code, is amended--
(1) in paragraph (3), by inserting ``200 percent of'' after
``shall not exceed''; and
(2) in paragraph (4)--
(A) by redesignating subparagraphs (A) and (B) as clauses
(i) and (ii), respectively, and indenting appropriately;
(B) by striking ``Any State'' and inserting the following:
``(A) In general.--Any State'';
(C) in the second sentence--
(i) by striking ``Costs incurred'' and inserting the
following:
``(B) Eligibility as reimbursable project costs.--
``(i) In general.--Costs incurred''; and
(ii) by inserting ``200 percent of'' after ``not to
exceed''; and
(D) by striking the third sentence and inserting the
following:
``(ii) Amount.--If a State elects to use funds apportioned
under this section to support the relocation of a historic
bridge, the eligible reimbursable project costs shall be
equal to the greater of the Federal share that would be
available for the construction of a new bicycle or pedestrian
bridge or 200 percent of the cost of demolition of the
historic bridge.
``(iii) Effect.--Nothing in clause (ii) creates an
obligation on the part of a State to preserve a historic
bridge.''.
SEC. 11. MISCELLANEOUS PROGRAM EXTENSIONS AND TECHNICAL
AMENDMENTS.
(a) Railway-Highway Crossing Hazard Elimination.--Section
104(d)(2)(A) of title 23, United States Code, is amended by
striking ``for a fiscal year'' and inserting ``for each of
fiscal years 1998 through 2003''.
(b) Minimum Guarantee.--Section 105 of title 23, United
States Code, is amended in subsections (a), (d), and (f) by
striking ``2003'' each place it appears and inserting
``2009''.
(c) High Priority Projects Program.--Section 117 of title
23, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``The Secretary'' and inserting the
following:
``(1) In general.--The Secretary'';
(B) by striking ``Of amounts made available to carry out
this section,'' and inserting the following:
``(2) Availability of funds for fiscal years 1998 through
2003.--Of the funds made available to carry out this section
for each of fiscal years 1998 through 2003,''; and
(C) by adding at the end the following:
``(3) Availability of funds for fiscal years 2004 through
2009.--
``(A) In general.--For each of fiscal years 2004 through
2009, the Secretary shall allocate the funds made available
to carry out this section to each of the 50 States and the
District of Columbia in accordance with the percentage
specified for each such State and the District of Columbia
under section 105.
``(B) Use of funds.--Funds allocated in accordance with
subparagraph (A) may be used for any project eligible under
this chapter that is designated by the State transportation
department as a high priority project.''; and
(2) in subsection (b), by striking ``For'' and inserting
``With respect to funds made available to carry out this
section for each of fiscal years 1998 through 2003, for''.
(d) Highway Bridge Replacement and Rehabilitation
Program.--Section 144(g)(1) of title 23, United States Code,
is amended by adding at the end the following:
``(D) Fiscal years 2004 through 2009.--Of the amounts
authorized to be appropriated to carry out the bridge program
under this section for each of fiscal years 2004 through
2009, all but $100,000,000 shall be apportioned as provided
in subsection (e). That $100,000,000 shall be available at
the discretion of the Secretary.''.
(e) Disadvantaged Business Enterprises.--Section 1101(b)(1)
of the Transportation Equity Act for the 21st Century (23
U.S.C. 101 note; 112 Stat. 113) is amended by striking ``of
this Act'' and inserting ``of this Act and the Maximum
Economic Growth for America Through Highway Funding Act''.
(f) Puerto Rico Highway Program.--Section 1214(r)(1) of the
Transportation Equity Act for the 21st Century (112 Stat.
209) is amended by inserting ``, and funds authorized by
section 2(b)(7) of the Maximum Economic Growth for America
Through Highway Funding Act for each of fiscal years 2004
through 2009,'' after ``2003''.
SEC. 12. EFFECTIVE DATE.
Except as otherwise provided, this Act and the amendments
made by this Act take effect on October 1, 2003.
____
S. 3133
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 ``Maximum Economic Growth for
America Through Highway Funding Part II Act'' or the ``MEGA
Fund Part II Act''.
SEC. 2. AUTHORIZATION TO MAKE FUNDING AVAILABLE FROM THE
HIGHWAY TRUST FUND.
Section 9503(c)(1) of the Internal Revenue Code of 1986
(relating to expenditures from the Highway Trust Fund) is
amended--
(1) in the first sentence--
(A) by striking ``2003'' and inserting ``2009'';
(B) in subparagraph (D), by striking ``or'' at the end;
(C) in subparagraph (E), by striking the period at the end
and inserting ``, or''; and
(D) by adding at the end the following:
``(F) authorized to be paid out of the Highway Trust Fund
under the Maximum Economic Growth for America Through Highway
Funding Act.''; and
(2) in the second sentence, by striking ``TEA 21
Restoration Act'' and inserting ``Maximum Economic Growth for
America Through Highway Funding Act''.
____
Mega Fund Act--Section-by-Section Analysis
section 1, short title
This section sets forth the title of the bill.
section 2. authorization of appropriations
Subsection (a) would authorize the programs subject to the
Minimum Guarantee. The 5 principal apportioned programs of
TEA-21--Interstate Maintenance, National Highway System,
Surface Transportation Program, Bridge, Congestion Mitigation
and Air Quality Improvement (CMAQ)--would be significantly
increased. Collectively, they would grow from $20.2 billion
for FY 2003 to $28.6 billion by FY 2009. Also, they would
maintain their current proportion to one anther. The
Appalachian Highway program would be continued at present
levels of $450 million annually and the Recreational Trails
program increased to $75 million annually. A technical and
conforming provision in section 11 of the bill would extend
the Minimum
[[Page S10695]]
Guarantee program--which would grow considerably by operation
of its own terms.
The High Priority Projects program would be continued but
reduced from nearly $1.8 billion in FY 2003 to a still-
generous $1 billion for each of FYs 2004-2009. The bill does
not pretend that high priority projects will go away, but
tries to set a realistic goal of reducing them, providing
States a wider role in administering the program.
Subsection (b) would authorize $2 billion annually for the
new economic and demographic barriers program set forth in
section 5 of the bill.
Subsection (c) would authorize additional programs. The
borders program and the corridors program would be separately
authorized, at $100 million annually each. Federal lands
highways programs are reauthorized and increased to the
following annual levels: Indian Reservation Roads, $300
million; Public Land Highways, $350 million; Park Roads, $300
million; and Refuge Roads, $35 million. The programs for
ferry boats and terminals, scenic byways, and highways in
Puerto Rico would be reauthorized at increased annual levels
of $50 million, $30 million, and $130 million, respectively.
The program to combat highway use tax evasion would be
significantly increased, from $5 million today to $40 million
annually from FYs 2004-2009. This is an important investment.
Improved compliance with highway tax obligations will
increase revenues available for the program.
Subsection (d) would double, to $50 million annual, the
TCSP program. Subsection (e) would continue the National
Historic Bridge Preservation program at $10 million annually.
Subsection (f) would continue the program for incentive
grants for seat belt use at $115 million annually. Subsection
(g) would continue current research programs at current
levels. Subsection (h) would authorize $75 million annually
for 6 years for a new Future Strategic Highway Research
Program (``FSHRP''). Subsection (i) would continue the
current authorization for magnetic levitation deployment of
such sums as may be necessary. Subsection (j) would continue
authorization for the TIFIA program at current levels of $130
million annually.
Section 3, Obligation Ceiling
This section amends the obligation ceiling provision of
TEA-21 to set the obligation limit for FYs 2004-2009 and to
make a handful of changes. The non-technical provisions of
the section include the following.
Paragraph (a)(1) sets the annual obligation ceilings,
starting at $34 billion for FY 2004 and rising gradually to
$39 billion for FY 2008 and $41 billion for FY 2009.
Paragraph (a)(2) continues current exemptions from the
obligation ceiling. Paragraph (a)(3) includes an amendment
that would newly provide the Indian Reservation Roads program
with obligation authority equal to authorizations. Paragraph
(a)(5) would continue the practice of setting a separate
obligation limit for research. Paragraph (a)(7) would provide
for obligation authority to be increased when called for by
the terms of the RABA provision. Paragraph (a)(8) would set a
distinct obligation limit on administrative expenses.
Section 4, Reliable Highway Program Levels; Revisions to Revenue
Aligned Budget Authority
Subsection (a) of section 4 sets forth the Sense of the
Senate as to why RABA should be continued but improved.
Subsection (a) recites that under current law the balance in
the Highway Account has grown, denying the public the benefit
of the user taxes paid. It also recites that the RABA
calculation mechanism has led to annual program levels that
differ widely from prior estimates. In addition, the current
law produced an estimate of large ``negative RABA'' for
fiscal year 2003, a result that Congress found to be totally
unacceptable. Congress proceeded to eliminate FY 2003
negative RABA through enactment of legislation (section 1402
of Public Law No. 107-206).
Subsection (b) would carry forward firewalls and continue
and improve RABA. Paragraphs (b)(1)-(3) would continue
firewalls. They would make clear that no spending limits may
be imposed to limit highway program obligations below the
level of the obligation limit for that year, plus amounts
exempt from the obligation limit for that year, plus any
applicable upward adjustment due to RABA. The provisions
would also protect any outlays made pursuant to the protected
obligation (and exempt) levels.
Paragraphs (b)(4) and (5) would continue and improve RABA.
Under the provisions there would be no negative RABA. As a
result, States and the public would be able to count on
receiving at least the specified program levels.
The determination of whether additional funding would be
automatically provided, above the levels set in the
obligation provision, would be based on the balance in the
Highway Account, not based on current year revenue. Under
current law, with program levels keyed to Highway Account
income, the current balance is locked up. One can only access
Account income, not the balance, even though the user taxes
residing in the Account were paid with the expectation that
they would be invested in the highway program.
As to the specifics of potential upward adjustment in
obligation authority under this provision, a key point of
reference for the calculations is that Congress should
attempt to achieve a prudent, though not overly cautious
balance in the Highway Account of approximately $5 billion at
the end of FY 2009. As the bill properly deletes negative
RABA, it takes a cautious approach to allowing positive RABA
in the initial years of the bill, not paying out all funds.
Thus, as provided in paragraph (5) if, when the FY 2005
budget is submitted, it is estimated that, but for upward
adjustment of obligation levels, the balance in the Account
as of the close of fiscal year 2009 would exceed $7 billion,
then there would be an upward adjustment in FY 2005
obligation levels of 50% of the estimated excess over that $7
billion balance.
However, as the RABA payments are geared towards the fund
balance, the 50% of any calculated ``excess'' for a year that
is ``forgone'' in that year is not ``lost'' to the highway
program, only delayed in release, if the estimates hold firm
over the years. By FY 2009, the provision would pay out as
RABA, the full excess over a $5 billion balance in the
Highway Account.
This approach constrains upward adjustments in RABA
obligations during the early years of the bill out of respect
for the possibility that revenues could be disappointing
during the later years of the bill. But this approach still
allows the currently large balance in the Highway Account to
be put to work.
Subsection (b) concerns budgetary protection only for the
highway program, as it was developed in conjunction with
provisions concerning that program. Subsection (b) does not
establish specific budget protections for highway safety and
transit programs. Accordingly, subsection (c) of this section
includes a Sense of the Senate resolution that appropriate
protections for such programs, developed in conjunction with
proposals for such programs, should be included in final
legislation reauthorizing highway and transit programs.
section 5, assistance in overcoming economic and demographic barriers
Section 5 would create a new type of program that would
provide $2 billion per year to assist States in overcoming
certain economic and demographic characteristics that can
make it more difficult to meet transportation challenges.
Five challenges are recognized under this section: low
population density ($625 million), high population density
($625 million), low income ($600 million), high population
growth ($75 million), and high levels of State road ownership
($75 million). In each category, the amount of funds
distributed to a State is increased when the degree of the
challenge is more extreme.
Once received by a State, these funds are to be treated as
if received in the same proportion as the State's
apportionments under the Interstate Maintenance, National
Highway System, Surface Transportation Program, Bridge,
Congestion Mitigation and Air Quality programs and would be
subject to the administrative rules governing those programs.
section 6, emergency relief
The Emergency Relief program, 23 U.S.C. 125, has been under
funded for years. This section would double the Emergency
Relief authorization from the Highway Account of the Highway
Trust Fund from $100 million to $200 million annually. It
also includes language limiting the Highway Account's annual
contribution to the program to a maximum of that level. This
in no way limits the ability of the Congress to respond
rapidly to emergencies, but it does address the degree to
which the Highway Account should be financing the response.
Section 7, Increased Stability of Distribution Under Allocation
Programs
Under this section States would be provided assurance of
receiving at least some funding under some of these programs,
while leaving some funding for treatment on a discretionary
basis. Thus, under subsections (c) and (d), 50 per cent of
the funds for the TCSP and ITS deployment programs would be
distributed to the States based on their Minimum Guarantee
percentage shares, leaving the balance for discretionary
distribution. As these programs grow, it is appropriate to
move in the direction of mainstreaming their distribution, so
that all States participate.
In addition, under subsections (a) and (b), concerning the
separately funded border infrastructure and corridor
programs, each border state, within the meaning of the border
program, would receive at least 2 per cent of the program's
funds. This leaves most of the funds for discretionary
distribution but ensures some participation by the border
states in these programs.
Section 8, Historic Park Roads and Parkways
This section would ensure that, in the administration of
the park roads and parkways program, older and intensively
used national parks receive some priority in funding. There
are major parks, national treasures, where the roads in the
parks or providing access to them were initially constructed
before 1940 and are in need of serious attention. This
provision focuses on such parks that handle many visitors,
specifically those with over 1 million visitor days per year.
The bill does not ignore other park and parkway needs, as the
proposed increase represents an increase apart from this
section's requirement that some funds be dedicated to these
high-use, old infrastructure parks.
Section 9, Cooperative Federal Lands Transportation Program
This section would ensure that at least some of the
discretionary public lands funding goes to States with
significant public
[[Page S10696]]
lands holdings, in proportion to the extent to which the land
in such States is owned by the Federal Government (or held by
the Federal Government in trust). The provision should make
the delivery of our public lands highway projects more
effective and efficient. While leaving significant funds for
discretionary distribution, by making the distribution of
some funds more regular, the provision would allow States to
work with Federal agencies on projects on a longer term and
more regular basis.
Section 10, Miscellaneous Program Improvements
This section contains a number of modest program
improvements. Under subsection (c) a State that has the
flexibility to use CMAQ funds for highway projects in
attainment areas could use those funds for projects in
attainment areas that would help prevent pollution.
Subsection (e) would codify current practice, under which
forest highway projects are not undertaken in a State without
the concurrence of the State. Subsection (d) would allow
small States the potential to participate in the TIFIA credit
program, by lowering the project threshold under that program
to $25 million from $100 million. Subsection (b) would
increase State flexibility in choosing rail-highway crossing
projects. Subsection (a) would correct anomalies in highway
statutes that result in inadequate recognition of the
economic difficulties facing States with large Federal land
holdings.
States with significant Federal lands have greater
difficulty raising the non-Federal match for Federal projects
due to the restrictions on the use of Federal lands for
economic activity and the inability of the States to tax such
lands. Thus, the basic rule in title 23 of the U.S. Code has
long been that the non-Federal match is reduced in such
States. Yet careful review of title 23 reveals many
provisions, including even the bridge program, which do not
follow this general rule. This section would update the
Federal lands match provision, to reflect the greater
difficulty in raising match faced by such States and to
ensure that the principle of the reduced match for Federal
lands States is applied to all major elements of the highway
program.
The subsection on Historic Bridges would allow states to
use bridge program funds up to an amount not to exceed 200
percent of the cost of demolishing a historic bridge.
Additionally, this subsection repeals the prohibition on the
use of Federal-aid highway funds in the future, for projects
associated with such bridges after the bridge has been
donated.
This flexibility does not create an obligation on the state
to fund preservation or relocation of a historic bridge.
section 11, miscellaneous program extensions and technical revisions
This largely technical section would: not extend a takedown
of surface transportation program funds that has been used to
support a narrow class of projects; continue the Minimum
Guarantee program, the discretionary bridge program, Puerto
Rico highway program, and the DBE program. Given overall
funding increases, the provision does not extent the
Interstate Maintenance Discretionary program, further
increasing funds available to all the States under that
program. It establishes a placeholder for distribution of
funds for high priority projects.
section 12, effective date
Under this section the provisions of the bill would take
effect on October 1, 2003.
Mega Fund Act, Part II--Section-by-Section Analysis
section 1, short title
This section sets forth the title of the bill.
section 2
This section amends section 9503(c) of the United States
Internal Revenue Code to allow expenditures pursuant to the
Mega Fund Act to be available from the Highway Trust Fund.
______
By Mr. BAUCUS (for himself, Mr. Crapo, and Mr Craig):
S. 3134. A bill to amend titles 23 and 49, United States Code, to
encourage economic growth in the United States by increasing
transportation investments in rural areas, and for other purposes; to
the Committee on Environment and Public Works.
Mr. BAUCUS. Mr. President I rise today to introduce a bill to help
rural America. Now I am always trying to help Montana, but this bill
will help every State. Today I introduce the MEGA RURAL ACT, Maximum
Economic Growth for America Through Rural Transportation Investment.
Quite simply, there are rural transportation needs not being met
nationwide. This bill addresses those needs.
This is the eighth bill in a series of bills that Senator Crapo and I
are introducing to highlight our proposals on reauthorization of TEA
21--the Transportation Equity Act for the 21st Century.
So far we've introduced a series of MEGA ACTs, Maximum Economic
Growth for America Through different types of investments and policy
changes. In the past 6 months I have introduced MEGA TRUST, MEGA RED
TRANS, MEGA FUND, Parts I and II, MEGA SAFE, MEGA STREAM and MEGA
INNOVATE. Today it's the MEGA RURAL ACT.
The first provision in the MEGA RURAL Act will help states overcome
certain rural hardships. In the same manner as the MEGA FUND ACT
addresses this, the MEGA RURAL ACT would create a new program, at $2
billion annually, to assist States in dealing with certain economic and
demographic barriers.
This would be a new type of program, not subject to the minimum
guarantee, that is not keyed to specific project types but to types of
problems facing States. States with low population density, or low per
capita incomes, for example, face real challenges. While the provision
also addresses some problems faced by non-rural States, this new
section will give real help to rural States.
The different approach of this program lets States facing those
problems receive funds and pick the projects. Every one of the 50
States would receive significant funding under this program every year.
The second issue that the MEGA RURAL ACT addresses is that of rural
roads. I've been hearing from County Commissioners from Montana as well
as other States, about how much they need direct funding for local
roads.
These localities are hard pressed for funds and many of these roads
are unsafe. This bill, just as the MEGA SAFE ACT does, would establish
a pilot program, at $200 million annually from FY 2004-2009, to address
safety on rural local roads. Funds could be used only on local roads
and rural minor collectors, roads that are not Federal-aid highways.
The program does not affect distribution of funds among States, as
funds will be distributed to each of the 50 States in accord with their
relative formula share under 23 U.S.C. 105. Funds could be used only
for projects or activities that have a safety benefit. By January 1,
2009 the Secretary of Transportation is to report on progress under the
provision and whether any modifications are recommended.
Finally, just as the MEGA RED TRANS ACT does, the MEGA RURAL ACT
would ensure that, as Federal transit programs are reauthorized,
increased funding is provided to meet the needs of the elderly and
disabled and of rural and small urban areas.
There is no question that our nation's large metropolitan areas have
substantial transit needs that will receive attention as transit
reauthorization legislation is developed. But the transit needs of
rural and smaller areas, and of our elderly and disabled citizens, also
require additional attention and funding.
The bill would provide that additional funding in a way that does not
impact other portions of the transit program. For example, while the
bill would at least double every State's funding for the elderly and
disabled transit program by FY 2004, nothing in the bill would reduce
funding for any portion of the transit program or for any State.
To the contrary, the bill would help strengthen the transit program
as a whole by providing that the Mass Transit Account of the Highway
Trust Fund is credited with the interest on its balance. This is a key
provision in the MEGA TRUST Act the MEGA RED TRANS Act, and now the
MEGA RURAL ACT.
Specifically, the bill would set modest minimum annual
apportionments, by State, for the elderly and disabled transit program,
the rural transit program, and for States that have urbanized areas
with a population of less than 200,000.
It would ensure that each State that has a small urbanized area
receives a minimum of $11 million for these three programs.
It is not a large amount of money but, for my State of Montana it is
double what we get for those programs currently. For some other States
it is more than four times what they receive.
The bill would also establish a $30 million program for essential bus
service, to help connect citizens in rural communities to the rest of
the world by facilitating transportation between rural areas and
airports and passenger rail stations.
I am very aware of the role that public transit plays in the lives of
rural citizens and the elderly and disabled.
[[Page S10697]]
When most people hear the word ``transit'' they think of a light rail
system. But in rural areas transit translates to buses and vanpools.
Its about time that these issues are being addressed for rural
America. Thank You.
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. 3134
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 ``Maximum Economic Growth for
America Through Rural Transportation Investment Act'' or the
``MEGA Rural Act''.
SEC. 2. ASSISTANCE IN OVERCOMING ECONOMIC AND DEMOGRAPHIC
BARRIERS.
(a) In General.--Title 23, United States Code, is amended
by inserting after section 138 the following:
``Sec. 139. Assistance in overcoming economic and demographic
barriers
``(a) Definitions.--In this section:
``(1) High-growth state.--The term `high-growth State'
means a State that has a population according to the 2000
Census that is at least 25 percent greater than the
population for the State according to the 1990 Census.
``(2) High-population-density state.--The term `high-
population-density State' means a State in which the number
of individuals per principal arterial mile is greater than 75
percent of the number of individuals per principal arterial
mile in the 50 States and the District of Columbia, as
determined using population according to the 2000 Census.
``(3) Highway statistics.--
``(A) In general.--The term `Highway Statistics' means the
Highway Statistics published by the Federal Highway
Administration for the most recent calendar or fiscal year
for which data are available, which most recent calendar or
fiscal year shall be determined as of the first day of the
fiscal year for which any calculation using the Highway
Statistics is made.
``(B) Terms.--Any reference to a term that is used in the
Highway Statistics is a reference to the term as used in the
Highway Statistics as of September 30, 2002.
``(4) Low-income state.--The term `low-income State' means
a State that, according to Table PS-1 of the Highway
Statistics, has a per capita income that is less than the
national average per capita income.
``(5) Low-population-density state.--The term `low-
population-density State' means a State in which the number
of individuals per principal arterial mile is less than 75
percent of the number of individuals per principal arterial
mile in the 50 States and the District of Columbia, as
determined using population according to the 2000 Census.
``(6) National average per capita income.--The term
`national average per capita income' means the average per
capita income for the 50 States and the District of Columbia,
as specified in the Highway Statistics.
``(7) Principal arterial miles.--The term `principal
arterial miles', with respect to a State, means the principal
arterial miles (including Interstate and other expressway or
freeway system miles) in the State, as specified in Table HM-
20 of the Highway Statistics.
``(8) State.--The term `State' means each of the 50 States.
``(9) State with extensive road ownership.--The term `State
with extensive road ownership' means a State that owns more
than 80 percent of the total Federal-aid and non-Federal-aid
mileage in the State according to Table HM-14 of the Highway
Statistics.
``(b) Establishment.--There is established a program to
assist States that face certain economic and demographic
barriers in meeting transportation needs.
``(c) Allocation of Funds.--For each of fiscal years 2004
through 2009, funds made available to carry out this section
shall be allocated as follows:
``(1) Low-income states.--For each fiscal year, each low-
income State shall receive an allocation under this paragraph
that is equal to the product obtained by multiplying--
``(A) $600,000,000; and
``(B) the ratio that--
``(i) the difference between--
``(I) the national average per capita income; and
``(II) the per capita income of the low-income State; bears
to
``(ii) the sum of the differences determined under clause
(i) for all low-income States.
``(2) High-growth states.--For each fiscal year, each high-
growth State shall receive an allocation under this paragraph
that is equal to the product obtained by multiplying--
``(A) $75,000,000; and
``(B) the ratio that--
``(i) the percentage by which the population of the high-
growth State according to the 2000 Census exceeds the
population of the high-growth State according to the 1990
Census; bears to
``(ii) the sum of the percentages determined under clause
(i) for all high-growth States.
``(3) Low-population-density states.--
``(A) In general.--Subject to subparagraph (B), for each
fiscal year, each low-population-density State shall receive
an allocation under this paragraph that is equal to the
product obtained by multiplying--
``(i) $625,000,000; and
``(ii) the ratio that--
``(I) the quotient obtained by dividing--
``(aa) the number of principal arterial miles in the State;
by
``(bb) the population of the low-population-density State
according to the 2000 Census; bears to
``(II) the sum of the quotients determined under subclause
(I) for all low-population-density States.
``(B) Maximum allocation.--
``(i) In general.--If the allocation for a low-population-
density State under subparagraph (A) is greater than
$35,000,000, the allocation of the low-population-density
State shall be reduced to $35,000,000.
``(ii) Use of excess allocations.--
``(I) Reallocation.--Subject to subclause (II), the funds
in addition to the $35,000,000 that would have been allocated
to a low-population-density State but for clause (i) shall be
reallocated among the low-population-density States that were
allocated less than $35,000,000 under subparagraph (A) in
accordance with the proportionate shares of those low-
population-density States under subparagraph (A).
``(II) Additional reallocations.--If a reallocation under
subclause (I) would result in the receipt by any low-
population-density State of an amount greater than
$35,000,000 under this paragraph--
``(aa) the allocation for the low-population-density State
shall be reduced to $35,000,000; and
``(bb) the amounts in excess of $35,000,000 shall be
subject to 1 or more further reallocations in accordance with
that subclause so that no low-population-density State is
allocated more than $35,000,000 under this paragraph.
``(4) High-population-density states.--
``(A) In general.--Subject to subparagraph (B), for each
fiscal year, each high-population-density State shall receive
an allocation under this paragraph that is equal to the
product obtained by multiplying--
``(i) $625,000,000; and
``(ii) the ratio that--
``(I) the quotient obtained by dividing--
``(aa) the population of the high-population-density State
according to the 2000 Census; by
``(bb) the number of principal arterial miles in the State;
bears to
``(II) the sum of the quotients determined under subclause
(I) for all high-population-density States.
``(B) Maximum allocation.--
``(i) In general.--If the allocation for a high-population-
density State under subparagraph (A) is greater than
$35,000,000, the allocation of the high-population-density
State shall be reduced to $35,000,000.
``(ii) Use of excess allocations.--
``(I) Reallocation.--Subject to subclause (II), the funds
in addition to the $35,000,000 that would have been allocated
to a high-population-density State but for clause (i) shall
be reallocated among the high-population-density States that
were allocated less than $35,000,000 under subparagraph (A)
in accordance with the proportionate shares of those high-
population-density States under subparagraph (A).
``(II) Additional reallocations.--If a reallocation under
subclause (I) would result in the receipt by any high-
population-density State of an amount greater than
$35,000,000 under this paragraph--
``(aa) the allocation for the high-population-density State
shall be reduced to $35,000,000; and
``(bb) the amounts in excess of $35,000,000 shall be
subject to 1 or more further reallocations in accordance with
that subclause so that no high-population-density State is
allocated more than $35,000,000 under this paragraph.
``(5) States with extensive road ownership.--For each
fiscal year, each State with extensive road ownership shall
receive an allocation under this paragraph that is equal to
the product obtained by multiplying--
``(A) $75,000,000; and
``(B) the ratio that--
``(i) the total Federal-aid and non-Federal-aid mileage
owned by each State with extensive road ownership according
to Table HM-14 of the Highway Statistics; bears to
``(ii) the sum of the mileages determined under clause (i)
for all States with extensive road ownership.
``(d) Treatment of Allocated Funds.--
``(1) In general.--Subject to paragraph (2), funds
allocated to a State under this section for a fiscal year
shall be treated for program administrative purposes as if
the funds--
``(A) were funds apportioned to the State under sections
104(b)(1), 104(b)(2), 104(b)(3), 104(b)(4), and 144; and
``(B) were apportioned to the State in the same ratio that
the State is apportioned funds under the sections specified
in paragraph (1) for the fiscal year.
``(2) Program administrative purposes.--Program
administrative purposes referred to in paragraph (1)--
``(A) include--
``(i) the Federal share;
``(ii) availability for obligation; and
``(iii) except as provided in subparagraph (B),
applicability of deductions; and
[[Page S10698]]
``(B) exclude--
``(i) calculation of the minimum guarantee under section
105; and
``(ii) applicability of the deduction for the future
strategic highway research program under section 104(m).''.
(b) Assistance in Overcoming Economic and Demographic
Barriers.--For the program to provide assistance in
overcoming economic and demographic barriers under section
139 of title 23, United States Code, there is authorized to
be appropriated out of the Highway Trust Fund (other than the
Mass Transit Account) $2,000,000,000 for each of fiscal years
2004 through 2009.
(c) Conforming Amendment.--The analysis for subchapter I of
chapter 1 of title 23, United States Code, is amended by
inserting after the item relating to section 138 the
following:
``139. Assistance in overcoming economic and demographic barriers.''.
SEC. 3. RURAL LOCAL ROADS SAFETY PILOT PROGRAM.
(a) Definitions.--In this section:
(1) In general.--
(A) Eligible activity.--
(i) In general.--The term ``eligible activity'' means a
project or activity that--
(I) is carried out only on public roads that are
functionally classified as rural local roads or rural minor
collectors (and is not carried out on a Federal-aid highway);
and
(II) provides a safety benefit.
(ii) Inclusions.--The term ``eligible activity'' includes--
(I) a project or program such as those described in section
133(d)(1) of title 23, United States Code;
(II) road surfacing or resurfacing;
(III) improvement or maintenance of local bridges;
(IV) road reconstruction or improvement;
(V) installation or improvement of signage, signals, or
lighting;
(VI) a maintenance activity that provides a safety benefit
(including repair work, striping, surface marking, or a
similar safety precaution); or
(VII) acquisition of materials for use in projects
described in any of subclauses (I) through (VI).
(B) Program.--The term ``program'' means the rural local
roads safety pilot program established under subsection (b).
(C) State.--The term ``State'' does not include the
District of Columbia or Puerto Rico.
(2) Other terms.--Except as otherwise provided, terms used
in this section have the meanings given those terms in title
23, United States Code.
(b) Establishment.--The Secretary shall establish a rural
local roads safety pilot program to carry out eligible
activities.
(c) Allocation of Funds With Respect to States.--For each
fiscal year, funds made available to carry out this section
shall be allocated by the Secretary to the State
transportation department in each of the States in the ratio
that--
(1) the relative share of the State under section 105 of
title 23, United States Code, for a fiscal year; bears to
(2) the total shares of all 50 States under that section
for the fiscal year.
(d) Allocation of Funds Within States.--Each State that
receives funds under subsection (c) shall allocate those
funds within the State as follows:
(1) Counties.--Except as provided in paragraph (2) and
subject to paragraph (3), a State shall allocate to each
county in the State an amount in the ratio that--
(A) the public road miles within the county that are
functionally classified as rural local roads or rural minor
collectors; bears to
(B) the total of all public road miles within all counties
in the State that are functionally classified as rural local
roads or rural minor collectors.
