Congressional Record, Volume 149 Issue 40 (Wednesday, March 12, 2003)

[Congressional Record Volume 149, Number 40 (Wednesday, March 12, 2003)]
[Senate]
[Pages S3622-S3639]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. SMITH (for himself and Mr. Wyden):
S. 601. A bill to authorize the Secretary of the Interior to acquire
the McLoughlin House National Historic Site in Oregon City, Oregon, for
inclusion in the Fort Vancouver National Historic Site, and for other
purposes; to the Committee on Energy and Natural Resources.
Mr. WYDEN. Mr. President, I rise today as an original co-sponsor of
the McLoughlin House Preservation Act.
Dr. John McLoughlin, a powerful 6'4" man, is known, officially and
fondly, as the ``Father of Oregon.'' His compassion played a critical
role in the settling of the Northwest by Oregon Trail pioneers. Dr.
McLoughlin's generosity to these early pioneers who arrived in the
Oregon Territory after their incredible five month journey sick, hungry
and without provisions was often the difference between survival and
failure during their first winter.
This bill is a testimony to the hard work that one community can
achieve. Preservation of the McLoughlin House and the nearby Barclay
House, located in Oregon City, Oregon, is important to the cultural
identity of Oregon. This bill would make them part of the Fort
Vancouver National Park Service administrative site, thereby
highlighting the interwoven connection between Fort Vancouver, the fur
trade and the beginnings of the Oregon Territory.
Dr. McLoughlin first came to the Northwest in 1824, arriving at Fort
George, now called Astoria, Oregon, to establish a supply center for
the Hudson's Bay Company. Within a year, he moved to a more favorable
location on the northern side of the Columbia, in what is now
Washington State, and built a new trading post and named it Fort
Vancouver. As the Post Administrator, the good hearted doctor
maintained a very good relationship with neighboring Indians and used
his medical skills to tend to the terrible fevers that broke out among
them.
The Fort belonged to the Hudson's Bay Company that was a rival of
American trappers, and although company policy discouraged American
settlers, Dr. McLoughlin was not one to refuse a helping hand to any
trapper or settler in distress. When frustrated with the Hudson's Bay
Company policy opposing American settlers, Dr. McLoughlin resigned and
moved to Oregon City on the Willamette Falls. By 1848, Oregon had grown
so much that it was officially designated a territory, and by 1859, it
became the nation's thirty-third state. McLoughlin remained a vibrant
public figure and became the Mayor of Oregon City in 1851. Many of the
debates concerning Oregon's statehood are said to have taken place in
McLoughlin's living room, and the Oregon State Legislature aptly named
him the ``Father or Oregon.''
The McLoughlin House was designated as the National Historic Site,
one of the first in the west, in 1941. I thank my constituents in
Clackamas County, particularly John Salisbury and the McLoughlin
Memorial Association, for all of their hard work to preserve this
Oregon treasure. Additionally, I thank Tracy Fortmann with the National
Park Service at Fort Vancouver for her advocacy on behalf of the
McLoughlin House. Mayor Alice Norris and the former mayors of Oregon
City who have worked together to bring this legislation to the
attention of the Oregon delegation deserve our thanks as well. Finally,
I thank Representative Hooley for having the foresight to introduce
this legislation in the House of Representatives in the 107th Congress
and again in the 108th.
______

By Ms. SNOWE (for herself, Mr. Baucus, Mr. Bingaman, Mr.
Rockefeller, and Mr. Jeffords):
S. 603. A bill to amend part A of title IV of the Social Security Act
to give States the option to create a program that allows individuals
receiving temporary assistance to needy families to obtain post-
secondary or longer duration vocational education; to the Committee on
Finance.
Ms. SNOWE. Mr. President, I rise today to introduce ``The Pathways to
Self-Sufficiency Act of 2003.'' I am pleased to be joined in
introducing this important legislation by my colleagues Senators
Baucus, Bingaman and Rockefeller.
This legislation is based upon the highly esteemed Maine program
called ``Parents as Scholars''. This program, which uses State
Maintenance of Effort, MOE, dollars to pay TANF-like benefits to those
participating in post-secondary education, is a proven success in my
state and is a wonderful foundation for a national effort.
We all agree that the 1996 welfare reform effort changed the face of
this Nation's welfare system to focus it on work. To that end, I
believe that this legislation bolsters the emphasis on ``work first''.
Like many of my colleagues, I agree that the shift in the focus from
welfare to work was the right decision, and that work should be the top
priority. However, for those TANF recipients who cannot find a good job
that will put them on the road toward financial independence, education
might well be the key to a successful future of self-sufficiency.
As we have seen in Maine that education has played a significant role
in breaking the cycle of welfare and giving parents the skills
necessary to find better paying jobs. And we all know that higher wages
are the light at the end of the tunnel of public assistance.
``The Pathways to Self-Sufficiency Act of 2003'' provides States with
the option to allow individuals receiving Federal TANF assistance to
obtain post-secondary or vocational education. This legislation would
give States the ability to use Federal TANF dollars to give those who
are participating in vocational or post-secondary education the same
assistance as they would receive if they were working.
We all know that supports like income supplements, child care
subsidies, and transportation assistance among others, are essential to
a TANF recipient's ability to make a successful transition to work. The
same is true for those engaged in longer term educational endeavors.
This assistance is especially necessary for those who are undertaking
the challenge and the financial responsibility of post-secondary
education, in the hopes of increasing their earning potential and
employability. The goal of this program is to give participants the
tools necessary to succeed into the future so that they can become, and
remain, self-sufficient.
Choosing to go to college requires motivation, and graduating from
college requires a great deal of commitment and work--even for someone
who isn't raising children and sustaining a family. These are
significant challenges, and that's even before taking into
consideration the cost associated with obtaining a Bachelor's degree,
with a four year program at the University of Maine currently costing
almost $25,000. This legislation would provide those TANF recipients
who have the ability and the will to go to college the assistance they
need to sustain their families while they get a degree.
The value of promoting access to education in this manner to get
people off public assistance is proven by the success of Maine's
``Parents as Scholars'', PaS, program. Maine's PaS graduates earn a
median wage of $11.71 per hour after graduation up from a median of
$8.00 per hour prior to entering

[[Page S3623]]

college. When compared to the $7.50 median hourly wage of welfare
leavers in Maine who have not received a post-secondary degree, PaS
graduates are earning, on average, $160 more per week. That translates
into more than $8,000 per year--a significant difference.

Furthermore,the median grade point average for PaS participants while
in college was 3.4 percent,and a full 90 percent of PaS participants'
GPA was over 3.0. These parents are giving their all to pull their
families out of the cycle of welfare.
Recognizing that work is a priority under TANF, and building upon the
successful Maine model, the ``Pathways to Self-Sufficiency Act''
requires that participants in post-secondary and vocational education
also participate in work. During the first two years of their
participation in these education programs, students must participate in
a combination of colas time, study time, employment or work experience
for at lest 24 hours per week--the same hourly requirement that the
President proposes in his welfare reauthorization proposal.
During the second two years--for those enrolled in a four year
program--the participant must work at least 15 hours in addition to
class and study time, or engage in a combination activities, including
colas and study time work or work experience, and training, for an
average of 30 hours per week. And all the while, participants must
maintain satisfactory academic progress as defined by their academia
institution.
The bottom line is that if we expect parents to move from welfare to
work and stay in the work force, we must give them the tools to find
good jobs. For some people that means job training, for others that
could mean dealing with a barrier like substance abuse or domestic
violence, and for others, that might mean access to education that will
secure them a good job and that will get them off and keep them off of
welfare.
The experience of several ``Parents as Scholar'' graduates were
recently captured in a publication published by the Maine Equal Justice
Partners, and their experiences are testament to the fact that this
program is a critically important step in moving towards self-
sufficiency. In this report one Las graduate said of her experience,
``If it weren't for `Parents as Scholars' I would never have been able
to attend college, afford child care, or put food on the table. Today,
I would most likely be stuck in a low-wage job I hated barely getting
by . . . I can now give my children the future they deserve.''
Another said, ``By earning my Bachelor's degree, I have become self
sufficient. I was a waitress previously and would never have been able
to support my daughter and I on the tips that I earned. I would
encourage anyone to better their education if possible.
These are but a few comments from those who have benefited from
access to post-secondary education. And,while these women have been
able to attend college and pursue good jobs thanks tori the good will
and the support of the people of Maine, Las has strained the state's
budget. Giving States the option use Federal dollars to support these
participants will make a tremendous difference in their ability to
sustain these programs which have proven results. In Maine, nearly 90
percent of working graduates have left TANF permanently--and isn't that
our ultimate goal?
I look forward to working with my colleagues to include this
legislation in the upcoming welfare reauthorization. It is a critical
piece of the effort to move people from welfare to work permanently and
it has been missing from the federal program for too long.
______

By Mr. SMITH (for himself, Mr. Wyden, Mr. Baucus, Mr. Allen, Mr.
Warner, Mr. Kerry, Mr. Kennedy, Mr. Akaka, Mr. Burns, Mr.
Coleman, and Mr. Dayton):
S. 605. A bill to extend waivers under the temporary assistance to
needy families program through the end of fiscal year 2008; to the
Committee on Finance.
Mr. SMITH. Mr. President, I rise today to introduce legislation that
would allow States with successful welfare to renew them for the next
five years. In this effort, I am joined by Senators Wyden, Baucus,
Allen, Warner, Kerry, Kennedy, Akaka, Burns, and Coleman. All of our
States and several others operate their welfare programs under waivers
which allow them flexibility to design programs that work for people in
their States.
The most comprehensive evaluation of welfare workforce strategies to
date, commissioned and funded by the Department of Health and Human
Services, demonstrated that a mixed strategy based on individual degree
of job readiness was far and away the most effective way to transition
families from welfare to work. This is the approach Oregon and others
have taken, and I feel strongly that these States be allowed to
continue their innovative and successful programs.
Oregon has long been considered a national leader in developing
innovative strategies to serve its low-income citizens. Oregon's
welfare waiver, known as ``The Oregon Option,'' was implemented just a
few months before passage of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996. The Oregon Option reflects
Oregon's strong belief in moving families forward to sustainable
employment. Consistent with Oregon's reputation as an innovator, the
Oregon Option also rejects a ``one size fits all'' approach for its low
income families.
Oregon uses a labor market test to assess each person's ability to
work. Families are expected to engage in intense job search for 45 days
and if that process identifies significant barriers to families finding
and retaining employment, case managers will work with the families to
identify resources available to address those barriers. The case
managers then work to develop appropriate plans that engage families in
barrier removal activities, such as education, substance abuse or
mental health treatment, finding housing for victims of domestic
violence, while moving them toward employment. Oregon officials
estimate that at any time, approximately 50 percent of all TANF
families have substantial barriers to employment.
Oregon has demonstrated success in moving families into employment by
fully utilizing its flexibility under the Oregon Option waiver. Oregon,
and other states that have used federal flexibility to design
successful programs, must not be forced either to abandon their
effective approaches or to try to find loopholes to circumvent the
approach mandated by current reauthorization proposals.
The legislation that my colleagues and I are introducing today will
allow all states with currently operational TANF waivers, and states
with waivers expiring after January 1, 2002, the option of renewing
their waivers for the next five years, until the next scheduled
reauthorization of welfare in 2008. This will ensure that successful
programs designed by local people for local people aren't eliminated in
favor of a ``one-size-fits-all'' federal program.
______

By Mr. GREGG (for himself, Mr. Kennedy, Mr. DeWine, Mr. Harkin,
Mr. Smith, Ms. Mikulski, Ms. Collins, Mr. Bingaman, Ms. Snowe,
Mr. Sarbanes, Mr. Kerry, Mr. Bayh, Mr. Corzine, Mr. Dayton, Mr.
Durbin, and Mr. Daschle):
S. 606. A bill to provide collective bargaining rights for public
safety officers employed by States or their political subdivisions; to
the Committee on Health, Education, Labor, and Pensions.
Mr. GREGG. Mr. President, today, I am pleased to be joined by
Senators Kennedy, DeWine, Harkin, Smith, Mikulski, Collins, Bingaman,
Snowe, Sarbanes, Kerry, Bayh, Corzine, and Dayton in introducing the
Public Safety Employer-Employee Cooperation Act of 2003. This
legislation would extend to firefighters and police officers the right
to discuss workplace issues with their employers.
With the enactment of the Congressional Accountability Act, State and
local government employees remain the only sizable segment of workers
left in America who do not have the basic right to enter into
collective bargaining agreements with their employers. While most
States do provide some collective bargaining rights for their public
employees, others do not.
Studies have shown that communities which promote such cooperation
enjoy much more effective and efficient delivery of emergency services.

[[Page S3624]]

Such cooperation, however, is not possible in the States that do not
provide public safety employees with the fundamental right to bargain
with their employers.
The legislation I am introducing today is balanced in its recognition
of the unique situation and obligation of public safety officers. To
accomplish this the bill: 1. Requires States, within 2 years, to
guarantee the right of public safety officers to form and voluntarily
join a union to bargain collectively over hours, wages and conditions
of employment; 2. Protects the right of public safety officers to form,
join, or assist any labor organization or to refrain from any such
activity, freely and without fear of penalty or reprisal; 3. Prohibits
the use of strikes, lockouts, sickouts, work slowdowns or any other
action that is designed to compel an employer, officer or labor
organization to agree to the terms of a proposed contract and that will
measurably disrupt the delivery of services; 4. Continues to allow
States to enforce right-to-work laws which prohibit employers and labor
organizations from negotiating labor agreements that require union
membership or payment of union fees as a condition of employment; 5.
Preserves the right of management to not bargain over issues
traditionally reserved for management level decisions; 6. Exempts all
states with a State bargaining law for public safety officers that are
equal to or greater than the rights granted under Federal law; 7. Gives
States the option to exempt from coverage subdivisions with populations
of less than 5,000 or fewer than 25 full time employees.
Labor-management partnerships, which are built upon bargaining
relationships, result in improved public safety. Employer-employee
cooperation contains the promise of saving the taxpayer money by
enabling workers to give input as to the most efficient way to provide
services. In fact, States that currently give firefighters the right to
discuss workplace issues actually have lower fire department budgets
than States without those laws.
The Public Safety Employer-Employee Cooperation Act of 2003 will put
firefighters and law enforcement officers on equal footing with other
employees and provide them with the fundamental right to negotiate with
employers over such basic issues as hours, wages, and workplace
conditions.
I urge its adoption and 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. 606

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 ``Public Safety Employer-
Employee Cooperation Act of 2003''.

SEC. 2. DECLARATION OF PURPOSE AND POLICY.

The Congress declares that the following is the policy of
the United States:
(1) Labor-management relationships and partnerships are
based on trust, mutual respect, open communication, bilateral
consensual problem solving, and shared accountability. Labor-
management cooperation fully utilizes the strengths of both
parties to best serve the interests of the public, operating
as a team, to carry out the public safety mission in a
quality work environment. In many public safety agencies it
is the union that provides the institutional stability as
elected leaders and appointees come and go.
(2) The Federal Government needs to encourage conciliation,
mediation, and voluntary arbitration to aid and encourage
employers and their employees to reach and maintain
agreements concerning rates of pay, hours, and working
conditions, and to make all reasonable efforts through
negotiations to settle their differences by mutual agreement
reached through collective bargaining or by such methods as
may be provided for in any applicable agreement for the
settlement of disputes.
(3) The absence of adequate cooperation between public
safety employers and employees has implications for the
security of employees and can affect interstate and
intrastate commerce. The lack of such labor-management
cooperation can detrimentally impact the upgrading of police
and fire services of local communities, the health and well-
being of public safety officers, and the morale of the fire
and police departments. Additionally, these factors could
have significant commercial repercussions. Moreover,
providing minimal standards for collective bargaining
negotiations in the public safety sector can prevent
industrial strife between labor and management that
interferes with the normal flow of commerce.

SEC. 3. DEFINITIONS.

In this Act:
(1) Authority.--The term ``Authority'' means the Federal
Labor Relations Authority.
(2) Emergency medical services personnel.--The term
``emergency medical services personnel'' means an individual
who provides out-of-hospital emergency medical care,
including an emergency medical technician, paramedic, or
first responder.
(3) Employer; public safety agency.--The terms ``employer''
and ``public safety agency'' mean any State, political
subdivision of a State, the District of Columbia, or any
territory or possession of the United States that employs
public safety officers.
(4) Firefighter.--The term ``firefighter'' has the meaning
given the term ``employee engaged in fire protection
activities'' in section 3(y) of the Fair Labor Standards Act
(29 U.S.C. 203(y)).
(5) Labor organization.--The term ``labor organization''
means an organization composed in whole or in part of
employees, in which employees participate, and which
represents such employees before public safety agencies
concerning grievances, conditions of employment and related
matters.
(6) Law enforcement officer.--The term ``law enforcement
officer'' has the meaning given such term in section 1204(5)
of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3796b(5)).
(7) Management employee.--The term ``management employee''
has the meaning given such term under applicable State law in
effect on the date of enactment of this Act. If no such State
law is in effect, the term means an individual employed by a
public safety employer in a position that requires or
authorizes the individual to formulate, determine, or
influence the policies of the employer.
(8) Public safety officer.--The term ``public safety
officer''--
(A) means an employee of a public safety agency who is a
law enforcement officer, a firefighter, or an emergency
medical services personnel;
(B) includes an individual who is temporarily transferred
to a supervisory or management position; and
(C) does not include a permanent supervisory or management
employee.
(9) Substantially provides.--The term ``substantially
provides'' means compliance with the essential requirements
of this Act, specifically, the right to form and join a labor
organization, the right to bargain over wages, hours, and
conditions of employment, the right to sign an enforceable
contract, and availability of some form of mechanism to break
an impasse, such as arbitration, mediation, or fact finding.
(10) Supervisory employee.--The term ``supervisory
employee'' has the meaning given such term under applicable
State law in effect on the date of enactment of this Act. If
no such State law is in effect, the term means an individual,
employed by a public safety employer, who--
(A) has the authority in the interest of the employer to
hire, direct, assign, promote, reward, transfer, furlough,
lay off, recall, suspend, discipline, or remove public safety
officers, to adjust their grievances, or to effectively
recommend such action, if the exercise of the authority is
not merely routine or clerical in nature but requires the
consistent exercise of independent judgment; and
(B) devotes a majority of time at work exercising such
authority.

SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBILITIES.

(a) Determination.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Authority shall make a
determination as to whether a State substantially provides
for the rights and responsibilities described in subsection
(b). In making such determinations, the Authority shall
consider and give weight, to the maximum extent practicable,
to the opinion of affected parties.
(2) Subsequent determinations.--
(A) In general.--A determination made pursuant to paragraph
(1) shall remain in effect unless and until the Authority
issues a subsequent determination, in accordance with the
procedures set forth in subparagraph (B).
(B) Procedures for subsequent determinations.--Upon
establishing that a material change in State law or its
interpretation has occurred, an employer or a labor
organization may submit a written request for a subsequent
determination. If satisfied that a material change in State
law or its interpretation has occurred, the Director shall
issue a subsequent determination not later than 30 days after
receipt of such request.
(3) Judicial review.--Any State, political subdivision of a
State, or person aggrieved by a determination of the
Authority under this section may, during the 60 day period
beginning on the date on which the determination was made,
petition any United States Court of Appeals in the circuit in
which the person resides or transacts business or in the
District of Columbia circuit, for judicial review. In any
judicial review of a determination by the Authority, the
procedures contained in subsections (c) and (d) of section
7123 of title 5, United States Code, shall be followed,
except that any final determination of the Authority with
respect to questions of fact or law shall be found to be
conclusive unless the court determines that the Authority's
decision was arbitrary and capricious.
(b) Rights and Responsibilities.--In making a determination
described in subsection (a), the Authority shall consider
whether

[[Page S3625]]

State law provides rights and responsibilities comparable to
or greater than the following:
(1) Granting public safety officers the right to form and
join a labor organization, which may exclude management and
supervisory employees, that is, or seeks to be, recognized as
the exclusive bargaining representative of such employees.
(2) Requiring public safety employers to recognize the
employees' labor organization (freely chosen by a majority of
the employees), to agree to bargain with the labor
organization, and to commit any agreements to writing in a
contract or memorandum of understanding.
(3) Permitting bargaining over hours, wages, and terms and
conditions of employment.
(4) Requiring an interest impasse resolution mechanism,
such as fact-finding, mediation, arbitration or comparable
procedures.
(5) Requiring enforcement through State courts of--
(A) all rights, responsibilities, and protections provided
by State law and enumerated in this section; and
(B) any written contract or memorandum of understanding.
(c) Failure To Meet Requirements.--
(1) In general.--If the Authority determines, acting
pursuant to its authority under subsection (a), that a State
does not substantially provide for the rights and
responsibilities described in subsection (b), such State
shall be subject to the regulations and procedures described
in section 5.
(2) Effective date.--Paragraph (1) shall take effect on the
date that is 2 years after the date of enactment of this Act.

SEC. 5. ROLE OF FEDERAL LABOR RELATIONS AUTHORITY.

(a) In General.--Not later than 1 year after the date of
enactment of this Act, the Authority shall issue regulations
in accordance with the rights and responsibilities described
in section 4(b) establishing collective bargaining procedures
for public safety employers and officers in States which the
Authority has determined, acting pursuant to its authority
under section 4(a), do not substantially provide for such
rights and responsibilities.
(b) Role of the Federal Labor Relations Authority.--The
Authority, to the extent provided in this Act and in
accordance with regulations prescribed by the Authority,
shall--
(1) determine the appropriateness of units for labor
organization representation;
(2) supervise or conduct elections to determine whether a
labor organization has been selected as an exclusive
representative by a majority of the employees in an
appropriate unit;
(3) resolve issues relating to the duty to bargain in good
faith;
(4) conduct hearings and resolve complaints of unfair labor
practices;
(5) resolve exceptions to the awards of arbitrators;
(6) protect the right of each employee to form, join, or
assist any labor organization, or to refrain from any such
activity, freely and without fear of penalty or reprisal, and
protect each employee in the exercise of such right; and
(7) take such other actions as are necessary and
appropriate to effectively administer this Act, including
issuing subpoenas requiring the attendance and testimony of
witnesses and the production of documentary or other evidence
from any place in the United States, and administering oaths,
taking or ordering the taking of depositions, ordering
responses to written interrogatories, and receiving and
examining witnesses.
(c) Enforcement.--
(1) Authority to petition court.--The Authority may
petition any United States Court of Appeals with jurisdiction
over the parties, or the United States Court of Appeals for
the District of Columbia Circuit, to enforce any final orders
under this section, and for appropriate temporary relief or a
restraining order. Any petition under this section shall be
conducted in accordance with subsections (c) and (d) of
section 7123 of title 5, United States Code, except that any
final order of the Authority with respect to questions of
fact or law shall be found to be conclusive unless the court
determines that the Authority's decision was arbitrary and
capricious.
(2) Private right of action.--Unless the Authority has
filed a petition for enforcement as provided in paragraph
(1), any party has the right to file suit in a State court of
competent jurisdiction to enforce compliance with the
regulations issued by the Authority pursuant to subsection
(b), and to enforce compliance with any order issued by the
Authority pursuant to this section. The right provided by
this subsection to bring a suit to enforce compliance with
any order issued by the Authority pursuant to this section
shall terminate upon the filing of a petition seeking the
same relief by the Authority.

SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.

A public safety employer, officer, or labor organization
may not engage in a lockout, sickout, work slowdown, or
strike or engage in any other action that is designed to
compel an employer, officer, or labor organization to agree
to the terms of a proposed contract and that will measurably
disrupt the delivery of emergency services, except that it
shall not be a violation of this section for an employer,
officer, or labor organization to refuse to provide services
not required by the terms and conditions of an existing
contract.

SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.

A certification, recognition, election-held, collective
bargaining agreement or memorandum of understanding which has
been issued, approved, or ratified by any public employee
relations board or commission or by any State or political
subdivision or its agents (management officials) in effect on
the day before the date of enactment of this Act shall not be
invalidated by the enactment of this Act.

SEC. 8. CONSTRUCTION AND COMPLIANCE.

(a) Construction.--Nothing in this Act shall be construed--
(1) to invalidate or limit the remedies, rights, and
procedures of any law of any State or political subdivision
of any State or jurisdiction that provides collective
bargaining rights for public safety officers that are equal
to or greater than the rights provided under this Act;
(2) to prevent a State from enforcing a right-to-work law
that prohibits employers and labor organizations from
negotiating provisions in a labor agreement that require
union membership or payment of union fees as a condition of
employment;
(3) to invalidate any State law in effect on the date of
enactment of this Act that substantially provides for the
rights and responsibilities described in section 4(b) solely
because such State law permits an employee to appear on his
or her own behalf with respect to his or her employment
relations with the public safety agency involved; or
(4) to permit parties subject to the National Labor
Relations Act (29 U.S.C. 151 et seq.) and the regulations
under such Act to negotiate provisions that would prohibit an
employee from engaging in part-time employment or volunteer
activities during off-duty hours; or
(5) to prohibit a State from exempting from coverage under
this Act a political subdivision of the State that has a
population of less than 5,000 or that employs less than 25
full time employees.
For purposes of paragraph (5), the term ``employee'' includes
each and every individual employed by the political
subdivision except any individual elected by popular vote or
appointed to serve on a board or commission.
(b) Compliance.--No State shall preempt laws or ordinances
of any of its political subdivisions if such laws provide
collective bargaining rights for public safety officers that
are equal to or greater than the rights provided under this
Act.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act.