(2) Alternative formula for allocation.--Paragraph (1)
shall not apply to a State if the State transportation
department certifies to the Secretary that the State has in
effect an alternative formula or system for allocation of
funds received under subsection (c) (including an alternative
formula or system that permits allocations to political
subdivisions or groups of political subdivisions, in addition
to individual counties, in the State) that--
(A) was developed under the authority of State law; and
(B) provides that funds allocated to the State
transportation department under this section will be
allocated within the State in accordance with a program that
includes selection by local governments of eligible
activities funded under this section.
(3) Administrative expenses.--Before allocating amounts
under paragraph (1) or (2), as applicable, a State
transportation department may retain not more than 10 percent
of an amount allocated to the State transportation department
under subsection (c) for administrative costs incurred in
carrying out this section.
(e) Project Selection.--
(1) By county.--If an allocation of funds within a State is
made under subsection (d)(1), counties within the State to
which the funds are allocated shall select eligible
activities to be carried out using the funds.
(2) By state alternative.--If an allocation of funds within
a State is made under subsection (d)(2), eligible activities
to be carried out using the funds shall be selected in
accordance with the State alternative.
(f) Federal Share.--The Federal share of the cost of an
eligible activity carried out under this section shall be 100
percent.
(g) Report.--Not later than January 1, 2009, after
providing States, local governments, and other interested
parties an opportunity for comment, the Secretary shall
submit to the Committee on Environment and Public Works of
the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives a report
that--
(1) describes progress made in carrying out the program;
and
(2) includes recommendations as to whether the program
should be continued or modified.
(h) Contract Authority.--Funds made available to carry out
this section shall be available for obligation in the same
manner as if the funds were apportioned under chapter 1 of
title 23, United States Code, except that the Federal share
of the cost of an eligible activity under this section shall
be determined in accordance with this section.
(i) Authorization of Appropriations.--There is authorized
to be appropriated out of the Highway Trust Fund (other than
the Mass Transit Account) to carry out this section
$200,000,000 for each of fiscal years 2004 through 2009.
SEC. 4. MINIMUM LEVEL OF FUNDING FOR ELDERLY AND DISABLED
PROGRAM.
Section 5310 of title 49, United States Code, is amended--
(1) in subsection (b), in the first sentence, by striking
the period at the end and inserting the following: ``,
provided that, for fiscal years 2004, 2005, and 2006, each
State shall receive annually, of the amounts apportioned
under this section, a minimum of double the amount
apportioned to the State in fiscal year 2003 or $1,000,000,
whichever is greater, and that for fiscal years 2007, 2008,
and 2009, each State shall receive annually, of the amounts
apportioned under this section, a minimum equal to the
minimum required to be apportioned to the State for fiscal
year 2006 plus $500,000.''; and
(2) by adding at the end the following:
``(k) Amounts for Operating Assistance.--Amounts made
available under this section may be used for operating
assistance.
``(l) Available Funds.--Notwithstanding any other provision
of law, of the aggregate amounts made available by and
appropriated under this chapter, the amount made available to
provide transportation services to elderly individuals and
individuals with disabilities under this section in each of
fiscal years 2004 through 2009, shall be not less than the
amount necessary to match the minimum apportionment levels
required by subsection (b).''.
SEC. 5. MINIMUM LEVEL OF FUNDING FOR RURAL PROGRAM.
Section 5311 of title 49, United States Code, is amended--
(1) in subsection (c), in the first sentence, by striking
the period at the end and inserting the following: ``,
provided that none of the 50 States shall receive, from the
amounts annually apportioned under this section, an
apportionment of less than $5,000,000 for each of fiscal
years 2004, 2005, and 2006, and $5,500,000 for each of fiscal
years 2007, 2008, and 2009.''; and
(2) by adding at the end the following:
``(k) Amounts.--Notwithstanding any other provision of law,
of the aggregate amounts made available by and appropriated
under this chapter, the amount made available for the program
established by this section in each of fiscal years 2004
through 2009 shall be not less than the sum of--
``(1) the amount made available for all States for such
purpose for fiscal year 2003; and
``(2)(A) for each of fiscal years 2004, 2005, and 2006, the
amount equal to the difference between $5,000,000 and the
apportionment for fiscal year 2003, for each of those
individual States that were apportioned less than $5,000,000
under this section for fiscal year 2003; or
``(B) for each of fiscal years 2007, 2008, and 2009, the
amount equal to the difference between $5,500,000 and the
apportionment for fiscal year 2003, for each of those
individual States that were apportioned less than $5,500,000
under this section for fiscal year 2003.''.
SEC. 6. ESSENTIAL BUS SERVICE.
(a) In General.--Chapter 53 of title 49, United States
Code, is amended by adding at the end the following:
``Sec. 5339. Essential bus service
``(a) In General.--The Secretary shall establish a program
under which States shall provide essential bus service
between rural areas and primary airports, as defined in
section 47102, and between rural areas and stations for
intercity passenger rail service, and appropriate
intermediate or nearby points.
``(b) Eligible Activities.--Eligible activities under the
program established by this section shall include--
``(1) planning and marketing for intercity bus
transportation;
``(2) capital grants for intercity bus shelters, park and
ride facilities, and joint use facilities;
``(3) operating grants, including direct assistance,
purchase of service agreements, user-side subsidies,
demonstration projects, and other means; and
``(4) enhancement of connections between bus service and
commercial air passenger service and intercity passenger rail
service.
``(c) Availability of Funds.--Amounts made available
pursuant to this section shall remain available until
expended.
``(d) Relationship to Section 5311.--Amounts for the
program established by this
[[Page S10699]]
section shall be apportioned to the States in the same
proportion as amounts apportioned to the States under section
5311. Section 5311(j) applies to this section.
``(e) Funds.--Notwithstanding any other provision of law,
of the aggregate amounts made available by and appropriated
under this chapter--
``(1) for fiscal years 2004, 2005, and 2006, $30,000,000 of
the total for each fiscal year shall be for the
implementation of this section; and
``(2) for fiscal years 2007, 2008, and 2009, $35,000,000 of
the total for each fiscal year shall be for the
implementation of this section.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 53 of title 49, United States Code, is
amended by adding at the end the following:
``5339. Essential bus service.''.
SEC. 7. MINIMUM LEVEL OF FUNDING FOR URBANIZED AREAS WITH A
POPULATION OF LESS THAN 200,000.
(a) Minimum Apportionment.--Section 5336(a)(1) of title 49,
United States Code, is amended by striking ``mile; and'' and
inserting the following: ``mile,
provided that the apportionments under this paragraph shall
be modified to the extent required so that urbanized areas
that are eligible under this paragraph and are located in a
State in which all urbanized areas in the State eligible
under this paragraph collectively receive apportionments
totaling less than $5,000,000 in any of fiscal years 2004,
2005, or 2006, or less than $5,500,000 in any of fiscal years
2007, 2008, or 2009, shall each have their apportionments
increased, proportionately, to the extent that, collectively,
all of the urbanized areas in the State that are eligible
under this paragraph receive, of the amounts apportioned
annually under this paragraph, $5,000,000 for each of fiscal
years 2004, 2005, and 2006, and $5,500,000 for each of fiscal
years 2007, 2008, and 2009; and''.
(b) Funds.--Section 5307 of title 49, United States Code,
is amended by adding at the end the following:
``(o) Funds.--Notwithstanding any other provision of law,
of the aggregate amounts made available by and appropriated
under this chapter, in each of fiscal years 2004 through
2009, the amount made available for the program established
by this section shall be not less than the sum of--
``(1) the amount made available for such purpose for fiscal
year 2003; and
``(2) the amount equal to the sum of the increase in
apportionments for that fiscal year over fiscal year 2003, to
urbanized areas with a population of less than 200,000, in
affected States, attributable to the operation of section
5336(a)(1).''.
SEC. 8. LEVEL PLAYING FIELD FOR GOVERNMENT SHARE.
(a) In General.--Chapter 53 of title 49, United States Code
(as amended by section 6) is amended by adding at the end the
following:
``Sec. 5340. Government share
``With respect to amounts apportioned or otherwise
distributed for fiscal year 2004 and each subsequent fiscal
year, the Government share of eligible transit project costs
or eligible operating costs, shall be the greater of--
``(1) the share applicable under other provisions of this
chapter; or
``(2) the share that would apply, in the State in which the
transit project or operation is located, to a highway project
under section 133 of title 23.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 53 of title 49, United States Code, is
amended by adding at the end the following:
``5340. Government share.''.
SEC. 9. INTEREST CREDITED TO MASS TRANSIT ACCOUNT.
Section 9503(f)(2) of the Internal Revenue Code of 1986
(relating to the Highway Trust Fund) is amended by striking
the period at the end and inserting the following: ``,
provided that after September 30, 2003, interest accruing on
the balance in the Mass Transit Account shall be credited to
such account.''.
______
By Mr. CARPER (for himself, Mr. Chafee, Mr. Breaux, and Mr.
Baucus):
S. 3135. A bill to amend the Clean Air Act to establish a national
uniform multiple air pollutant regulatory program for the electric
generating sector; to the Committee on Environment and Public Works.
Mr. CARPER. Mr. President, this past June, at an EPW Committee
markup, I joined the majority of committee members in reporting out
legislation to reduce harmful emissions from our Nation's power plants.
At that time, I offered, and then withdrew an alternate, comprehensive,
4-emission approach. Since then, along with representatives from
electric generators who would be impacted by such legislation, and some
leaders in the environmental community, I have worked to strengthen my
amendment even further. The result is the Clean Air Planning Act. I
rise today to introduce this bill, and am pleased to be joined by
Senators Chafee, Beaux, and Baucus.
The bill takes a market-based approach that would aggressively reduce
emissions of sulfur dioxide, SO2, nitrogen oxides,
NOX, carbon dioxide, CO2, and mercury from
electrical power generators. This approach also would provide planning
and regulatory certainty to electric generators, who are required to
achieve these reductions. It is mindful of the fact that coal fuels
approximately 50 percent of our Nation's electricity and contributes a
disproportionate share of emissions, and will remain the leading source
of reliable, affordable electricity for decades to come.
The public health and environmental impacts of SO2,
NOX, and mercury have been well documented. While there is
bipartisan agreement that emissions of these three pollutants from
power plants need further control, there is some disagreement over how
much and how fast. The Clean Air Planning Act would establish
significant caps on total emissions of these pollutants, but the caps
would be phased in to provide the industry the time needed to meet the
caps. In addition, the bill includes a flexible trading system to allow
the caps to be attained most efficiently.
There is also a growing consensus that greenhouse gases such as
CO2 emissions from power plants are contributing to climate
change. The time has come to set up mechanisms that will address these
emissions without impeding economic growth. The Clean Air Planning Act
establishes the modest goal of capping CO2 emissions from
electrical generators at 2001 levels by 2012. Generators can meet that
goal with a flexible system that allows both trading between
generators.
The bill also includes flexible options to reduce the costs of
controlling carbon dioxide emissions through international projects and
through forest and agricultural projects that can sequester carbon from
the atmosphere while also providing additional environmental benefits.
Part of the task ahead is to get better analysis that helps determine
the right parameters for these flexibility provisions, so that the bill
provides a smooth least-cost transition for the industry yet also
delivers a meaningful incentive for improved efficiency and reduced
emissions from power plants.
In the context of comprehensive legislation that will achieve
significant reductions in emissions from power plants, some existing
regulatory requirements should be updated. This bill carefully updates
some New Source Review requirements to eliminate redundancy while
retaining strict environmental protections.
I have heard from several experts in recent weeks who have studied
provisions of this bill as it was being developed, and I plan to engage
them in further discussions in the weeks and months ahead. I appreciate
their willingness to help keep this important topic moving forward.
This is a complex issue, one that should be of great importance to
electric generators, environmental leaders, State and local regulators,
and to each of us here in the Senate. There are numerous complicated
issues in this legislation such as the proper extent of crediting off
system carbon reductions, equitable allocation of allowances,
appropriate regulatory streamlining, and prevention of local impacts,
and we invite assistance from all who want to help us address these
issues.
Today, America's power plants will emit over 6 million tons of
harmful emissions. They will also power the world's most productive
economy. Reducing emissions while retaining affordable electricity is
the goal of the Clean Air Planning Act, and I urge my colleagues to
join me in this effort. I look forward to developing consensus within
the Senate next year and passing strong, comprehensive legislation.
Thank you, Mr. President. I ask unanimous consent that the text of
this bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 3135
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Clean Air
Planning Act of 2002''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Integrated air quality planning for the electric generating
sector.
[[Page S10700]]
Sec. 4. New source review program.
Sec. 5. Revisions to sulfur dioxide allowance program.
Sec. 6. Relationship to other law.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) fossil fuel-fired electric generating facilities,
consisting of facilities fueled by coal, fuel oil, and
natural gas, produce nearly \2/3\ of the electricity
generated in the United States;
(2) fossil fuel-fired electric generating facilities
produce approximately \2/3\ of the total sulfur dioxide
emissions, \1/3\ of the total nitrogen oxides emissions, \1/
3\ of the total carbon dioxide emissions, and \1/3\ of the
total mercury emissions, in the United States;
(3)(A) many electric generating facilities have been exempt
from the emission limitations applicable to new units based
on the expectation that over time the units would be retired
or updated with new pollution control equipment; but
(B) many of the exempted units continue to operate and emit
pollutants at relatively high rates;
(4) pollution from existing electric generating facilities
can be reduced through adoption of modern technologies and
practices;
(5) the electric generating industry is being restructured
with the objective of providing lower electricity rates and
higher quality service to consumers;
(6) the full benefits of competition will not be realized
if the environmental impacts of generation of electricity are
not uniformly internalized; and
(7) the ability of owners of electric generating facilities
to effectively plan for the future is impeded by the
uncertainties surrounding future environmental regulatory
requirements that are imposed inefficiently on a piecemeal
basis.
(b) Purposes.--The purposes of this Act are--
(1) to protect and preserve the environment and safeguard
public health by ensuring that substantial emission
reductions are achieved at fossil fuel-fired electric
generating facilities;
(2) to significantly reduce the quantities of mercury,
carbon dioxide, sulfur dioxide, and nitrogen oxides that
enter the environment as a result of the combustion of fossil
fuels;
(3) to encourage the development and use of renewable
energy;
(4) to internalize the cost of protecting the values of
public health, air, land, and water quality in the context of
a competitive market in electricity;
(5) to ensure fair competition among participants in the
competitive market in electricity that will result from fully
restructuring the electric generating industry;
(6) to provide a period of environmental regulatory
stability for owners and operators of electric generating
facilities so as to promote improved management of existing
assets and new capital investments; and
(7) to achieve emission reductions from electric generating
facilities in a cost-effective manner.
SEC. 3. INTEGRATED AIR QUALITY PLANNING FOR THE ELECTRIC
GENERATING SECTOR.
The Clean Air Act (42 U.S.C. 7401 et seq.) is amended by
adding at the end the following:
``TITLE VII--INTEGRATED AIR QUALITY PLANNING FOR THE ELECTRIC
GENERATING SECTOR
``Sec. 701. Definitions.
``Sec. 702. National pollutant tonnage limitations.
``Sec. 703. Nitrogen oxide and mercury allowance trading programs.
``Sec. 704. Carbon dioxide allowance trading program.
``SEC. 701. DEFINITIONS.
``In this title:
``(1) Affected unit.--
``(A) Mercury.--The term `affected unit', with respect to
mercury, means a coal-fired electric generating facility
(including a cogenerating facility) that--
``(i) has a nameplate capacity greater than 25 megawatts;
and
``(ii) generates electricity for sale.
``(B) Nitrogen oxides and carbon dioxide.--The term
`affected unit', with respect to nitrogen oxides and carbon
dioxide, means a fossil fuel-fired electric generating
facility (including a cogenerating facility) that--
``(i) has a nameplate capacity greater than 25 megawatts;
and
``(ii) generates electricity for sale.
``(C) Sulfur dioxide.--The term `affected unit', with
respect to sulfur dioxide, has the meaning given the term in
section 402.
``(2) Carbon dioxide allowance.--The term `carbon dioxide
allowance' means an authorization allocated by the
Administrator under this title to emit 1 ton of carbon
dioxide during or after a specified calendar year.
``(3) Covered unit.--The term `covered unit' means--
``(A) an affected unit;
``(B) a nuclear generating unit with respect to incremental
nuclear generation; and
``(C) a renewable energy unit.
``(4) Greenhouse gas.--The term `greenhouse gas' means--
``(A) carbon dioxide;
``(B) methane;
``(C) nitrous oxide;
``(D) hydrofluorocarbons;
``(E) perfluorocarbons; and
``(F) sulfur hexafluoride.
``(5) Incremental nuclear generation.--The term
`incremental nuclear generation' means the difference
between--
``(A) the quantity of electricity generated by a nuclear
generating unit in a calendar year; and
``(B) the quantity of electricity generated by the nuclear
generating unit in calendar year 1990;
as determined by the Administrator and measured in megawatt
hours.
``(6) Mercury allowance.--The term `mercury allowance'
means an authorization allocated by the Administrator under
this title to emit 1 pound of mercury during or after a
specified calendar year.
``(7) New renewable energy unit.--The term `new renewable
energy unit' means a renewable energy unit that has operated
for a period of not more than 3 years.
``(8) New unit.--The term `new unit' means an affected unit
that has operated for not more than 3 years and is not
eligible to receive--
``(A) sulfur dioxide allowances under section 417(b);
``(B) nitrogen oxide allowances or mercury allowances under
section 703(c)(2); or
``(C) carbon dioxide allowances under section 704(c)(2).
``(9) Nitrogen oxide allowance.--The term `nitrogen oxide
allowance' means an authorization allocated by the
Administrator under this title to emit 1 ton of nitrogen
oxides during or after a specified calendar year.
``(10) Nuclear generating unit.--The term `nuclear
generating unit' means an electric generating facility that--
``(A) uses nuclear energy to supply electricity to the
electric power grid; and
``(B) commenced operation in calendar year 1990 or earlier.
``(11) Renewable energy.--The term `renewable energy' means
electricity generated from--
``(A) wind;
``(B) organic waste (excluding incinerated municipal solid
waste);
``(C) biomass (including anaerobic digestion from farm
systems and landfill gas recovery);
``(D) fuel cells; or
``(E) a hydroelectric, geothermal, solar thermal,
photovoltaic, or other nonfossil fuel, nonnuclear source.
``(12) Renewable energy unit.--The term `renewable energy
unit' means an electric generating facility that uses
exclusively renewable energy to supply electricity to the
electric power grid.
``(13) Sequestration.--The term `sequestration' means the
action of sequestering carbon by--
``(A) enhancing a natural carbon sink (such as through
afforestation); or
``(B)(i) capturing the carbon dioxide emitted from a fossil
fuel-based energy system; and
``(ii)(I) storing the carbon in a geologic formation or in
a deep area of an ocean; or
``(II) converting the carbon to a benign solid material
through a biological or chemical process.
``(14) Sulfur dioxide allowance.--The term `sulfur dioxide
allowance' has the meaning given the term `allowance' in
section 402.
``SEC. 702. NATIONAL POLLUTANT TONNAGE LIMITATIONS.
``(a) Sulfur Dioxide.--The annual tonnage limitation for
emissions of sulfur dioxide from affected units in the United
States shall be equal to--
``(1) for each of calendar years 2008 through 2011,
4,500,000 tons;
``(2) for each of calendar years 2012 through 2014,
3,500,000 tons; and
``(3) for calendar year 2015 and each calendar year
thereafter, 2,250,000 tons.
``(b) Nitrogen Oxides.--The annual tonnage limitation for
emissions of nitrogen oxides from affected units in the
United States shall be equal to--
``(1) for each of calendar years 2008 through 2011,
1,870,000 tons; and
``(2) for calendar year 2012 and each calendar year
thereafter, 1,700,000 tons.
``(c) Mercury.--
``(1) In general.--The annual tonnage limitation for
emissions of mercury from affected units in the United States
shall be equal to--
``(A) for each of calendar years 2008 through 2011, 24
tons; and
``(B) for calendar year 2012 and each calendar year
thereafter, a percentage determined under paragraph (2) of
the total quantity of mercury present in delivered coal in
calendar year 1999 (as determined by the Administrator).
``(2) Determination of percentage.--The percentage referred
to in paragraph (1)(B) shall be--
``(A) not less than 7 nor more than 21 percent; and
``(B) determined by the Administrator not later than
January 1, 2004, based on the best scientific data available
concerning--
``(i) the reduction in emissions of mercury necessary to
protect public health and the environment; and
``(ii) the cost and performance of mercury control
technology.
``(3) Maximum emissions of mercury from each affected
unit.--
``(A) Calendar years 2008 through 2011.--For each of
calendar years 2008 through 2011, the emissions of mercury
from each affected unit shall not exceed either, at the
option of the operator of the affected unit--
``(i) 50 percent of the total quantity of mercury present
in the coal delivered to the affected unit in the calendar
year; or
[[Page S10701]]
``(ii) an annual output-based emission rate for mercury
that shall be determined by the Administrator based on an
input-based rate of 4 pounds per trillion British thermal
units.
``(B) Calendar year 2012 and thereafter.--For calendar year
2012 and each calendar year thereafter, the emissions of
mercury from each affected unit shall not exceed--
``(i) 30 percent of the total quantity of mercury present
in the coal delivered to the affected unit in the calendar
year; or
``(ii) an annual output-based emission rate for mercury
that shall be determined by the Administrator.
``(d) Carbon Dioxide.--Subject to section 704(d), the
annual tonnage limitation for emissions of carbon dioxide
from covered units in the United States shall be equal to--
``(1) for each of calendar years 2008 through 2011, the
quantity of emissions projected to be emitted from affected
units in calendar year 2005, as determined by the Energy
Information Administration of the Department of Energy based
on the projections of the Administration the publication of
which most closely precedes the date of enactment of this
title; and
``(2) for calendar year 2012 and each calendar year
thereafter, the quantity of emissions emitted from affected
units in calendar year 2001, as determined by the Energy
Information Administration of the Department of Energy.
``(e) Review of Annual Tonnage Limitations.--
``(1) Period of effectiveness.--The annual tonnage
limitations established under subsections (a) through (d)
shall remain in effect until the date that is 20 years after
the date of enactment of this title.
``(2) Determination by administrator.--Not later than 15
years after the date of enactment of this title, the
Administrator, after considering impacts on human health, the
environment, the economy, and costs, shall determine whether
1 or more of the annual tonnage limitations should be
revised.
``(3) Determination not to revise.--If the Administrator
determines under paragraph (2) that none of the annual
tonnage limitations should be revised, the Administrator
shall publish in the Federal Register a notice of the
determination and the reasons for the determination.
``(4) Determination to revise.--
``(A) In general.--If the Administrator determines under
paragraph (2) that 1 or more of the annual tonnage
limitations should be revised, the Administrator shall
publish in the Federal Register--
``(i) not later than 15 years and 180 days after the date
of enactment of this title, proposed regulations implementing
the revisions; and
``(ii) not later than 16 years and 180 days after the date
of enactment of this title, final regulations implementing
the revisions.
``(B) Effective date of revisions.--Any revisions to the
annual tonnage limitations under subparagraph (A) shall take
effect on the date that is 20 years after the date of
enactment of this title.
``(f) Reduction of Emissions From Specified Affected
Units.--Subject to the requirements of this Act concerning
national ambient air quality standards established under part
A of title I, notwithstanding the annual tonnage limitations
established under this section, the Federal Government or a
State government may require that emissions from a specified
affected unit be reduced to address a local air quality
problem.
``SEC. 703. NITROGEN OXIDE AND MERCURY ALLOWANCE TRADING
PROGRAMS.
``(a) Regulations.--
``(1) Promulgation.--
``(A) In general.--Not later than January 1, 2004, the
Administrator shall promulgate regulations to establish for
affected units in the United States--
``(i) a nitrogen oxide allowance trading program; and
``(ii) a mercury allowance trading program.
``(B) Requirements.--Regulations promulgated under
subparagraph (A) shall establish requirements for the
allowance trading programs under this section, including
requirements concerning--
``(i)(I) the generation, allocation, issuance, recording,
tracking, transfer, and use of nitrogen oxide allowances and
mercury allowances; and
``(II) the public availability of all information
concerning the activities described in subclause (I) that is
not confidential;
``(ii) compliance with subsection (e)(1);
``(iii) the monitoring and reporting of emissions under
paragraphs (2) and (3) of subsection (e); and
``(iv) excess emission penalties under subsection (e)(4).
``(2) Mixed fuel, co-generation facilities and combined
heat and power facilities.--The Administrator shall
promulgate such regulations as are necessary to ensure the
equitable issuance of allowances to--
``(A) facilities that use more than 1 energy source to
produce electricity; and
``(B) facilities that produce electricity in addition to
another service or product.
``(3) Report to congress on use of captured or recovered
mercury.--
``(A) In general.--Not later than 18 months after the date
of enactment of this title, the Administrator shall submit to
Congress a report on the public health and environmental
impacts from mercury that is or may be--
``(i) captured or recovered by air pollution control
technology; and
``(ii) incorporated into products such as soil amendments
and cement.
``(B) Required elements.--The report shall--
``(i) review--
``(I) technologies, in use as of the date of the report,
for incorporating mercury into products; and
``(II) potential technologies that might further minimize
the release of mercury; and
``(ii)(I) address the adequacy of legal authorities and
regulatory programs in effect as of the date of the report to
protect public health and the environment from mercury in
products described in subparagraph (A)(ii); and
``(II) to the extent necessary, make recommendations to
improve those authorities and programs.
``(b) New Unit Reserves.--
``(1) Establishment.--The Administrator shall establish by
regulation a reserve of nitrogen oxide allowances and a
reserve of mercury allowances to be set aside for use by new
units.
``(2) Determination of quantity.--The Administrator, in
consultation with the Secretary of Energy, shall determine,
based on projections of electricity output for new units--
``(A) not later than June 30, 2004, the quantity of
nitrogen oxide allowances and mercury allowances required to
be held in reserve for new units for each of calendar years
2008 through 2012; and
``(B) not later than June 30 of each fifth calendar year
thereafter, the quantity of nitrogen oxide allowances and
mercury allowances required to be held in reserve for new
units for the following 5-calendar year period.
``(c) Nitrogen Oxide and Mercury Allowance Allocations.--
``(1) Timing of allocations.--The Administrator shall
allocate nitrogen oxide allowances and mercury allowances to
affected units--
``(A) not later than December 31, 2004, for calendar year
2008; and
``(B) not later than December 31 of calendar year 2005 and
each calendar year thereafter, for the fourth calendar year
that begins after that December 31.
``(2) Allocations to affected units that are not new
units.--
``(A) Quantity of nitrogen oxide allowances allocated.--The
Administrator shall allocate to each affected unit that is
not a new unit a quantity of nitrogen oxide allowances that
is equal to the product obtained by multiplying--
``(i) 1.5 pounds of nitrogen oxides per megawatt hour; and
``(ii) the quotient obtained by dividing--
``(I) the average annual net quantity of electricity
generated by the affected unit during the most recent 3-
calendar year period for which data are available, measured
in megawatt hours; by
``(II) 2,000 pounds of nitrogen oxides per ton.
``(B) Quantity of mercury allowances allocated.--The
Administrator shall allocate to each affected unit that is
not a new unit a quantity of mercury allowances that is equal
to the product obtained by multiplying--
``(i) 0.0000227 pounds of mercury per megawatt hour; and
``(ii) the average annual net quantity of electricity
generated by the affected unit during the most recent 3-
calendar year period for which data are available, measured
in megawatt hours.
``(C) Adjustment of allocations.--
``(i) In general.--If, for any calendar year, the total
quantity of allowances allocated under subparagraph (A) or
(B) is not equal to the applicable quantity determined under
clause (ii), the Administrator shall adjust the quantity of
allowances allocated to affected units that are not new units
on a pro-rata basis so that the quantity is equal to the
applicable quantity determined under clause (ii).
``(ii) Applicable quantity.--The applicable quantity
referred to in clause (i) is the difference between--
``(I) the applicable annual tonnage limitation for
emissions from affected units specified in subsection (b) or
(c) of section 702 for the calendar year; and
``(II) the quantity of nitrogen oxide allowances or mercury
allowances, respectively, placed in the applicable new unit
reserve established under subsection (b) for the calendar
year.
``(3) Allocation to new units.--
``(A) Methodology.--The Administrator shall promulgate
regulations to establish a methodology for allocating
nitrogen oxide allowances and mercury allowances to new
units.
``(B) Quantity of nitrogen oxide allowances and mercury
allowances allocated.--The Administrator shall determine the
quantity of nitrogen oxide allowances and mercury allowances
to be allocated to each new unit based on the projected
emissions from the new unit.
``(4) Allowance not a property right.--A nitrogen oxide
allowance or mercury allowance--
``(A) is not a property right; and
``(B) may be terminated or limited by the Administrator.
[[Page S10702]]
``(5) No judicial review.--An allocation of nitrogen
allowances or mercury allowances by the Administrator under
this subsection shall not be subject to judicial review.
``(d) Nitrogen Oxide Allowance and Mercury Allowance
Transfer System.--
``(1) Use of allowances.--The regulations promulgated under
subsection (a)(1)(A) shall--
``(A) prohibit the use (but not the transfer in accordance
with paragraph (3)) of any nitrogen oxide allowance or
mercury allowance before the calendar year for which the
allowance is allocated;
``(B) provide that unused nitrogen oxide allowances and
mercury allowances may be carried forward and added to
nitrogen oxide allowances and mercury allowances,
respectively, allocated for subsequent years; and
``(C) provide that unused nitrogen oxide allowances and
mercury allowances may be transferred by--
``(i) the person to which the allowances are allocated; or
``(ii) any person to which the allowances are transferred.
``(2) Use by persons to which allowances are transferred.--
Any person to which nitrogen oxide allowances or mercury
allowances are transferred under paragraph (1)(C)--
``(A) may use the nitrogen oxide allowances or mercury
allowances in the calendar year for which the nitrogen oxide
allowances or mercury allowances were allocated, or in a
subsequent calendar year, to demonstrate compliance with
subsection (e)(1); or
``(B) may transfer the nitrogen oxide allowances or mercury
allowances to any other person for the purpose of
demonstration of that compliance.
``(3) Certification of transfer.--A transfer of a nitrogen
oxide allowance or mercury allowance shall not take effect
until a written certification of the transfer, authorized by
a responsible official of the person making the transfer, is
received and recorded by the Administrator.
``(4) Permit requirements.--An allocation or transfer of
nitrogen oxide allowances or mercury allowances to an
affected unit shall, after recording by the Administrator, be
considered to be part of the federally enforceable permit of
the affected unit under this Act, without a requirement for
any further review or revision of the permit.
``(e) Compliance and Enforcement.--
``(1) In general.--For calendar year 2008 and each calendar
year thereafter, the operator of each affected unit shall
surrender to the Administrator--
``(A) a quantity of nitrogen oxide allowances that is equal
to the total tons of nitrogen oxides emitted by the affected
unit during the calendar year; and
``(B) a quantity of mercury allowances that is equal to the
total pounds of mercury emitted by the affected unit during
the calendar year.
``(2) Monitoring system.--The Administrator shall
promulgate regulations requiring the accurate monitoring of
the quantities of nitrogen oxides and mercury that are
emitted at each affected unit.
``(3) Reporting.--
``(A) In general.--Not less often than quarterly, the owner
or operator of an affected unit shall submit to the
Administrator a report on the monitoring of emissions of
nitrogen oxides and mercury carried out by the owner or
operator in accordance with the regulations promulgated under
paragraph (2).