Mr. KENNEDY. Mr. President, I am honored today to join Senator Gregg
in introducing the Public Safety Employer-Employee Cooperation Act of
2003.
This bill is an important bipartisan effort to help protect our
Nation's public safety officers on the job. The events of September 11
made clear that our Nation's true heroes are our fire fighters, police
officers, and emergency medical technicians. We will never forget the
sacrifices they made at the World Trade Center and the Pentagon. The
photographs of tired, dust-covered, fire fighters confronting the
unimaginable horror of that day are permanently emblazoned in our
minds.
Thousands of public safety officers throughout the country serve in
some of the country's most dangerous, strenuous and stressful jobs
today. Every year, more than 80,000 police officers and 75,000
firefighters are injured on the job. An average of 160 police officers
and nearly 100 firefighters die in the line of duty each year. It is a
matter of basic fairness to give these courageous men and women the
same rights that have long been enjoyed by other workers.
For more than 60 years, collective bargaining has enabled labor and
management to work together to improve job conditions and increase
productivity. Through collective bargaining, labor and management have
led the way together on many important improvements in today's
workplace--especially with regard to health and pension benefits, paid
holidays and sick leave, and workplace safety.
Collective bargaining in the public sector, once a controversial
issue, is now widely accepted. It has been widespread, since at least
1962, when President Kennedy signed an Executive order granting these
basic rights to Federal employees. Congressional employees have had
these rights since enactment of the Congressional Accountability Act
almost a decade ago. It is long past time for State and local
government employees to have Federal protection for the basic right to
participate in collective bargaining agreements with their employers.
The bill we are introducing today extends this protection to
firefighters, police officers, correctional officers,

[[Page S3626]]

paramedics and emergency medical technicians. The bill guarantees the
fundamental rights necessary for collective bargaining--the right to
form and join a union; the right to bargain over hours, wages and
working conditions; the right to sign legally enforceable contracts;
and the right to a means to resolve impasses in negotiations.
The benefits of this bill are clear and compelling. It will lead to
safer working conditions for public safety officers. States that lack
these collective bargaining laws have death rates for fire fighters
nearly double the rate in States in which such bargaining takes place.
In 1993, fire fighters in nine of the 10 States with the highest fire
fighter death rates did not have collective bargaining protection.
Because public safety employees serve on the front lines in providing
firefighting services, law enforcement services, and emergency medical
services, they know what it takes to create safer working conditions.
They should have a voice in decisions that can literally make a life-
or-death difference on the job.
This bill will benefit all of us, not just public safety officers.
When workers who actually do the job are able to provide advice on
their working conditions, there are fewer injuries, increased morale,
better information on new technologies, and more efficient ways to
provide the services, all of which improve the safety and security of
the communities that our public safety officers serve.
This bill will also save money for States and local communities.
Experience has shown that when public safety officers can discuss
workplace conditions with management, partnerships and cooperation
develop and lead to improved labor-management relations and better,
more cost-effective services. A study by the International Association
of Fire Fighters shows that States and municipalities that give
firefighters the right to discuss workplace issues have lower fire
department budgets than States without such laws.
This bill accomplishes its goals in a reasonable way. It requires
that public safety officers be given the opportunity to bargain
collectively, but it does not require that employers adopt agreements,
and it does not regulate the content of any agreements that are
reached.
In States with collective bargaining laws that substantially provide
the modest minimum standards in the bill--as a majority of States
already do--those States will be unaffected by this legislation. Where
States do not have such laws, they may choose to enact them, or to
allow the Federal Labor Relations Authority to establish procedures for
bargaining between public safety officers and their employers. This
approach respects existing State laws, and gives each state the
authority to choose the way in which it will comply with the
requirements of this legislation. States will have full discretion to
make decisions on the implementation and enforcement of the basic
rights set forth in this proposal.
This amendment will not supersede State laws which already adequately
provide for the exercise of--or are more protective of--collective
bargaining rights by public safety officers. It is a matter of basic
fairness for these courageous men and women to have the same rights
that have long been enjoyed by other workers. They put their lives on
the line to protect us every day. They deserve to have an effective
voice on the job, and I urge the Senate to approve this important
bipartisan legislation.
______

By Mr. REED (for himself and Mr. Kennedy):
S. 608. A bill to provide for personnel preparation, enhanced support
and training for beginning special educators, and professional
development of special educators, general educators, and early
intervention personnel; to the Committee on Health, Education, Labor,
and Pensions.
Mr. REED. Mr. President, I rise today to introduce the Personnel
Excellence for Children with Disabilities Act of 2003 to ensure high
quality personnel to serve students with disabilities.
I have long worked to improve the quality of teaching in America's
classrooms for the simple reason that well-trained and well-prepared
teachers, faculty, principals and administrators are critical to
improving the educational performance and achievement of students.
As Congress turns to the reauthorization of the Individuals with
Disabilities Education Act, IDEA, the focus shifts to increasing
support for both new and veteran special education teachers, school
principals, and the higher education faculty who train prospective
special education teachers.
There are currently an estimated 6 million children who receive
special education services. Yet, there are about 70,000 special
education teaching vacancies in schools nationwide. The President's
2002 Commission on Excellence in Special Education report stated that
``the growing shortage of special education teachers alarms this
Commission.'' Moreover, an estimated 600,000 IDEA students are taught
by unqualified or underqualified teachers nationwide. In some urban and
rural areas, close to half of special education teachers are
unqualified.
I am joined by Senator Kennedy, a leader in improving education for
all children, in introducing legislation today which would address and
improve current conditions by enhancing personnel preparation,
recruitment and retention, support and training for beginning special
educators, as well as professional development for special educators,
general educators, principals, paraprofessionals, and related services
personnel.
The Personnel Excellence for Children with Disabilities Act modifies
and strengthens the current State Improvement Grant program to focus
solely on personnel and professional development, including support to
school districts to meet the personnel requirements under IDEA.
Our legislation also establishes two grant programs. One would fund
partnerships of school districts, institutions of higher education, and
elementary and secondary schools that focus on meeting the needs of
beginning special educators, through an additional 5th year clinical
learning opportunity or the creation or support of professional
development schools. Professional development schools seek to improve
the professional status of teaching through a renewal of schools and
preservice teacher education, in-service education of veteran teachers,
and research to add to the knowledge base. The other grant program
seeks to ensure that general educators, including principals and
administrators, have the skills, knowledge, and leadership training to
improve results for children with disabilities in their schools and
classrooms. Currently, approximately half of students with disabilities
spend 79 percent or more of their time in regular classes, according to
the Department of Education's Annual Report to Congress for 2001. Only
20 percent are served outside of regular classes for 60 percent or more
of the time.
Lastly, our legislation enhances the personnel preparation programs
under the current IDEA Section 673. These programs provide grants to
institutions of higher education to enhance the preparation of special
educators.
In sum, the Personnel Excellence for Children with Disabilities Act
seeks to enhance: the teaching skills of special educators, general
educators, early intervention personnel, paraprofessionals and related
services personnel; the leadership skills of principals; collaboration
among special educators, general educators, and other personnel;
mentoring and other induction support for beginning special educators;
and training programs at institutions of higher education. The Act
would also boost the ability of educators and personnel to: involve and
work with parents, implement positive behavioral interventions; improve
early intervention services for infants, toddlers, and preschoolers;
and provide transition services and postsecondary opportunities. It
would also improve their ability to: use classroom-based techniques to
identify student potentially eligible for services; use technology to
enhance learning of children with disabilities and communicate with
parents; and ensure an effective IEP process.
The time for action is now because 98 percent of school districts
report that meeting the growing demand for special education teachers
is a top priority. Annual attrition rates for special education
teachers are over 13 percent: 6 percent for those who leave the field
entirely; and an additional 7.4 percent who transfer to general
education.

[[Page S3627]]

More than 200,000 new special education teachers will be needed in the
next five years, according to U.S. Department of Education estimates.
Investing in personnel preparation is critical for addressing these
needs which, in turn, will improve outcomes and results for children
with disabilities.
I urge my colleagues to join us in this essential endeavor by
cosponsoring this legislation and working for its inclusion in the
reauthorization of the IDEA.
Mr. President, I ask unanimous consent that the text of this
legislation be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 608

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 ``Personnel Excellence for
Students with Disabilities Act''.

SEC. 2. STATE PERSONNEL AND PROFESSIONAL DEVELOPMENT GRANTS.

Subpart 1 of part D (20 U.S.C. 1451 et seq.) is amended to
read as follows:

``Subpart 1--State Personnel and Professional Development Grants

``SEC. 651. FINDINGS; PURPOSE; DEFINITION.

``(a) Findings.--Congress finds the following:
``(1) The right of all children with disabilities to a free
and appropriate public education requires States to adopt a
comprehensive strategy to address teacher shortages and
ensure adequate numbers of teachers to serve children with
disabilities.
``(2) In order to ensure that the persons responsible for
the education of children with disabilities possess the
skills and knowledge necessary to address such children's
educational and related needs, States must promote
comprehensive programs of professional development.
``(3) The dissemination of research-based knowledge about
successful teaching practices and models to teachers and
other personnel serving children with disabilities can result
in improved outcomes for children with disabilities.
``(b) Purpose.--The purpose of this subpart is to assist
State educational agencies and local educational agencies,
and their partners referred to in section 652, in providing
support for, and improving their systems of, personnel
preparation and professional development to improve results
for children with disabilities.
``(c) Definition of Postsecondary Opportunities.--In this
subpart, the term `postsecondary opportunities' includes the
transition from school to postsecondary education, adult
services, or work.

``SEC. 652. ELIGIBILITY AND COLLABORATION PROCESS IN GRANTS
TO STATES.

``(a) Eligible Applicants; Duration of Assistance.--A State
educational agency may apply for a grant under this subpart
for a grant period of 4 years.
``(b) Partnerships and Consultations.--In order to be
considered for a grant under this subpart, a State
educational agency shall--
``(1) establish a formal partnership with local educational
agencies, the lead State agency for part C, the State agency
responsible for child care, the State vocational
rehabilitation agency, the State agency for higher education,
representatives of State-approved special education personnel
preparation programs in institutions of higher education
within the State, parent training and information centers or
community parent resource centers, and other State agencies
involved in, or concerned with, the education of children
with disabilities; and
``(2) consult with other public agencies, persons, and
organizations with relevant expertise in, and concerned with,
the education of children with disabilities, including--
``(A) parents of children with disabilities and parents of
nondisabled children;
``(B) general and special education teachers,
paraprofessionals, related services personnel, and early
intervention personnel;
``(C) the State advisory panel established under part B;
``(D) the State interagency coordinating council
established under part C;
``(E) community-based and other nonprofit organizations
representing individuals with disabilities; and
``(F) other providers of professional development and
personnel preparation for personnel that work with infants,
toddlers, preschoolers, and children with disabilities, and
nonprofit organizations whose primary purpose is education
research and development, when appropriate.

``SEC. 653. STATE APPLICATIONS.