``(B) Authorization.--Each report submitted under
subparagraph (A) shall be authorized by a responsible
official of the affected unit, who shall certify the accuracy
of the report.
``(C) Public reporting.--The Administrator shall make
available to the public, through 1 or more published reports
and 1 or more forms of electronic media, data concerning the
emissions of nitrogen oxides and mercury from each affected
unit.
``(4) Excess emissions.--
``(A) In general.--The owner or operator of an affected
unit that emits nitrogen oxides or mercury in excess of the
nitrogen oxide allowances or mercury allowances that the
owner or operator holds for use for the affected unit for the
calendar year shall--
``(i) pay an excess emissions penalty determined under
subparagraph (B); and
``(ii) offset the excess emissions by an equal quantity in
the following calendar year or such other period as the
Administrator shall prescribe.
``(B) Determination of excess emissions penalty.--
``(i) Nitrogen oxides.--The excess emissions penalty for
nitrogen oxides shall be equal to the product obtained by
multiplying--
``(I) the number of tons of nitrogen oxides emitted in
excess of the total quantity of nitrogen oxide allowances
held; and
``(II) $5,000, adjusted (in accordance with regulations
promulgated by the Administrator) for changes in the Consumer
Price Index for All-Urban Consumers published by the
Department of Labor.
``(ii) Mercury.--The excess emissions penalty for mercury
shall be equal to the product obtained by multiplying--
``(I) the number of pounds of mercury emitted in excess of
the total quantity of mercury allowances held; and
``(II) $10,000, adjusted (in accordance with regulations
promulgated by the Administrator) for changes in the Consumer
Price Index for All-Urban Consumers published by the
Department of Labor.
``SEC. 704. CARBON DIOXIDE ALLOWANCE TRADING PROGRAM.
``(a) Regulations.--
``(1) In general.--Not later than January 1, 2004, the
Administrator shall promulgate regulations to establish a
carbon dioxide allowance trading program for covered units in
the United States.
``(2) Required elements.--Regulations promulgated under
paragraph (1) shall establish requirements for the carbon
dioxide allowance trading program under this section,
including requirements concerning--
``(A)(i) the generation, allocation, issuance, recording,
tracking, transfer, and use of carbon dioxide allowances; and
``(ii) the public availability of all information
concerning the activities described in clause (i) that is not
confidential;
``(B) compliance with subsection (f)(1);
``(C) the monitoring and reporting of emissions under
paragraphs (2) and (3) of subsection (f);
``(D) excess emission penalties under subsection (f)(4);
and
``(E) standards, guidelines, and procedures concerning the
generation, certification, and use of additional carbon
dioxide allowances made available under subsection (d).
``(b) New Unit Reserve.--
``(1) Establishment.--The Administrator shall establish by
regulation a reserve of carbon dioxide allowances to be set
aside for use by new units and new renewable energy units.
``(2) Determination of quantity.--The Administrator, in
consultation with the Secretary of Energy, shall determine,
based on projections of electricity output for new units and
new renewable energy units--
``(A) not later than June 30, 2004, the quantity of carbon
dioxide allowances required to be held in reserve for new
units and new renewable energy units for each of calendar
years 2008 through 2012; and
``(B) not later than June 30 of each fifth calendar year
thereafter, the quantity of carbon dioxide allowances
required to be held in reserve for new units and renewable
energy units for the following 5-calendar year period.
``(c) Carbon Dioxide Allowance Allocation.--
``(1) Timing of allocations.--The Administrator shall
allocate carbon dioxide allowances to covered units--
``(A) not later than December 31, 2004, for calendar year
2008; and
``(B) not later than December 31 of calendar year 2005 and
each calendar year thereafter, for the fourth calendar year
that begins after that December 31.
``(2) Allocations to covered units that are not new
units.--
``(A) In general.--The Administrator shall allocate to each
affected unit that is not a new unit, to each nuclear
generating unit with respect to incremental nuclear
generation, and to each renewable energy unit that is not a
new renewable energy unit, a quantity of carbon dioxide
allowances that is equal to the product obtained by
multiplying--
``(i) the quantity of carbon dioxide allowances available
for allocation under subparagraph (B); and
``(ii) the quotient obtained by dividing--
``(I) the average net quantity of electricity generated by
the unit in a calendar year during the most recent 3-calendar
year period for which data are available, measured in
megawatt hours; and
``(II) the total of the average net quantities described in
subclause (I) with respect to all such units.
``(B) Quantity to be allocated.--For each calendar year,
the quantity of carbon dioxide allowances allocated under
subparagraph (A) shall be equal to the difference between--
``(i) the annual tonnage limitation for emissions of carbon
dioxide from affected units specified in section 702(d) for
the calendar year; and
``(ii) the quantity of carbon dioxide allowances placed in
the new unit reserve established under subsection (b) for the
calendar year.
``(3) Allocation to new units and new renewable energy
units.--
``(A) Methodology.--The Administrator shall promulgate
regulations to establish a methodology for allocating carbon
dioxide allowances to new units and new renewable energy
units.
``(B) Quantity of carbon dioxide allowances allocated.--The
Administrator shall determine the quantity of carbon dioxide
allowances to be allocated to each new unit and each new
renewable energy unit based on the unit's projected share of
the total electric power generation attributable to covered
units.
``(d) Issuance and Use of Additional Carbon Dioxide
Allowances.--
``(1) In general.--
``(A) Allowances for projects certified by independent
review board.--In addition to carbon dioxide allowances
allocated under subsection (c), the Administrator shall make
carbon dioxide allowances available to projects that are
certified, in accordance with paragraph (3), by the
independent review board established under paragraph (2) as
eligible to receive the carbon dioxide allowances.
``(B) Allowances obtained under other programs.--The
regulations promulgated under subsection (a)(1) shall--
``(i) allow covered units to comply with subsection (f)(1)
by purchasing and using carbon dioxide allowances that are
traded under
[[Page S10703]]
any other United States or internationally recognized carbon
dioxide reduction program that is specified under clause
(ii);
``(ii) specify, for the purpose of clause (i), programs
that meet the goals of this section; and
``(iii) apply such conditions to the use of carbon dioxide
allowances traded under programs specified under clause (ii)
as are necessary to achieve the goals of this section.
``(2) Independent review board.--
``(A) In general.--
``(i) Establishment.--The Administrator shall establish an
independent review board to assist the Administrator in
certifying projects as eligible for carbon dioxide allowances
made available under paragraph (1)(A).
``(ii) Review and approval.--Each certification by the
independent review board of a project shall be subject to the
review and approval of the Administrator.
``(iii) Requirements.--Subject to this subsection,
requirements relating to the creation, composition, duties,
responsibilities, and other aspects of the independent review
board shall be included in the regulations promulgated by the
Administrator under subsection (a).
``(B) Membership.--The independent review board shall be
composed of 12 members, of whom--
``(i) 10 members shall be appointed by the Administrator,
of whom--
``(I) 1 member shall represent the Environmental Protection
Agency (who shall serve as chairperson of the independent
review board);
``(II) 3 members shall represent State governments;
``(III) 3 members shall represent the electric generating
sector; and
``(IV) 3 members shall represent environmental
organizations;
``(ii) 1 member shall be appointed by the Secretary of
Energy to represent the Department of Energy; and
``(iii) 1 member shall be appointed by the Secretary of
Agriculture to represent the Department of Agriculture.
``(C) Staff and other resources.--The Administrator shall
provide such staff and other resources to the independent
review board as the Administrator determines to be necessary.
``(D) Development of guidelines.--
``(i) In general.--The independent review board shall
develop guidelines for certifying projects in accordance with
paragraph (3), including--
``(I) criteria that address the validity of claims that
projects result in the generation of carbon dioxide
allowances;
``(II) guidelines for certifying incremental carbon
sequestration in accordance with clause (ii); and
``(III) guidelines for certifying geological sequestration
of carbon dioxide in accordance with clause (iii).
``(ii) Guidelines for certifying incremental carbon
sequestration.--The guidelines for certifying incremental
carbon sequestration in forests, agricultural soil,
rangeland, or grassland shall include development, reporting,
monitoring, and verification guidelines, to be used in
quantifying net carbon sequestration from land use projects,
that are based on--
``(I) measurement of increases in carbon storage in excess
of the carbon storage that would have occurred in the absence
of such a project;
``(II) comprehensive carbon accounting that--
``(aa) reflects net increases in carbon reservoirs; and
``(bb) takes into account any carbon emissions resulting
from disturbance of carbon reservoirs in existence as of the
date of commencement of the project;
``(III) adjustments to account for--
``(aa) emissions of carbon that may result at other
locations as a result of the impact of the project on timber
supplies; or
``(bb) potential displacement of carbon emissions to other
land owned by the entity that carries out the project; and
``(IV) adjustments to reflect the expected carbon storage
over various time periods, taking into account the likely
duration of the storage of the carbon stored in a carbon
reservoir.
``(iii) Guidelines for certifying geological sequestration
of carbon dioxide.--The guidelines for certifying geological
sequestration of carbon dioxide produced by a covered unit
shall--
``(I) provide that a project shall be certified only to the
extent that the geological sequestration of carbon dioxide
produced by a covered unit is in addition to any carbon
dioxide used by the covered unit in 2008 for enhanced oil
recovery; and
``(II) include requirements for development, reporting,
monitoring, and verification for quantifying net carbon
sequestration--
``(aa) to ensure the permanence of the sequestration; and
``(bb) to ensure that the sequestration will not cause or
contribute to significant adverse effects on the environment.
``(iv) Deadlines for development.--The guidelines under
clause (i) shall be developed--
``(I) with respect to projects described in paragraph
(3)(A), not later than January 1, 2004; and
``(II) with respect to projects described in paragraph
(3)(B), not later than January 1, 2005.
``(v) Updating of guidelines.--The independent review board
shall periodically update the guidelines as the independent
review board determines to be appropriate.
``(E) Certification of projects.--
``(i) In general.--Subject to clause (ii), subparagraph
(A)(ii), and paragraph (3), the independent review board
shall certify projects as eligible for additional carbon
dioxide allowances.
``(ii) Limitation.--The independent review board shall not
certify a project under this subsection if the carbon dioxide
emission reductions achieved by the project will be used to
satisfy any requirement imposed on any foreign country or any
industrial sector to reduce the quantity of greenhouse gases
emitted by the foreign country or industrial sector.
``(3) Projects eligible for additional carbon dioxide
allowances.--
``(A) Projects carried out in calendar years 1990 through
2007.--
``(i) In general.--The independent review board may certify
as eligible for carbon dioxide allowances a project that--
``(I) is carried out on or after January 1, 1990, and
before January 1, 2008; and
``(II) consists of--
``(aa) a carbon sequestration project carried out in the
United States or a foreign country;
``(bb) a project reported under section 1605(b) of the
Energy Policy Act of 1992 (42 U.S.C. 13385(b)); or
``(cc) any other project to reduce emissions of greenhouse
gases that is carried out in the United States or a foreign
country.
``(ii) Maximum quantity of additional carbon dioxide
allowances.--The Administrator may make available to projects
certified under clause (i) a quantity of allowances that is
not greater than 10 percent of the tonnage limitation for
calendar year 2008 for emissions of carbon dioxide from
affected units specified in section 702(d)(1).
``(iii) Use of allowances.--Allowances made available under
clause (ii) may be used to comply with subsection (f)(1) in
calendar year 2008 or any calendar year thereafter.
``(B) Projects carried out in calendar year 2008 and
thereafter.--The independent review board may certify as
eligible for carbon dioxide allowances a project that--
``(i) is carried out on or after January 1, 2008; and
``(ii) consists of--
``(I) a carbon sequestration project carried out in the
United States or a foreign country; or
``(II) a project to reduce the greenhouse gas emissions (on
a carbon dioxide equivalency basis determined by the
independent review board) of a source of greenhouse gases
that is not an affected unit.
``(e) Carbon Dioxide Allowance Transfer System.--
``(1) Use of allowances.--The regulations promulgated under
subsection (a)(1) shall--
``(A) prohibit the use (but not the transfer in accordance
with paragraph (3)) of any carbon dioxide allowance before
the calendar year for which the carbon dioxide allowance is
allocated;
``(B) provide that unused carbon dioxide allowances may be
carried forward and added to carbon dioxide allowances
allocated for subsequent years;
``(C) provide that unused carbon dioxide allowances may be
transferred by--
``(i) the person to which the carbon dioxide allowances are
allocated; or
``(ii) any person to which the carbon dioxide allowances
are transferred; and
``(D) provide that carbon dioxide allowances allocated and
transferred under this section may be transferred into any
other market-based carbon dioxide emission trading program
that is--
``(i) approved by the President; and
``(ii) implemented in accordance with regulations developed
by the Administrator or the head of any other Federal agency.
``(2) Use by persons to which carbon dioxide allowances are
transferred.--Any person to which carbon dioxide allowances
are transferred under paragraph (1)(C)--
``(A) may use the carbon dioxide allowances in the calendar
year for which the carbon dioxide allowances were allocated,
or in a subsequent calendar year, to demonstrate compliance
with subsection (f)(1); or
``(B) may transfer the carbon dioxide allowances to any
other person for the purpose of demonstration of that
compliance.
``(3) Certification of transfer.--A transfer of a carbon
dioxide allowance shall not take effect until a written
certification of the transfer, authorized by a responsible
official of the person making the transfer, is received and
recorded by the Administrator.
``(4) Permit requirements.--An allocation or transfer of
carbon dioxide allowances to a covered unit, or for a project
carried out on behalf of a covered unit, under subsection (c)
or (d) shall, after recording by the Administrator, be
considered to be part of the federally enforceable permit of
the covered unit under this Act, without a requirement for
any further review or revision of the permit.
``(f) Compliance and Enforcement.--
``(1) In general.--For calendar year 2008 and each calendar
year thereafter--
``(A) the operator of each affected unit and each renewable
energy unit shall surrender to the Administrator a quantity
of carbon dioxide allowances that is equal to the total tons
of carbon dioxide emitted by the affected unit or renewable
energy unit during the calendar year; and
[[Page S10704]]
``(B) the operator of each nuclear generating unit that has
incremental nuclear generation shall surrender to the
Administrator a quantity of carbon dioxide allowances that is
equal to the total tons of carbon dioxide emitted by the
nuclear generating unit during the calendar year from
incremental nuclear generation.
``(2) Monitoring system.--The Administrator shall
promulgate regulations requiring the accurate monitoring of
the quantity of carbon dioxide that is emitted at each
covered unit.
``(3) Reporting.--
``(A) In general.--Not less often than quarterly, the owner
or operator of a covered unit, or a person that carries out a
project certified under subsection (d) on behalf of a covered
unit, shall submit to the Administrator a report on the
monitoring of carbon dioxide emissions carried out at the
covered unit in accordance with the regulations promulgated
under paragraph (2).
``(B) Authorization.--Each report submitted under
subparagraph (A) shall be authorized by a responsible
official of the covered unit, who shall certify the accuracy
of the report.
``(C) Public reporting.--The Administrator shall make
available to the public, through 1 or more published reports
and 1 or more forms of electronic media, data concerning the
emissions of carbon dioxide from each covered unit.
``(4) Excess emissions.--
``(A) In general.--The owner or operator of a covered unit
that emits carbon dioxide in excess of the carbon dioxide
allowances that the owner or operator holds for use for the
covered unit for the calendar year shall--
``(i) pay an excess emissions penalty determined under
subparagraph (B); and
``(ii) offset the excess emissions by an equal quantity in
the following calendar year or such other period as the
Administrator shall prescribe.
``(B) Determination of excess emissions penalty.--The
excess emissions penalty shall be equal to the product
obtained by multiplying--
``(i) the number of tons of carbon dioxide emitted in
excess of the total quantity of carbon dioxide allowances
held; and
``(ii) $100, adjusted (in accordance with regulations
promulgated by the Administrator) for changes in the Consumer
Price Index for All-Urban Consumers published by the
Department of Labor.
``(g) Allowance Not a Property Right.--A carbon dioxide
allowance--
``(1) is not a property right; and
``(2) may be terminated or limited by the Administrator.
``(h) No Judicial Review.--An allocation of carbon dioxide
allowances by the Administrator under subsection (c) or (d)
shall not be subject to judicial review.''.
SEC. 4. NEW SOURCE REVIEW PROGRAM.
Section 165 of the Clean Air Act (42 U.S.C. 7475) is
amended by adding at the end the following:
``(f) Revisions to New Source Review Program.--
``(1) Definitions.--In this subsection:
``(A) Covered unit.--The term `covered unit' has the
meaning given the term in section 701.
``(B) New source review program.--The term `new source
review program' means the program to carry out section 111
and this part.
``(2) Regulations.--In accordance with this subsection, the
Administrator shall promulgate revisions to the new source
review program.
``(3) Applicability criteria.--The regulations shall revise
the applicability criteria under the new source review
program for covered units so that, beginning January 1, 2008,
a physical change or a change in the method of operation at a
covered unit shall be subject to the regulations under the
new source review program and subject to approval by the
Administrator only if--
``(A)(i) the change involves the replacement of 1 or more
components of the covered unit; and
``(ii) the amount of the fixed capital costs of the
replacement exceeds 50 percent of the amount of the fixed
capital costs of construction of a comparable new covered
unit; or
``(B) the change results in any increase in the rate of
emissions from the covered unit of air pollutants regulated
under the new source review program (measured in pounds per
megawatt hour).
``(4) Lowest achievable emission rate.--The regulations
shall revise the definition of `lowest achievable emission
rate' under section 171, with respect to technology required
to be installed by the electric generating sector, to allow
costs to be considered in the determination of the lowest
achievable emission rate, so that, beginning January 1, 2008,
a covered unit (as defined in section 701) shall not be
required to install technology required to meet a lowest
achievable emission rate if the cost of the technology
exceeds a maximum amount (in dollars per ton) that--
``(A) is determined by the Administrator; but
``(B) does not exceed twice the amount of the cost
guideline for best available control technology established
under subsection (a)(4).
``(5) Emission offsets.--A new source within the electric
generating sector that locates in a nonattainment area after
December 31, 2007, shall not be required to obtain offsets
for emissions of air pollutants.
``(6) No effect on other requirements.--Nothing in this
subsection affects the obligation of any State or local
government to comply with the requirements established under
this section concerning--
``(A) national ambient air quality standards;
``(B) maximum allowable air pollutant increases or maximum
allowable air pollutant concentrations; or
``(C) protection of visibility and other air quality-
related values in areas designated as class I areas under
part C of title I.''.
SEC. 5. REVISIONS TO SULFUR DIOXIDE ALLOWANCE PROGRAM.
(a) In General.--Title IV of the Clean Air Act (relating to
acid deposition control) (42 U.S.C. 7651 et seq.) is amended
by adding at the end the following:
``SEC. 417. REVISIONS TO SULFUR DIOXIDE ALLOWANCE PROGRAM.
``(a) Definitions.--In this section, the terms `affected
unit' and `new unit' have the meanings given the terms in
section 701.
``(b) Regulations.--Not later than January 1, 2004, the
Administrator shall promulgate such revisions to the
regulations to implement this title as the Administrator
determines to be necessary to implement section 702(a).
``(c) New Unit Reserve.--
``(1) Establishment.--Subject to the annual tonnage
limitation for emissions of sulfur dioxide from affected
units specified in section 702(a), the Administrator shall
establish by regulation a reserve of allowances to be set
aside for use by new units.
``(2) Determination of quantity.--The Administrator, in
consultation with the Secretary of Energy, shall determine,
based on projections of electricity output for new units--
``(A) not later than June 30, 2004, the quantity of
allowances required to be held in reserve for new units for
each of calendar years 2008 through 2012; and
``(B) not later than June 30 of each fifth calendar year
thereafter, the quantity of allowances required to be held in
reserve for new units for the following 5-calendar year
period.
``(3) Allocation.--
``(A) Regulations.--The Administrator shall promulgate
regulations to establish a methodology for allocating
allowances to new units.
``(B) No judicial review.--An allocation of allowances by
the Administrator under this subsection shall not be subject
to judicial review.
``(d) Existing Units.--
``(1) Allocation.--
``(A) Regulations.--Subject to the annual tonnage
limitation for emissions of sulfur dioxide from affected
units specified in section 702(a), and subject to the reserve
of allowances for new units under subsection (c), the
Administrator shall promulgate regulations to govern the
allocation of allowances to affected units that are not new
units.
``(B) Required elements.--The regulations shall provide
for--
``(i) the allocation of allowances on a fair and equitable
basis between affected units that received allowances under
section 405 and affected units that are not new units and
that did not receive allowances under that section, using for
both categories of units the same or similar allocation
methodology as was used under section 405; and
``(ii) the pro-rata distribution of allowances to all units
described in clause (i), subject to the annual tonnage
limitation for emissions of sulfur dioxide from affected
units specified in section 702(a).
``(2) Timing of allocations.--The Administrator shall
allocate allowances to affected units--
``(A) not later than December 31, 2004, for calendar year
2008; and
``(B) not later than December 31 of calendar year 2005 and
each calendar year thereafter, for the fourth calendar year
that begins after that December 31.
``(3) No judicial review.--An allocation of allowances by
the Administrator under this subsection shall not be subject
to judicial review.
``(e) Western Regional Air Partnership.--
``(1) Definitions.--In this subsection:
``(A) Covered state.--The term `covered State' means each
of the States of Arizona, California, Colorado, Idaho,
Nevada, New Mexico, Oregon, Utah, and Wyoming.
``(B) Covered year.--The term `covered year' means--
``(i)(I)(aa) the third calendar year after the first
calendar year in which the Administrator determines by
regulation that the total of the annual emissions of sulfur
dioxide from all affected units in the covered States is
projected to exceed 271,000 tons in calendar year 2018 or any
calendar year thereafter; but
``(bb) not earlier than calendar year 2016; or
``(II) if the Administrator does not make the determination
described in subclause (I)(aa)--
``(aa) the third calendar year after the first calendar
year with respect to which the total of the annual emissions
of sulfur dioxide from all affected units in the covered
States first exceeds 271,000 tons; but
``(bb) not earlier than calendar year 2021; and
``(ii) each calendar year after the calendar year
determined under clause (i).
[[Page S10705]]
``(2) Maximum emissions of sulfur dioxide from each
affected unit.--In each covered year, the emissions of sulfur
dioxide from each affected unit in a covered State shall not
exceed the number of allowances that are allocated under
paragraph (3) and held by the affected unit for the covered
year.
``(3) Allocation of allowances.--
``(A) In general.--Not later than January 1, 2013, the
Administrator shall promulgate regulations to establish--
``(i) a methodology for allocating allowances to affected
units in covered States under this subsection; and
``(ii) the timing of the allocations.
``(B) No judicial review.--An allocation of allowances by
the Administrator under this paragraph shall not be subject
to judicial review.''.
(b) Definition of Allowance.--Section 402 of the Clean Air
Act (relating to acid deposition control) (42 U.S.C. 7651a)
is amended by striking paragraph (3) and inserting the
following:
``(3) Allowance.--The term `allowance' means an
authorization, allocated by the Administrator to an affected
unit under this title, to emit, during or after a specified
calendar year, a quantity of sulfur dioxide determined by the
Administrator and specified in the regulations promulgated
under section 417(b).''.
(c) Technical Amendments.--
(1) Title IV of the Clean Air Act (relating to noise
pollution) (42 U.S.C. 7641 et seq.)--
(A) is amended by redesignating sections 401 through 403 as
sections 801 through 803, respectively; and
(B) is redesignated as title VIII and moved to appear at
the end of that Act.
(2) The table of contents for title IV of the Clean Air Act
(relating to acid deposition control) (42 U.S.C. prec. 7651)
is amended by adding at the end the following:
``Sec. 417. Revisions to sulfur dioxide allowance program.''.
SEC. 6. RELATIONSHIP TO OTHER LAW.
(a) Exemption From Hazardous Air Pollutant Requirements
Relating to Mercury.--Section 112 of the Clean Air Act (42
U.S.C. 7412) is amended--
(1) in subsection (f), by adding at the end the following:
``(7) Mercury emitted from certain affected units.--Not
later than 8 years after the date of enactment of this
paragraph, the Administrator shall carry out the duties of
the Administrator under this subsection with respect to
mercury emitted from affected units (as defined in section
701).''; and
(2) in subsection (n)(1)(A)--
(A) by striking ``(A) The Administrator'' and inserting the
following:
``(A) Study, report, and regulations.--
``(i) Study and report to congress.--The Administrator'';
(B) by striking ``The Administrator'' in the fourth
sentence and inserting the following:
``(ii) Regulations.--
``(I) In general.--The Administrator''; and
(C) in clause (ii) (as designated by subparagraph (B)), by
adding at the end the following:
``(II) Exemption for certain affected units relating to
mercury.--An affected unit (as defined in section 701) that
would otherwise be subject to mercury emission standards
under subclause (I) shall not be subject to mercury emission
standards under subclause (I) or subsection (c).''.
(b) Temporary Exemption From Visibility Protection
Requirements.--Section 169A(c) of the Clean Air Act (42
U.S.C. 7491(c)) is amended--
(1) in paragraph (3), by striking ``this subsection'' and
inserting ``paragraph (1)''; and
(2) by adding at the end the following:
``(4) Temporary exemption for certain affected units.--An
affected unit (as defined in section 701) shall not be
subject to subsection (b)(2)(A) during the period--
``(A) beginning on the date of enactment of this paragraph;
and
``(B) ending on the date that is 20 years after the date of
enactment of this paragraph.''.
(c) No Effect on Other Federal and State Requirements.--
Except as otherwise specifically provided in this Act,
nothing in this Act or an amendment made by this Act--
(1) affects any permitting, monitoring, or enforcement
obligation of the Administrator of the Environmental
Protection Agency under the Clean Air Act (42 U.S.C. 7401 et
seq.) or any remedy provided under that Act;
(2) affects any requirement applicable to, or liability of,
an electric generating facility under that Act;
(3) requires a change in, affects, or limits any State law
that regulates electric utility rates or charges, including
prudency review under State law; or
(4) precludes a State or political subdivision of a State
from adopting and enforcing any requirement for the control
or abatement of air pollution, except that a State or
political subdivision may not adopt or enforce any emission
standard or limitation that is less stringent than the
requirements imposed under that Act.
Mr. CHAFEE. Mr. President, I am pleased to join with Senator Carper
today to introduce the Clean Air Planning Act of 2002. Congress needs
to advance four pollutant legislation that offers the best chance for
broad bipartisan support, and I believe this bill meets that test. The
testimony received through hearings in the Environment and Public Works
Committee over the past several years has clearly outlined the need for
controlling the major emissions from power plants, sulfur dioxide,
nitrogen oxide, mercury and carbon dioxide, while at the same time
recognizing the added costs of these new controls. We know through
experience that we will only be successful at passing legislation if we
find middle ground.
The relationship of fossil fuels to global warming is clear and
scientifically validated. The release of the ``U.S. Climate Action
Report 2002'' by the Administration in May tells us we need to take
real actions toward solving the problem. The longer we wait, the harder
this problem will be to solve. The Rio Convention is a perfect example
of why waiting is not reasonable. In 1992, we agreed to voluntarily
reduce harmful emissions to 1990 levels. It didn't happen. Now, in 2002
we are told that reductions to 1990 levels will stall the economy. If
we wait much longer before taking any action, imagine how much harder
it will be to achieve real reductions without harming the economy.
I am a co-sponsor of Senator Jeffords' bill, S. 556, and I voted for
it in the Environment and Public Works Committee. However, I believe
that Carper-Chafee will ultimately enjoy broader support. Our bill
would achieve significant reductions in a more cost effective way than
other proposals. For sulfur dioxide, nitrogen oxide, and mercury, we
will establish emission caps that are superior to reductions that can
be achieved under the existing Clean Air Act. In addition, for the
first time, we will ensure that we achieve real reductions of carbon
dioxide emissions.
Many predicted that the passage of S. 556 from the Committee would
create a stalemate on this important issue. I believe that the Carper-
Chafee bill offers a real opportunity to break the stalemate and begin
an honest debate that will eventually lead to enactment of strong
legislation. I look forward to working with all of my colleagues as we
move forward to pass a bill that enjoys the broadest support and
adequately addresses the serious health, environmental, and economic
issues facing the nation.
______
By Mr. LEAHY:
S. 3137. A bill to provide remedies for retaliation against
whistleblowers making congressional disclosures; to the Committee on
Governmental Affairs.
Mr. LEAHY. Mr. President, I rise to introduce the Congressional
Oversight Protection Act of 2002. The 107th Congress has truly been the
Congress of the whistleblower. From Sherron Watkins who helped expose
many of the misdeeds at Enron, to FBI Special Agent Coleen Rowley and
others who brought needed public attention to some of the shortcomings
of the FBI prior to 9-11, we have been eyewitness to the value of
getting the inside story.
The 107th Congress has also been one of rejuvenated bipartisan
oversight. On the Judiciary Committee we convened the first series of
comprehensive bipartisan FBI oversight hearings in decades after I
assumed the Chairmanship. The Joint Intelligence Committee is now
conducting bipartisan hearings to ascertain what shortcomings on the
part of our intelligence community need to be corrected so as not to
allow the 9-11 terrorist attacks to recur. The Senate Banking Committee
conducted extensive oversight of the SEC and its relationship with the
accounting industry, to ascertain whether a new regulatory scheme was
required. Both the Senate and House Judiciary Committees are attempting
to ascertain how the new powers we provided in the USA PATRIOT Act are
being used. These are only a few examples.
We have all been the beneficiaries of such increased oversight and
the courage of the whistleblowers who provided information as part of
that effort, because their revelations have led to important reforms.
The Enron scandal and the subsequent hearings led to the most extensive
corporate reform legislation in decades, including the criminal
provisions and the first ever corporate whistleblower protections from
S. 2010, the Corporate Fraud and Criminal Accountability Act, that I
authored. The testimony of the rank and file FBI agents that we heard
on the Judiciary Committee helped us to craft
[[Page S10706]]
the bipartisan FBI Reform Act, S. 1974. This legislation, which
included enhanced whistleblower protections, was reported unanimously
to the full Senate in April but is being blocked by an anonymous
Republican hold. The same day as Coleen Rowley's nationally televised
testimony before the Judiciary Committee, President Bush not only
reversed his previous opposition to establishing a new cabinet level
Department of Homeland Security, but gave a national address calling
for the largest government reorganization in 50 years. In the last year
we have learned once again that the public as a whole benefits from a
lone voice in the government.
Unfortunately, the people who very rarely benefit from these
revelations are the whistleblowers themselves. We have heard testimony
in oversight hearings on the Judiciary Committee that there is quite
often retaliation against those who raise public awareness about
problems within large organizations even to Congress. Sometimes the
retaliation is overt, sometimes it is more subtle and invidious, but it
is almost always there. The law needs to protect the people who risk so
much to protect us and create a culture that encourages employees to
report waste, fraud, and mismanagement.
For those who provide information to Congress, that protection is a
hollow promise. On one hand, the law is very clear that it is illegal
to interfere with or deny, ``the right of employees, individually or
collectively, to petition Congress or a Member of Congress, or to
furnish information to either House of Congress, or to a committee or
Member thereof . . .'' See 18 U.S.C. Sec. 7211. Amazingly, however,
this simple provision is a right without a remedy. Employees who are
retaliated against for providing information to Congress cannot pursue
any avenue of redress to protect their statutory rights. The only
exception to this applies to employees of publicly traded companies,
who are now covered by the whistleblower provision included in the
Sarbanes-Oxley Act that we passed this year. Thus, under current law,
government whistleblowers reporting to Congress have less protection
than private industry whistleblowers.