``(a) In General.--A State educational agency that desires
to receive a grant under this subpart shall submit to the
Secretary an application at such time, in such manner, and
including such information as the Secretary may require.
``(b) Partnership Agreement.--Each application submitted
pursuant to this section shall specify the nature and extent
of the partnership among the State educational agency and
other partners (as described in section 652(b)), including
the respective roles of each member of the partnership, and
shall describe how grant funds allocated to the State under
section 655 will be used in undertaking the improvement
strategies described under subsection (c)(3).
``(c) Personnel and Professional Development Plan.--
``(1) In general.--Each application submitted pursuant to
this section shall include a personnel and professional
development plan that is--
``(A) based on the needs assessment described in paragraph
(2);
``(B) developed by the State educational agency in
collaboration with the partners described under section
652(b)(1);
``(C) designed to enable the State to meet the standards
described in section 612(a)(15) and implement the
comprehensive system of personnel development under section
612(a)(14); and
``(D) coordinated with other State professional development
plans for educators and personnel working with children in
early childhood education programs.
``(2) Needs assessment.--Each personnel and professional
development plan shall include an assessment of State and
local needs that identifies critical aspects and areas in
need of improvement related to the preparation, ongoing
training, and professional development of personnel that
serve infants, toddlers, preschoolers, and children with
disabilities within the State. Such assessment shall be based
on an analysis of--
``(A) current and anticipated personnel vacancies and
shortages in local educational agencies and local early
intervention agencies or providers throughout the State,
including the number of individuals currently serving
children with disabilities that--
``(i) are not highly qualified, consistent with section
612(a)(15);
``(ii) are individuals with temporary, provisional, or
emergency certification; or
``(iii) are individuals teaching with an alternative
certification;
``(B) the extent and amount of certification or retraining
necessary to eliminate the vacancies and shortages described
in subparagraph (A);
``(C) current preservice and inservice training and
preparation programs and activities available and accessible
in the State to personnel that serve infants, toddlers,
preschoolers, and children with disabilities, including--
``(i) the number of degree, certification, and licensure
programs that are preparing general and special education
teachers and personnel to serve children with high-incidence
and low-incidence disabilities;
``(ii) the number of noncertification programs designed to
train and prepare personnel to serve infants, toddlers,
preschoolers, and children with disabilities, including the
number of programs designed to provide training in early
intervention and transitional services; and
``(iii) the number of programs or activities designed to
provide the knowledge and skills necessary to ensure the
successful transition of students with disabilities into
postsecondary opportunities; and
``(D) information, reasonably available to the State, on
the scope and effectiveness of current training and
preparation programs and activities available in the State to
personnel that serve children with disabilities, including--
``(i) access of general education teachers to preservice
and inservice training in early intervention and special
education, including training related to the diverse learning
and developmental needs of children with disabilities;
``(ii) rates of attrition of special education teachers and
early intervention personnel throughout the State and a
description of factors that contribute to such attrition;
``(iii) data and major findings of the Secretary's most
recent reviews of State compliance, as such reviews relate to
meeting the standards described in section 612(a)(15) and
implementing a comprehensive system of personnel development
described under sections 612(a)(14) and 635(a)(8); and
``(iv) data regarding disproportionality required under
section 618.
``(3) Improvement strategies.--Each personnel and
professional development plan shall describe strategies
necessary to address the preparation and professional
development areas in need of improvement, based on the needs
assessment conducted under paragraph (2), that include--
``(A) how the State will respond to the needs for
preservice and inservice preparation of personnel who work
with infants, toddlers, preschoolers, and children with
disabilities, including strategies to--
``(i) prepare all general and special education personnel
(including both professional and paraprofessional personnel
who provide special education, general education, or related
services)--

``(I) with the knowledge and skills needed to meet the
needs of, and improve results for, children with
disabilities;
``(II) to utilize classroom-based techniques to identify
students who may be eligible for special education services
or other services prior to making referrals for special
education services;
``(III) to help students with disabilities meet State
academic standards;
``(IV) to work as part of a collaborative team, especially
training related to all aspects of planning, design, and
effective implementation of an IEP; and

[[Page S3628]]

``(V) to utilize effective parental involvement practices
needed to work with and involve parents of children with
disabilities in their child's education;

``(ii) prepare professionals, including professionals in
preschool settings, and paraprofessionals in the area of
early intervention with the knowledge and skills needed to
meet the needs of infants, toddlers, and preschoolers with
disabilities;
``(iii) develop the knowledge and skills and enhance the
ability of teachers and other personnel responsible for
providing transition services to improve such services and
postsecondary opportunities for children with disabilities;
``(iv) enhance the ability of principals to provide
instructional leadership on, and teachers and other school
staff to use, strategies, such as positive behavioral
interventions, to address the behavior of children with
disabilities that impedes the learning of children with
disabilities and others; and
``(v) ensure that school personnel who work with students
with significant health, mobility, or behavior needs receive
training, as appropriate, prior to serving such students;
``(B) how the State will collaborate with institutions of
higher education and other entities that (on both a
preservice and an inservice basis) prepare personnel who work
with children with disabilities to develop such entities'
capacity to support quality professional development programs
that meet State and local needs;
``(C) how the State will identify model certification
programs that may be used to create and improve certification
requirements for personnel working with infants, toddlers,
preschoolers, and children with disabilities;
``(D) how the State will provide technical assistance to
local educational agencies, schools, and early intervention
providers to improve the quality of training and professional
development available to meet the needs of personnel that
serve children with disabilities;
``(E) how the State will work in collaboration with other
States, especially neighboring States, when possible, to--
``(i) address the lack of uniformity and reciprocity in the
credentialing of teachers and other personnel;
``(ii) support or develop programs to prepare personnel for
which there is not sufficient demand within a single State to
justify support or development of such a program of
preparation; and
``(iii) develop, as appropriate, common certification
criteria;
``(F) how the State will acquire and disseminate, to
teachers, administrators, related services personnel, other
service providers, and school board members, significant
knowledge derived from educational research and other
sources, and how the State will adopt promising practices,
materials, and technology;
``(G) how the State will recruit and retain qualified
personnel in geographic areas of greatest need, including
personnel with disabilities and personnel from groups that
are underrepresented in the fields of regular education,
special education, related services, and early intervention;
``(H) how the State will create collaborative training
models and provide for the joint training of parents and
special education, related services, and general education
personnel in providing quality services and programs, and
family involvement and support;
``(I) how the State will address systemic problems
associated with meeting the standards described in section
612(a)(15) and implementing the comprehensive system of
personnel development under section 612(a)(14), as identified
in Federal compliance reviews, including shortages of
qualified personnel; and
``(J) how the State will address the findings from the data
required to be gathered under section 618 and the steps the
State will take to ensure that poor and minority children are
not taught at higher rates than other children by
inexperienced, unqualified, or out-of-field teachers,
including the measures that the State educational agency will
use to evaluate and publicly report the progress of the State
educational agency with respect to such steps.
``(4) Coordination and integration.--Each application
submitted pursuant to this section shall--
``(A) include assurances that--
``(i) the personnel and professional development plan is
integrated, to the maximum extent possible, with State plans
and activities carried out under other Federal and State laws
that address personnel recruitment, retention, and training,
including plans carried out under titles I and II of the
Elementary and Secondary Education Act of 1965, the
Rehabilitation Act of 1973, the Higher Education Act of 1965,
and the Child Care and Development Block Grant Act of 1990,
as appropriate;
``(ii) the personnel and professional development plan is
integrated and based, to the maximum extent possible, on
research and activities supported by grants under sections
672 and 673 and conducted by institutions of higher education
throughout the State; and
``(iii) the improvement strategies described in paragraph
(3) will be coordinated with activities undertaken by public
and private institutions of higher education, as well as with
public and private sector resources, when appropriate; and
``(B) contain a description of the amount and nature of
funds from any other sources, including part B funds retained
for use at the State level for personnel and professional
development purposes under sections 611(f) and 619(d), and
part C funds used in accordance with section 638, that will
be committed to the systemic-change activities under this
section.
``(5) Other information.--A State educational agency shall
submit to the Secretary, at such time and in such manner as
the Secretary may require, such additional information
regarding the preparation and professional development of
personnel that serve children with disabilities in the
personnel and professional development plan.

``SEC. 654. STATE USE OF FUNDS.

``(a) In General.--A State educational agency that receives
a grant under this subpart shall--
``(1) expend funds not reserved under paragraph (2) to
carry out improvement strategies contained in the personnel
and professional development plan under section 653(c)(3);
and
``(2) in the case of a State educational agency serving a
State that the Secretary determines has not met the standards
in section 612(a)(15) or implemented the comprehensive system
of personnel development under section 612(a)(14), reserve
not less than 35 percent of funds made available through the
grant to award subgrants to local educational agencies as
described in section 657.
``(b) Contracts and Subcontracts.--Consistent with the
partnership agreement described under section 652(b), a State
educational agency shall award contracts or subgrants to
local educational agencies and institutions of higher
education with State-approved special education personnel
preparation programs, and may award contracts or subgrants to
the lead State agency for part C, or other nonprofit
entities, as appropriate, to carry out such State educational
agency's personnel and professional development plan under
this subpart.
``(c) Supplement, Not Supplant.--Funds received by a State
educational agency under this subpart shall be used to
supplement, and not supplant, non-Federal funds that would
otherwise be used for activities authorized under this
subpart.

``SEC. 655. STATE ALLOTMENTS.

``(a) In General.--The Secretary shall make a grant to each
State educational agency whose application the Secretary has
approved under section 653. Each grant shall consist of the
allotment determined for a State under subsection (b).
``(b) Determination of Allotments.--
``(1) Reservation of funds.--From the total amount
appropriated under section 658 for a fiscal year, the
Secretary shall reserve--
``(A) one-half of 1 percent for allotments for the United
States Virgin Islands, Guam, American Samoa, the Commonwealth
of the Northern Mariana Islands, the Republic of Palau, the
freely associated States of the Marshall Islands, and the
Federated States of Micronesia, to be distributed among those
areas on the basis of their relative need, as determined by
the Secretary, in accordance with the purpose of this
subpart; and
``(B) one-half of 1 percent for the Secretary of the
Interior for programs under this subpart in schools operated
or funded by the Bureau of Indian Affairs.
``(2) State allotments.--
``(A) Minimum allotment.--From the funds appropriated under
section 658, and not reserved under paragraph (1), the
Secretary shall allot to each of the 50 States, the District
of Columbia, and the Commonwealth of Puerto Rico an amount
for each fiscal year that is not less than $500,000.
``(B) Allotment of remaining funds.--For any fiscal year
for which the funds appropriated under section 658, and not
reserved under paragraph (1), exceed the total amount
required to make allotments under subparagraph (A), the
Secretary shall distribute to each of the States described in
subparagraph (A), the remaining excess funds after
considering--
``(i) the amount of the excess funds available for
distribution;
``(ii) the relative population of the States; and
``(iii) the scope and quality of activities proposed by the
States.
``(3) Funds to remain available.--Allotments made to States
under this section shall remain available until expended.
``(4) Reallotment.--If any State does not apply for an
allotment under this subsection for any fiscal year, the
Secretary shall reallot the amount of the allotment to the
remaining States in accordance with this subsection.

``SEC. 656. EVALUATIONS.

``(a) In General.--Each State educational agency that
receives a grant under this subpart shall submit an
evaluation to the Secretary at such time as the Secretary may
require, but not more frequently than annually.
``(b) Evaluation Components.--Each evaluation submitted to
the Secretary shall include--
``(1) the data contained in the needs assessment described
in section 653(c)(2);
``(2) a description of the progress made by the State in
implementing each of the strategies described in section
653(c)(3);
``(3) an assessment, conducted on a regular basis, of the
extent to which the personnel and professional development
plan has been effective in enabling States to meet the
standards described in section 612(a)(15) and

[[Page S3629]]

implement the comprehensive system of personnel development
under section 612(a)(14); and
``(4) such other information as the Secretary may require.
``(c) Report.--The Secretary shall submit to Congress a
report on the evaluations received under this section.

``SEC. 657. SUBGRANT AWARDS TO LOCAL EDUCATIONAL AGENCIES.

``(a) In General.--From funds made available under section
654(a)(2), a State educational agency shall award a subgrant
to eligible local educational agencies to enable the eligible
local educational agencies to recruit and retain special
education teachers, paraprofessionals, and related services
providers, to ensure that such agency meets the requirements
in the policy adopted by the State in section 612(a)(15).
``(b) Eligible Local Educational Agency.--
``(1) In general.--A local educational agency shall be
eligible to receive a subgrant under this section if the
local educational agency--
``(A)(i) has failed to meet, or is in danger of failing to
meet, the standards described in section 612(a)(15);
``(ii) serves a high number or percentage of low-income
students; and
``(iii) has a demonstrated need to prepare and train new or
existing personnel to meet the needs of children with
disabilities; and
``(B) collects and uses data to determine local needs for
professional development, hiring, and retention of personnel,
as identified by the local educational agency and school
staff--
``(i) with the involvement of teachers, other personnel,
and parents; and
``(ii) after taking into account the activities that need
to be conducted--

``(I) to give general and special education teachers,
paraprofessionals, and related services personnel the means,
including subject matter knowledge and teaching skills, to
improve results and outcomes for students with disabilities;
and
``(II) to give principals the instructional leadership
skills to help teachers and related services personnel
provide students with the opportunity described in subclause
(I).

``(2) Consortium.--The term `eligible local educational
agency' may include a consortium of such agencies.
``(c) Application.--
``(1) In general.--An eligible local educational agency
that desires to receive a subgrant under this section shall
submit an application to the State educational agency at such
time, in such manner, and containing such information as the
State educational agency may reasonably require.
``(2) Contents.--Each application submitted under this
subsection shall include--
``(A) a description of the activities to be carried out by
the local educational agency and how such activities will
support the local educational agency's efforts to provide
professional development and to recruit and retain highly
qualified teachers; and
``(B) a description of the needs described in subsection
(b)(1)(B).
``(d) Grants Awarded.--State educational agencies shall
award grants under this section on the basis of the quality
of the applications submitted, except that State educational
agencies shall give priority to eligible local educational
agencies with the greatest need.
``(e) Use of Funds.--
``(1) In general.--An eligible local educational agency
that receives a subgrant under this section shall use the
funds made available through the subgrant to carry out 1 or
more of the following activities:
``(A) Providing high quality professional development for
special education teachers.
``(B) Providing high quality professional development to
personnel who serve infants, toddlers, and preschoolers with
disabilities.
``(C) Providing high quality professional development for
principals, including training in areas such as behavioral
supports in the school and classroom, paperwork reduction,
and promoting improved collaboration between special
education and general education teachers.
``(D) Mentoring programs.
``(E) Team teaching.
``(F) Case load reduction.
``(G) Paperwork reduction.
``(H) Financial incentives, as long as those incentives are
linked to participation in activities that have proven
effective in recruiting and retaining teachers and are
developed in consultation with the personnel of the eligible
local educational agency.
``(I) Hiring and training high quality paraprofessionals
and providing other high quality instructional support.
``(J) Partnering with institutions of higher education for
the training and retraining of teachers and to carry out any
other activities under this paragraph.
``(2) Effective programs.--Funds under this section shall
be used only for those activities that are linked to
participation in activities that have proven effective in
retaining teachers.
``(f) Matching Requirement.--Each eligible local
educational agency awarded a subgrant under this section
shall contribute matching funds, in an amount equal to not
less than 25 percent of the subgrant award, toward carrying
out the activities assisted under this section.

``SEC. 658. AUTHORIZATION OF APPROPRIATIONS.

``There are authorized to be appropriated to carry out this
subpart $250,000,000 for fiscal year 2004 and such sums as
may be necessary for each succeeding fiscal year.''.

SEC. 3. ENHANCED SUPPORT AND TRAINING FOR BEGINNING SPECIAL
EDUCATORS AND GENERAL EDUCATORS.

Chapter 1 of subpart 2 of part D of the Individuals with
Disabilities Education Act (20 U.S.C. 1471 et seq.) is
amended by inserting after section 674 the following:

``SEC. 675. ENHANCED SUPPORT AND TRAINING FOR BEGINNING
SPECIAL EDUCATORS.

``(a) Definitions.--In this section:
``(1) Eligible entity.--The term `eligible entity' means a
partnership between 1 or more institutions of higher
education with a State-approved special education personnel
program, and 1 or more local educational agencies.
``(2) Professional development partnership.--
``(A) In general.--The term `professional development
partnership' means a partnership between an eligible entity
and an elementary school or secondary school that is based on
a mutual commitment to improve teaching and learning.
``(B) Additional entities.--A professional development
partnership may include--
``(i) a State educational agency;
``(ii) a teaching organization;
``(iii) a professional association of principals; or
``(iv) a nonprofit organization whose primary purpose is--

``(I) education research and development; or
``(II) training special education and early intervention
personnel.

``(b) Authorization of Program.--
``(1) In general.--From amounts appropriated under
subsection (g) for a fiscal year, the Secretary shall award
grants to, or enter into contracts or cooperative agreements
with, eligible entities to enable such entities to establish
professional development partnerships to improve the
education of children with disabilities by--
``(A) ensuring a strong and steady supply of new highly
qualified teachers of children with disabilities;
``(B) helping address challenges in the local educational
agency to recruiting highly qualified teachers and retaining
such teachers; and
``(C) providing for an exchange of knowledge and skills
among special education teachers, including furthering the
development and professional growth of veteran special
education teachers.
``(2) Competitive basis.--Each grant, contract, or
cooperative agreement under this section shall be awarded or
entered into on a competitive basis.
``(3) Duration.--Each grant, contract, or cooperative
agreement under this section shall be awarded or entered into
for a period of not less than 3 and not more than 5 years.
``(4) Priority.--In awarding grants or entering into
contracts or cooperative agreements under this section, the
Secretary shall give priority to eligible entities that--
``(A) serve high numbers or percentages of low-income
students; and
``(B) serve schools that have failed to make adequate
yearly progress toward enabling children with disabilities to
meet academic achievement standards.
``(c) Applications.--An eligible entity desiring a grant,
contract, or cooperative agreement under this section shall
submit an application to the Secretary at such time, in such
manner, and accompanied by such information as the Secretary
may require. Each such application shall--
``(1) describe--
``(A) the proposed activities of the professional
development partnership and how the activities will be
developed in consultation with teachers;
``(B) how the proposed activities will prepare teachers to
implement research-based, demonstrably successful, and
replicable instructional practices that improve outcomes for
children with disabilities;
``(C) how the eligible entity will ensure the participation
of elementary schools or secondary schools as partners in the
professional development partnership, and how the research
and knowledge generated by the professional development
partnership will be disseminated and implemented in the
elementary schools or secondary schools that are served by
the local educational agency and are not partners in the
professional development partnership;
``(D) how the process for developing a new preservice
education program or restructuring an existing program will
improve teacher preparation at the institution of higher
education;
``(E) how the proposed activities will include the
participation of schools, colleges, or other departments
within the institution of higher education to ensure the
integration of pedagogy and content in teacher preparation;
``(F) how the proposed activities will increase the numbers
of qualified personnel, including paraprofessionals,
administrators, and related services personnel, that receive
certification and serve children with disabilities in
elementary schools or secondary schools;
``(G) how the proposed activities will recruit diverse
prospective special education teachers;
``(H) how the eligible entity will collaborate with the
State educational agency to ensure that proposed activities
will be coordinated with activities established by the

[[Page S3630]]

State to improve systems for personnel preparation and
professional development pursuant to subpart 1;
``(I) how the grant funds will be divided among the members
of the professional development partnership and the
responsibilities each partner has agreed to undertake in the
use of the grant funds and other related funds; and
``(J) how the eligible entity will gather information in
order to assess the impact of the activities assisted under
this section on teachers and the students served under this
section; and
``(2) identify the lead fiscal agent of the professional
development partnership responsible for the receipt and
disbursement of funds under this section.
``(d) Authorized Activities.--Each eligible entity
receiving a grant or entering into a contract or cooperative
agreement under this section shall use the grant funds to
establish a professional development partnership that--
``(1) develops a preservice teacher education program, or
enhances and restructures an existing program, to prepare
special education teachers, at colleges or departments of
education within the institution of higher education, by
incorporating an additional 5th year clinical learning
opportunity, field experience, or supervised practicum into a
program of preparation and coursework for special education
teachers, that includes--
``(A) developing new curricula and coursework for the
preparation of prospective special education teachers,
including preparation to teach in core academic subjects;
``(B) support for new faculty positions to provide,
coordinate, and oversee instruction of the clinical learning
opportunity, field experience, or supervised practicum;
``(C) new, ongoing performance-based review procedures to
assist and support the learning of prospective special
education teachers;
``(D) providing assistance to students for stipends and
costs associated with tuition and fees for continued or
enhanced enrollment in a preparation program for special
education teachers; and
``(E) supporting activities that increase the placement of
highly qualified teachers in elementary schools and secondary
schools; or
``(2) creates or supports professional development schools
that--
``(A) provide high quality induction opportunities with
ongoing support for beginning special education teachers;
``(B) provide mentoring, of prospective and beginning
special education teachers by veteran special education
teachers, in instructional skills, classroom management
skills, and strategies to effectively assess student progress
and achievement;
``(C) provide high quality inservice professional
development to veteran special education teachers through the
ongoing exchange of information and instructional strategies
among prospective special education teachers and faculty of
the institution of higher education;
``(D) prepare special education teachers to--
``(i) work collaboratively with general education teachers
and related services personnel; and
``(ii) involve parents in the education of such parents'
children; and
``(E) provide preparation time for faculty in the
professional development school, and other faculty of the
institution of higher education, to design and implement
curriculum, classroom experiences, and ongoing professional
development opportunities for prospective and beginning
special education teachers.
``(e) Supplement, Not Supplant.--Funds appropriated under
this section shall be used to supplement and not supplant
other Federal, State, and local public funds available for
the professional development or preservice preparation of
special education teachers.
``(f) Evaluation.--
``(1) In general.--The Secretary shall conduct biennial,
independent, national evaluations of the activities assisted
under this part not later than 3 years after the date of
enactment of the Personnel Excellence for Students with
Disabilities Act. The evaluation shall include information on
the impact of the activities assisted under this section on
outcomes for children with disabilities.
``(2) Report.--The Secretary shall report to Congress on
the results of the evaluation.
``(3) Dissemination.--The Secretary shall widely
disseminate effective practices identified through the
evaluation.
``(g) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section
$20,000,000 for fiscal year 2004, and such sums as may be
necessary for each succeeding fiscal year.

``SEC. 676. TRAINING TO SUPPORT GENERAL EDUCATORS.

``(a) Definitions.--In this section:
``(1) Eligible entities.--The term `eligible entity' means
a partnership that--
``(A) shall include--
``(i) 1 or more local educational agencies; and
``(ii) 1 or more State-approved special education personnel
preparation programs; and
``(B) may include a State educational agency, a teaching
organization, a professional association of principals, an
educational nonprofit organization, or another group or
institution that has expertise in special education and is
responsive to the needs of teachers.
``(2) General educator.--The term `general educator'
includes a teacher, a principal, a school superintendent, or
school faculty, such as a school counselor.
``(3) Postsecondary opportunities.--The term `postsecondary
opportunities' includes the transition from school to
postsecondary education, adult services, or work.
``(b) Authorization of Program.--
``(1) Assistance authorized.--The Secretary may award
grants to, or enter into contracts or cooperative agreements
with, eligible entities to enable the eligible entities to
provide professional development, leadership training, and
collaborative opportunities to general educators to ensure
that general educators have the skills and knowledge to meet
the needs of, and improve results for, children with
disabilities.
``(2) Competitive awards.--The Secretary shall award
grants, contracts, and cooperative agreements under this
section on a competitive basis.
``(c) Duration.--The Secretary shall award grants,
contracts, and cooperative agreements under this section for
a period of not less than 3 and not more than 5 years.
``(d) Application.--An eligible entity desiring a grant,
contract, or cooperative agreement under this section shall
submit an application to the Secretary at such time, in such
manner, and accompanied by such information as the Secretary
may require. Each such application shall--
``(1) describe--
``(A) the proposed activities to be assisted by the
eligible entity;
``(B) how the eligible entity will implement research-
based, demonstrably successful, and replicable instructional
practices that improve outcomes for children with
disabilities;
``(C) how the eligible entity will implement training and
collaborative opportunities on a schoolwide basis in schools
within the local educational agency;
``(D) the eligible entity's strategy to provide general
educators with--
``(i) professional development focused on addressing the
needs of children with disabilities in their classrooms; and
``(ii) training and opportunities to collaborate with
special education teachers and related services personnel to
better serve students' needs;
``(E) the eligible entity's strategy to provide principals,
superintendents, and other administrators with instructional
leadership skills;
``(F) how the eligible entity will provide training to
general educators to enable the general educators to work
with parents and involve parents in their child's education;
``(G) how the eligible entity will collaborate with the
State educational agency to ensure that proposed activities
will be coordinated with activities established by the State
to improve systems for personnel preparation and professional
development pursuant to subpart 1;
``(H) how the grant funds will be effectively coordinated
with all Federal, State, and local personnel preparation and
professional development funds and activities;
``(I) how the eligible entity will assess the impact of the
activities conducted and how the knowledge and effective
practices generated by the eligible entity will be widely
disseminated;
``(J) how the grant funds will be divided among the members
of the partnership and the responsibilities each partner has
agreed to undertake in the use of the grant funds and other
related funds; and
``(2) identify the lead fiscal agent for the eligible
entity.
``(e) Authorized Activities.--Funds provided under this
section may be used for the following activities:
``(1) To provide high quality professional development to
general educators that develops the knowledge and skills, and
enhances the ability, of general educators to--
``(A) utilize classroom-based techniques to identify
students who may be eligible for special education services,
and deliver instruction in a way that meets the
individualized needs of children with disabilities through
appropriate supports, accommodations, and curriculum
modifications;
``(B) work collaboratively with special education teachers
and related services personnel;
``(C) implement strategies, such as positive behavioral
interventions, to address the behavior of children with
disabilities that impedes the learning of such children and
others;
``(D) prepare children with disabilities to participate in
statewide assessments (with and without accommodations) and
alternative assessment, as appropriate, and achieve high
marks;
``(E) develop effective practices for ensuring that all
children with disabilities are a part of all accountability
systems under the Elementary and Secondary Education Act of
1965;
``(F) provide transition services to improve such services
and postsecondary opportunities for children with
disabilities;
``(G) work with and involve parents of children with
disabilities in their child's education;
``(H) understand how to effectively construct IEPs,
participate in IEP meetings and implement IEPs;
``(I) use universally designed technology and assistive
technology devices and services

[[Page S3631]]

to enhance learning by children with disabilities and to
communicate with parents; and
``(J) in the case of principals and superintendents, be
instructional leaders and promote improved collaboration
between general educators, special education teachers, and
related services personnel.
``(2) Provide release and planning time for the activities
described in this section.
``(f) Supplement, Not Supplant.--Funds provided under this
section shall be used to supplement, not supplant, other
Federal, State, and local funds available for training to
support general educators.
``(g) Evaluations.--
``(1) In general.--The Secretary shall conduct biennial,
independent, national evaluations of the activities assisted
under this section not later than 3 years after the date of
enactment of the Personnel Excellence for Students with
Disabilities Act. The evaluations shall include information
on the impact of the activities assisted under this section
on outcomes for children with disabilities.
``(2) Report.--The Secretary shall prepare and submit to
Congress a report on the evaluations.
``(3) Dissemination.--The Secretary shall provide for the
wide dissemination of effective models and practices
identified in the evaluations.
``(h) Authorization.--There are authorized to be
appropriated to carry out this section $20,000,000 for fiscal
year 2004 and such sums as may be necessary for each
succeeding fiscal year.''.