This bill would merely correct this anomaly by providing government
employees that come to Congress with the right to bring an action in
court when they suffer the type of retaliation already prohibited under
the law. Thus, it does not create new statutory rights, but merely
provides a statutory remedy for existing law. That way, we can promise
future whistleblowers who come before Congress that their right to
access the legislative branch is not an illusion. We can also assure
the public at large that our future efforts at Congressional oversight
and improving the functions of government will be effective. This
legislation is strongly supported by leading whistleblower groups,
including the National Whistleblower Center and the Government
Accountability Project, and I ask unanimous consent that their letters
of support be printed in the Record.
For all these reasons, I urge swift passage of this legislation. I
ask unanimous consent that the text of this bill be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 3137
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 ``Congressional Oversight
Protection Act of 2002''.
SEC. 2. PROVIDING REMEDIES FOR RETALIATION AGAINST
WHISTLEBLOWERS MAKING CONGRESSIONAL
DISCLOSURES.
Section 7211 of title 5, United States Code, is amended--
(1) by inserting ``(a)'' before ``The right''; and
(2) by adding at the end the following:
``(b) Any employee aggrieved by the discrimination of an
employer in violation of subsection (a) may bring an action
at law or equity for de novo review in the appropriate
district court of the United States, which shall have
jurisdiction over an action under this subsection, without
regard to the amount in controversy.
``(c) Any employee prevailing in an action under this
section shall be entitled to all relief necessary to make the
employee whole, including--
``(1) reinstatement with the same seniority status that the
employee would have had but for the discrimination;
``(2) the amount of back pay lost as a result of the
discrimination, with interest;
``(3) compensation for any special damages sustained as a
result of the discrimination, including litigation costs,
expert witness fees, and reasonable attorney fees; and
``(4) punitive damages, in appropriate cases.
``(d) Upon the request of the complainant, any action under
this section shall be tried by the court with a jury.
``(e) The same legal burdens of proof in proceedings under
this section shall apply as apply under sections
1214(b)(4)(B) and 1221(c) in the case of any alleged
prohibited personal practice described in section 2302(b)(8).
``(f) For purposes of this section, the term `employee'
means an individual (as defined by section 2105) and any
individual or organization performing services under a
contract with the Government (including as an employee of an
organization).''.
____
National Whistleblower Center,
Washington, DC, October 16, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Chairman Leahy: I am writing to strongly support your
legislation, the Congressional Oversight Protection Act of
2002. The National Whistleblower Center (Center) is the pre-
eminent national organization that promotes effective
measures to protect whistleblowers who come forward in the
public interest at great risk to their careers. In that
regard, your introduction of this bill once again
demonstrates your leadership in understanding the importance
of whistleblowing and its role in our democratic process, and
the Center is pleased to support your bill and work hard to
achieve its swift passage.
In the wake of the events of 9/11, the stakes have been
raised for Congress to perform the most effective oversight
of the federal government. To do so, Congress must have
unfettered access to information. And that means that
citizens in both the public and private sectors must be free
to come forward to Congress with proper disclosures without
the fear of retaliation. Under current law, citizens have the
right to make disclosures to Congress, but there is no remedy
for them to protect their rights in the event of retaliation.
Your bill would provide such a remedy and, in doing so, would
put government whistleblowers on a par with whistleblowers in
publicly-held companies who have such protections under the
newly-passed Sarbanes-Oxley Act.
This year, the concept and importance of whistleblowing has
been etched indelibly on the minds of the public, thanks to
congressional investigations into Enron and other companies,
thanks to the joint investigation into intelligence lapses in
the government, and thanks to extensive media coverage of
these matters. The public's appreciation for the necessity of
whistleblowers and whistleblower protections creates an
atmosphere conducive to passing the Congressional Oversight
Protection Act at the earliest possible time. Your leadership
in trying to fill an important void in whistleblower law
should be commended and hailed by all those who support
``good government.''
Once again, thank you for your continued leadership on this
and other whistleblower issues throughout the 107th Congress.
Please feel free to call on the Center to work together to
pass this bill.
Respectfully,
Kris J. Kolesnik,
Executive Director.
____
Government Accountability Project,
Washington, DC, October 17, 2002.
Hon. Patrick Leahy,
Chairman, Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Dear Chairman Leahy: This letter is to express unqualified
appreciation for introduction of the Congressional Oversight
Protection Act, providing access to jury trials in court for
federal whistleblowers and others who bear witness through
disclosures to Congress. This legislation reflects leadership
to close an inherent flaw that has prejudiced even the best
administrative law remedial systems. Administrative boards do
not have the judicial independence or resources for high-
stakes, politically sensitive whistleblower disputes with
national consequences. Ironically, those type of disputes are
the primary, most significant reason for enacting
whistleblower protection laws.
The legislation puts teeth into the congressional right to
know law, the Lloyd LaFollette Act of 1912. (5 USC 7211) That
law's purpose is simple, and fundamental--to protect the free
flow of information to Congress. It prohibits discrimination
for communicating with Congress. It was passed in response to
presidential gag orders that had imposed prior approval
before federal employees could communicate with Congress.
Flood statements before passage emphasized the free flow of
information as the lifeblood for Congress to carry out its
mission. The need is even greater when freedom of speech
means the freedom to warn Congress of national security
breakdowns, before the public suffers the consequences again.
Unfortunately, Congress failed to specifically provide
access to court to enforce Lloyd LaFollette rights. As a
result, it has been a right without a remedy. That means it
is of little more than rhetorical significance, and no
benefit to reprisal victims. Since 1912, 54 whistleblowers
have tried to assert their rights under this law. Fifty three
cases were dismissed for lack of jurisdiction. Consistently
the explanation is that
[[Page S10707]]
the statute did not provide the court with jurisdiction as
authority to act. The bill's purpose is to strengthen
Congress' right to know--a prerequisite for informed
oversight. The bill's strategy is to provide reinforced
protection, beyond normal civil service remedies, for those
who choose to communicate through and work with Congress.
There should be no question of the need for reinforced
protection of congressional whistleblowers. The system of
administrative civil service hearings was never designed for
major public policy disputes involving high stakes national
consequences and active congressional oversight. The
Administrative Judges who hear the cases have no judicial
independence and know they will be treated like
whistleblowers if they rule for those challenging politically
powerful government officials. As a result, those hearing
officers treat significant whistleblower cases like poison
ivy. Consistently, the administrative process has been a
black hole for politically significant disputes, with
decisions regularly not being finalized for years, and one
case still pending after 11 years. In a significant
environmental dispute involving millions of dollars in timber
theft, four Forest Service employees are still waiting for
their day in court after six years.
After lessons learned from the FBI's Coleen Rowley, it is
beyond credible debate that whistleblowers can make a major
contribution toward preventing another 9/11. Analogous
frustrations of Border Patrol, Customs Service, Department of
Energy, Federal Bureau of Investigation, Federal Aviation
Administration and the Nuclear Regulatory Commission
whistleblowers illustrate an unmistakable pattern of ignoring
or silencing patriots on the front lines of homeland
security. As our nation's modern Paul Reveres, whistleblowers
are invaluable as an early warning signal to prevent
avoidable disasters.
It should also be clear, however, that this legislation is
a necessity to strengthen homeland security. It will not
solve the complex problems of the civil service system. But
it will give whistleblowers a credible remedy for the first
time in eight years, if they work with Congress. Increasingly
whistleblowers have been lionized for their bravery, but that
is no substitute for genuine, enforceable rights. Indeed, the
praise can ring cynically hollow to those whose careers are
in ashes for doing their duty. It is unrealistic to expect
whistleblowers to defend the public, if they cannot defend
themselves. Profiles in Courage are the exception, not the
rule. If successful, your initiative to add rights matching
the rhetoric supporting whistleblowers will be a good
government breakthrough.
Sincerely,
Tom Devine,
Legal Director.
______
By Mr. DOMENICI:
S. 3138. A bill to authorize the Secretary of the Interior, in
cooperation with the University of New Mexico, to construct and occupy
a portion of the Hibben Center for Archaeological Research at the
University of New Mexico, and for other purposes; to the Committee on
Energy and Natural Resources.
Mr. DOMENICI. Mr. President, I rise to introduce a bill that would
authorize the Secretary of the Interior to help construct and occupy
part of the Hibben Center for Archaeological Research at the University
of New Mexico. This bill will help the University of New Mexico finish
a state of the art museum facility to store, and display the National
Park Service's Chaco Collection.
Let me give you a bit of background. In 1907, Theodore Roosevelt
founded the Chaco Canyon Culture National Historical Park in
Northwestern New Mexico. The Monument was created to preserve the
extensive prehistoric pueblo ruins in Chaco Canyon.
The height of the Chaco culture began in the mid 800's and lasted
over 300 years. People built dozens of complex multi-storied masonry
buildings containing hundreds of rooms. These complexes were connected
to communities by a network of prehistoric roads. I helped to establish
the Chaco Culture National Historic Park to preserve these areas.
Since 1907, the University of New Mexico and the National Park
Service have been partners in this area. From 1907 to 1949, the
University owned the land within the Park boundaries. During this
period, Dr. Frank Hibben excavated in Chaco Canyon and remained
interested in the area throughout his long career. The University built
a large collection of artifacts that it retains today.
In 1949, the University deeded the land to the Federal Government,
and since that time, the University and the Park Service have continued
a partnership through a series of memoranda of understanding. Since
1985, the NPS Chaco collections have been housed at University of New
Mexico's Maxwell Museum of Anthropology. As both the University of New
Mexico and the National Park Service collections have begun to grow, a
new home for them is needed.
To this end, Dr Hibben began planning a new research and curation
facility at the University of New Mexico. He asked the Park Service to
partner with him on this project, and today, construction of the Hibben
center, a modern, professional facility to house the University of New
Mexico's collections as well as the Park Service collections is a
reality.
Dr. Hibben recently passed away, and left the University of New
Mexico the funds to assist with this project. The partnership between
the Park Service and the University will mean that the Hibben center
will hold a world-class collection and will facilitate and encourage
the study of these important Southwestern collections.
This bill will provide authorization to pay for the Federal share of
the improvement costs to the Hibben Center. This bill is long overdue,
and will honor both the legacy of Dr. Hibben and the Chaco Culture.
I urge my colleagues to support this important piece of legislation.
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. 3138
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 ``Hibben Center for
Archaeological Research Act of 2002''.
SEC. 2. FINDINGS.
Congress finds that--
(1) when the Chaco Culture National Historical Park was
established in 1907 as the Chaco Canyon National Monument,
the University of New Mexico owned a significant portion of
the land located within the boundaries of the Park;
(2) during the period from the 1920's to 1947, the
University of New Mexico conducted archaeological research in
the Chaco Culture National Historical Park;
(3) in 1949, the University of New Mexico--
(A) conveyed to the United States all right, title, and
interest of the University in and to the land in the Park;
and
(B) entered into a memorandum of agreement with the
National Park Service establishing a research partnership
with the Park;
(4) since 1971, the Chaco Culture National Historical Park,
through memoranda of understanding and cooperative agreements
with the University of New Mexico, has maintained a research
museum collection and archive at the University;
(5) both the Park and the University have large,
significant archaeological research collections stored at the
University in multiple, inadequate, inaccessible, and cramped
repositories; and
(6) insufficient storage at the University makes research
on and management, preservation, and conservation of the
archaeological research collections difficult.
SEC. 3. DEFINITIONS.
In this Act:
(1) Hibben center.--The term ``Hibben Center'' means the
Hibben Center for Archaeological Research to be constructed
at the University under section 4(a).
(2) Park.--The term ``Park'' means the Chaco Culture
National Historical Park in the State of New Mexico.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(4) Tenant improvement.--The term ``tenant improvement''
includes--
(A) finishing the interior portion of the Hibben Center
leased by the National Park Service under section 4(c)(1);
and
(B) installing in that portion of the Hibben Center--
(i) permanent fixtures; and
(ii) portable storage units and other removable objects.
(5) University.--The term ``University'' means the
University of New Mexico.
SEC. 4. HIBBEN CENTER FOR ARCHAEOLOGICAL RESEARCH.
(a) Establishment.--The Secretary may, in cooperation with
the University, construct and occupy a portion of the Hibben
Center for Archaeological Research at the University.
(b) Grants.--
(1) In general.--The Secretary may provide to the
University a grant to pay the Federal share of the
construction and related costs for the Hibben Center under
paragraph (2).
(2) Federal share.--The Federal share of the construction
and related costs for the Hibben Center shall be 37 percent.
(3) Limitation.--Amounts provided under paragraph (1) shall
not be used to pay any costs to design, construct, and
furnish the tenant improvements under subsection (c)(2).
(c) Lease.--
(1) In general.--Before funds made available under section
5 may be expended for
[[Page S10708]]
construction costs under subsection (b)(1) or for the costs
for tenant improvements under paragraph (2), the University
shall offer to enter into a long-term lease with the United
States that--
(A) provides to the National Park Service space in the
Hibben Center for storage, research, and offices; and
(B) is acceptable to the Secretary.
(2) Tenant improvements.--The Secretary may design,
construct, and furnish tenant improvements for, and pay any
moving costs relating to, the portion of the Hibben Center
leased to the National Park Service under paragraph (1).
(d) Cooperative Agreements.--To encourage collaborative
management of the Chacoan archaeological objects associated
with northwestern New Mexico, the Secretary may enter into
cooperative agreements with the University, other units of
the National Park System, other Federal agencies, and Indian
tribes for--
(1) the curation of and conduct of research on artifacts in
the museum collection described in section 2(4); and
(2) the development, use, management, and operation of the
portion of the Hibben Center leased to the National Park
Service under subsection (c)(1).
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated--
(1) to pay the Federal share of the construction costs
under section 4(b), $1,574,000; and
(2) to pay the costs of carrying out section 4(c)(2),
$2,198,000.
(b) Availability.--Amounts made available under subsection
(a) shall remain available until expended.
(c) Reversion.--If the lease described in section 4(c)(1)
is not executed by the date that is 2 years after the date of
enactment of this Act, any amounts made available under
subsection (a) shall revert to the Treasury of the United
States.
______
By Mr. SESSIONS (for himself, Mr. Grassley, and Mr. Leahy):
S. 3139. A bill to provide a right to be heard for participants and
beneficiaries of an employee pension benefit plan of a debtor in order
to protect pensions of those employees and retirees; to the Committee
on the Judiciary.
Mr. SESSIONS. Mr. President, I rise today to introduce The Employee
Pension Bankruptcy Protection Act of 2002. Today, when a company
declares bankruptcy, it is often the employees and retirees who suffer.
They suffer because they often loose their hard earned pensions and
retirement benefits during the bankruptcy process. This is simply not
right. When Americans loose the pensions and benefits that they have
worked a lifetime to earn, it is the responsibility of the members of
this body to take notice and to act to protect them.
The bill I introduce today does one very simple thing it gives
employees and retirees the right to request that they be represented
before the bankruptcy court, the same kind of representation that
protects the rights of others that are owed money by the corporation.
Under this bill, a representative of the employees and retirees can
appear and be heard if it is likely that the employee benefit pension
plan of the bankrupt corporation will be terminated or substantially
underfunded and if it is possible that the beneficiaries of the plan
will be adversely affected.
By allowing employees and retirees to be represented before the
bankruptcy court, we will ensure that the bankruptcy court hears from
the people who entrusted their retirement savings to their employer.
Employees and retirees will be able to argue to the court that any
division of assets or bankruptcy plan must be fair to the pensioners.
The needs of the corporation's employees and retirees should be heard
BEFORE the assets of a bankrupt corporation are split up among
creditors and lost forever. They deserve to have their day in court.
It has only recently been brought to my attention that under current
law, employees and retirees are not represented before the bankruptcy
court as creditors. Legally, the pension fund is the ``creditor'' of
the corporation, not the employees and retirees. Thus, the pension
interests of employees and retirees are represented in the bankruptcy
process by a trustee of the pension, if one exists, or by the PBGC, if
it takes over the pension fund.
Because PBGC, under its governing statutes, can not guarantee the
full benefits of the pension plan, but can only guarantee the statutory
amount, significant portions of hard earned pensions can remain unpaid
when a company goes bankrupt. While the PBGC is often able to pay most
of the pension benefits when a company goes bankrupt, in certain cases
the statutory limit can be much lower than the pension payment the
employee or retiree was promised by the corporation. Employees and
retirees deserve more than this. They deserve the additional
representation before the bankruptcy court that this bill provides if
their hard earned pensions and retiree benefits are to be adequately
protected.
I would like to thank Mr. John Nichols of Gadsden, AL, and his son,
Phil for bringing this to my attention. The ordeal faced by Mr.
Nichols, is a prime example of why employees and retirees need more
representation before the bankruptcy court. Mr. Nichols spent his
entire career at a steel plant in Gadsden. He began working for
Republic Steel in 1956 and stayed with the company through two
ownership changes and a buyout by LTV Steel.
When LTV bought out Mr. Nichols employers, LTV Steel took over the
monthly pension payments guaranteed to the former employees and
retirees of Republic Steel, including Mr. Nichols. Soon after the
takeover, however, LTV filed for bankruptcy, claiming that it could
no longer make pension payments to Republic Steel's former employees.
PBGC, the Pension Benefit Guarantee Corporation stepped in to help LTV
make a small part of the pension payments, but LTV eventually stopped
making payments at all.
Because all the payments LTV had been making were not guaranteed by
the PBGC, the long awaited pension payments earned by Mr. Nichols and
by Republic Steel's other loyal employees were severely reduced. Mr.
Nichols' pension payments went from $2,225.00 to $675.00--only 30
percent of what he had been promised. A third of this payment now
covers Mr. Nichols' health insurance premium that he can no longer
purchase through LTV, leaving him with only 20 percent of his promised
pension each month. PBGC could only pay the retirees the amount their
statute allowed, and no one had the responsibility of going to the
bankruptcy court and telling them what was happening to the retirees of
Republic Steel. PBGC itself recognized that the claims of the
pensioners against LTV, ``are among the many claims that will probably
never be paid, except perhaps in cents on the dollar'' and stated that
PBGC's claim against LTV for the pension plan underfunding was perhaps
``[t]he largest of these claims [that will go unpaid].''
During LTV's bankruptcy case, various creditors were represented
before the bankruptcy court, but not the employees and retirees. Thus,
when the assets of LTV were divided among its creditors, employees and
the retirees were not at the table. If the employees and retirees had
had an opportunity to make their case before the bankruptcy judge, the
result could have been different.
The Employee Pension Bankruptcy Protection Act of 2002 seeks to make
sure that what happened to the retirees of Republic Steel will never
happen again, employees and retirees will never be deprived of their
pensions without having their day in court. While a company may still
be able to discharge its obligation to pay pensioners in bankruptcy,
this bill at least takes the first modest step to protect pensioners by
providing them the opportunity to be part of the bankruptcy bargaining
process. Before the bankruptcy court sells assets or adopts a plan of
reorganization, the employees and retirees will be heard. After all, it
is their money. This is only fair.
I strongly urge my colleagues in the Senate to support this bill and
to work with me to further ensure that employees and retirees of
corporations are fairly treated and protected under the United States
Bankruptcy Code.
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. 3139
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 ``Employee Pension Bankruptcy
Protection Act of 2002''.
SEC. 2. PURPOSE AND INTENT.
The purpose and intent of this Act is to provide employees
and retirees with a greater likelihood of having outstanding
pension
[[Page S10709]]
liabilities paid by a corporation that files for bankruptcy
by allowing the employees and retirees of that corporation
the right to be heard before the bankruptcy court.
SEC. 3. RIGHT TO BE HEARD.
Section 1109 of title 11, United States Code, is amended by
adding at the end the following:
``(c) In a case in which the debtor is the sponsor of an
employee pension benefit plan pursuant to section 3(2) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1002(2)), and such plan is likely to be terminated pursuant
to title IV of that Act or substantially underfunded by the
debtor resulting in a hardship to the participants or
beneficiaries, a representative of the participants (as
defined in section 3(7) of that Act) and beneficiaries (as
defined in section 3(8) of that Act) who are entitled to
benefits under such plan and who may be adversely affected by
events in the case, may appear and be heard with respect to a
sale of all or substantially all of the assets of the debtor
or with respect to a plan of reorganization, provided that
such participants and beneficiaries may employ counsel and
other professionals who shall be compensated from the estate
of the debtor.''.
______
By Mr. DODD (for himself and Ms. Collins):
S. 3140. A bill to assist law enforcement in their efforts to recover
missing children and to clarify the standards for State sex offender
registration programs; to the Committee on the Judiciary.
Mr. DODD. Mr. President, I am pleased to join with my colleague from
Maine, Senator Collins to introduce the Prevention and Recovery of
Missing Children Act of 2002, to improve the recovery of missing
children and the tracking of convicted sexual offenders and child
predators.
Sexual offenders pose an enormous challenge for policy makers. They
create unparalleled fear among citizens, and most of their victims are
children and youth. Two-thirds of imprisoned sex offenders report that
their victims were under age 18, and nearly half report that their
victims are ages 12 and younger.
Last year, several newspapers across the country, including the
Hartford Courant, highlighted the inadequacy of reporting information
in missing child cases and the lack of tracking of convicted sex
offenders and known child predators. One tragic example reported a
convicted sex offender who moved from Massachusetts to Montana, where
police were never contacted about his history. He brutally murdered
several Montana children before he was apprehended, and was later
linked to 54 cases of child abduction and molestation in several
States. In many cases, convicted sex offenders and child predators slip
through law enforcement loopholes and continue to prey on children.
Over the last decade, Congress enacted several laws designed to
improve the tracking of convicted sex offenders and improve the
recovery of missing children, including The Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act of
1994; Megan's Law of 1996; and The Pam Lyncher Sex Offender Tracking
and Identification Act of 1996. Collectively, these acts established
minimum standards for State sex offender registration programs and
created systems to track convicted sex offenders.
While these current Federal laws address the main features of an
effective registry system, the discretion over registry details and
procedures is left up to the States. This has led to a lack of
consistency and wide disparities between States. For example, State
requirements for sex offender notification of registration changes
range from 1 day to 40 days, and State requirements for a sex offender
to register an address after moving to a new State range from 48 hours
to 70 days.
In addition, many States place the burden to notify changes in
registry information solely on the sex offender. We need to tighten
registry systems so that law enforcement in all States is better
equipped to track sexual offenders. This bill strengthens the registry
foundation for all States built upon the practices already in place in
some States. It builds on successful practices to better protect our
communities nationwide.
The tracking of released sex offenders is critical to protecting our
children. Most sex offenders are not in prison, about 60 percent of
convicted sex offenders are under conditional supervision in the
community, and those who are in prison often serve limited sentences.
This is of great concern because sex offenders, particularly if
untreated, are at risk of re-offending.
This bill makes several important changes to improve the tracking of
sex offenders and the recovery of missing children. The bill: amends
the definition of ``minimally sufficient program'' to include: the
registration of all convicted sex offenders prior to release; the
collection of information to assist in tracking individuals, including
a DNA sample, current photograph, driver's license and vehicle
information; and verification of address and employment information for
all offenders every 90 days; amends penalties for non-compliance with
registry requirements. It provides that State programs must designate
non-compliance as a felony and permits the issuance of a warrant. This
provision is intended to encourage compliance by offenders as well as
provide a tool for prosecutors; improves the chances for recovering
missing children and aides law enforcement in solving cases by
preventing the removal of missing children from the National Crime
Information Center (NCIC) database and making sure that convicted sex
offenders do not become exempt from the lifetime registration
requirement; improves the chances for recovery of missing children by
requiring entry of child information into the NCIC database within 2
hours.
We must make the tracking of convicted sex offenders and the post-
release supervision of child sexual predators a higher priority. It is
not enough to ensure that an offender completes his sentence.
Since most sexual offenders are in the community, we must ensure that
there is continuing contact and supervision of released sexual
offenders. We have an obligation to protect our children from sexual
offenders and sexual predators who prey on our children.
I urge my colleagues to join us in supporting this legislation.
______
By Mr. DODD (for himself, Mr. Kennedy, Mrs. Murray, Mrs. Boxer,
Mr. Inouye, Mr. Akaka, and Mr. Corzine):
S. 3141. A bill to amend the Family and Medical Leave Act of 1993 to
expand the scope of the Act, and for other purposes; to the Committee
on Health, Education, Labor, and Pensions.
Mr. DODD: Mr. President, I am pleased to join with my colleagues
Senator Kennedy, Senator Murray, Senator Boxer, Senator Inouye, Senator
Akaka, and Senator Corzine to introduce the ``Family and Medical Leave
Expansion Act.'' Since enactment in 1993, more than 35 million
Americans have taken leave under the Family and Medical Leave Act.
Despite the many Americans the Family and Medical Leave Act has
helped, too many continue to be left behind. Too many continue to have
to choose between job and family. The facts are clear: millions of
Americans remain uncovered by the Family and Medical Leave Act. And,
too many who are eligible for the Family and Medical Leave Act cannot
afford to take unpaid leave from work. The ``Family and Medical Leave
Expansion Act'' addresses both these problems.
The ``Family and Medical Leave Expansion Act'' would expand the scope
and coverage of FMLA. It would fund pilot programs at the state level
to offer partial or full wage replacement programs to ensure that
employees do not have to choose between job and family.
Times have changed over the years. More and more mothers are working.
While only 27 percent of mothers with infants were in the labor force
in 1960, by 1999 that percentage rose to nearly 60 percent. Even as
employment rates within this group rises, family responsibilities
remain constant, a reality that lies at the core of the FMLA. According
to an employee survey by the Department of Labor, about one fifth of US
workers have a need for some form of leave covered under the FMLA, and
about 40 percent of all employees think they will need FMLA-covered
leave within the next five years.
According to a Department of Labor study in 2000, leave to care for
one's own health or for the health of a seriously ill child, spouse or
parent, together account for almost 80 percent of all FMLA leave.
Approximately 52 percent of the leave taken is due to employees' own
serious health problems, while 26 percent of the leave is taken
[[Page S10710]]
by young parents caring for their children at birth or adoption.
The FMLA requires that all public sector employers and private
employers of 50 or more employees provide up to twelve weeks of unpaid
leave for medical and family care reasons for eligible employees. About
77 percent of employees, in the private and public sector, currently
work in FMLA-covered sites, although only 62 percent of employees are
actually eligible for leave.
However, only 11 percent of private sector work sites are covered
under FMLA. Individuals working for small private employers deserve the
same work protections afforded to other employees. As a step toward
expanding protection to all hard-working Americans, this bill would
extend FMLA coverage to all private sector worksites with 25 or more
employees within a 75-mile radius.
Mothers and fathers, sons and daughters have the same family
responsibilities and personal health problems, regardless of whether
they work for the government, a large private enterprise, or a small
private business. Expanding the FMLA to businesses with 25 or more
employees is a crucial acknowledgment of this reality.
The bill recognizes the enormous physical and emotional toll domestic
violence takes on victims. The bill expands the scope of FMLA to
include leave for individuals to care for themselves or to care for a
daughter, son, or parent suffering from domestic violence.
Expanding the scope and coverage of FMLA is a positive step for many
Americans. But, alone, it is not enough. According to a Department of
Labor study, 3.5 million covered Americans needed leave but, without
wage replacement, could not afford to take leave. Over four-fifths of
those who needed leave but did not take it said they could not afford
unpaid leave. Others cut their leave short, with the average duration
of FMLA leave being 10 days. Of those individuals taking leave under
the Family and Medical Leave Act, nearly three-quarters had incomes
above $30,000.
While the financial sacrifice is often enormous, the need for leave
can be even more so. Every year, many Americans bite the bullet and
accept unpaid leave. As a result, nine percent of leave takers go on
public assistance to cover their lost wages. Almost twelve percent of
female leave takers use public assistance for this reason. These
individuals are far from unwilling to work. Instead, they are trying to
balance work with family, often during a crisis, too often with
inadequate means to get by.
Other major industrialized nations have implemented policies far more
family-friendly to promote early childhood development and family
caregiving. At least 128 countries provide paid and job-protected
maternity leave, with sixteen weeks the average basic paid leave. In
1992, before we enacted the Family and Medical Leave Act, the European
Union mandated a paid fourteen week maternity leave as a health and
safety measure. Among the 29 Organization for Economic Cooperation and
Development, OECD, countries, the average childbirth-related leave is
44 weeks, while the average duration of paid leave is 36 weeks.
Compared to these other developed nations, the United States is far
behind in efforts to promote worker welfare and productivity. The
``Family and Medical Leave Expansion Act'' builds on current law to
provide pilot programs for states and the federal government to provide
for partial or full wage replacement for 6 weeks. At a minimum, this
will ensure that parents can continue to make ends meet while taking
family and medical leave.
No one should have to choose between work and family. Women and men
deserve to take leave when family or health conditions require it
without fear of losing their job or livelihood. We must not simply pay
lip service to family integrity and the promotion of a healthy
workplace. Instead, we must actively work to reduce workplace barriers.
I urge my colleagues to support the ``Family and Medical Leave
Expansion Act'' to promote our national values and ensure the welfare
and health of hard-working Americans.
______
By Mrs. LINCOLN:
S. 3144. A bill to amend title XVI of the Social Security Act to
clarify that the value of certain funeral and burial arrangements are
not to be considered available resources under the supplemental
security income program; to the Committee on Finance.
Mrs. LINCOLN. Mr. President, I am pleased to introduce legislation
that codifies the exclusion of irrevocable funeral trusts from
Supplemental Security Income, SSI, resource calculations.
Irrevocable funeral trusts are funds set aside for funeral and burial
expenses. These funds cannot be accessed until after the owner's death.
Until recently, these trusts were not included in SSI resource
calculations, but an administrative misinterpretation in 2001 dropped
this important exclusion.
This misinterpretation has since been corrected, but it had serious
repercussions for many senior citizens while it was in effect. When
irrevocable funeral and burial trusts were included in SSI
calculations, it penalized those SSI applicants who chose to save for
their funeral by inflating their actual individual wealth, even though
the trusts could not be accessed. The end result was that many senior
citizens' SSI applications were rejected. Because the SSI definition of
resources and exclusions is used for Medicaid eligibility
determinations, the inclusion also affected Medicaid applicants.
I am introducing this bill to codify the exclusion to give senior
citizens certainty that future administrations will not be able to
misinterpret Congressional intent.
In the past, Congress has recognized the value of funeral planning as
good social policy. We have encouraged consumers to engage in ``pre-
need'' funeral planning in a number of ways.
This legislation will encourage people to engage in pre-need
planning. It will codify the existing practice of excluding irrevocable
funeral trusts from SSI calculations and ensure that future
misinterpretations are avoided. We must ensure that people are not
penalized for providing for their own funerals. I encourage my
colleagues to give this legislation serious consideration.
______
By Mr. DODD (for himself, Mr. Edwards, and Mr. DeWine):
S. 3145. A bill to amend the Higher Education Act of 1965 to
establish a scholarship program to encourage and support students who
have contributed substantial public services; to the Committee on
Health, Education, Labor, and Pensions.
Mr. DODD. Mr. President, I rise to introduce, along with Senators
Edwards and DeWine, the Youth Service Scholarship Act. This Act would
authorize the Secretary of Education to award college scholarships of
up to $5,000 to students who perform at least 300 hours of community
service in each of two years of high school and continuing scholarships
to students who continue their service in college.