SEC. 4. PERSONNEL PREPARATION TO IMPROVE SERVICES AND RESULTS
FOR CHILDREN WITH DISABILITIES.

Section 673 of the Individuals with Disabilities Education
Act (20 U.S.C. 1473) is amended--
(1) in subsection (a)(1), by inserting before the semicolon
``, consistent with subpart 1'';
(2) in subsection (b)--
(A) in paragraph (2)--
(i) by amending subparagraph (C) to read as follows:
``(C) Preparing personnel in the innovative uses and
application of technology, including implementation of
universally designed technologies and assistive technology
devices and assistive technology services, to enhance
learning by children with disabilities through early
intervention, educational, and transitional services, and to
communicate with parents to improve home and school
communication.'';
(ii) by redesignating subparagraphs (E) and (F) as
subparagraphs (F) and (G), respectively;
(iii) by inserting after subparagraph (D) the following:
``(E) Preparing personnel to work in high need elementary
schools and secondary schools, including urban schools, rural
schools, and schools operated by an entity described in
section 7113(d)(1)(A)(ii) of the Elementary and Secondary
Education Act of 1965, and schools that serve high numbers or
percentages of limited English proficient children.''; and
(iv) by adding at the end the following:
``(H) Providing continuous personnel preparation, training,
and professional development for beginning special education
teachers that is designed to provide support and ensure
retention of such teachers.
``(I) Preparing personnel on effective parental involvement
practices to enable the personnel to work with parents and
involve parents in the education of such parents'
children.''; and
(B) by amending paragraph (4) to read as follows:
``(4) Selection of recipients.--In selecting recipients
under this subsection, the Secretary may give preference to
applications that include 1 or more of the following:
``(A) A proposal to prepare personnel in more than 1 low-
incidence disability, such as deafness and blindness.
``(B) A demonstration of effective partnering with local
educational agencies that ensures recruitment and subsequent
retention of highly qualified personnel to serve children
with disabilities.
``(C) A proposal to address the personnel and professional
development needs in the State, as identified in subpart
1.'';
(3) in subsection (d)(2)--
(A) in subparagraph (C)--
(i) in clause (i), by striking ``and'' after the semicolon;
(ii) in clause (ii), by striking the period and inserting
``; and''; and
(iii) by adding at the end the following:
``(iii) to implement strategies to reduce significant
disproportionality described in section 618.'';
(B) in subparagraph (E), by inserting before the period ``,
including model teaching practices to assist such persons to
work effectively with parents and involve parents in the
education of such parents' children''; and
(C) by adding at the end the following:
``(L) Developing strategies to improve personnel training,
recruitment, and retention of special education teachers in
special education in high need elementary schools and
secondary schools, including urban schools, rural schools,
and schools operated by an entity described in section
7113(d)(1)(A)(ii) of the Elementary and Secondary Education
Act of 1965, and schools that serve high numbers of limited
English proficient children.'';
(4) in subsection (e)(1), by inserting ``emotional or
behavioral disorders,'' after ``impairment,'';
(5) in subsection (h)--
(A) in paragraph (1)--
(i) by striking ``2 years'' and inserting ``1 year''; and
(ii) by striking ``Obligation.--'' and all that follows
through ``Each application'' and inserting ``Obligation.--
Each application''; and
(B) by striking paragraph (2);
(6) by striking subsection (i) and inserting the following:
``(i) Scholarships.--
``(1) In general.--The Secretary may include funds for
scholarships, with necessary stipends and allowances, in
awards under subsections (b), (c), (d), and (e).
``(2) Determination of amounts.--The Secretary may permit a
grant recipient to determine the amount of funds available
for scholarships, necessary stipends, and allowances, that is
consistent with such recipient's grant award and the purposes
of such grant.'';
(7) by redesignating subsection (j) as subsection (k);
(8) by inserting after subsection (i) the following:
``(j) Development of New Programs or Restructuring of
Existing Programs.--In making awards under subsections (b),
(c), (d), and (e), the Secretary may support programs that
use award funds to develop new, or enhance and restructure
existing, personnel preparation programs.''; and
(9) in subsection (k) (as redesignated by paragraph (7))--
(A) by inserting ``$250,000,000 for fiscal year 2004 and''
after ``this section''; and
(B) by striking ``of the fiscal years 1998 through 2002''
and inserting ``succeeding fiscal year''.
______

By Mr. LEAHY (for himself, Mr. Levin, Mr. Lieberman, Mr.
Jeffords, and Mr. Byrd):
S. 609. A bill to amend the Homeland Security Act of 2002 (Public Law
107-296) to provide for the protection of voluntarily furnished
confidential information, and for other purposes; to the Committee on
the Judiciary.
Mr. LEAHY. Mr. President, last year when I voted to support passage
of the Homeland Security Act, HSA, I voiced concerns about several
flaws in the legislation. I called for the Administration and my
colleagues on both sides of the aisle to monitor implementation of the
new law and to craft corrective legislation in the 108th Congress. One
of my chief concerns with the HSA was a subtitle of the act that
granted an extraordinarily broad exemption to the Freedom of
Information Act, FOIA, in exchange for the cooperation of private
companies in sharing information with the government regarding
vulnerabilities in the nation's critical infrastructure.
Unfortunately, the law that was enacted undermines Federal and State
sunshine laws permitting the American people to know what their
government is doing. Rather than increasing security by encouraging
private sector disclosure to the government, it guts FOIA at the
expense of our national security and public health and safety.
On March 16, we mark Freedom of Information Day, which falls on the
anniversary of James Madison's birthday. Madison said, ``A popular
government, without popular information, or the means of acquiring it,
is but a prologue to a farce or tragedy or perhaps both.'' As a long-
time supporter of open government, I believe we must heed Madison's
warning and revisit the potentially damaging limitations placed on
access to information by the HSA.
I rise today to introduce legislation with my distinguished
colleagues Senator Levin, Senator Jeffords, Senator Lieberman, and
Senator Byrd to restore the integrity of FOIA. I want to thank my
colleagues for working with me on this important issue of public
oversight. This bill protects Americans' ``right to know'' while
simultaneously providing security to those in the private sector who
voluntarily submit critical infrastructure records to the newly created
Department of Homeland Security, DHS.
Encouraging cooperation between the private sector and the government
to keep our critical infrastructure systems safe from terrorist attacks
is a goal we all support. But the appropriate way to meet this goal is
a source of great debate--a debate that has been all but ignored since
the enactment of the HSA last year.
The HSA created a new FOIA exemption for ``critical infrastructure
information.'' That broadly defined term applies to information
regarding a variety of facilities--such as privately operated power
plants, bridges, dams, ports, or chemical plants--that might be
targeted for a terrorist attack. In HSA negotiations last fall, House
Republicans and the administration promoted language that they
described as

[[Page S3632]]

necessary to encourage owners of such facilities to identify
vulnerabilities in their operations and share that information with the
Department of Homeland Security, DHS. The stated goal was to ensure
that steps could be taken to ensure the facilities' protection and
proper functioning.
In fact, such descriptions of the legislation were disingenuous.
These provisions, which were eventually enacted in the HSA, shield from
FOIA almost any voluntarily submitted document stamped by the facility
owner as ``critical infrastructure.'' This is true no matter how
tangential the content of that document may be to the actual security
of a facility. The law effectively allows companies to hide information
about public health and safety from American citizens simply by
submitting it to DHS. The enacted provisions were called ``deeply
flawed'' by Mark Tapscott of the Heritage Foundation in a November 20,
2002 Washington Post op-ed. ``Too Many Secrets,'' Washington Post,
November 20, 2002, at A25. He argued that the ``loophole'' created by
the law ``could be manipulated by clever corporate and government
operators to hide endless varieties of potentially embarrassing and/or
criminal information from public view.''
In addition, under the HSA, disclosure by private facilities to DHS
neither obligates the private company to address the vulnerability, nor
requires DHS to fix the problem. For example, in the case of a chemical
spill, the law bars the government from disclosing information without
the written consent of the company that caused the pollution. As the
Washington Post editorialized on February 10, 2003, ``A company might
preempt environmental regulators by `voluntarily' divulging
incriminating material, thereby making it unavailable to anyone else.''
``Fix This Loophole,'' Washington Post, February 10, 2003, at A20.
The new law also 1. shields the companies from lawsuits to compel
disclosure, 2. criminalizes otherwise legitimate whistleblower activity
by DHS employees, and 3. preempts any state or local disclosure laws.
The Restore FOIA bill I introduce today with Senators Levin,
Jeffords, Lieberman, and Byrd is identical to language I negotiated
with Senators Levin and Bennett last summer when the HSA was debated by
the Governmental Affairs Committee. Senator Bennett stated in the
Committee's July 25, 2003 mark up that the administration had endorsed
the compromise. He also said that industry groups had reported to him
that the compromise language would make it possible for them to share
information with the government without fear of the information being
released to competitors or to other agencies that might accidentally
reveal it. The Governmental Affairs Committee reported out the
compromise language that day. Unfortunately, much more restrictive
House language was eventually signed into law.
The February 10 Post editorial called the Leahy-Levin-Bennett
language ``a compromise that would accomplish the reasonable purpose''
of ``encouraging companies to share information with the government
about infrastructure that might be vulnerable to terrorist attack
without such broad harmful effects.'' Id. The Post editorial was
titled, ``Fix This Loophole,'' which is exactly what my colleagues and
I hope to accomplish with the introduction of this bill. Id.
The Restore FOIA bill would correct the problems in the HSA in
several ways. First, it limits the FOIA exemption to relevant
``records'' submitted by the private sector, such that only those that
actually pertain to critical infrastructure safety are protected.
``Records'' is the standard category referred to in FOIA. This corrects
the effective free pass given to industry by the HSA for any
information it labels ``critical infrastructure.''
Second, unlike the HSA, the Restore FOIA bill allows for government
oversight, including the ability to use and share the records within
and between agencies. It does not limit the use of such information by
the government, except to prohibit public disclosure where such
information is appropriately exempted under FOIA.
Third, it protects the actions of legitimate whistleblowers, rather
than criminalizing their acts.
Fourth, it does not provide civil immunity to companies that
voluntarily submit information. This corrects a flaw in the current
law, which would prohibit such information from being used directly in
civil suits by government or private parties.
Fifth, unlike the HSA, the Restore FOIA bill allows local authorities
to apply their own sunshine laws. The Restore FOIA bill does not
preempt any state or local disclosure laws for information obtained
outside the Department of Homeland Security. Likewise, it does not
restrict the use of such information by state agencies.
Finally, the Restore FOIA bill does not restrict congressional use or
disclosure of voluntarily submitted critical infrastructure
information. The HSA language was unclear on this point, and even the
Congressional Research Service could not say for certain that members
of Congress or their staff would not be criminally liable. Homeland
Security Act of 2002: Critical Infrastructure Information Act, February
29, 2003, CRS Report for Congress, Order Code RL31762, at 14-15.
These changes to the HSA would accomplish the stated goals of the
critical infrastructure provisions in the HSA without tying the hands
of the government in its efforts to protect Americans and without
cutting the public out of the loop.
The Administration has flip-flopped on how to best approach the issue
of critical infrastructure information. The Administration's original
June 18, 2002, legislative proposal establishing a new department
carved out an FOIA exemption, in section 204, and required non-
disclosure of any ``information'' ``voluntarily'' provided to the new
Department of Homeland Security by ``non-Federal entities or
individuals'' pertaining to ``infrastructure vulnerabilities or other
vulnerabilities to terrorism'' in the possession of, or that passed
through, the new department. Critical terms, such as ``voluntarily
provided,'' were undefined.
The Judiciary Committee had an opportunity to query Governor Ridge
about the Administration's proposal on June 26, 2002, when the
Administration reversed its long-standing position and allowed him to
testify in his capacity as the Director of the Transition Planning
Office.
Governor Ridge's testimony at that hearing is instructive. He seemed
to appreciate the concerns expressed by Members about the President's
June 18 proposal and to be willing to work with us in the legislative
process to find common ground. On the FOIA issue, he described
the Administration's goal to craft ``a limited statutory exemption to
the Freedom of Information Act'' to help ``the Department's most
important missions [which] will be to protect our Nation's critical
infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge
explained that to accomplish this, the Department must be able to
``collect information, identifying key assets and components of that
infrastructure, evaluate vulnerabilities, and match threat assessments
against those vulnerabilities.'' (Id., at p. 23).

I do not understand why some have insisted that FOIA and our national
security are inconsistent. Before the HSA was enacted, the FOIA already
exempted from disclosure matters that are classified; trade secret,
commercial and financial information, which is privileged and
confidential; various law enforcement records and information,
including confidential source and informant information; and FBI
records pertaining to foreign intelligence or counterintelligence, or
international terrorism. These already broad exemptions in the FOIA
were designed to protect national security and public safety and to
ensure that the private sector can provide needed information to the
government.
Prior to enactment of the HSA, the FOIA exempted from disclosure any
financial or commercial information provided voluntarily to the
government, if it was of a kind that the provider would not customarily
make available to the public. Critical Mass Energy Project v. NRC, 975
F.2d 871 (D.C. Cir. 1992) (en banc). Such information enjoyed even
stronger nondisclosure protections than did material that the
government requested. Applying this exception, Federal regulatory
agencies safeguarded the confidentiality of all kinds of critical
infrastructure information, like nuclear power plant safety reports
(Critical

[[Page S3633]]

Mass, 975 F.2d at 874), information about product manufacturing
processes and internal security measures (Bowen v. Food & Drug Admin.,
925 F.2d 1225 (9th Cir. 1991), design drawings of airplane parts
(United Technologies Corp. by Pratt & Whitney v. F.A.A., 102 F.3d 688
(2d Cir. 1996)), and technical data for video conferencing software
(Gilmore v. Dept. of Energy, 4 F. Supp.2d 912 (N.D. Cal. 1998)).
The head of the FBI National Infrastructure Protection Center, NIPC,
testified more than five years ago, in September, 1998, that the ``FOIA
excuse'' used by some in the private sector for failing to share
information with the government was, in essence, baseless. He explained
the broad application of FOIA exemptions to protect from disclosure
information received in the context of a criminal investigation or a
``national security intelligence'' investigation, including information
submitted confidentially or even anonymously. [Sen. Judiciary
Subcommittee on Technology, Terrorism, and Government Information,
Hearing on Critical Infrastructure Protection: Toward a New Policy
Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107]
The FBI also used the confidential business record exemption under
(b)(4) ``to protect sensitive corporate information, and has, on
specific occasions, entered into agreements indicating that it would do
so prospectively with reference to information yet to be received.''
NIPC was developing policies ``to grant owners of information certain
opportunities to assist in the protection of the information (e.g., by
`sanitizing the information themselves') and to be involved in
decisions regarding further dissemination by the NIPC.'' Id. In short,
the former Administration witness stated:

Sharing between the private sector and the government
occasionally is hampered by a perception in the private
sector that the government cannot adequately protect private
sector information from disclosure under the Freedom of
Information Act, FOIA. The NIPC believes that this perception
is flawed in that both investigative and infrastructure
protection information submitted to NIPC are protected from
FOIA disclosure under current law. (Id.)

Nevertheless, for more than five years, businesses continued to seek
a broad FOIA exemption that also came with special legal protections to
limit their civil and criminal liability. That business wish list was
largely granted in the Homeland Security Act.
At the Senate Judiciary Committee hearing with Governor Ridge, I
expressed my concern that an overly broad FOIA exemption would
encourage government complicity with private firms to keep secret
information about critical infrastructure vulnerabilities, reduce the
incentive to fix the problems and end up hurting rather than helping
our national security. In the end, more secrecy may undermine rather
than foster security.
Governor Ridge seemed to appreciate these risks, and said he was
``anxious to work with the Chairman and other members of the committee
to assure that the concerns that [had been] raised are properly
addressed.'' Id. at p. 24. He assured us that ``[t]his Administration
is ready to work together with you in partnership to get the job done.
This is our priority, and I believe it is yours as well.'' Id. at p.
25. This turned out to be an empty promise.
Almost before the ink was dry on the Administration's earlier June
proposal, on July 10, 2002, the Administration proposed to substitute a
much broader FOIA exemption that would (1) exempt from disclosure under
the FOIA critical infrastructure information voluntarily submitted to
the new department that was designated as confidential by the submitter
unless the submitter gave prior written consent, (2) provide limited
civil immunity for use of the information in civil actions against the
company, with the likely result that regulatory actions would be
preceded by litigation by companies that submitted designated
information to the department over whether the regulatory action was
prompted by a confidential disclosure, (3) preempt state sunshine laws
if the designated information is shared with state or local government
agencies, (4) impose criminal penalties of up to one year imprisonment
on government employees who disclosed the designated information, and
(5) antitrust immunity for companies that joined together with agency
components designated by the President to promote critical
infrastructure security.
Despite the Administration's promulgation of two separate proposals
for a new FOIA exemption in as many weeks, in July, Director Ridge's
Office of Homeland Security released The National Strategy for Homeland
Security, which appeared to call for more study of the issue before
legislating. Specifically, this report called upon the Attorney General
to ``convene a panel to propose any legal changes necessary to enable
sharing of essential homeland security information between the
government and the private sector.'' (P. 33)
The need for more study of the Administration's proposed new FOIA
exemption was made amply clear by its possible adverse environmental,
public health and safety affects. Keeping secret problems in a variety
of critical infrastructures would simply remove public pressure to fix
the problems. Moreover, several environmental groups pointed out that,
under the Administration's proposal, companies could avoid enforcement
action by ``voluntarily'' providing information about environmental
violations to the EPA, which would then be unable to use the
information to hold the company accountable and also would be required
to keep the information confidential. It would bar the government from
disclosing information about spills or other violations without the
written consent of the company that caused the pollution.
I worked on a bipartisan basis with many interested stakeholders from
environmental, civil liberties, human rights, business and government
watchdog groups to craft a compromise FOIA exemption that did not grant
the business sector's wish-list but did provide additional
nondisclosure protections for certain records without jeopardizing the
public health and safety. At the request of Chairman Lieberman for the
Judiciary Committee's views on the new department, I shared my concerns
about the Administration's proposed FOIA exemption and then worked with
Members of the Governmental Affairs Committee, in particular Senator
Levin and Senator Bennett, to craft a more narrow and responsible
exemption that accomplishes the Administration's goal of encouraging
private companies to share records of critical infrastructure
vulnerabilities with the new Department of Homeland Security without
providing incentives to ``game'' the system of enforcement of
environmental and other laws designed to protect our nation's public
health and safety. We refined the FOIA exemption in a manner that
satisfied the Administration's stated goal, while limiting the risks of
abuse by private companies or government agencies.
This compromise solution was supported by the Administration and
other Members of the Committee on Governmental Affairs and was
unanimously adopted by that Committee at the markup of the Homeland
Security Department bill on July 25, 2002. The compromise which I now
introduce as a free standing bill would exempt from the FOIA certain
records pertaining to critical infrastructure threats and
vulnerabilities that are furnished voluntarily to the new Department
and designated by the provider as confidential and not customarily made
available to the public. Notably, the compromise FOIA exemption made
clear that the exemption only covered ``records'' from the private
sector, not all ``information'' provided by the private sector and
thereby avoided the adverse result of government agency-created and
generated documents and databases being put off-limits to the FOIA
simply if private sector ``information'' is incorporated. Moreover, the
compromise FOIA exemption clearly defined what records may be
considered ``furnished voluntarily,'' which did not cover records used
``to satisfy any legal requirement or obligation to obtain any grant,
permit, benefit (such as agency forbearance, loans, or reduction or
modifications of agency penalties or rulings), or other approval from
the Government.'' The FOIA compromise exemption further ensured that
portions of records that are not covered by the exemption would be
released pursuant to FOIA requests. This compromise did not provide any
civil liability or antitrust immunity that could be used to immunize
bad actors or frustrate regulatory enforcement action, nor did

[[Page S3634]]

the compromise preempt state or local sunshine laws.
Unfortunately, the version of the HSA that we enacted last November
jettisoned the bipartisan compromise on the FOIA exemption, worked out
in the Senate with the Administration's support, and replaced it with a
big-business wish-list gussied up in security garb. The HSA's FOIA
exemption makes off-limits to the FOIA much broader categories of
``information'' and grants businesses the legal immunities and
liability protections they have sought so vigorously for over five
years. This law goes far beyond what is needed to achieve the laudable
goal of encouraging private sector companies to help protect our
critical infrastructure. Instead, it ties the hands of the federal
regulators and law enforcement agencies working to protect the public
from imminent threats. It gives a windfall to companies who fail to
follow federal health and safety standards. Most disappointingly, it
undermines the goals of openness in government that the FOIA was
designed to achieve. In short, the FOIA exemption in the HSA represents
the most severe weakening of the Freedom of Information Act in its 36-
year history.
In the end, the broad secrecy protections provided to critical
infrastructure information in this bill will promote more secrecy,
which may undermine rather than foster national security. In addition,
the immunity provisions in the bill will frustrate enforcement of the
laws that protect the public's health and safety.