I believe that education is the hub of the wheel of our democracy.
There is no better way to address any and all of the challenges we face
as a nation than by providing all of our children with the education
they need and deserve. In the 21st Century, higher education is not a
luxury, it is a necessity, and this Act would extend access to higher
education to more low-income students who otherwise might have
difficulty attending college.
Naturally, education means reading and math and history and science,
but it also means learning to be a citizen. It's not easy to be a good
citizen, and this Act will encourage our young people to engage in
community service and reward them for that, and in so doing, will help
ensure that our next generation of leaders understands that being an
American is not just a privilege, but a responsibility.
We know that students who participate in community service and youth
development are less likely to use drugs and alcohol and to misbehave
in school, and are more likely to receive good grades and be interested
in going to college. We also know that Federal resources can be an
effective incentive to leverage broader community support.
So, I urge my colleagues to join me, and Senators Edwards and DeWine,
in supporting the Youth Service Scholarship Act so that we can achieve
more of those and other positive outcomes.
______
By Mr. LEAHY (for himself and Mrs. Carnahan):
[[Page S10711]]
S. 3146. A bill to reauthorize funding for the National Center for
Missing and Exploited Children, and for other purposes; to the
Committee on the Judiciary.
Mr. LEAHY. Mr. President, I rise today to introduce the ``Protecting
Our Children Comes First Act of 2002,'' which will double funding for
the National Center for Missing and Exploited Children, NCMEC,
reauthorize the Center through fiscal year 2006, and increase Federal
support to help NCMEC programs to find missing children across the
Nation. I am pleased that Senator Carnahan joins me as the original
cosponsor of this legislation.
It is painful to see on TV or in the newspapers photo after photo of
missing children from every corner of the Nation. As a father and
grandfather, I know that an abducted child is the worst nightmare.
Unfortunately, it is a nightmare that happens all too often. Indeed,
the Justice Department estimates that 2,200 children are reported
missing each day of the year. There are approximately 114,600 attempted
stranger abductions every year, with 3,000-5,000 of those attempts
succeeding. These families deserve the assistance of the American
people and helping hand of the Congress.
As the Nation's top resource center for child protection, the
National Center for Missing & Exploited Children spearheads national
efforts to locate and recover missing children and raises public
awareness about ways to prevent child abduction, molestation, and
sexual exploitation.
As a national voice and advocate for those too young to vote or speak
up for their own rights, the NCMEC works to make our children safer.
The Center operates under a Congressional mandate and works in
cooperation with the U.S. Department of Justice's, DOJ, Office of
Juvenile Justice and Delinquency Prevention in coordinating the efforts
of law enforcement officers, social service agencies, elected
officials, judges, prosecutors, educators, and the public and private
sectors to break the cycle of violence that historically has
perpetuated these needless crimes against children.
NCMEC professionals have disturbingly busy jobs, they have worked on
more than 90,000 cases of missing and exploited children since its 1984
founding, helping to recover more than 66,000 children, and raised its
recovery rate from 60 percent in the 1980s to 94 percent today. The
Center has set up a nationwide, toll free, 24-hour telephone hotline to
take reports about missing children and clues that might lead to their
recovery, a National Child Pornography Tipline to handle calls from
individuals reporting the sexual exploitation of children through the
production and distribution of pornography, and a CyberTipline to
process online leads from individuals reporting the sexual exploitation
of children. It has taken the lead in circulating millions of
photographs of missing children, and serves as a vital resource for the
17,000 law enforcement agencies located throughout the U.S. in the
search for missing children and the quest for child protection.
Today, NCMEC is truly a national organization, having established its
headquarters in Alexandria, VA; and operating branch offices in five
other locations throughout the country to provide hands-on assistance
to families of missing children, advocating legislative changes to
better protect children, conducting an array of prevention and
awareness programs, and motivating individuals to become personally
involved in child-protection issues. It has also grown into an
international organization, establishing the International Division of
the National Center for Missing and Exploited Children, which has been
working to fulfill the Hague Convention on the Civil Aspects of
International Child Abduction. The International Division provides
assistance to parents, law enforcement, attorneys, nonprofit
organizations, and other concerned individuals who are seeking
assistance in preventing or resolving international child abductions.
NCMEC manages to do all of this good work with only a $10 million
annual DOJ grant, which will expire after fiscal year 2003. We should
act now both to extend its authorization and increase the Center' s
funding to $20 million each year through fiscal year 2006 so that it
can continue to help keep children safe and families intact around the
nation. There is so much more to be done to ensure the safety of our
children, and the legislation we introduce today will help the Center
in its efforts to prevent crimes that are committed against them.
The ``Protecting Our Children Comes First Act'' also increases
Federal support of NCMEC programs to find missing children by allowing
the U.S. Secret Service to provide forensic and investigative support
to the NCMEC.
The bill also amends of the Missing Children's Assistance Act to
coordinate the operation of the Center's CyberTipline to provide all
online users an effective means of reporting Internet-related child
sexual exploitation, such as child pornography, child enticement, and
child prostitution. Since its creation in 1998, the NCMEC CyberTipline
has fielded almost 100,000 reports, which has allowed Internet users to
quickly and easily report suspicious activities linked to the Internet.
Our legislation gives Federal authorities the authority to share the
facts or circumstances of sexual exploitation crimes against children
with state authorities without a court order. The bill also gives the
NCMEC the power to make reports directly to state and local law
enforcement officials instead of only through the FBI and other
agencies. Finally, it provides that reports to NCMEC by Internet
Service Providers may include additional information, such as the
identity of a subscriber who sent a message containing child
pornography, in addition to the required reporting of the contents of
such a communication.
I applaud the ongoing work of the Center and hope both the Senate and
the House of Representatives will promptly pass this bill to provide
more Federal support for the NCMEC to continue to find missing children
and protect exploited children across the country.
______
By Mr. DeWINE (for himself, Mr. Leahy, Mr. Grassley, Ms.
Cantwell, Mr. Brownback, and Mr. Domenici):
S. 3147. A bill to foster local collaborations which will ensure that
resources are effectively and efficiently used within the criminal and
juvenile justice systems; to the Committee on the Judiciary.
Mr. DeWINE. Mr. President, I rise today, along with Senators Leahy,
Grassley, Cantwell, Domenici, and Brownback, to introduce the
``Mentally Ill Offender Treatment and Crime Reduction Act.'' This
bipartisan measure would, among other things, create a program of
planning and implementation grants for communities so they may offer
more treatment and other services to mentally ill offenders. Under this
bill, programs receiving grant funds would be operated collaboratively
by both a criminal justice agency and a mental health agency.
The mentally ill population poses a particularly difficult challenge
for our criminal justice system. People afflicted with mental illness
are incarcerated at significantly higher rates than the general
population. According to the Bureau of Justice Statistics, while only
about five percent of the American population has a mental illness,
about 16 percent of the State prison population has such an illness.
The Los Angeles County Jail, for example, typically has more mentally
ill inmates than any hospital in the country.
Unfortunately, however, the reality of our criminal justice system is
that jails and prisons do not provide a therapeutic environment for the
mentally ill and are unlikely to do so any time soon. Indeed, the
mentally ill inmate often is preyed upon by other inmates or becomes
even sicker in jail. Once released from jail or prison, many mentally
ill people end up on the streets. With limited personal resources and
little or no ability to handle their illness alone, they often commit
further offenses resulting in their re-arrest and re-incarceration.
This ``revolving door'' is costly and disruptive for all involved.
Although these problems tend to manifest themselves primarily within
the prison system, the root cause of our current situation is found in
the mental health system and its failure to provide sufficient
community-based treatment solutions. Accordingly, the solution will
necessarily involve collaboration between the mental health
[[Page S10712]]
system and criminal justice system. In fact, it also will require
greater collaboration between the substance abuse treatment and mental
health treatment communities, because many mentally ill offenders have
a drug or alcohol problem in addition to their mental illness.
The purpose of the ``Mentally Ill Offender Treatment and Crime
Reduction Act'' is to foster exactly this type of collaboration at the
federal, state, and local levels. The bill provides incentives for the
criminal justice, juvenile justice, mental health, and substance abuse
treatment systems to work together at each level of government to
establish a network of services for offenders with mental illness. The
bill's approach is unique, in that it not only would promote public
safety by helping curb the incidence of repeat offenders, but it also
would promote public health, by ensuring that those with a serious
mental illness are treated as soon as possible and as efficiently and
effectively as possible.
Among its major provisions, this legislation calls for the
establishment of a new competitive grant program, which would be housed
at the U.S. Department of Justice, but administered by the Attorney
General with the active involvement of the Secretary of Health and
Human Services. To ensure that collaboration occurs at the local level,
the bill requires that two entities jointly submit a single grant
application on behalf of a community.
Applications demonstrating the greatest commitment to collaboration
would receive priority for grant funds. If applicants can show that
grant funds would be used to promote public health, as well as public
safety, and if the program they propose would have the active
participation of each joint applicant, and if their grant application
has the support of both the Attorney General and the Secretary of
Health and Human Services, then it would receive priority for funding.
The bill permits grant funds to be used for a variety of purposes,
each of which embodies the goal of collaboration. First, grant funds
may be used to provide courts with more options, such as specialized
dockets, for dealing with the non-violent offender who has a serious
mental illness or a co-occurring mental illness and drug or alcohol
problem. Second, grant funds could be used to enhance training of
mental health and criminal justice system personnel, who must know how
to deal appropriately with the mentally ill offender. Third, grant
funds could be devoted to programs that divert non-violent offenders
with severe and persistent mental illness from the criminal justice
system into treatment. Finally, correctional facilities may use grant
funds to promote the treatment of inmates and ease their transition
back into the community upon release from jail or prison.
In specifically authorizing grant funds to be used to promote more
options for courts to deal with mentally ill offenders, this bill
builds on legislation that I introduced with Congressman Ted Strickland
two years ago. That measure, which became law, authorized $10 million
per year for the establishment of more mental health courts. I have
long supported mental health courts, which enable the criminal justice
system to provide an individualized treatment solution for a mentally
ill offender, while also requiring accountability of the offender. The
legislation we are introducing today would make possible the creation
or expansion of more mental health courts, and it also would promote
the funding of treatment services that support such courts.
In addition to making planning and implementation grants available to
communities, the ``Mentally Ill Offender Treatment and Crime Reduction
Act'' also calls for an Interagency Task Force to be established at the
federal level. This Task Force would include the Attorney General and
the Secretary of Health and Human Services, as well as the Secretary of
Housing and Urban Development, the Secretary of Labor, the Secretary of
Education, the Secretary of Veterans Affairs, and the Commissioner of
Social Security. The Task Force would be charged with identifying new
ways that federal departments can work together to reduce recidivism
among mentally ill adults and juveniles.
Finally, the bill directs the Attorney General and Secretary of
Health and Human Services to develop a list of ``best practices'' for
criminal justice personnel to use when diverting mentally ill offenders
from the criminal justice system.
This is a good bill and one that is long overdue. I encourage my
colleagues to support this important measure. 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. 3147
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 ``Mentally Ill Offender
Treatment and Crime Reduction Act of 2002''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) According to the Bureau of Justice Statistics, over 16
percent of adults incarcerated in United States jails and
prisons have a mental illness.
(2) According to the Office of Juvenile Justice and
Delinquency Prevention, over 20 percent of youth in the
juvenile justice system have serious mental health problems,
and many more have co-occurring mental health and substance
abuse disorders.
(3) According to the National Alliance for the Mentally
Ill, up to 40 percent of adults who suffer from a serious
mental illness will come into contact with the American
criminal justice system at some point in their lives.
(4) According to the Office of Juvenile Justice and
Delinquency Prevention, over 150,000 juveniles who come into
contact with the juvenile justice system each year meet the
diagnostic criteria for at least 1 mental or emotional
disorder.
(5) A significant proportion of adults with a serious
mental illness who are involved with the criminal justice
system are homeless or at imminent risk of homelessness; and
many of these individuals are arrested and jailed for minor,
nonviolent offenses.
(6) The majority of individuals with a mental illness or
emotional disorder who are involved in the criminal or
juvenile justice systems are responsive to medical and
psychological interventions that integrate treatment,
rehabilitation, and support services.
(7) According to the Bureau of Justice Statistics, as of
July 1999, 75 percent of mentally ill inmates had previously
been sentenced at least once to time in prison or jail or
probation.
(8) Collaborative programs between mental health, substance
abuse, and criminal or juvenile justice systems that ensure
the provision of services for those with mental illness or
co-occurring mental illness and substance abuse disorders can
reduce the number of such individuals in adult and juvenile
corrections facilities, while providing improved public
safety.
SEC. 3. PURPOSE.
The purpose of this Act is to increase public safety by
facilitating collaboration among the criminal justice,
juvenile justice, mental health treatment, and substance
abuse systems. Such collaboration is needed to--
(1) reduce rearrests among adult and juvenile offenders
with mental illness, or co-occurring mental illness and
substance abuse disorders;
(2) provide courts, including existing and new mental
health courts, with appropriate mental health and substance
abuse treatment options;
(3) maximize the use of alternatives to prosecution through
diversion in appropriate cases involving non-violent
offenders with mental illness;
(4) promote adequate training for criminal justice system
personnel about mental illness and substance abuse disorders
and the appropriate response to people with such illnesses;
(5) promote adequate training for mental health treatment
personnel about criminal offenders with mental illness and
the appropriate response to such offenders in the criminal
justice system; and
(6) promote communication between criminal justice or
juvenile justice personnel, mental health treatment
personnel, nonviolent offenders with mental illness, and
other support services such as housing, job placement,
community, and faith-based organizations.
SEC. 4. DEPARTMENT OF JUSTICE MENTAL HEALTH AND CRIMINAL
JUSTICE COLLABORATION PROGRAM.
(a) In General.--Title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is amended
by adding at the end the following:
``PART HH--ADULT AND JUVENILE COLLABORATION PROGRAM GRANTS
``SEC. 2991. ADULT AND JUVENILE COLLABORATION PROGRAMS.
``(a) Definitions.--In this section, the following
definitions shall apply:
``(1) Applicant.--The term `applicant' means States, units
of local government, Indian tribes, and tribal organizations
that apply for a grant under this section.
``(2) Collaboration program.--The term `collaboration
program' means a program to
[[Page S10713]]
promote public safety by ensuring access to adequate mental
health and other treatment services for mentally ill adults
or juveniles that is overseen cooperatively by--
``(A) a criminal justice agency, a juvenile justice agency,
or a mental health court; and
``(B) a mental health agency.
``(3) Criminal or juvenile justice agency.--The term
`criminal or juvenile justice agency' means an agency of a
State or local government that is responsible for detection,
arrest, enforcement, prosecution, defense, adjudication,
incarceration, probation, or parole relating to the violation
of the criminal laws of that State or local government.
``(4) Diversion.--The term `diversion' means the
appropriate use of effective mental health treatment
alternatives to juvenile justice or criminal justice system
institutional placements for adult offenders with severe and
persistent mental illness or juvenile offenders with serious
mental or emotional disorders.
``(5) Mental health agency.--The term `mental health
agency' means an agency of a State or local government that
is responsible for mental health services.
``(6) Mental health court.--The term `mental health court'
means a judicial program that meets the requirements of part
V of this title.
``(7) Mental illness.--The term `mental illness' means a
diagnosable mental, behavioral, or emotional disorder--
``(A) of sufficient duration to meet diagnostic criteria
within the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders published by the
American Psychiatric Association; and
``(B) that has resulted in the substantial impairment of
thought processes, sensory input, mood balance, memory, or
ability to reason and substantially interferes with or limits
1 or more major life activities.
``(8) Preliminarily qualified offender.--The term
`preliminarily qualified offender' means an adult or juvenile
who--
``(A)(i) previously or currently has been diagnosed by a
qualified mental health professional as having a mental
illness or co-occurring mental illness and substance abuse
disorders; or
``(ii) manifests obvious signs of mental illness or co-
occurring mental illness and substance abuse disorders during
arrest or confinement or before any court; and
``(B) has faced or is facing criminal charges and is deemed
eligible by a designated pretrial screening and diversion
process, or by a magistrate or judge.
``(9) Secretary.--The term `Secretary' means the Secretary
of the Department of Health and Human Services.
``(10) Unit of local government.--The term `unit of local
government' means any city, county, township, town, borough,
parish, village, or other general purpose political
subdivision of a State, including a State court, local court,
or a governmental agency located within a city, county,
township, town, borough, parish, or village.
``(b) Planning and Implementation Grants.--
``(1) In general.--The Attorney General, in consultation
with the Secretary, may award nonrenewable grants to eligible
applicants to prepare a comprehensive plan for and implement
an adult or juvenile collaboration program, which targets
adults or juveniles with mental illness or co-occurring
mental illness and substance abuse disorders in order to
promote public safety and public health.
``(2) Purposes.--Grants awarded under this section shall be
used to create or expand--
``(A) mental health courts;
``(B) programs that offer specialized training to the
officers and employees of a criminal or juvenile justice
agency and mental health personnel in procedures for
identifying the symptoms of mental illness and co-occurring
mental illness and substance abuse disorders in order to
respond appropriately to individuals with such illnesses; and
``(C) programs that support cooperative efforts by criminal
and juvenile justice agencies and mental health agencies to
promote public safety by offering mental health treatment
services and, where appropriate, substance abuse treatment
services for--
``(i) preliminarily qualified offenders with mental illness
or co-occurring mental illness and substance abuse disorders;
``(ii) juveniles and adults with mental illness for whom
diversion is appropriate; or
``(iii) adult offenders with mental illness during periods
of incarceration, while under the supervision of a criminal
justice agency, or following release from correctional
facilities.
``(3) Applications.--
``(A) In general.--To receive a planning grant or an
implementation grant, the joint applicants shall prepare and
submit a single application to the Attorney General at such
time, in such manner, and containing such information as the
Attorney General and the Secretary shall reasonably require.
An application under part V of this title may be made in
conjunction with an application under this section.
``(B) Combined planning and implementation grant
application.--The Attorney General shall develop a procedure
under which applicants may apply at the same time and in a
single application for a planning grant and an implementation
grant, with receipt of the implementation grant conditioned
on successful completion of the activities funded by the
planning grant.
``(4) Planning grants.--
``(A) Application.--The joint applicants may apply to the
Attorney General for a nonrenewable planning grant to develop
a collaboration program.
``(B) Contents.--The Attorney General may not approve a
planning grant unless the application for the grant includes
or provides, at a minimum, for a budget and a budget
justification, a description of the outcome measures that
will be used to measure the effectiveness of the program in
promoting public safety and public health, the activities
proposed (including the provision of substance abuse
treatment services, where appropriate) and a schedule for
completion of such activities, and the personnel necessary to
complete such activities.
``(C) Period of grant.--A planning grant shall be effective
for a period of 1 year, beginning on the first day of the
month in which the planning grant is made. Applicants may not
receive more than 1 such planning grant.
``(D) Amount.--The amount of a planning grant may not
exceed $75,000, except that the Attorney General may, for
good cause, approve a grant in a higher amount.
``(5) Implementation grants.--
``(A) Application.--Joint applicants that have prepared a
planning grant application may apply to the Attorney General
for approval of a nonrenewable implementation grant to
develop a collaboration program.
``(B) Collaboration.--To receive an implementation grant,
the joint applicants shall--
``(i) document that at least 1 criminal or juvenile justice
agency (which can include a mental health court) and 1 mental
health agency will participate in the administration of the
collaboration program;
``(ii) describe the responsibilities of each participating
agency, including how each agency will use grant resources to
jointly ensure that the provision of mental health treatment
services is integrated with the provision of substance abuse
treatment services, where appropriate;
``(iii) in the case of an application from a unit of local
government, document that a State mental health authority has
provided comment and review; and
``(iv) involve, to the extent practicable, in developing
the grant application--
``(I) individuals with mental illness or co-occurring
mental illness and substance abuse disorders; or
``(II) the families or advocates of such individuals under
subclause (I).
``(C) Content.--To be eligible for an implementation grant,
joint applicants shall comply with the following:
``(i) Definition of target population.--Applicants for an
implementation grant shall--
``(I) describe the population with mental illness or co-
occurring mental illness and substance abuse disorders that
is targeted for the collaboration program; and
``(II) develop guidelines that can be used by personnel of
a criminal or juvenile justice agency to identify individuals
with mental illness or co-occurring mental illness and
substance abuse disorders.
``(ii) Services.--Applicants for an implementation grant
shall--
``(I) ensure that offenders with mental illness who are to
receive services under the collaboration program will first
receive individualized, needs-based assessments to determine,
plan, and coordinate the most appropriate services for such
individuals;
``(II) specify plans for making mental health treatment
services available and accessible to mentally ill offenders
at the time of their release from the criminal justice
system, including outside of normal business hours;
``(III) ensure that mentally ill offenders served by the
collaboration program will have access to community-based
mental health services, such as crisis intervention, case
management, assertive community treatment, medications,
medication management, psychiatric rehabilitation, peer
support, or, where appropriate, integrated substance abuse
treatment services;
``(IV) make available, to the extent practicable,
individualized mental health treatment services, other
support services (such as housing, education, job placement,
mentoring, or health care), benefits (such as disability
income, disability insurance, and medicaid, where
appropriate), and the services of faith-based and community
organizations for mentally ill individuals served by the
collaboration program; and
``(V) include strategies to address developmental and
learning disabilities and problems arising from a documented
history of physical or sexual abuse, if the population
targeted for the collaboration program includes juveniles
with mental illness.
``(D) Housing and job placement.--Recipients of an
implementation grant may use grant funds to assist mentally
ill offenders compliant with the program in seeking housing
or employment assistance.
``(E) Policies and procedures.--Applicants for an
implementation grant shall strive to ensure prompt access to
defense counsel by criminal defendants with mental illness
who are facing charges that would trigger a constitutional
right to counsel.
``(F) Financial.--Applicants for an implementation grant
shall--
``(i) explain the applicant's inability to fund the
collaboration program adequately without Federal assistance;
``(ii) specify how the Federal support provided will be
used to supplement, and not supplant, State, local, Indian
tribe, or tribal organization sources of funding that would
otherwise be available, including billing
[[Page S10714]]
third-party resources for services already covered under
programs (such as medicaid, medicare, and the State
Children's Insurance Program); and
``(iii) outline plans for obtaining necessary support and
continuing the proposed collaboration program following the
conclusion of Federal support.
``(G) Outcomes.--Applicants for an implementation grant
shall--
``(i) identify methodology and outcome measures, as
required by the Attorney General and the Secretary, to be
used in evaluating the effectiveness of the collaboration
program;
``(ii) ensure mechanisms are in place to capture data,
consistent with the methodology and outcome measures under
clause (i); and
``(iii) submit specific agreements from affected agencies
to provide the data needed by the Attorney General and the
Secretary to accomplish the evaluation under clause (i).
``(H) State plans.--Applicants for an implementation grant
shall describe how the adult or juvenile collaboration
program relates to existing State criminal or juvenile
justice and mental health plans and programs.
``(I) Use of funds.--Applicants that receive an
implementation grant may use funds for 1 or more of the
following purposes:
``(i) Mental health courts and diversion.--Funds may be
used to create or expand existing mental health courts that
meet program requirements established by the Attorney General
under part V of this title or diversion programs (including
crisis intervention teams and treatment accountability
services for communities) that meet requirements established
by the Attorney General and the Secretary.
``(ii) Training.--Funds may be used to create or expand
programs, such as crisis intervention training, which offer
specialized training to--
``(I) criminal justice system personnel to identify and
respond appropriately to the unique needs of an adult or
juvenile with mental illness or co-occurring mental illness
and substance abuse disorders; or
``(II) mental health system personnel to respond
appropriately to the treatment needs of criminal offenders
with mental illness or co-occurring mental illness and
substance abuse disorders.
``(iii) Service delivery.--Funds may be used to create or
expand local treatment programs that promote public safety by
serving individuals with mental illness or co-occurring
mental illness and substance abuse disorders.
``(iv) In-jail and transitional services.--Funds may be
used to promote and provide mental health treatment for those
incarcerated or for transitional re-entry programs for those
released from any penal or correctional institution.
``(J) Geographic distribution.--The Attorney General, in
consultation with the Secretary, shall ensure that
implementation grants are equitably distributed among the
geographical regions of the United States and between urban
and rural populations.
``(c) Priority.--The Attorney General, in awarding funds
under this section, shall give priority to applications
that--
``(1) demonstrate the strongest commitment to ensuring that
such funds are used to promote both public health and public
safety;
``(2) demonstrate the active participation of each co-
applicant in the administration of the collaboration program;
and
``(3) have the support of both the Attorney General and the
Secretary.
``(d) Matching Requirements.--
``(1) Federal share.--The Federal share of the cost of a
collaboration program carried out by a State, unit of local
government, Indian tribe, or tribal organization under this
section shall not exceed--
``(A) 80 percent of the total cost of the program during
the first 2 years of the grant;
``(B) 60 percent of the total cost of the program in year
3; and
``(C) 25 percent of the total cost of the program in years
4 and 5.
``(2) Non-federal share.--The non-Federal share of payments
made under this section may be made in cash or in-kind fairly
evaluated, including planned equipment or services.
``(e) Federal Use of Funds.--The Attorney General, in
consultation with the Secretary, in administering grants
under this section, may use up to 3 percent of funds
appropriated to--
``(1) research the use of alternatives to prosecution
through pretrial diversion in appropriate cases involving
individuals with mental illness;
``(2) offer specialized training to personnel of criminal
and juvenile justice agencies in appropriate diversion
techniques;
``(3) provide technical assistance to local governments,
mental health courts, and diversion programs, including
technical assistance relating to program evaluation;
``(4) help localities build public understanding and
support for community reintegration of individuals with
mental illness;
``(5) develop a uniform program evaluation process; and
``(6) conduct a national evaluation of the collaboration
program that will include an assessment of its cost-
effectiveness.
``(f) Interagency Task Force.--
``(1) In general.--The Attorney General and the Secretary
shall establish an interagency task force with the
Secretaries of Housing and Urban Development, Labor,
Education, and Veterans Affairs and the Commissioner of
Social Security, or their designees.
``(2) Responsibilities.--The task force established under
paragraph (1) shall--
``(A) identify policies within their departments which
hinder or facilitate local collaborative initiatives for
adults or juveniles with mental illness or co-occurring
mental illness and substance abuse disorders; and
``(B) submit, not later than 2 years after the date of
enactment of this section, a report to Congress containing
recommendations for improved interdepartmental collaboration
regarding the provision of services to adults and juveniles
with mental illness or co-occurring mental illness and
substance abuse disorders.
``(g) Minimum Allocation.--Unless all eligible applications
submitted by any State or unit of local government within
such State for a planning or implementation grant under this
section have been funded, such State, together with grantees
within the State (other than Indian tribes), shall be
allocated in each fiscal year under this section not less
than 0.75 percent of the total amount appropriated in the
fiscal year for planning or implementation grants pursuant to
this section.
``(h) Authorization of Appropriations.--There are
authorized to be appropriated to the Department of Justice to
carry out this section--
``(1) $100,000,000 for each of fiscal years 2003 and 2004;
and
``(2) such sums as may be necessary for fiscal years 2005
through 2007.''.
(b) List of ``Best Practices''.--The Attorney General, in
consultation with the Secretary of Health and Human Services,
shall develop a list of ``best practices'' for appropriate
diversion from incarceration of adult and juvenile offenders.
(c) Technical Amendment.--The table of contents of title I
of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3711 et seq.) is amended by adding at the end the
following:
``Part HH--Adult and Juvenile Collaboration Program Grants
``Sec. 2991. Adult and juvenile collaboration programs.''.
Mr. LEAHY. Mr. President, I have joined today with Senators DeWine,
Cantwell, Brownback, and Grassley to introduce legislation that will
help State and local governments reduce crime by providing more
effective treatment for the mentally ill. All too often, people with
mental illness rotate repeatedly between the criminal justice system
and the streets of our communities, committing a series of minor
offenses. Their crimes occupy the ever scarcer time of law enforcement
officers, diverting them from their more urgent responsibilities, and
leave the offenders themselves in prisons or jails where little or no
medical care is available for them. With this legislation, we are
trying to give State and local governments the tools they need to break
this cycle, for the good of law enforcement, corrections officers, our
public safety, and mentally ill offenders.
I held a Judiciary Committee hearing in June on the criminal justice
system and mentally ill offenders. At that hearing, we heard from State
mental health officials, law enforcement officers, corrections
officials, and the representative of counties around our Nation. All
agreed that people with untreated mental illness are more likely to
commit crimes, and that our State mental health systems, prisons and
jails do not have the resources they need to treat the mentally ill,
and prevent crime and recidivism. As this legislation's findings
detail, 16 percent of adults incarcerated in U.S. jails and prisons
have a mental illness, more than 20 percent of youth in the juvenile
justice system have serious mental health problems, and up to 40
percent of adults who suffer from a serious mental illness will come
into contact with the American criminal justice system at some point in
their lives. This is a serious problem that has not received the
legislative or public attention it deserves.
Under this bill, State and local governments can apply for funding
to: a. create or expand mental health courts, which divert qualified
offenders from prison to receive treatment; b. create or expand
programs to provide specialized training for criminal justice and
mental health system personnel; c. create or expand local treatment
programs that serve individuals with mental illness or co-occurring
mental illness and substance abuse disorders; and d. promote and
provide mental health treatment for those incarcerated in or released
from and penal or correctional institution. This new program authorizes
$100 million for each of the next two fiscal years, and such sums as
necessary through fiscal year 2007.
[[Page S10715]]
I would like to thank a number of people for their advice and
involvement in this legislation. First, we would not be here today
without the hard work of the Bazelon Center for Mental Health Law. I
know that the Bazelon Center has additional ideas to improve this
legislation, and I look forward to working with the Center as this bill
moves through the legislative process. For example, I think we need to
do more to ensure close coordination between the Department of Justice
and the Department of Health and Human Services in designing and making
these grants. Through this legislation, we are forcing States to bring
together their health and law enforcement officials to make grant
requests it only makes sense to have the joint perspectives of DOJ and
HHS fully involved in evaluating those requests. This is an issue that
we will continue to work on, and I hope we will continue to receive the
input of the Bazelon Center as we do so.
Second, we have received great advice and support from officials in
my State of Vermont. Susan Besio, the commissioner of Vermont's
Department of Developmental and Mental Health Services, and John
Gorczyk, the commissioner of Vermont's Department of Corrections,
reviewed this legislation and offered their comments, which have been
adopted in the version that we introduce today. Gary Margolis, the
Chief of Police Services at the University of Vermont, testified at our
June hearing and helped me understand the importance of this issue for
law enforcement officers in Vermont and around the nation.
Third, the Council of State Governments has also provided invaluable
assistance and advice on this issue. Indeed, their report on mentally
ill offenders and the criminal justice system was instrumental in
focusing the attention of the Judiciary Committee on this important
topic.
Although I am pleased that we have introduced this bill before the
end of this Congress, I think we all understand that the passage of
meaningful mental health legislation may have to wait until the next
Congress. I want to work with all of the officials and groups I have
mentioned, the other sponsors of this legislation, and any other
interested parties, to continue to make improvements to this bill. This
is a topic that should be a priority for the Judiciary Committee next
year, and I will work to make it so.
Mr. GRASSLEY. Mr. President, I'm pleased today to be introducing with
Senators DeWine, Leahy, Brownback, and Cantwell the Mentally Ill
Offender Treatment and Crime Reduction Act of 2002. This bipartisan
bill authorizes the Attorney General to administer a grant program to
assist communities in planning and implementing services for mentally
ill offenders. These grants will increase public safety by fostering
collaborative efforts by criminal justice, mental health, and substance
abuse agencies. I've seen these types of collaborative programs work in
Iowa and I know that they can work elsewhere.
We have an obligation to ensure that the public is protected from
these offenders who suffer from mental illness. The Bureau of Justice
Statistics has reported that over 16 percent of adults incarcerated in
U.S. jails and prisons have a mental illness. In addition, the Office
of Juvenile Justice and Delinquency Prevention has reported that over
20 percent of youth in the juvenile justice system have serious mental
problems. This grant program will help increase public safety, as well
as reduce the number of mentally ill adults and juveniles incarcerated
in correctional facilities.
These grant dollars may be used by States and localities to establish
mental health courts or other diversion programs, create or expand
community-based treatment programs, provide in-jail treatment and
transitional services, and for training of criminal justice and mental
health system employees. The State of Iowa and a number of its counties
are already leading the way in finding creative and collaborative
programs to address the problems presented by these mentally ill
criminals. Working together, the criminal justice, mental health, and
substance abuse professionals can make a difference in the lives of
this special class of offenders and also increase the safety of the
public.
I want to thank Senator DeWine for his leadership on this important
issue. He has drafted a bill that reflects a common sense approach to a
serious public safety issue. I also want to encourage my colleagues to
support this important piece of legislation.
Ms. CANTWELL. Mr. President, I am proud to join with Senator DeWine
and Judiciary Chairman Patrick Leahy along with Senators Grassley and
Brownback in cosponsoring this important legislation. This bill will
take steps to reduce the prevalence of mentally ill individuals in the
criminal justice system by providing more effective treatment. Forty
percent of the mentally ill in this country come in contact with the
criminal justice system, many for minor but repeated offenses. This
wastes tremendous law enforcement resources that can be better focused
on more urgent responsibilities and results in many of the mentally ill
sitting in jail cells with little treatment available to them. My State
has already taken some forward looking action in this area, and this
legislation is an important next step.
The Mentally Ill Crime Reduction Act of 2002 funds new grants that
will give States the tools they need to work collaboratively to break
the cycle of mentally ill people repeatedly moving through the
corrections system. This legislation will allow more jurisdictions to
follow Seattle's lead in creating mental health courts that monitor
individuals to keep them in treatment and out of jail. It will provide
much needed funding to mental health and substance abuse programs, and
it will provide critical dollars for treatment of those incarcerated
in, or released from, prisons. The legislation has the support of
Washington State Corrections Director Joe Lehman and the Washington
Department of Social and Health Services as well as the National
Alliance for the Mentally Ill and the Council of State Governments. I'd
like to especially thank the Bazelon Center for their work in this area
and their commitment to improving this situation.
Earlier this year, the Council on State Governments Criminal Justice/
Mental Health Consensus Project issued a report that detailed the
disparate proportions of the mentally ill in the criminal justice
system. The Project found that while those suffering from serious
mental illness represent approximately 5 percent of the population of
this country, they represent over 16 percent of the prison population.
Of that 16 percent, nearly three-quarters also have a substance abuse
problem, and nearly half were incarcerated for committing a nonviolent
crime. In some jurisdictions recidivism rates for mentally ill inmates
can reach over 70 percent. Police, judges and prosecutors are usually
without options of what to do with mentally ill patients given the lack
of health services, and thus many end up in jail for minor crimes. The
Los Angeles County Jail alone holds as many as 3,300 individuals with
mental illness, more than any state hospital or mental health
institution in the United States.
Each time a mentally ill individual is incarcerated, his or her
mental condition will likely worsen. Once incarcerated, people with
mental illness are particularly susceptible to harming themselves or
others. This environment exacerbates their mental illness, yet access
to effective counseling or medication is severely limited. This in turn
brings on depression or delusions that immobilize them; many have spent
years trying to mask torments or hallucinations with alcohol or drugs
which leads to these individuals, on average, spending more time in
prisons.
This problem is particularly acute in the area of juvenile offenders.
The Office of Juvenile Justice and Delinquency Prevention reports that
over 20 percent of children in the juvenile justice system, over
155,000, have serious mental health problems. This bill creates
specialized training programs for juvenile and criminal justice agency
personnel in identifying symptoms of mentally ill individuals that will
help identify and treat juveniles at an earlier stage.
The prevalence of people with mental illness in the criminal justice
system comes at a high price to taxpayers. In King County, WA officials
identified 20 people who had been repeatedly hospitalized, jailed or
admitted to detoxification centers. These emergency
[[Page S10716]]
services cost the county approximately $1.1 million in a single year.
In contrast, an Illinois Cooperative Program, which brought criminal
justice and mental health service personnel together to provide
services to those mentally ill patients released from jail, calculated
that the 30 individuals in the study spent approximately 2,200 days
less in jail, and 2,100 fewer days, in hospitals than they had the
previous year for a savings of $1.2 million dollars.
In 1997, Seattle Fire Department Captain Stanley Stevenson was
murdered by an individual who had been found incompetent by the local
municipal court but was released because of the lack of alternative
options. This murder was the impetus for the creation of a Task Force
that led directly to the formation of the Seattle mental health court
in 1999. The primary reason why this Court has been growing more
effective in dealing with mentally ill offenders is that it has
increased cooperation between the mental health and criminal justice
systems, operations that have traditionally not worked closely
together. Building on the model of the drug court, the mental health
court closely monitors compliance with treatment regimens through a
team proficient in dealing with the mentally ill and at using the stick
of the criminal justice system to make that treatment work. The vast
majority of these individuals are responsive to treatment.
This program has progressed well and is becoming an effective means
of helping mentally ill offenders, assuring public safety, and running
a more cost efficient system. Yet to allow this system to continue to
expand in Seattle and other communities in Washington state, as well as
to allow other states to begin using these types of programs, federal
grant funding is critical. That is what this bill provides.
Collaboration between mental health, substance abuse, law
enforcement, judicial, and other criminal justice personnel is also
critical to the success of our mental health court program in Seattle.
It is only through full coordination between the criminal justice and
the mental health treatment community at the federal and the local
level that these efforts will be successful.
Similarly, only through full coordination at the federal and local
level will this bill be able to make a critical difference. I believe
that some additional improvements can be made to strengthen that
critical coordination and I look forward to working with Senator DeWine
and Chairman Leahy to accomplish that goal. I welcome the introduction
of this legislation and look forward to working with my cosponsors to
make this bill law in the next Congress.
______
By Mr. LIEBERMAN (for himself and Mr. Hatch):
S. 3148. A bill to provide incentives to increase research by private
sector entities to develop antivirals, antibiotics and other drugs,
vaccines, microbicides, and diagnostic technologies to prevent and
treat illnesses associated with a biological, chemical, or radiological
weapons attack; to the Committee on Finance.
Mr. LIEBERMAN. Mr. President, America has a major flaw in its
defenses against bioterrorism. Hearings I chaired in the Governmental
Affairs Committee on bioterrorism demonstrated that America has not
made a national commitment to research and development of treatments
and cures for those who might be exposed to or infected by a biological
agent, chemical toxin, or radiological material. Correcting this
critical gap is the purpose of legislation we are introducing today.
This legislation is a refined and upgraded version of legislation I
introduced last year (S. 1764, December 4, 2001) and I am delighted
that Senator Hatch has joined me as the lead cosponsor of the new bill.
Obviously, our first priority must be to attempt to prevent the use
of these agents and toxins by terrorists, quickly assess when an attack
has occurred, take appropriate public health steps to contain the
exposure, stop the spread of contagion, and then detoxify the site.
These are all critical functions, but in the end we must recognize that
some individuals may be exposed or infected. Then the critical issue is
whether we can treat and cure them and prevent death and disability.
In short, we need a diversified portfolio of medicines. In cases
where we have ample advance warning of an attack and specific
information about the agent, toxin, or material, we may be able to
vaccinate the vulnerable population in advance. In other cases, even if
we have a vaccine, we might well prefer to use medicines that would
quickly stop the progression of the disease or the toxic effects. We
also need a powerful capacity quickly to develop new countermeasures
where we face a new agent, toxin, or material.
Unfortunately, we are woefully short of vaccines and medicines to
treat individuals who are exposed or infected. We have antibiotics that
seem to work for most of those infected in the current anthrax attack,
but these have not prevented five deaths. We have no effective vaccines
or medicines for most other biological agents and chemical toxins we
might confront. We have very limited capacity to respond medically to a
radiological attack. In some cases we have vaccines to prevent, but no
medicines to treat, an agent. We have limited capacity to speed the
development of vaccines and medicines to prevent or treat novel agents
and toxins not currently known to us.
We have provided, and should continue to provide, direct Federal
funding for research and development of new medicines, however, this
funding is unlikely to be sufficient. Even with ample Federal funding,
many private companies will be reluctant to enter into agreements with
government agencies to conduct this research. Other companies would be
willing to conduct the research with their own capital and at their own
risk but are not able to secure the funding from investors.
The legislation we introduce today would provide incentives for
private biotechnology companies to form capital to develop
countermeasures--medicines--to prevent, treat and cure victims of
bioterror, chemical and radiological attacks. This will enable this
industry to become a vital part of the national defense infrastructure
and do so for business reasons that make sense for their investors on
the bottom line.
Enactment of these incentives is necessary because most biotech
companies have no approved products or revenue from product sales to
fund research. They rely on investors and equity capital markets to
fund the research. They must necessarily focus on research that will
lead to product sales and revenue and, thus, to an end to their
dependence on investor capital. There is no established or predictable
market for countermeasures. These concerns are shared by pharmaceutical
firms. Investors are justifiably reluctant to fund this research, which
will present challenges similar in complexity to AIDS. Investors need
assurances that research on countermeasures has the potential to
provide a rate of return commensurate with the risk, complexity and
cost of the research, a rate of return comparable to that which may
arise from a treatment for cancer, MS, Cystic Fibrosis and other major
diseases.
It is in our national interest to enlist these companies in the
development of countermeasures as biotech companies tend to be
innovative and nimble and intently focused on the intractable diseases
for which no effective medical treatments are available.
The incentives we have proposed are innovative and some may be
controversial. We invite everyone who has an interest and a stake in
this research to enter into a dialogue about the issue and about the
nature and terms of the appropriate incentives. We have attempted to
anticipate the many complicated technical and policy issues that this
legislation raises. The key focus of our debate should be how, not
whether, we address this critical gap in our public health
infrastructure and the role that the private sector should play.
Millions of Americans will be at risk if we fail to enact legislation
to meet this need.
relationship to bioterrorism preparedness legislation
My proposal is complimentary to legislation on bioterrorism
preparedness we enacted earlier this year. That law, Bioweapons
Preparedness Act, focuses on many needed improvements in our public
health infrastructure. These investments provide the infrastructure
[[Page S10717]]
where we could deploy the countermeasures that could be developed
pursuant to the incentives proposed in my legislation.
Among the provisions in the Frist-Kennedy law are initiatives
regarding bioterrorism preparedness capacities, improvements in
communications about bioterrorism, protection of children, protection
of food safety, and global pathogen surveillance and response. We need
to fully fund these new programs and capacities.
My legislation builds on these provisions by providing incentives to
enable the biotechnology industry acting on its own initiative to fund
and conduct research on countermeasures. It includes tax, procurement,
intellectual property and liability incentives. Accordingly, my
proposal raises issues falling within the jurisdiction of the HELP,
Finance, and Judiciary Committees.
The Frist-Kennedy law and my bill are complimentary. The bottom line
is that we need both bills--one focusing on public health and one
focusing on medical research. Without medical research, public health
workers will not have the single most important tool to use in an
attack--medicine to prevent death and disability and medicine that will
help us avoid public panic.
Cipro as a Countermeasure
We are fortunate that we have broad-spectrum antibiotics, including
Cipro, to treat the type of anthrax to which so many have been exposed.
This treatment seems to be effective before the anthrax symptoms become
manifest, and effective to treat cutaneous anthrax, and we have been
able to effectively treat some individuals who have inhalation anthrax.
I am thankful that this drug exists to treat those who have been
exposed, including my own Senate staff. Our offices are immediately
above those of Senator Daschle.
We have seen how reassuring it is that we have an effective treatment
for this biological agent. We see long lines of Congressional staffers
and postal workers awaiting their Cipro. Think what it would be like if
we could only say, ``We have nothing to treat you and hope you don't
contract the disease.'' Think of the public panic that we might see.
I am grateful that this product exists and proud of the fact that the
Bayer Company is based in Connecticut. The last thing we should be
doing is criticizing this company for their research success. The
company has dispensed millions of dollars worth of Cipro free of
charge. Criticizing it for the price that it charges tells other
research companies that the more valuable their products are in
protecting the public health, the more likely they are to be criticized
and bullied.
It is fortuitous that Cipro seems to be effective against anthrax.
The product was not developed with this use in mind. My point with this
legislation is we cannot rely on good fortune and chance in the
development of countermeasures. We need to make sure that these
countermeasures will be developed. We need more companies like Bayer,
we need them focused specifically on developing medicines to deal with
the new bioterror threat, and we need to tell them that there are good
business reasons for this focus.
We also are fortunate to have an FDA-licensed vaccine, made by
BioPort Corporation, that is recommended by our country's medical
experts at the DOD and CDC for pre-anthrax exposure vaccination of
individuals in the military and some individuals in certain laboratory
and other occupational settings where there is a high risk of exposure
to anthrax. This vaccine is also recommended for use with Cipro after
exposure to anthrax to give optimal and long-lasting protection. That
vaccine is not now available for use. We must do everything necessary
to make this and other vaccines available in adequate quantities to
protect against future attacks.
The point of this legislation is that we need many more Cipro-like
and anthrax vaccine-like products. That we have these products is the
good news; that we have so few others is the problem.
Biological Weapons Convention
One unfortunate truth in this debate is that we cannot rely upon
international legal norms and treaties alone to protect our citizens
from the threat of biological or chemical attack.
The United States ratified the Biological and Toxin Weapons
Convention (BWC) on January 22, 1975. That Convention now counts 144
nations as parties. Twenty-two years later, on April 24, 1997, the
United States Senate joined 74 other countries when it ratified the
Chemical Weapons Convention (CWC). While these Conventions serve
important purposes, they do not in any way guarantee our safety in a
world with rogue states and terrorist organizations.
The effectiveness of both Conventions is constrained by the fact that
many countries have failed to sign on to either of them. Furthermore,
two signatories of the BWC, Iran and Iraq, are among the seven
governments that the Secretary of State has designated as state
sponsors of international terrorism, and we know for a fact that they
have both pursued clandestine biological weapons programs. The BWC,
unlike the CWC, has no teeth--it does not include any provisions for
verification or enforcement. Since we clearly cannot assume that any
country that signs on to the Convention does so in good faith, the
Convention does so in good faith, the Convention's protective value is
limited.
On November 1 of 2001, the President announced his intent to
strengthen the BWC as part of his comprehensive strategy for combating
terrorism. A BWC review conference, held every five years to consider
ways of improving the Convention's effectiveness, will convene in
Geneva beginning November 19. In anticipation of that meeting, the
President has urged that all parties to the Convention enact strict
national criminal legislation to crack down on prohibited biological
weapons activities, and he has called for an effective United Nations
procedures for investigation suspicious outbreaks of disease or
allegations of biological weapons use.
These steps are welcomed, but they are small. Even sweeping reforms,
like creating a more stringent verification and enforcement regime,
would not guarantee our safety. The robust verification and enforcement
mechanisms in the CWC, for instance, have proven to be imperfect, and
scientists agree that it is much easier to conceal the production of
biological agents than chemical weapons.
The inescapable fact, therefore, is that we cannot count on
international regimes to prevent those who wish us ill from acquiring
biological and chemical weapons. We must be prepared for the reality
that these weapons could fall into the hands of terrorists, and could
be used against Americans on American soil. And we must be prepared to
treat the victims of such an attack if it were ever to occur.
CDC Quarantine Plans
On November 26 of last year, the Centers for Disease Control issued
its interim working draft plan for responding to an outbreak of
smallpox. The plan does not call for mass vaccination in advance of a
smallpox outbreak because the risk of side effects from the vaccine
outweighs the risks of someone actually being exposed to the smallpox
virus. At the heart of the plan is a strategy sometimes called ``search
and containment.''
This strategy involves identifying infected individual or individuals
with confirmed smallpox, identifying and locating those people who come
in contact with that person, and vaccinating those people in outward
rings of contact. The goal is to produce a buffer of immune individuals
and was shown to prevent smallpox and to ultimately eradicate the
outbreak. Priorities would be set on who is vaccinated, perhaps
focusing on the outward rings before those at the center of the
outbreak. The plan assumes that the smallpox vaccination is effective
for persons who have been exposed to the disease as long as the disease
has not taken hold.
In practice it may be necessary to set a wide perimeter for these
areas because smallpox is highly contagious before it might be
diagnosed. There may be many areas subject to search and containment
because people in our society travel frequently and widely. Terrorists
might trigger attacks in a wide range of locations to multiply the
confusion and panic. The most common form of smallpox has a 30 percent
mortality rate, but terrorists might be able to obtain supplies of
``flat-type'' smallpox with a mortality rate of 96 percent
[[Page S10718]]
and hemorrhagic-type smallpox, which is almost always fatal. For these
reasons, the CDC plan accepts the possibility that whole cities or
other geographic areas could be cordoned off, letting no one in or
out--a quarantine enforced by police or troops.
The plan focuses on enforcement authority through police or National
Guard, isolation and quarantine, mandatory medical examinations, and
rationing of medicines. It includes a discussion of ``population-wide
quarantine measures which restrict activities or limit movement of
individuals [including] suspension of large public gatherings, closing
of public places, restriction on travel [air, rail, water, motor
vehicle, and pedestrian], and/or `cordon sanitaire' [literally a
`sanitary cord' or line around a quarantined area guarded to prevent
spread of disease by restricting passage into or out of the area].''
The CDC recommends that states update their laws to provide authority
for ``enforcing quarantine measures'' and it recommends that States in
``pre-event planning'' identify personnel who can enforce these
isolation and quarantine measures, if necessary.'' Guide C--Isolation
and Quarantine, page 17.
On October 23, 2001, the CDC published a ``Model State Emergency
Health Powers Act.'' It was prepared by the Center for Law and the
Public's Health at Georgetown and Johns Hopkins Universities, in
conjunction with the National Governors Association, National
Conference of State Legislatures, Association of State and Territorial
Health Officials, National Association of City and County Health
Officers, and National Association of Attorneys General. A copy of the
model law is printed at www.publichealthlaw.net. The law would provide
powers to enforce the ``compulsory physical separation (including the
restriction of movement and confinement) of individuals and/or groups
believed to have been exposed to or known to have been infected with a
contagious disease from individuals who are believed not to have been
exposed or infected, in order to prevent or limit the transmission of
the disease to others.'' Federal law on this subject is very strong and
the Administration can always rely on the President's Constitution
authority as Commander in Chief.
Let us try to imagine, however, what it would be like if a quarantine
is imposed. Let us assume that there is not enough smallpox vaccine
available for use in a large outbreak, that the priority is to
vaccinate those in the outward rings of the containment area first,
that the available vaccines cannot be quickly deployed inside the
quarantined area, that it is not possible to quickly trace and identify
all of the individuals who might have been exposed, and/or that public
health workers themselves might be infected. We know that there is no
medicine to treat those who do become infected. We know the mortality
rates. It is not hard to imagine how much force might be necessary to
enforce the quarantine. It would be quite unacceptable to permit
individuals to leave the quarantined area no matter how much panic had
taken hold.
Think about how different this scenario would be if we had medicines
that could effectively treat and cure those who become infected by
smallpox. We still might implement the CDC plan but a major element of
the strategy would be to persuade people to visit their local clinic or
hospital to be dispensed their supply of medicine. We could trust that
there would be a very high degree of voluntary compliance. This would
give us more time, give us options if the containment is not
successful, give us options to treat those in the containment area who
are infected, and enable us to quell the public panic.
Because we have no medicine to treat those infected by smallpox, we
have to be prepared to implement a plan like the one CDC has proposed.
Theirs is the only option because our options are so limited. We need
to expand our range of options.
the countermeasure research gap
We should not be lulled by the apparent successes with Cipro and the
strains of anthrax we have seen in the recent attacks. We have not been
able to prevent death in some of the patients with late-stage
inhalation anthrax and Robert Stevens, Thomas Morris, Jr., Joseph
Curseen, Kathy Nguyen, and Ottilie Lundgren died. This legislation is
named in honor of them. What we needed for them, and did not have, is a
drug or vaccine that would treat late stage inhalation anthrax.
As I have said, we need an effective treatment for those who become
infected with smallpox. We have a vaccine that effectively prevents
smallpox infection, and administering this vaccine within four days of
first exposure has been shown to offer some protections against
acquiring infection and significant protection against a fatal outcome.
The problem is that administering the vaccine in this time frame to all
those who might have been exposed may be exceedingly difficult. And
once infection has occurred, we have no effective treatment options.
In the last century 500 million people have died of smallpox--more
than have from any other infectious disease--as compared to 320 million
deaths in all the wars of the twentieth century. Smallpox was one of
the diseases that nearly wiped out the entire Native American
population in this hemisphere. The last naturally acquired case of
smallpox occurred in Somalia in 1977 and the last case from laboratory
exposure was in 1978.
Smallpox is a nasty pathogen, carried in microscopic airborne
droplets inhaled by its victims. The first signs are headache, fever,
nausea and backache, sometimes convulsions and delirium. Soon, the skin
turns scarlet. When the fever lets up, the telltale rash appears--flat
red spots that turn into pimples, then big yellow pustules, then scabs.
Smallpox also affects the throat and eyes, and inflames the heart,
lungs, liver, intestines and other internal organs. Death often came
from internal bleeding, or from the organs simply being overwhelmed by
the virus. Survivors were left covered with pockmarks--if they were
lucky. The unlucky ones were left blind, their eyes permanently clouded
over. Nearly one in four victims died. The infection rate is estimated
to be 25-40 percent for those who are unvaccinated and a single case
can cause 20 or more additional infections.
During the 16th Century, 3.5 million Aztecs--more than half the
population--died of smallpox during a two-year span after the Spanish
army brought the disease to Mexico. Two centuries later, the virus
ravaged George Washington's troops at Valley Forge. And it cut a deadly
path through the Crow, Dakota, Sioux, Blackfoot, Apache, Comanche and
other American Indian tribes, helping to clear the way for white
settlers to lay claim to the western plains. The epidemics began to
subside with one of medicine's most famous discoveries: the finding by
British physician Edward Jenner in 1796 that English milkmaids who were
exposed to cowpox, a mild second cousin to smallpox that afflicts
cattle, seemed to be protected against the more deadly disease.
Jenner's work led to the development of the first vaccine in Western
medicine. While later vaccines used either a killed or inactivated form
of the virus they were intended to combat, the smallpox vaccine worked
in a different way. It relied on a separate, albeit related virus:
first cowpox and the vacinnia, a virus of mysterious origins that is
believed to be a cowpox derivative. The last American was vaccinated
back in the 1970s and half of the US population has never been
vaccinated. It is not known how long these vaccines provide protection,
but it is estimated that the term is 3-5 years.
In an elaborate smallpox biowarfare scenario enacted in February 1999
by the Johns Hopkins Center for Civilians Biodefense Studies, it was
projected that within two months 15,000 people had died, epidemics were
out of control in fourteen countries, all supplies of smallpox vaccine
were depleted, the global economy was on the verge of collapse, and
military control and quarantines were in place. Within twelve months it
was projected that eighty million people worldwide had died.
A single case of smallpox today would become a global public health
threat and it has been estimated that a single smallpox bioterror
attack on a single American city would necessitate the vaccination of
30-40 million people.
The U.S. government is now in the process of purchasing substantial
stocks of the smallpox vaccine. We
[[Page S10719]]
then face a very difficult decision on deploying the vaccine. We know
that some individuals will have an adverse reaction to this vaccine. No
one in the United States has been vaccinated against smallpox in
twenty-five years. Those that were vaccinated back then may not be
protected against the disease today. If we had an effective treatment
for those who might become infected by smallpox, we would face much
less pressure regarding deploying the vaccine. If we face a smallpox
epidemic from a bioterrorism attack, we will have no Cipro to reassure
the public and we will be facing a highly contagious disease and
epidemic. To be blunt, it will make the current anthrax attack look
benign by comparison.
Smallpox is not the only threat. We have seen other epidemics in this
century. The 1918 influenza epidemic provides a sobering admonition
about the need for research to develop medicines. In two years, a fifth
of the world's population was infected. In the United States the 1918
epidemic killed more than 650,000 people in a short period of time and
left 20 million seriously ill, one fourth of the entire population. The
average lifespan in the U.S. was depressed by ten years. In just one
year, the epidemic killed 21 million human beings worldwide--well over
twice the number of combat deaths in the whole of World War I. The flu
was exceptionally virulent to begin with and it then underwent several
sudden and dramatic mutations in its structure. Such mutations can turn
flu into a killer because its victims' immune systems have no
antibodies to fight off the altered virus. Fatal pneumonia can rapidly
develop.
Another deadly toxin, ricin toxin, was of interest to the al-Qaeda
terrorist network. At an al-Qaeda safehouse in Saraq Panza, Kabul
reporters found instructions for making ricin. The instructions make
chilling reading. ``A certain amount, equal to a strong dose, will be
able to kill an adult, and a dose equal to seven seeds will kill a
child,'' one page reads. Another page says: ``Gloves and face mask are
essential for the preparation of ricin. Period of death varies from 3-5
days minimum, 4-14 days maximum.'' The instructions listed the symptoms
of ricin as vomiting, stomach cramps, extreme thirst, bloody diarrhoea,
throat irritation, respiratory collapse and death.
No specific treatment or vaccine for ricin toxin exists. Ricin is
produced easily and inexpensively, highly toxic, and stable in
aerosolized form. A large amount of ricin is necessary to infect whole
populations--the amount of ricin necessary to cover a 100-km\2\ area
and cause 50 percent lethality, assuming aerosol toxicity of 3 mcg/kg
and optimum dispersal conditions, is approximately 4 metric tons,
whereas only 1 kg of Bacillus anthracis is required. But it can be used
to terrorize a large population with great effect because it is so
lethal.
Use of ricin as a terror weapon is not theoretical. In 1991 in
Minnesota, 4 members of the Patriots Council, an extremist group that
held antigovernmental and antitax ideals and advocated the overthrow of
the U.S. government, were arrested for plotting to kill a U.S. marshal
with ricin. The ricin was produced in a home laboratory. They planned
to mix the ricin with the solvent dimethly sulfoxide (DMSO) and then
smear it on the door handles of the marshal's vehicle. The plan was
discovered, and the 4 men were convicted. In 1995, a man entered Canada
from Alaska on his way to North Carolina. Canadian custom officials
stopped the man and found him in possession of several guns, $98,000,
and a container of white powder, which was identified as ricin. In
1997, a man shot his stepson in the face. Investigators discovered a
makeshift laboratory in his basement and found agents such as ricin and
nicotine sulfate. And, ricin was used by the Bulgarian secret police
when they killed Georgi Markov by stabbing him with a poison umbrella
as he crossed Waterloo Bridge in 1978.
Going beyond smallpox, influenza, and ricin, we do not have an
effective vaccine or treatment for dozens of other deadly and disabling
agents and toxin. Here is a partial list of some of the other
biological agents and chemical toxins for which we have no effective
treatments: clostridium botulinum toxin (botulism), francisella
tularensis (tularaemia), Ebola hemorrhagic fever, Marbug hemorrhagic
fever, Lassa fever, Julin (Argentine hemorrhagic fever), Coxiella
burnetti (Q fever), brucella species (brucellosis), burkholderia mallei
(glanders), Venezuelan encephalomyelitis, eastern and western equine
encephalomyelitis, epsilon toxin of clostridium perfringens,
staphylococcus entretoxin B, salmonella species, shigella dysenteriae,
escherichia coli O157:H7, vibrio cholerae, cryptosporidium parvum,
nipah virus, hantaviruses, tickborne hemorrhagic fever viruses,
tickborne encephalitis virus, yellow fever, nerve agents (tabun, sarin,
soman, GF, and VX), blood agents (hydrogen cyanide and cyanogens
chloride), blister agents (lewisite, nitrogenadn sulfur mustards, and
phosgene oxime), heavy metals (arsenic, lead, and mercury), and
volatile toxins (benzene, chloroform, trihalomethanes), pulmonary
agents (Phosgene, chlorine, vinly chloride), and incapacitating agents
(BZ).
The naturally occurring forms of these agents and toxins are enough
to cause concern, but we also know that during the 1980s and 1990s the
Soviet Union conducted bioweapons research at forty-seven laboratories
and testing sites, employed nearly fifty thousand scientists in the
work, and that they developed genetically modified versions of some of
these agents and toxins. The goal was to develop an agent or toxin that
was particularly virulent or not vulnerable to available antibiotic.
The United States has publicly stated that five countries are
developing biological weapons in violation of the Biological Weapons
convention, North Korea, Iraq, Iran, Syria, and Libya, and stated that
additional countries not yet named (possibly including Russia, China,
Israel, Sudan and Egypt) are also doing so as well.
What is so insidious about biological weapons is that in many cases
the symptoms resulting from a biological weapons attack would likely
take time to develop, so an act of bioterrorism may go undetected for
days or weeks. Affected individuals would seek medical attention not
from special emergency response teams but in a variety of civilian
settings at scattered locations. This means we will need medicines that
can treat a late stage of the disease, long after the infection has
taken hold.
We must recognize that the distinctive characteristic of biological
weapons is that they are living micro-organisms and are thus the only
weapons that can continue to proliferate without further assistance one
released in a suitable environment.
The lethality of these agents and toxins, and the panic they can
cause, is quite frightening. The capacity for terror is nearly beyond
comprehension. We do not believe it is necessary to describe the facts
here. Our point is simple: we need more than military intelligence,
surveillance, and public health capacity. We also need effective
medicines. We also need more powerful research tools that will enable
us to quickly develop treatments for agents and toxins not on this or
any other list.
We need to do whatever it takes to be able to reassure the American
people that hospitals and doctors have powerful medicines to treat them
if they are exposed to biological agents or toxins, that we can contain
an outbreak of an infectious agent, and that there is little to fear.
To achieve this objective, we need to rely on the entrepreneurship of
the biotechnology industry.
direct government funding of research
There is already some direct funding of research by the Defense
Advanced Research Projects Agency (DARPA), the National Institutes of
Health (NIH), and the Centers for Disease Control (CDC). This research
should go forward.
DARPA, for instance, has been described as the Pentagon's ``venture
capital fund,'' its mission to provide seed money for novel research
projects that offer the potential for revolutionary findings. Last
year, DARPA's Unconventional pathogen Countermeasures program awarded
contracts totalling $50 million to universities, foundations,
pharmaceutical and biotechnology companies seeking new ways to fight
biological agents and toxins.
The Unconventional Pathogen Countermeasures program now funds 43
separate research efforts on anti-bacterials, anti-toxins, anti-virals,
decontamination, external protection
[[Page S10720]]
from pathogens, immunization and multi-purpose vaccines and treatments.
A common thread among many of these undertakings is the goal of
developing drugs that provide broad-spectrum protection against several
different pathogents. This year, with a budget of $63 million, the
program has received over 100 research proposals in the last two months
alone.
Some of this DARPA research is directed at developing revolutionary,
broad-spectrum, medical countermeasures against significantly
pathogenic products. This goal is to develop countermeasures that are
versatile enough to eliminate biological threats, whether from natural
sources or modified through bioengineering or other manipulation. The
countermeasures would need the potential to provide protection both
within the body and at the most common portals of entry (e.g.,
inhalation, ingestion, transcutaneous). The strategies might include
defeating the pathogen's ability to enter the body, traverse the
bloodstream or lymphatics, and enter target tissues; identifying novel
pathogen vulnerabilities based on fundamental, critical molecular
mechanisms of survival or pathogenesis (e.g., Type III secretion,
cellular energetics, virulence modulation); constructing unique, robust
vehicles for the delivery of countermeasures into or within the body;
and modulating the advantageous and/or deleterious aspects of the
immune response to significantly pathogenic microorganisms and/or the
pathogenic products in the body.
While DAPRA's work is specifically aimed at protecting our military
personnell, the National Institutes of Health also spent $49.7 million
in the last fiscal year to find new therapies for those who contract
smallpox and on systems for detecting the disease. In recent years,
NIH's research programs have sought to create more rapid and accurate
diagnostics, develop vaccines for those at risk of exposure to
biological agents, and improve treatment for those infected. Moreover,
in the last fiscal year, the Centers for Disease Control has allocated
$18 million to continue research on an anthrax vaccine and $22.3
million on smallpox research.
Some companies are willing to enter into a research relationships
funded by DARPA and other agencies to develop countermeasures.
Relationships between the government and private industry can be very
productive, but they can also involve complex issues reflecting the
different cultures of government and industry. Some companies--
including some of the most enterpreneurial--might prefer to take their
own initiative to conduct this research. Relationships with government
entities involve risks, issues, and bureaucracy that are not present in
relationships among biotechnology companies and between them and non-
governmental partners.
The Defense Departments Joint Vaccine Acquisition Program (JVAP)
illustrates the problems with a government led and managed program. A
report in December 2000 by a panel of independent experts found that
the current program ``is insufficient and will fail'' and recommended
it adopt an approach more on the model of a private sector effort. It
needs to adopt ``industry practices,'' ``capture industry interest,''
``implement an organizational alignment that mirrors the vaccine
industry's short chain of command and decision making,'' ``adopt an
industry-based management philosophy,'' and ``develop a sound
investment strategy.'' It bemoaned the ``extremely limited'' input from
industry in the JVAP program.
It is clear from this experience that we should not rely exclusively
on government funding of countermeasures research. We should take
advantage of the entrepreneurial fervor, and the independence, of our
biotechnology industry entrepreneurs. It is not likely that the
government will be willing or able to provide sufficient funding for
the development of the countermeasures we need. Some of the most
innovative approaches to vaccines and medicines might not be funded
with the limited funds available to the government. We need to provide
incentives that will encourage every biotech company to review its
research priorities and technology portfolio for its relevance and
potential for countermeasure research. Some of this research is early
stage, basic research that is being developed and considered only for
its value in treating an entirely different disease. We need to kindle
the imagination of biotechnology companies and their tens of thousands
of scientists regarding countermeasure research.
industry research on countermeasures
My proposal would supplement direct Federal government funding of
research with incentives that make it possible for private companies to
form the capital to conduct this research on their own initiative,
utilizing their own capital, and at their own risk--all for good
business reasons going to their bottom line.
The U.S. biotechnology industry, approximately 1,300 companies, spent
$13.8 billion on research last year. Only 350 of these companies have
managed to go public. The industry employs 124,000 (Ernest & Young
data) people. The top five companies spent an average of $89,000 per
employee on research, making it the most research-intensive industry in
the world. The industry has 350 products in human clinical trials
targeting more than 200 diseases. Losses for the industry were $5.8
billion in 2001, $5.6 billion in 2000, $4.4 billion in 1999, $4.1
billion in 1998, $4.5 billion in 1997, $4.6 billion in 1996, and
similar amounts before that. In 2000 fully 38 percent of the public
biotech companies had less than 2 years of funding for their research.
Only one quarter of the biotech companies in the United States are
publicly traded and they tend to be the best funded.
There is a broad range of research that could be undertaken under
this legislation. Vaccines could be developed to prevent infection or
treat an infection from a bioterror attack. Broad-spectrum antibiotics
are needed. Also, promising research has been undertaken on antitoxins
that could neutralize the toxins that are released, for example, by
anthrax. With anthrax it is the toxins, not the bacteria itself, that
cause death. An antitoxin could act like a decoy, attaching itself to
sites on cells where active anthrax toxin binds and then combining with
normal active forms of the toxin and inactivating them. An antitoxin
could block the production of the toxin.
We can rely on the innovations of the biotech industry, working in
collaboration with academic medical centers, to explore a broad range
of innovative approaches. This mobilizes the entire biotechnology
industry as a vital component of our national defense against bioterror
weapons.
incentives needed to spur research
The legislation takes a comprehensive approach to the challenges the
biotechnology industry faces in forming capital to conduct research on
countermeasures. It includes capital formation tax incentives,
guaranteed purchase funds, patent protections, and liability
protections. We believe we will have to include each of these types of
incentives to ensure that we mobilize the biotechnology industry for
this urgent national defense research.
Some of the tax incentives in this legislation, and both of the two
patent incentives I have proposed, may be controversial. In our view,
we can debate tax or patent policy as long as you want, but let's not
lose track of the issue here--development of countermeasures to treat
people infected or exposed to lethal and disabling bioterror weapons.
We know that incentives can spur research. In 1983 we enacted the
Orphan Drug Act to provide incentives for companies to develop
treatments for rare diseases with small potential markets deemed to be
unprofitable by the industry. In the decade before this legislation was
enacted, fewer than 10 drugs for orphan diseases were developed and
these were mostly chance discoveries. Since the Act became law, 218
orphan drugs have been approved and 800 more are in the pipeline. The
Act provides 7 years of market exclusivity and a tax credit covering
some research costs. The effectiveness of the incentives we have
enacted for orphan disease research show us how much we can accomplish
when we set a national priority for certain types of research.
The incentives we have proposed differ from those set by the Orphan
Drug Act. We need to maintain the effectiveness of the Orphan Drug Act
and not undermine it by adding many other disease research targets. In
addition, the tax credits for research for orphan drug research have no
value for most biotechnology companies because few
[[Page S10721]]
of them have tax liability with respect to which to claim the credit.
This explains why we have not proposed to utilize tax credits to spur
countermeasures research. It is also clear that the market for
countermeasures is even more speculative than the market for orphan
drugs and we need to enact a broader and deeper package of incentives.
decision making on targets and registration of research
The government determines which research is covered by the
legislation and which companies qualify for the incentives for this
research. No company is entitled to utilize the incentives until the
government certifies its eligibility.
These decisions are vested in the Secretary, Department of Homeland
Security. In S. 1764, the decisions were vested in the White House
Office of Homeland Security, but it is now likely that a Department
will be created. I have strongly endorsed that concept and led the
effort to enact the legislation forming the new Department.
The legislation confers on the Secretary, in consultation with the
Secretary of Defense and Secretary of Health and Human Services,
authority to set the list of agents and toxins with respect to which
the legislation and incentives applies.
The Secretary determines which agents and toxins present a threat and
whether the countermeasures are ``more likely'' to be developed with
the application of the incentives in the legislation. The Secretary may
determine that an agent or toxin does not present a threat or that
countermeasures are not more likely to be developed with the
incentives. It may determine that the government itself should fund the
research and development effort and not rely on private companies. The
Department is required to consider the status of existing research, the
availability of non-countermeasure markets for the research, and the
most effective strategy for ensuring that the research goes forward.
The legislation includes an illustrative, non-binding list of fifty-
four agents and toxins that might be included on the Secretary's list.
The decisions of the Secretary are final and are not subject to
judicial review.
The Department then must provide information to potential
manufacturers of these countermeasures in sufficient detail to permit
them to conduct the research and determine when they have developed the
needed countermeasure. It may exempt from publication such information
as it deems to be sensitive.
The Department also must specify the government market that will be
available when a countermeasure is successfully developed, including
the minimum number of dosages that will be purchased, the minimum price
per dose, and the timing and number of years projected for such
purchases. Authority is provided for the Department to make advance,
partial, progress, milestone, or other payments to the manufacturers.
The Department is responsible for determining when a manufacturer
has, in fact, successfully developed the needed countermeasure. It must
provide information in sufficient detail so that manufacturers and the
government may determine when the manufacturer has successfully
developed the countermeasure the government needs. If and when the
manufacturer has successfully developed the countermeasure, it becomes
entitled to the procurement, patent, and liability incentives in the
legislation.
Once the list of agents and toxins is set, companies may register
with the Department their intent to undertake research and development
of a countermeasure to prevent or treat the agent or toxin. This
registration is required only for companies that seek to be eligible
for the tax, purchase, patent, and liability provisions of the
legislation. The registration requirement gives the Department vital
information about the research effort and the personnel involved with
the research, authorizes inspections and other review of the research
effort, and the filing of reports by the company.
The Secretary then may certify that the company is eligible for the
tax, purchase, patent, and liability incentives in the legislation. It
bases this certification on the qualifications of the company to
conduct the countermeasure research. Eligibility for the purchase fund,
patent and liability incentives is contingent on successful development
of a countermeasure according to the standards set in the legislation,
as determined by the Secretary.
The legislation contemplates that a company might well register and
seek certification with respect to more than one research project and
become eligible for the tax, purchase, patent, and liability incentives
for each. There is no policy rationale for limiting a company to one
registration and one certification.
This process is similar to the current registration process for
research on orphan (rare) diseases. In that case, companies that are
certified by the FDA become eligible for both tax and market
exclusivity incentives. This process gives the government complete
control on the number of registrations and certifications. This gives
the government control over the cost and impact of the legislation on
private sector research.
diagnostics and research tools
The registration and certification process applies to research to
develop diagnostics and research tools, not just drugs and vaccines.
Diagnostics are vital because healthcare professionals need to know
which agent or toxin has been used in an attack. This enables them to
determine which treatment strategy is likely to be most effective. We
need quickly to determine which individuals have been exposed or
infected, and to separate them from the ``worried well.'' it is likely
in an attack that large numbers of individuals who have not been
exposed or infected will flood into healthcare facilities seeking
treatment. We need to be able to focus on those individuals who are at
risk and reassure those who are not at risk.
In terms of research tools, it is possible that we will face
biological agents and chemical agents we have never seen before. As
I've mentioned, the Soviet Union bioterror research focused in part on
use of genetic modification technology to develop agents and toxins
that currently-available antibiotics can not treat. Australian
researchers accidentally created a modified mousepox virus, which does
not affect humans, but it was 100 percent lethal to the mice. Their
research focused on trying to make a mouse contraceptive vaccine for
pest control. The surprise was that it totally suppressed the ``cell-
medicated response''--the arm of the immune system that combats viral
infection. To make matters worse, the engineered virus also appears
unnaturally resistant to attempts to vaccinate the mice. A vaccine that
would normally protect mouse strains that are susceptible to the virus
only worked in half the mice exposed to the killer version. If
bioterrorists created a human version of the virus, vaccination
programs would be of limited use. This highlights the drawback of
working on vaccines against bioweapons rather than treatments.
With the advances in gene sequencing--genomics--we will know the
exact genetic structure of a biological agent. This information in the
wrong hands could easily be manipulated to design and possibly grow a
lethal new bacterial and viral strains not found in nature. A scientist
might be able to mix and match traits from different micoorganism--
called recombinant technology--to take a gene that makes a deadly toxin
from one strain of bacteria and introduce it into other bacterial
strains. Dangerous pathogens or infectious agents could be made more
deadly, and relatively benign agents could be designed as major public
health problems. Bacteria that cause diseases such as anthrax could be
altered in such a way that would make current vaccines or antibiotics
against them ineffective. It is even possible that a scientist could
develop an organism that develops resistance to antibiotics at an
accelerated rate.
This means we need to develop technology--research tools--that will
enable us to quickly develop a tailor-made, specific countermeasure to
a previously unknown organism or agent. These research tools will
enable us to develop a tailor-made vaccine or drug to deploy as a
countermeasure against a new threat. The legislation authorizes
companies to register and receive a certification making them eligible
for the incentives in the bill for this vital research.
Tax Incentives for Capital Formation
The legislation includes four tax incentives to enable biotechnology
and
[[Page S10722]]
pharmaceutical companies to form capital to fund research and
development of countermeasures. Companies must irrevocably elect only
one of the incentives with regard to the countermeasure research.
Four different tax incentives are available so that companies have
flexibility in forming capital to fund the research. Each of the
options comes with advantages and limitations that may make it
appropriate or inappropriate for a given company or research project.
We do not now know fully how investors and capital markets will respond
to the different options, but we assume that companies will consult
with the investor community about which option will work best for a
given research project. Capital markets are diverse and investors have
different needs and expectations. Over time these markets and investor
expectations evolve. If companies register for more than one research
project, they may well utilize different tax incentives for the
different projects.
Companies are permitted to undertake a series of discrete and
separate research projects and make this election with respect to each
project. They may only utilize one of the options with respect to each
of these research projects.
The first option is for the company to establish an R&D Limited
Partnership to conduct the research. The partnership passes through all
business deductions and credits to the partners. For example, under
this arrangement, the research and development tax credits and
depreciation deductions for the company may be passed by the
corporation through to its partners to be used to offset their
individual tax liability. These deductions and credits are then lost to
the corporation. This alternative is available only to companies with
less than $750,000,000 in paid-in capital.
The second option is for the company to issue a special class of
stock for the entity to conduct the research. The investors would be
entitled to a zero capital gains tax rate on any gains realized on the
stock held for at least three years. This is a modification of the
current Section 1202 where only 50 percent of the gains are not taxed.
This provision is adapted from legislation I have introduced, S. 1134,
and introduced in the House by Representatives Dunn and Matsui (H.R.
2383). A similar bill has been introduced by Senator Collins, S. 455.
This option also is available to small companies.
The third and fourth options grant special tax credits to the company
for the research. The first credit is for research conducted by the
company and the other for research conducted at a teaching hospital or
similar institution. Tax credits are available to any company, but they
are only useful to a company with tax liability against which to claim
the credit. Very few biotechnology companies receive revenue from
product sales and therefore have no tax liability. Companies with
revenue may be able to fund the research from retained earnings rather
than secure funding from investors.
A company that elects to utilize one of these incentives is not
eligible to receive benefits of the Orphan Drug Tax Credit. Companies
that can utilize tax credits--companies with taxable income and tax
liability--might find the Orphan Credit more valuable. The legislation
includes an amendment to the Orphan Credit to correct a defect in the
current credit. The amendment has been introduced in the Senate as S.
1341 by Senators Hatch, Kennedy and Jeffords. The amendment simply
states that the Credit is available starting the day an application for
orphan drug status is filed, not the date the FDA finally acts on it.
The amendment was one of many initiatives championed by Lisa J. Raines,
who died on September 11 in the plane that hit the Pentagon, and the
amendment is named in her honor. As we go forward in the legislative
process, I hope we will have an opportunity to speak in more detail
about the service of Ms. Raines on behalf of medical research,
particularly on rare diseases.
The guaranteed purchase fund, and the patent protections, and
liability provisions described below provide an additional incentive
for investors and companies to fund the research.
Government Countermeasure Purchase Fund
The market for countermeasures is speculative and small. This means
that if a company successfully develops a countermeasure, it may not
receive sufficient revenue on sales to justify the risk and expense of
the research. This is why the legislation establishes a countermeasures
purchase fund that will define the market for the products with some
specificity before the research begins.
The Secretary will set standards for which countermeasures it will
purchase and define the financial terms of the purchase commitment.
This will enable companies to evaluate the market potential of its
research before it launches into the project. The specifications will
need to be set with sufficient specificity so that the company--and its
investors--can evaluate the market and with enough flexibility so that
it does not inhibit the innovativeness of the researchers. This
approach is akin to setting a performance standard for a new military
aircraft.
The legislation provides that the Secretary will determine whether
the government will purchase more than one product per class. It might
make sense--as an incentive--for the government to commit to purchasing
more than one product so that many more than one company conducts the
research. A winner-take-all system may well intimidate some companies
and we may end up without a countermeasure to be purchased. It is also
possible that we will find that we need more than one countermeasure
because different products are useful for different patients. We may
also find that the first product developed is not the most effective.
The purchase commitment for countermeasures is available to any
company irrespective of its paid-in capital.
intellectual property protections
Intellectual property protection of research is essential to
biotechnology and pharmaceutical companies for one simple reason: they
need to know that if they successfully develop a medical product
another company cannot expropriate it. It's a simple matter of
incentives.
The patent system has its basis in the U.S. Constitution where the
federal government is given the mandate to ``promote the progress of
Science and the Useful Arts by securing for a limited time to Authors
and Inventors the exclusive right to their respective Writings and
Discoveries.'' In exchange for full disclosure of the terms of their
inventions, inventors are granted the right to exclude others from
making, using, or selling their inventions for a limited period of
time. this quid pro quo provides investors with the incentive to
invent. In the absence of the patent law, discoverable inventions would
be freely available to anyone who wanted to use them and inventors
would not be able to capture the value of their inventions or secure a
return on their investments.
The patent system strikes a balance. Companies receive limited
protection of their inventions if they are willing to publish the terms
of their invention for all to see. At the end of the term of the
patent, anyone can practice the invention without any threat of an
infringement action. During the term of the patent, competitors can
learn from the published description of the invention and may well find
a new and distinct patentable invention.
The legislation provides two types of intellectual property
protection. The first simply provides that the term of the patent on
the countermeasure will be the term of the patent granted by the Patent
and Trademark Office without any erosion due to delays in approval of
the product by the Food and Drug Administration. The second provides
that a company that successfully develops a countermeasure will receive
a bonus of two years on the term of any patent held by that company.
Companies must elect one of these two protections, but only small
biotechnology companies may elect the second protection. Large,
profitable pharmaceutical companies may elect only the first of the two
options.
The first protection against erosion of the term of the patent is an
issue that is partially addressed in current law, the Hatch-Waxman
Patent Term Restoration Act. That act provides partial protection
against erosion of the term (length) of a patent when there are delays
at the FDA in approving a product. The erosion occurs when the PTO
issues a patent before the product
[[Page S10723]]
is approved by the FDA. In these cases, the term of the patent is
running but the company cannot market the product. The Hatch-Waxman Act
provides some protections against erosion of the term of the patent,
but the protections are incomplete. As a result, many companies end up
with a patent with a reduced term, sometimes substantially reduced.
The issue of patent term erosion has become more serious due to
changes at the PTO in the patent system. The term of a patent used to
be fixed at 17 years from the date the patent was granted by the PTO.
It made no difference how long it took for the PTO to process the
patent application and sometimes the processing took years, even
decades. Under this system, there were cases where the patent would
issue before final action at the FDA, but there were other cases where
the FDA acted to approve a product before the patent was issued.
Erosion was an issue, but it did not occur in many cases.
Since 1995 the term of a patent has been set at 20 years from the
date of application for the patent. This means that the processing time
by the PTO of the application all came while the term of the patent is
running. This gives companies a profound incentive to rush the patent
through the PTO. (Under the old system, companies had the opposite
incentive.) With patents being issued earlier by the PTO, the issue of
erosion of patent term due to delays at the FDA is becoming more
serious and more common.
The provision in the legislation simply states that in the case of
bioterrorism countermeasures, no erosion in the term of the patent will
occur. The term of the patent at the date of FDA approval will be the
same as the term of the patent when it was issued by the PTO. There is
no extension of the patent, simply protections against erosion. Under
the new 20 year term, patents might be more or less than 17 years
depending on the processing time at the PTO, and all this legislation
says is that whatever term is set by the PTO will govern irrespective
of the delays at the FDA. This option is available to any company that
successfully develops a countermeasure eligible to be purchased by the
fund.
The second option, the bonus patent term, is only available to small
companies with less than $750,000,000 in paid-in capital. It provides
that a company that successfully develops a countermeasure is entitled
to a two-years extension of any patent in its portfolio. This does not
apply to any patent of another company bought or transferred in to the
countermeasure research company.
I am well aware that this bonus patent term provision will be
controversial with some. A company would tend to utilize this option if
it owned the patent on a product that still had, or might have, market
value at the end of the term of the patent. Because this option is only
available to small biotechnology companies, most of whom have no
product on the market, in most cases they would be speculating about
the value of a product at the end of its patent. The company might
apply this provision to a patent that otherwise would be eroded due to
FDA delays or it might apply it to a patent that was not eroded. The
result might be a patent term that is no longer than the patent term
issued by the PTO. It all depends on which companies elect this option
and which patent they select. In some cases, the effect of this
provision might be to delay the entry onto the market of lower priced
generics. This would tend to shift some of the cost of the incentive to
develop a countermeasure to insurance companies and patients with an
unrelated disease.
My rationale for including the patent bonus in the legislation is
simple: I want this legislation to say emphatically that we mean
business, we are serious, and we want biotechnology companies to
reconfigure their research portfolios to focus in part on development
of countermeasures. The other provisions in the legislation are
powerful, but they may not be sufficient.
limitation on liability
This proposal protects companies willing to take the risks of
producing anti-terrorism products for the American public from
potential losses incurred from lawsuits alleging adverse reactions to
these products. It also preserves the right for plaintiffs to seek
recourse for alleged adverse reactions in Federal District Court, with
procedural and monetary limitations.
Under the plan, the Secretary of HHS is required to indemnify and
defend entities engaged in qualified countermeasure research through
execution of ``indemnification and defense agreements.'' This
protection is only available for countermeasures purchased under the
legislation or to use of such countermeasures as recommended by the
Surgeon General in the event of a public health emergency.
An exclusive means of resolving civil cases that fall within the
scope of the indemnification and defense agreements is provided with
litigation rights for injured parties. Non-economic damages are limited
to $250,000 per plaintiff and no punitive or exemplary damages may be
awarded.
Some have tried to apply the existing Vaccine Injury Compensation
Program (VICP) to this national effort. That is inappropriate because
that program will be extremely difficult to use, both administratively
and scientifically. For example, it would take several years to develop
the appropriate ``table'' that identifies a compensable injury.
Companies will be liable during this process. Note that when VICP was
created, there had been studies of what adverse reactions to mandated
childhood vaccines had occurred and the table was based largely on this
experience. Even so, it has taken years of effort, ultimately resulting
in wholesale revisions to the table by regulation, to get the current
table in place. For anti-bioterrorism products currently being
developed, it will simply be impossible to construct a meaningful
Vaccine Injury Table--there will be no experience with the product.
miscellanelous provisions
The legislation contains a series of provisions designed to enhance
countermeasure research.
The legislation provides for accelerated approval by the FDA of
countermeasures developed under the legislation. In most cases, the
products would clearly qualify for accelerated approval, but the
legislation ensures that they will be reviewed under this process.
It provides a statutory basis for the FDA approving countermeasures
where human clinical trials are not appropriate or ethical. Rules
regarding such products have been promulgated by the FDA.
It grants a limited antitrust exemption for certain cooperative
research and development of countermeasures.
It provides incentives for the construction of biologics
manufacturing facilities and research to increase the efficiency of
current biologics manufacturing facilities.
It enhances the synergy between our for-profit and not for profit
biomedical research entities. The Bayh-Dole Act and Stevenson-Wydler
Act form the legal framework for mutually beneficially partnerships
between academia and industry. My legislation strengthens this synergy
and these relationships with two provisions, one to upgrade the basic
research infrastructure available to conduct research on
countermeasures and the other to increase cooperation between the
National Institutes of Health and private companies.
Research on countermeasures necessitates the use of special
facilities where biological agents can be handled safely without
exposing researchers and the public to danger. Very few academic
institutions or private companies can justify or capitalize the
construction of these special facilities. The Federal government can
facilitate research and development of countermeasures by financing the
construction of these facilities for use on a fee-for-service basis.
The legislation authorizes appropriations for grants to non-profit and
for-profit institutions to construct, maintain, and manage up to ten
Biosafety Level 3-4 facilities, or their equivalent, in different
regions of the country for use in research to develop countermeasures.
BSL 3-4 facilities are ones used for research on indigenous, exotic or
dangerous agents with potential for aerosol transmission of disease
that may have serious or lethal consequences or where the agents pose
high risk of life-threatening disease, aerosol-transmitted lab
infections, or related agents with unknown risk of
[[Page S10724]]
transmission. The Director of the Office and NIH shall issue
regulations regarding the qualifications of the researchers who may
utilize the facilities. Companies that have registered with and been
certified by the Director--to develop countermeasures under Section
5(d) of the legislation--shall be given priority in the use of the
facilities.
The legislation also reauthorizes a very successful NIH-industry
partnership program launched in FY 2000 in Public Law 106-113. The
funding is for partnership challenge grants to promote joint ventures
between NIH and its grantees and for-profit biotechnology,
pharmaceutical and medical device industries with regard to the
development of countermeasures (as defined in Section 3 of the bill)
and research tools (as defined in Section 4(d)(3) of the bill). Such
grants shall be awarded on a one-for-one matching basis. So far the
matching grants have focused on development of medicines to treat
malaria, tuberculosis, emerging and resistant infections, and
therapeutics for emerging threats. My proposal should be matched by
reauthorization of the challenge grant program for these deadly
diseases.
The legislation also sets incentives for the development of adjuvents
to enhance the potency, and efficacy of antigens in responding to a
biological agent.
It requires the new Department to issue annual reports on the
effectiveness of this legislation and these incentives, and directs it
to host an international conference each year on countermeasure
research.
calibration of incentives
The legislation is carefully calibrated to provide incentives only
where they are needed. This accounts for the choices in the legislation
about which provisions are available to small biotechnology companies
and large pharmaceutical companies.
The legislation makes choices. It sets the priorities. It provides a
dose of incentives and seeks a response in the private sector. We are
attempting here to do something that has not been done before. This is
uncharted territory. And it also an urgent mission.
There may be cases where a countermeasure developed to treat a
biological toxin or chemical agent will have applications beyond this
use. A broad-spectrum antibiotic capable of treating many different
biological agents may well have the capacity to treat naturally
occurring diseases.
This same issue arises with the Orphan Drug Act, which provides both
tax and FDA approval incentives for companies that develop medicines to
treat rare diseases. In some cases these treatments can also be used
for larger disease populations. There are few who object to this
situation. We have come to the judgment that urgency of this research
is worth the possible additional benefits that might accrue to a
company.
In the context of research to develop countermeasures, I do not
consider it a problem that a company might find a broader commercial
market for a countermeasure. Indeed, it may well be the combination of
the incentives in this legislation and these broader markets that
drives the successful development of a countermeasure. If our intense
focus on developing countermeasures, and research tools, provides
benefits for mankind going well beyond terror weapons, we should
rejoice. If this research helps us to develop an effective vaccine or
treatment for AIDS, we should give the company the Nobel Prize for
Medicine. If we do not develop a vaccine or treatment for AIDS, we may
see 100 million people die of AIDS. We also have 400 million people
infected with malaria and more than a million annual deaths. Millions
of children die of diarrhea, cholera and other deadly and disabling
diseases. Countermeasures research may deepen our understanding of the
immune system and speed and development of treatments for cancer and
autoimmune diseases. That is not the central purpose of this
legislation, but it is also an additional rationale for it.
conclusion
This issue raised by my legislation is very simple: do we want the
Federal government to fund and supervise much of the research to
develop countermeasures or should we also provide incentives that make
it possible for the private sector, at its own expense, and at its own
risk, to undertake this research for good business reasons. This Frist-
Kennedy law focuses effectively on direct Federal funding and
coordination issues, but it does not include the sufficient incentives
for the private sector to undertake this research on its own
initiative. That law and my legislation are perfectly complimentary. We
need to enact both to ensure that we are prepared for bioterror
attacks.
I ask unanimous consent that an outline of the legislation appear at
this point in the Record.
Biological, Chemical and Radiological Weapons Countermeasures Research
Act of 2002
The legislation, a refined version of S. 1764 introduced on
December 4, 2001, proposes incentives that will enable
biotechnology and pharmaceutical companies to take the
initiative--for good business reasons--to conduct research to
develop countermeasures, including diagnostics, drugs, and
vaccines, to treat those who might be exposed to or infected
by biological, chemical or radiological agents and materials
in a terror attack.
The premise of this legislation is that direct government
funding of this research is likely to be much more expensive
to the government and less likely to produce the
countermeasures we need to defend America. Shifting some of
the risk and expense of this research to entrepreneurial
private sector firms is likely to be less expensive to the
government and much more likely to produce the
countermeasures we need to protect ourselves in the event of
an attack.
For biotechnology companies, incentives for capital
formation are needed because most such companies have no
approved products or revenue from product sales to fund
research. They rely on investors and equity capital markets
to fund the research. These companies must focus on research
that will lead to product sales and revenue and end their
dependence on investor capital. When they are able to form
the capital to fund research, biotech companies tend to be
innovative and nimble and focused on the intractable diseases
for which no effective medical treatments are available.
Special research credits for pharmaceutical companies are
also needed.
For both biotech and pharmaceutical companies, there is no
established or predictable market for these countermeasures.
Investors and companies are justifiable reluctant to fund
this research, which will present technical challenges
similar in complexity to development of effective treatments
for AIDS. Investors and companies need assurances that
research on countermeasures has the potential to provide a
rate of return commensurate with the risk, complexity and
cost of the research, a rate of return comparable to that
which may arise from a treatment for cancer, MS, Cystic
Fibrosis and other major diseases or from other investments.
The legislation provides tax incentives to enable companies
to form capital to conduct the research and tax credits
usable by larger companies with tax liability with respect to
which to claim the credits. It provides a guaranteed and pre-
determined market for the countermeasures and special
intellectual property protections to serve as a substitute
for a market. Finally, it establishes liability protections
for the countermeasures that are developed.
Specifics of the legislation are as follows:
(1) Setting Research Priorities (Section 101): The
Department of Homeland Security sets the countermeasure
research priorities in advance. It focuses the priorities on
threats for which countermeasures are needed, and with regard
to which the incentives make it ``more likely'' that the
private sector will conduct the research to develop
countermeasures. It is required to consider the status of
existing research, the availability of non-countermeasure
markets for the research, and the most effective strategy for
ensuring that the research goes forward. The Department then
provides information to potential manufacturers of these
countermeasures in sufficient detail to permit them to
conduct the research and determine when they have developed
the needed countermeasure. The Department is responsible for
determining when a manufacturer has, in fact, successfully
developed the needed countermeasure.
(2) Registration of Companies (Section 102): Biotechnology
and pharmaceutical companies register with the Department to
become eligible for the incentives in the legislation. They
are obligated to provide reports to the Department as
requested and be open to inspections. The Department
certifies with companies are eligible for the incentives.
Once a company is certified as eligible for the incentives,
it becomes eligible for the tax incentives for capital
formation, and if it successfully develops a countermeasure
that meets the specifications of the Department, it becomes
eligible for the procurement, patent, and liability
provisions.
(3) Diagnostics (Section 103): The incentives apply to
development of diagnostics, as well as drugs, vaccines and
other needed countermeasures.
(4) Research tools (Section 104): A company is also
eligible for certification for the tax and patent provisions
if it seeks to develop a research tool that will make it
possible to quickly develop a countermeasure to a previously
unknown agent or toxin, or an agent
[[Page S10725]]
or toxin not targeted by the Department for research.
(5) Capital Formation for Countermeasure Research (Section
201): The legislation provides that a company seeking to fund
research is eligible to elect from among four tax incentives.
The companies are eligible to:
(a) Establish an R&D Limited Partnership to conduct the
research. The partnership passes through all business
deductions and credits to the partners. Section 201 (b)(1).
(b) Issue a special class of stock for the entity to
conduct the research. The investors would be entitled to a
zero capital gains tax rate on any gains realized on the
stock. Section 201(b)(2).
(c) Receive a special tax credit to help fund the research.
Section 201 (b)(3).
(d) Receive a special tax credit for research conducted at
a non-profit and academic research institution. Section 201
(b)(4).
A company must elect only one of these incentives and, if
it elects one of these incentives, it is then not eligible to
receive benefits under the Orphan Drug Act. The legislation
includes amendments (Section 218) to the Orphan Drug Act
championed by Senators Hatch, Kennedy and Jeffords (S. 1341).
the amendments make the Credit available from the date of the
application for Orphan Drug status, not the date the
application is approved as provided under current law.
(6) Countermeasure Purchase Fund (Section 202): The
legislation provides that a company that successfully
develops a countermeasure--through FDA approval--is eligible
to sell the product to the Federal government at a pre-
established price and in a pre-determined amount. The company
is given notice of the terms of the sale before it commences
the research.
(7) Intellectual Property Incentives (Section 203): The
legislation provides that a company that successfully
develops a countermeasure is eligible to elect one of two
patent incentives. The two alternatives are as follows:
(a) The company is eligible to receive a patent for its
invention with a term as long as the term of the patent when
it was issued by the Patent and Trademark Office, without any
erosion due to delays in the FDA approval process. This
alternative is available to any company that successfully
develops a countermeasure irrespective of its paid-in
capital.
(b) The company is eligible to extend the term of any
patent owned by the company for two years. The patent may not
be one that is acquired by the company from a third party.
This is included as a capital formation incentive for small
biotechnology companies with less than $750 million in paid-
in capital, or, at the discretion of the Department of
Homeland Security, to any firm that successfully develops a
countermeasure.
In addition, a company that successfully develops a
countermeasure is eligible for a 10 year period of market
exclusivity on the countermeasure.
(8) Liability Protections (Section 204): The legislation
provides for protections against liability for the company
that successfully develops a countermeasure.
(9) Accelerated Approval of Countermeasure (Section 211):
The countermeasures are considered for approval by the FDA on
a ``fast track'' basis.
(10) Special Approval Standards (Section 212): The
countermeasures may be approved in the absence of human
clinical trails if such trails are impractical or unethical.
(11) Limited Antitrust Exemption (Section 213): Companies
are granted a limited exemption from the antitrust laws as
they seek to expedite research on countermeasures.
(12) Biologics Manufacturing Capacity and Efficiency
(Sections 214-215): Special incentives are incorporated to
ensure that manufacturing capacity is available for
countermeasures.
(13) Strengthening of Biomedical Research Infrastructure:
Authorizes appropriations for grants to construct specialized
biosafety containment facilities where biological agents can
be handled safely without exposing researchers and the public
to danger (Section 216). Also reauthorizes a successful NIH-
industry partnership challenge grants to promote joint
ventures between NIH and its grantees and for-profit
biotechnology, pharmaceutical and medical device industries
with regard to the development of countermeasures and
research tools (Section 217).
(14) Adjuvents (Section 219): The legislation provides
incentives for the development and use of adjuvents to
enhance the potency of countermeasures.
(15) Annual Report (Section 220): The Department is
required to prepare for the Congress an annual report on the
implementation of these incentives.
(16) International Conference (Section 221): The Department
is required to organize an annual international conference on
countermeasure research.
Mr. HATCH. Mr. President, I rise today to cosponsor, with my
colleague Senator Lieberman from Connecticut, Chairman of the
Governmental Affairs Committee, legislation that we believe is
essential to better prepare our nation to prepare for and respond to
bioterrorist attacks. The goal of our bill, the Biological, Chemical
and Radiological Measures Research Act of 2002, is to encourage private
sector research and development of diagnostic products, drugs, and
vaccines designed to counter biological, chemical, or radiological
attacks.
One year ago our country faced a series of anthrax attacks that
exposed deficiencies in our nation's ability to respond to attacks of
bioterrorism. We need to do more. This bill will help protect the
American public by deterring future acts of bioterrorism and, in the
event of another such attack, will increase our capacity to respond
effectively to the weapon deployed.
This legislation complements the bioterrorism bill passed by Congress
earlier this year that focused on building up the public health
infrastructure. Senators Kennedy, Gregg and Frist deserve much credit
for their work on that bill as do Congressmen Tauzin, Bilirakis,
Dingell and Brown. Also, we would be remiss if we did not recognize the
manner in which the Appropriations Committees in both the Senate and
the House adjusted their priorities so quickly last Fall. I salute the
leadership of Senators Byrd, Harkin, Stevens and Specter in making
available substantial new funding for building up the capacity of the
public health system to protect our citizens against the threat of
bioterrorism.
When it comes to protecting America, partisanship has no place.
Senator Lieberman built upon the strong tradition of bi-partisanship in
the war against terrorism in introducing this bill today.
Although we are far better prepared for a terrorist attack today than
ever before, and preventing a terrorist attack is our first priority,
there are areas where we can improve our preparedness in the case of
such an attack. Chief among these is the development of preventive
agents and treatments for those citizens who may become exposed to or
infected by deadly biological, chemical, and radiological agents.
Building up the public health infrastructure alone will be
insufficient if our national medicine chest does not contain safe and
effective medicines to counter particular threat agents. This bill
creates incentives for the private sector to try to fill the medicine
chest with new products designed to respond to biological or other
similar attacks. We need many new treatments and vaccines and the
Lieberman-Hatch bill will unleash the creative energy and many
resources of the private sector biomedical research enterprise.
America leads the world in biomedical research capacity. The
Lieberman-Hatch bill attempts to help focus the enormous assets of our
research expertise in a manner that will protect the public health.
This legislation seeks to help translate the basic knowledge, much of
it funded through the $27 billion taxpayer-investment in the National
Institutes of Health, into tangible products developed by the private
sector.
Given the growing risk of further attacks and the potentially
devastating consequences of bioterrorism, we must abandon a business as
usual attitude and take the vigorous steps that Senator Lieberman and I
urge through this legislation.
Our legislation is an additional measure to other avenues we have
pursued to protect our nation from terrorism, including the Biologic
Weapons Convention and government funded research at NIH, the Defense
Advanced Research Projects Agency, DARPA, and the Centers for Disease
Control and Prevention, CDC.
Though we have mobilized many governmental agencies and increased
direct federal funding for research and development of new treatments,
I agree with Senator Lieberman, that what we have done thus far,
impressive as it has been, is not nearly enough. Direct government
funding for this research is likely to be insufficient for our national
defense needs unless we marry our efforts with the private sector to
the greatest extent possible. That is exactly what this bill does.
Unfortunately, it is hard to avoid sounding somewhat like an alarmist
when speaking on these matters. But, the truth of the matter today is
that we do not have effective treatment for a host of potential
biological, chemical and radiological threat agents. We must develop
these with a greater sense of urgency and this legislation will serve
as a catalyst for private sector investment and research and
development activities.
[[Page S10726]]
We need to develop an expedient, efficient capacity that combines the
best of what our society has--strong federal and academic institutions
with the most innovative biotechnology and pharmaceutical companies in
the world. It would be a grave mistake to ignore the tremendous
capabilities and potential of our country's biotech and pharmaceutical
private sector.
We must be creative, willing to work together, putting aside partisan
politics and our opinions of the government or the private sector when
dealing with a potential deadly threat to our nation. I believe Senator
Lieberman and I have done that. Though we have not agreed on all the
details on everything related to homeland security, we agree on this
vital component. We must provide the tools to forge a collaborative
effort by the private sector and the Federal Government to come up with
the cures and vaccines we may, sadly, need one day.
The best deterrent of bioterrorist attacks is to be able to
demonstrate the capacity to counter such dastardly acts. I think the
case can be made that all the rapid progress we have made in smallpox
in the last year makes an attack with that agent less likely. That is
the good news. The bad news is that there are too many agents for which
we do not have any vaccine or effective therapeutic response. We need
to roll up our sleeves and get to work on many other potential tools of
destruction. Our bill provides the private sector with important
incentives to get this work done and to get it done now.
Most private sector companies rely on equity capital markets and
investments to fund research. Naturally, they focus on research that
will lead to products that will sell and have a dependable market. As
we know, thankfully, there is no dependable or established market for
counter terrorism. Therefore, not unreasonably, investors need some
kind of assurance that the costly and complex research we are asking
them to invest in will be rewarded--that the reward will be
commensurate with the risk.
Under current law, private companies are reluctant to enter into
agreements with government agencies to conduct needed research. The
bill Senator Lieberman and I are introducing greatly expands the
incentives for biotechnology and pharmaceutical companies to develop
bioterrorism countermeasures. I do not think anyone will oppose
involving some of the most powerful research minds and new technology
as we defend our country against these threats. We need to involve
these biomedical research companies more directly into our national
defense plan, as they may very well be the ones to provide us with what
we need to the medical front.
I know there are novel, and perhaps controversial, features in this
bill--anything innovative usually does. I ask that each and every one
of you who has a stake in this issue enter into this debate. Keep in
mind that the goal is to close any gap that exists in our plan against
terrorism--I believe this includes engaging the private sector. We need
to make sure that these companies have the proper incentives to engage
in expensive, arduous research that could potentially save millions of
Americans.
Let me now review the specifics of our proposal. We provide
incentives, such as tax incentives, guaranteed purchase funds, and
patent and liability protections, which make it possible for private
companies to form the capital needed to conduct this vital research.
Again, we cannot expect these companies to engage in expensive research
and development for an extremely unpredictable market without providing
them meaningful incentives and reassurance.
In some respects this legislation is similar to another bill I co-
authored, the Orphan Drug Act. The Orphan Drug Act utilizes tax credits
and marketing exclusivity incentives to spur research into rare
diseases with patient populations under 200,000 in the United States.
This modest little bill has resulted in over 220 approved orphan
products with over 1000 more designated for investigation. It is my
hope and expectation that, in introducing our bill today, we can
recreate the success of the Orphan Drug Act in getting the private
sector motivated in a particular area of research.
The Lieberman-Hatch bill contains powerful incentives. Here is how it
works. The bill requires the private sector to work closely with the
appropriate governmental officials. The legislation ensures that the
Department of Homeland Security sets the countermeasure research
priorities in advance. The Department of Homeland Security is required
to take into account the status of existing research, the potential for
non-countermeasure markets for the research, and the most effective
strategy for propelling the research forward and provides this
information to potential manufacturers. The bill also requires
companies to register with the Department, to provide reports as
requested and to be open to inspections, in order to be eligible for
incentives. Once a company is certified, it is eligible for tax
incentives for capital formation.
The Department then determines if a manufacturer has successfully
developed a countermeasure. Once the specifications of the Department
are met, the company is eligible for the procurement, patent, and
liability provisions. These incentives apply to diagnostics, drugs,
vaccines and other countermeasures deemed necessary, including research
tools.
If companies seek to develop a research tool that enables the
advancement of a countermeasure to a previously unknown agent or toxin,
or an agent or toxin not targeted by the Department, they are also
eligible for incentives.
The four tax incentives companies are eligible to select from
include:
(a) An R&D Limited Partnership to conduct the research. The
partnership passes through all business deductions and credits to the
partners.
(b) A special class of stock for the entity to conduct the research.
The investors would be entitled to a zero capital gains tax rate on any
gains realized on the stock.
(c) A special tax credit to help fund the research.
(d) A special tax credit for research conducted at a non-profit and
academic research institution.
I want to point out that a company can elect only one of these
incentives and, if it elects one of these incentives, the company is
not eligible to further benefits under the Orphan Drug Act. That is
only fair.
I would like to briefly discuss the Countermeasure Purchase Fund
contained in Section 202 of the bill. Basically, the legislation
affords a company that successfully develops a countermeasure--through
FDA approval--eligibility to sell the product to the Federal Government
at a pre-established price and in a pre-determined amount. The company
is given notice of the terms of the sale before it begins research.
The intellectual property incentives are contained in Section 203 of
the bill. There are two patent incentives:
One, the company is eligible to receive full patent term restoration
for its invention. This means that it is held harmless for patent term
erosion due to the lengthy FDA approval process. This alternative is
available to any company that successfully develops a countermeasure
irrespective of its paid-in capital. This is a significant incentive
over the normal partial patent term restoration provisions contained in
the Drug Price Competition and Patent Term Restoration Act. I am a co-
author of this law which has contributed to consumer savings of $8 to
$10 billion each year since its passage in 1984. This was the
legislation that created the modern generic drug industry. But under
this law the patent term cannot be restored beyond 14 years. When the
1984 law was enacted the patent term was 17 years from date of patent
issuance; with the enactment of the GATT Treaty implementing
legislation, the patent term was changed to 20 years from date of
application. By adopting a policy of day for day patent term
restoration, the Lieberman-Hatch bill is sending a strong signal to the
private sector to pour its resources into this research. By lengthening
the patent term beyond the existing 14 year cap, drug companies will
have a new incentive to devote their efforts to this research.
Two, under the bill, small companies are also eligible to elect to
extend the term of any patent owned by the company for two years. The
patent may not be one that is acquired by the company from a third
party. This is included as a capital formation incentive
[[Page S10727]]
for small biotechnology companies with less than $750 million in paid-
in capital, or, at the discretion of the Department of Homeland
Security, to any firm that successfully develops a countermeasure. This
provision will get the attention of our nation's growing biotechnology
sector.
In addition, a company that successfully develops a countermeasure is
eligible for a 10 year period of market exclusivity on the
countermeasure. This means that the FDA may not approve a generic copy
of such a drug for 10 years regardless of whether the drug has any
patent protection. This is in contrast to the 5 years of marketing
exclusivity granted under the Drug Price Competition and Patent Term
Restoration Act. This is an important incentive because it is the
government that enforces the marketing exclusivity provision, not the
firm through costly, risky, and time-consuming private patent
infringement litigation.
Other incentives in the bill include the liability protections set
forth in section 204; a limited antitrust exemption designed to
expedite and coordinate research as set forth in section 213;
accelerated FDA approval provisions described in section 211; and,
special FDA approval standards established in section 212 that codify
the FDA regulations that authorize approval in the absence of human
clinical trails if such trails are impractical or unethical.
In addition the bill provide; incentives to enhance biologics
manufacturing capacity for countermeasures. This includes grants to
construct specialized biosafety containment facilities where biological
agents can be handled safely without exposing researchers and the
public to danger. The bill also reauthorizes a successful NIH-industry
partnership challenge grants to promote joint ventures between NIH and
its grantees and for-profit biotechnology, pharmaceutical, and medical
device industries with regard to the development of countermeasures and
research tools.
Finally, the bill also provides incentives for the development and
use of adjuvants to enhance the potency of countermeasures; requires
the Department of Homeland Security to prepare an Annual Report to
Congress on the implementation of these incentives in the legislation
and to organize an annual international conference on countermeasure
research.
Let me conclude by saying that this legislation lays out an
unabashedly aggressive set of incentives designed to stimulate
research. There will undoubtedly be criticisms of some of the features
of the bill. Senator Lieberman and I recognize that adjustments will
have to be made along the way. We want to work closely with President
Bush, Vice President Cheney, Governor Ridge, and Secretary Thompson and
others in the Administration in refining this legislation. We recognize
that unless the President feel that this type of program is necessary
it is unlikely to be adopted.
The subject mater of this legislation cuts across many Committees of
the Senate. Senator Lieberman and I will work with the Finance
Committee, the Judiciary Committee I serve on both of these
committees--as well as the HELP Committee, Commerce Committee, and the
Governmental Affairs Committee which my friend from Connecticut Chairs.
I might add, as much as I admire Senator Lieberman, I hope that next
month he becomes the Ranking Democratic Member of the Governmental
Affairs Committee.
We will continue to work with all interested parties in the private
sector to refine this legislation. We welcome this dialog.
Let me state clearly that my cosponsorship today is more an
unambiguous statement that I intend to work in partnership with Senator
Lieberman than it is a statement that I agree with each provision and
detail of this bill. Specifically, I do not agree with--and would not
support--the anti-trust and indemnification provisions as currently
drafted. We must tread carefully in the areas of government
indemnification and in holding any meetings with the private sector in
which anti-trust concerns are triggered.
My cosponsorship of this legislation today which will serve as a
discussion draft between the 107th and 108th Congress--should not be
considered as a reversal of my views on indemnification and antitrust
policy. It is not. My cosponsorship only signals my willingness to be
open to rethinking my traditional views of indemnification and
antitrust policy in light of this grave threat to our national
security. These sections--as well as many other parts of the bill need
more work. At the end of the day, I hope we can come together on these
questions.
I want to stress the fact that I opposed proposed indemnification
language in the Kennedy-Gregg-Frist bioterrorism bill passed earlier
this year. I have opposed indemnification provisions in discussions
over matters of homeland security. I continue to hold my position that
indemnification is not only not the best policy but that it may also be
counterproductive in the long run.
Similarly, I have rejected any general policy of governmental
indemnification of those injured by asbestos or tobacco use. The
private sector must bare its share of the risk and responsibility when
it produces potentially dangerous products.
Frankly, I believe the solution to the indemnification issue may
ultimately stem from the hard work of Senators Warner and Thompson with
respect to their amendment, Number 4530, to the Homeland Security bill.
This language was carefully worked out in close consultation with by
Senators Warner and Thompson and the White House earlier this year. We
will take advantage of amendment Number 4530 as we further refine our
legislation in this area.
The Warner-Thompson language builds upon the principles contained in
Executive order No. 10879 and the authority set forth in Public Law 85-
804. These authorities grant the Department of Defense, at DoD's
discretion, to include indemnification clauses in its contracts with
military contractors, with certain limitations and conditions. In order
for this authority to apply to the new Office of Homeland Security,
current law needs to be amended.
It is important to note that the language of the Warner-Thompson
amendment retains the principle of discretionary authority. That is
important. We can not write a blank check to the private sector.
Senator Lieberman and I have included language in our bill that
requires the new Secretary of Homeland Security ``to make a
determination . . . that it is in the national security interest of the
United States'' before any indemnification provision could be
triggered. The Warner-Thompson amendment is narrowly tailored to the
procurement of anti-terrorism technology or services by a federal
agency directly engaged in homeland security activities. Moreover,
consistent with the Warner-Thompson language, we need to flesh out the
factors the Administration shall consider in negotiating the extent of
any indemnification.
Although we need to further refine the language in the discussion
draft bill we introduce today, my intent is do follow the lead of and
principles contained in the Warner-Thompson Amendment. Further, the
Warner-Thompson Amendment language includes procurements made by State
and local governments but only through contracts made by the head of an
agency of the Federal Government and only to the extent that those
loses are not covered by insurance.
A discussion of indemnification in the context of bioterrorism
countermeasures is a very special case. It is a unique circumstance in
which we may very well face many issues never confronted before such as
the possibility of using drugs that can not be ethically tested in
human beings due to the danger of the agent the drug is intended to
treat. We are not talking about asbestos or tobacco here, we are
talking about potential attacks that could undermine the public health,
economic wealth, and environmental integrity of the United States of
America.
We are trying to protect against the use weapons of terror in the
hands of terrorists, not routine uses of consumer and other products.
If unforseen side effects occur when countermeasures are dispensed,
society may be presented with problems that will require innovative
responses. The future of our country is at stake. I have twenty
grandchildren and I want them to hand down our traditions and heritage
to their grandchildren. It is for their
[[Page S10728]]
sake that we must try to settle these issues.
But let us not get to far ahead of ourselves at this point with all
these details. This legislation is a work in progress. Anyone who has
witnessed the extensive floor debate over the last 2 months over the
creation of the Office of Homeland Security understands that we have
much, much more work to do with respect to the creation of the new
department and many other homeland security issues. I hope and expect
that President Bush and the Congress will come together on the
Department of Homeland Security. I commend Senator Lieberman for his
constructive role in this ongoing debate.
My support of this legislation should be construed as a personal
commitment to work closely with Senator Lieberman, the White House and
other parties to address the issues raised in the bill. It is my hope
that we can arrive at an acceptable compromise on the indemnification
and antitrust provisions, as well as, all the other matters taken up in
this important legislation.
As a pragmatic legislator, I understand that to make an omelette, you
always have to break an egg. I hope this discussion draft bill will
help inspire discussion and move the process along.
We are facing unprecedented threats to our Nation's security. We need
to be open to novel solutions to these new problems. We hope that this
bill will foster thoughtful discussion on how best to prepare the
nation for any potential biological, chemical, or radiological attack.
Let us not lose sight of our mission to protect our nation from the
devastating illness and death that bioterrorism can bring. We
desperately need to develop the technology to prevent, detect,
diagnose, and treat our citizens who may fall victim to bioterrorism. I
believe that strengthening the government's partnership with the
private sector is the most effective and expedient step we can take at
this point in time. The Kennedy-Gregg-Frist bioterrorism law was an
enormous step forward. The funding support provided by Senators Byrd,
Stevens, Harkin, and Specter and other appropriators is also essential.
This public sector investment must now be joined by legislation that
will foster a commensurate private sector response. That is exactly
what the Lieberman-Hatch bill, the Biological, Chemical and
Radiological Measures Research Act of 2002, will do if Congress passes
this law.
Let me close by saying that I have enjoyed working with Senator
Lieberman in developing this bill and look forward to continuing this
partnership in the future as we work with other Senators on this
legislation. I also want to recognize the efforts of Chuck Ludlam on
Senator Lieberman's staff for all the work he has done to bring the
bill to this point. Senator Lieberman and I urge our colleagues to
review the ``Biological, Chemical and Radiological Measures Research
Act of 2002''. I hope that our colleagues will conclude that this
legislation deserves to be near the top of the agenda when the 108th
Congress convenes in January.
______
By Mr. McCAIN:
S.J. Res. 50. A joint resolution expressing the sense of the Senate
with respect to human rights in Central Asia; to the Committee on
Foreign Relations.
Mr. McCAIN. Mr. President, I ask unanimous consent that the text of
the resolution be printed in the Record.
There being no objection, the resolution was ordered to be printed in
the Record, as follows:
S.J. Res. 50
Whereas the Central Asian nations of Kazakhstan,
Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan provided
the United States with important assistance in the war in
Afghanistan, from military basing and overflight rights to
the facilitation of humanitarian relief;
Whereas America's victory over the Taliban in turn provided
important benefits to the Central Asian nations, removing a
regime that threatened their security, and significantly
weakening the Islamic Movement of Uzbekistan, a terrorist
organization that had previously staged armed raids from
Afghanistan into the region;
Whereas the United States has consistently urged the
nations of Central Asia to open their political systems and
economies and to respect human rights, both before and since
the attacks of September 11, 2001;
Whereas Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan,
and Uzbekistan are members of the United Nations and the
Organization for Security and Cooperation in Europe, both of
which confer a range of human rights obligations on their
members;
Whereas according to the State Department Country Reports
on Human Rights Practices, the government of Kazakhstan
harasses and monitors independent media and human rights
activists, restricts freedom of association and opposition
political activity, and allows security forces to commit
extrajudicial executions, torture, and arbitrary detention
with impunity;
Whereas according to the State Department, the government
of the Kyrgyz Republic engages in arbitrary arrest and
detention, restricts the activities of political opposition
figures, religious organizations deemed ``extremist,'' human
rights activists, and nongovernmental organizations, and
discriminates against ethnic minorities.
Whereas according to the State Department, the government
of Tajikistan remains authoritarian, curtailing freedoms of
speech, assembly, and association, with security forces
committing extrajudicial executions, kidnappings,
disappearances, and torture;
Whereas according to the State Department, Turkmenistan is
a Soviet-style one-party state centered around the
glorification of its president, which engages in serious
human rights abuses, including arbitrary arrest and
detention, severe restrictions of personal privacy,
repression of political opposition, and restrictions on
freedom of speech and nongovernmental activity;
Whereas according to the State Department, the government
of Uzbekistan continues to commit serious human rights
abuses, including arbitrary arrest, detention and torture in
custody, particularly of Muslims who practice their religion
outside state controls, the severe restriction of freedom of
speech, the press, religion, independent political activity
and nongovernmental organizations, and detains over 7,000
people for political or religious reasons;
Whereas the United States Commission on International
Religious Freedom has expressed concern about religious
persecution in the region, recommending that Turkmenistan be
named a Country of Particular Concern under the International
Religious Freedom Act of 1998, and that Uzbekistan be placed
on a special ``Watch List'';
Whereas, by continuing to suppress human rights and to deny
citizens peaceful, democratic means of expressing their
convictions, the nations of Central Asia risk fueling popular
support for violent and extremist movements, thus undermining
the goals of the war on terrorism;
Whereas President Bush has made the defense of ``human
dignity, the rule of law, limits on the power of the state,
respect for women and private property and free speech and
equal justice and religious tolerance'' strategic goals of
United States foreign policy in the Islamic world, arguing
that ``a truly strong nation will permit legal avenues of
dissent for all groups that pursue their aspirations without
violence''; and
Whereas the Congress has expressed its desire to see deeper
reform in Central Asia in past resolutions and legislation,
most recently conditioning assistance to Uzbekistan on its
progress in meeting human rights and democracy commitments to
the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That it is
the Sense of the Congress that:
(1) the governments of Kazakhstan, Kyrgyzstan, Tajikistan,
Turkmenistan, and Uzbekistan should accelerate democratic
reforms and fulfill their human rights obligations including,
where appropriate, by--
``(A) releasing from prison all those jailed for peaceful
political activism or the non-violent expression of their
political or religious beliefs;
``(B) fully investigating any credible allegations of
torture and prosecuting those responsible;
``(C) permitting the free and unfettered functioning of
independent media outlets, independent political parties, and
non-governmental organizations, whether officially
registered or not;
(D) permitting the free exercise of religious beliefs and
ceasing the persecution of members of religious groups and
denominations not registered with the state;
(E) holding free, competitives, and fair elections;
(F) making publicly available documentation of their
revenues and punishing those engaged in official corruption;
(2) the President of the United States, the Secretary of
State, and the Secretary of Defense should--
(A) continue to raise at the highest levels with the
governments of the nations of Central Asia specific cases of
political and religious persecution, and urge greater respect
for human rights and democratic freedoms at every diplomatic
opportunity;
(B) take progress in meeting the goals outlined in
paragraph (1) into account when determining the level and
frequency of United States diplomatic engagement with the
governments of the Central Asian nations, the allocation of
United States assistance, and the nature of United States
military engagement with the countries of the region;
(C) ensure that the provisions of the Foreign Operations
Appropriations Act are fully implemented to ensure that no
United States
[[Page S10729]]
assistance benefits security forces in Central Asia
implicated in violations of human rights;
(D) follow the recommendations of the United States
Commission on International Religious Freedom by designating
Turkmenistan a Country of Particular Concern under the
International Religious Freedom Act of 1998 and by making
clear that Uzbekistan risks designation if conditions there
do not improve;
(E) work with the Government of Kazakhstan to create a
political climate free of intimidation and harassment,
including releasing political prisoners and permitting the
return of political exiles, most notably Akezan Kazegeldin,
and to reduce official corruption, including by urging the
Government of Kazakhstan to cooperate with the ongoing United
States Department of Justice investigation;
(F) support through United States assistance programs those
individuals, non-governmental organizations, and media
outlets in Central Asia working to build more open societies,
to support the victims of human righrs abuses, and to expose
official corruption; and
(3) increased levels of United States assistance to the
governments of the Central Asian nations made possible by
their cooperation in the war in Afghanistan can be sustained
only if there is substantial and continuing progress towards
meeting the goals outlined in paragraph (1).
______
By Mr. WYDEN:
S.J. Res. 51. A resolution to recognize the rights of consumers to
use copyright protected works, and for other purposes; to the Committee
on the Judiciary.
Mr. WYDEN. Mr. President, today I am introducing a resolution that
spells out what I believe should be the basic rights of consumers to
use and enjoy legally acquired copyrighted works. The purpose of this
resolution is simple: to establish the principle that as the Nation's
copyright system evolves and adapts to new technologies, it must
respect and preserve the interests of consumers. I am joined in this
effort by my friend and frequent collaborator, Representative Chris
Cox, who has already introduced a similar resolution in the House.
In today's information age, intellectual property rules are the oil
that helps keep the economic engine running smoothly. Digitization and
the rise of the Internet have given the engine a big boost by creating
new and more efficient ways of circulating, manipulating, and using
information. The pace of these developments has left the copyright
system scrambling to keep up.
Industry working groups have been meeting over the past several years
to negotiate new copy protection rules, but consumers have not always
had a prominent seat at the table, and there is a real risk that the
interests of consumers could get short shift. That is why I believe it
is important to affirm that new copyright protection systems must not
be allowed to undermine or erode the existing rights and expectations
of consumers. Existing copyright laws, under the doctrine of ``fair
use,'' permit consumers to make copies of content for limited, non-
commercial purposes. A new copyright regime for the digital world must
not narrow or limit these rights. It would be a terrible irony if the
advances in digital technology were to result in a step backwards for
consumers.
I expect to see a great deal of activity on this subject during the
next Congress--on the legislative front certainly, but also in further
negotiations between industry groups and in efforts to devise new
technological approaches. To ensure that the scope of ``fair use'' in
the digital world will not be any narrower than it has been in the
analog world, I believe it would be helpful for Congress to spell out
its expectations concerning what legitimate fair use includes. That is
what this resolution aims to do. Specifically, it says that consumers
of legally acquired content should be permitted to make copies for
purposes of using the content later (time-shifting), using it in a
different place (space shifting), or making a backup; to use the
content on different platforms or devices; to translate the content
into different formats; and to use technology to achieve any of these
purposes. Copyright law should not give copyright holders the ability
to prohibit such legitimate, personal, non-commercial activity.
It is clear to me that the content industries face very serious
challenges in preventing piracy, and that intellectual property
protections must be strong. People and companies that create
copyrighted works must be fairly compensated, and piracy must be
punished. America's information-based economy depends on it.
But efforts to combat piracy must not come at the expense of
legitimate consumer uses of intellectual property. That would be
throwing out the baby with the bathwater.
I understand that the content industries have serious concerns about
this resolution. I have listened to them, and I can appreciate theirs
fear that, for example, expressing consumer rights in too absolute a
fashion could open the door to someone making 1,000 copies of a CD to
share with all their friends and acquaintances at no charge. That is
not my intention. So the resolution I am introducing specifies that the
rights in question must be exercised in a reasonable, personal, and
non-commercial manner. The rights are not absolute.
Going forward, I intend to continue to listen to both sides of this
debate, and to support solutions that do not upset the balance in
existing law between commercial use and non-commercial, personal use. I
want to protect the interests of both copyright holders and consumers.
But the fact is, as of today, nobody in the Senate has stepped forward
with legislation on the consumer side of this issue. This resolution
helps fill that void.
Introducing this resolution now, with the end of this Congress
drawing near, Congressman Cox, and I are essentially laying down a
marker for next year's debate. I will work closely with my Chairman on
the Senate Commerce Committee, Senator Hollings, and others to move the
issue forward. A positive expression affirming the reasonable interests
of consumers should be part of this Nation's evolving copyright regime.
____________________