Let me explain in greater detail. The FOIA exemption enacted in the
HSA allows companies to stamp or designate certain information as
critical infrastructure information, or ``CII,'' and then submit this
information about their operations to the government either in writing
or orally, and thereby obtain a blanket shield from FOIA's disclosure
mandates as well as other protections. A Federal agency may not
disclose or use voluntarily-submitted and CII-marked information,
except for a limited ``informational purpose,'' such as ``analysis,
warning, interdependency study, recovery, reconstitution,'' without the
company's consent. Even when using the information to warn the public
about potential threats to critical infrastructure, the bill requires
agencies to take steps to protect from disclosure the source of the CII
information and other ``business sensitive'' information.
The law also contains an unprecedented provision that threatens jail
time and job loss to any government employee who happens to disclose
any critical infrastructure information that a company has submitted
and wants to keep secret. These penalties for using the CII information
in an unauthorized fashion or for failing to take steps to protect
disclosure of the source of the information are severe and will chill
any release of CII information--not just when a FOIA request comes in,
but in all situations, no matter the circumstance. Criminalizing
disclosures not of classified information or national security related
information, but of information that a company decides it does not want
public--is an effective way to quash discussion and debate over many
aspects of the government's work. In fact, under the HSA, CII
information is granted more comprehensive protection under Federal
criminal laws than classified information.
This provision of the law has potentially disastrous consequences. If
an agency is given information from an internet service provider, ISP,
about cyberattack vulnerabilities, agency employees will have to think
twice about sharing that information with other ISPs for fear that,
without the consent of the ISP to use the information, even a warning
might cost their jobs or risk criminal prosecution.
This provision means that if a Federal regulatory agency needs to
issue a regulation to protect the public from threats of harm, it
cannot rely on any voluntarily submitted information--bringing the
normal regulatory process to a grinding halt. Public health and law
enforcement officials need the flexibility to decide how and when to
warn or prepare the public in the safest, most effective manner. They
should not have to get ``sign off'' from a Fortune 500 company to do
so.
While the HSA risks making it harder for the government to protect
American families, it makes it much easier for companies to escape
responsibility when they violate the law by giving them unprecedented
immunity from civil and regulatory enforcement actions. Once a business
declares that information about its practices relates to critical
infrastructure and is ``voluntarily'' provided, it can then prevent the
Federal Government from disclosing it not just to the public, but also
to a court in a civil action. This means that an agency receiving CII-
marked submissions showing invasions of employee or customer privacy,
environmental pollution, or government contracting fraud will be unable
to use that information in a civil action to hold that company
accountable. Even if the regulatory agency obtains the information
necessary to bring an enforcement action from an alternative source,
the company will be able to tie the government up in protracted
litigation over the source of the information.
For example, if a company submits information that its factory is
leaching arsenic in ground water, that information may not be turned
over to local health authorities to use in any enforcement proceeding
nor turned over to neighbors who were harmed by drinking the water for
use in a civil tort action. Moreover, even if EPA tries to bring an
action to stop the company's wrongdoing, the ``use immunity'' provided
in the HSA will tie the agency up in litigation making it prove where
it got the information and whether it is tainted as ``fruit of the
poisonous tree''--i.e., obtained from the company under the ``critical
infrastructure program.''
Similarly, if the new Department of Homeland Security receives
information from a bio-medical laboratory about its security
vulnerabilities, and anthrax is released from the lab three weeks
later, the Department will not be able to warn the public promptly
about how to protect itself without consulting with and trying to get
the consent of the laboratory in order to avoid the risk of job loss or
criminal prosecution for a non-consensual disclosure. Moreover, if the
laboratory is violating any state, local or federal regulation in its
handling of the anthrax, the Department will not be able to turn over
to another Federal agency, such as the EPA or the Department of Health
and Human Services, or to any State or local health officials,
information or documents relating to the laboratory's mishandling of
the anthrax for use in any enforcement proceedings against the
laboratory, or in any wrongful death action, should the laboratory's
mishandling of the anthrax result in the death of any person. The law
specifically states that such CII-marked information ``shall not,
without the written consent of the person or entity submitting such
information, be used directly by such agency, any other Federal, State,
or local authority, or any third party, in any civil action arising
under Federal or State law if such information is submitted in good
faith.'' [H.R. 5710, section 214(a)(1)(C)]
Most businesses are good citizens and take seriously their
obligations to the government and the public, but this ``disclose-and-
immunize'' provision is subject to abuse by those businesses that want
to exploit legal technicalities to avoid regulatory guidelines. The HSA
lays out the perfect blueprint to avoid legal liability: funnel
damaging information into this voluntary disclosure system and pre-empt
the government or others harmed by the company's actions from being
able to use it against the company. This is not the kind of two-way
public-private cooperation that our country needs.
The scope of the information that is covered by the new HSA FOIA
exemption is overly broad and undermines the openness in government
that FOIA was intended to guarantee. Under this law, information about
virtually every important sector of our economy that today the public
has a right to see can be shut off from public view simply by labeling
it ``critical infrastructure information.'' Prior to enactment of the
HSA, under FOIA standards, courts had required federal agencies to
disclose 1. pricing information in contract bids so citizens can make
sure the government is wisely spending their taxpayer dollars; 2.
compliance reports that allow constituents to insist that government
contractors comply with federal equal

[[Page S3635]]

opportunity mandates; and 3. banks' financial data so the public can
ensure that federal agencies properly approve bank mergers. Without
access to this kind of information, it will be harder for the public to
hold its government accountable. Under the HSA, all of this information
may be marked CII information and kept out of public view.
The HSA FOIA exemption goes so far in exempting such a large amount
of material from FOIA's disclosure requirements that it undermines
government openness without making any real gains in safety for
families in Vermont and across America. We do not keep America safer by
chilling Federal officials from warning the public about threats to
their health and safety. We do not ensure our nation's security by
refusing to tell the American people whether or not their federal
agencies are doing their jobs or their government is spending their
hard earned tax dollars wisely. We do not encourage real two-way
cooperation by giving companies protection from civil liability when
they break the law. We do not respect the spirit of our democracy when
we cloak in secrecy the workings of our government from the public we
are elected to serve.
The argument over the scope of the FOIA and unilateral executive
power to shield matters from public scrutiny goes to the heart of our
fundamental right to be an educated electorate aware of what our
government is doing. The Rutland Herald got it right in a November 26,
2002 editorial that explained: ``The battle was not over the right of
the government to hold sensitive, classified information secret. The
government has that right. Rather, the battle was over whether the
government would be required to release anything it sought to
withhold.''
We need to fix this troubling restriction on public accountability.
Exempting the new Department from laws that ensure responsibility to
the Congress and to the American people makes for a tenuous start not
the sure footing we all want for the success and endurance of this new
Department. I urge my colleagues to support the Restoration of Freedom
of Information Act of 2003.
I ask unanimous consent to print the editorials I mentioned and
several letters of support of the Restore FOIA bill in the Record.
There being no objection, the additional material was ordered to be
printed in the Record, as follows:

Restoration of Freedom of Information Act (``Restore FOIA'') Sectional
Analysis

Sec. 1. Short title. This section gives the bill the short
title, the ``Restoration of Freedom of Information Act''.
Sec. 2. Protection of Voluntarily Furnished Confidential
Information. This section strikes subtitle B (secs. 211-215)
of the Homeland Security Act (``HSA'') (P.L. 107-296) and
inserts a new section 211.
Sections to be repealed from the HSA: These sections
contain an exemption to the Freedom of Information Act (FOIA)
that (1) exempt from disclosure critical infrastructure
information voluntarily submitted to the new department that
was designated as confidential by the submitter unless the
submitter gave prior written consent; (2) provide civil
immunity for use of such information in civil actions against
the company; (3) preempt state sunshine laws if the
designated information is shared with state or local
government agencies; and (4) impose criminal penalties of up
to one year imprisonment on government employees who
disclosed the designated information.
Provisions that would replace the repealed sections of the
HAS: The Restore FOIA bill inserts a new section 211 to the
HSA that would exempt from the FOIA certain records
pertaining to critical infrastructure threats and
vulnerabilities that are furnished voluntarily to the new
Department and designated by the provider as confidential and
not customarily made available to the public. Notably, the
Restore FOIA bill makes clear that the exemption covers
``records'' from the private sector, not all ``information''
provided by the private sector, as in the enacted version of
the HSA. The Restore FOIA bill ensures that portions of
records that are not covered by the exemption would be
released pursuant to FOIA requests. It does not provide any
civil liability immunity or preempt state or local sunshine
laws, and it does not criminalize whistleblower activity.
Specifically, this section of the Restore FOIA bill
includes the following:
A definition of ``critical infrastructure'': This term is
given the meaning adopted in section 1016(e) the USA Patriot
Act (42 U.S.C. 5195c(e)) which reads, ``critical
infrastructure means systems and assets, whether physical or
virtual, so vital to United States that the incapacity or
destruction of such systems and assets would have a
debilitating impact on security, national economic security,
national public health or safety, or any combination of those
matters.'' This definition is commonly understood to mean
facilities such as bridges, dams, ports, nuclear power
plants, or chemical plants.
A definition of the term ``furnished voluntarily'': This
term signifies documents provided to the Department of
Homeland Security (DHS) that are not formally required by the
department and that are provided to it to satisfy any legal
requirement. The definition excludes any document that is
provided to DHS with a permit or grant application or to
obtain any other benefit from DHS, such as a loan, agency
forbearance, or modification of a penalty.
An exemption from FOIA of records that pertain to
vulnerabilities of and threats to critical infrastructure
that are furnished voluntarily to DHS. This exemption is made
available where the provider of the record certifies that the
information is confidential and would not customarily be
released to the public.
A requirement that other government agencies that have
obtained such records from DHS withhold disclosure of the
records and refer any FOIA requests to DHS for processing.
A requirement that reasonably segregable portions of
requested documents be disclosed, as is well-established
under FOIA.
An allowance to agencies that obtain critical
infrastructure records from a source other than DHS to
release requested records consistent with FOIA, regardless of
whether DHS has an identical record in its possession.
An allowance to providers of critical infrastructure
records to withdraw the confidentiality designation of
records voluntarily submitted to DHS, thereby making the
records subject to disclosure under FOIA.
A direction to the Secretary of Homeland Security to
establish procedures to receive, designate, store, and
protect the confidentiality of records voluntarily submitted
and certified as critical infrastructure records.
A clarification that the bill would not preempt state or
local information disclosure laws.
A requirement for the Comptroller General to report to the
House and Senate Judiciary Committees, the House Governmental
Reform Committee and the Senate Governmental Affairs
Committee the number of private entities and government
agencies that submit records to DHS under the terms of the
bill. The report would also include the number of requests
for access to records that were granted or denied. Finally,
the Comptroller General would make recommendations to the
committees for modifications or improvements to the
collection and analysis of critical infrastructure
information.
Sec. 3. Technical and conforming amendment. This section
amends the table of contents of the Homeland Security Act.
____

[From the Washington Post, Feb. 10, 2003]

Fix This Loophole

The Homeland Security law enacted last year contains a
miserable provision that weakens important federal regulation
and public access to information. Congress should act soon to
repair the damage.
The goal of the provision was reasonable enough:
encouraging companies to share information with the
government about infrastructure that might be vulnerable to
terrorist attack. Fearing public disclosure, companies have
been reluctant to share information on vulnerabilities at,
say, power plants or chemical factories. So under the law,
any such ``critical infrastructure'' information that
companies voluntarily provide to the government is exempted
from disclosure to the public, litigants and enforcement
agencies.
But the law defines ``information'' so broadly that it will
cover, and thus keep secret, virtually anything a company
decides to fork over. A company might preempt environmental
regulators by ``voluntarily'' divulging incriminating
material, thereby making it unavailable to anyone else.
Unless regulators could show they had obtained the material
independently, it would be off limits to them. And the law
prescribes criminal penalties for whistle-blowers who make
such information public. The collective impact will be to put
in the hands of a regulated party the power, simply by
turning over information, to shield that information from
legitimate law enforcement purposes and from public
disclosure.
Sens. Patrick J. Leahy (D-Vt.) and Robert F. Bennett (R-
Utah) had negotiated a compromise that would accomplish the
reasonable purpose without such broad harmful effects. It
should be restored before the government finds its hands
tied--and the public finds itself out of the loop--on
important regulatory matters.
____

[From the Washington Post, Nov. 20, 2002]

Too Many Secrets

(By Mark Tapscott)

Why does the White House sometimes seem so determined to
close the door on the people's right to know what their
government is doing? Even some of us who admire the
leadership of President Bush in the war on terrorism would
like to know.
Admittedly, insisting that the public's business be done in
public isn't a popular cause these days. Recent surveys show
that many Americans are willing to trade significant chunks
of their First Amendment rights for the promise of greater
security in the war on terrorism. Such surveys must gladden
the hearts of Bush administration

[[Page S3636]]

officials who--presumably unintentionally--undermine measures
such as the Freedom of Information Act (FOIA).
Consider just three examples from the past year: Section
204 of the White House's original proposal to establish a
Department of Homeland Security, White House Chief of Staff
Andrew Card's March 2002 directive that agencies restrict
access to ``sensitive but unclassified'' information, and the
administration's claim of executive privilege to keep secret
information regarding President Clinton's infamous midnight
pardons.
The administration's Section 204 proposal exempted from
FOIA disclosure any information ``provided voluntarily by
non-federal entities or individuals that relates to
infrastructure vulnerabilities or other vulnerabilities to
terrorism.'' One need not be a Harvard law graduate to see
that, without clarification of what constitutes such
vulnerabilities, this loophole could be manipulated by clever
corporate and government operators to hide endless varieties
of potentially embarrassing and/or criminal information from
public view.
Subsequent negotiations in the Senate with the White House
resulted in compromise language that takes care of some of
the major problems, but in the rush to final passage, the
Senate has accepted the House version of the legislation,
which, being virtually identical to the administration's
original version, remains deeply flawed in this regard.
The Card memo was issued when public anger over the Sept.
11, 2001, massacre was still intense. Despite the fact that
the memo failed to define what constitutes ``sensitive but
unclassified'' information, agencies responded by removing
thousands of previously public documents from FOIA
disclosure. The Pentagon, for example, estimated recently
that approximately 6,000 Defense Department documents were
removed from public view. Who now outside of government can
verify that any of those documents contained information that
could help terrorists?
Few would argue that the Section 204 proposal and the Card
memo do not address legitimate national security needs in the
war against terrorism. But to date, nobody has produced a
single example of vital information that could not have been
properly exempted from disclosure under the current FOIA,
which is backed by 25 years of detailed case law. Instead,
the administration offers vague language that invites abuse.
Finally, there are those pardons, which provoked a national
outcry when first reported. President Clinton had pardoned
140 people, including his Whitewater partner Susan McDougal,
his brother Roger (convicted on cocaine-related charges) and
international fugitive Marc Rich, wanted by the Justice
Department for allegedly conspiring with the Iranian
government in 1980 to buy 6 million barrels of oil, contrary
to a U.S. trade embargo.
It is doubtful that the full facts behind the pardons will
ever be known as long as the administration refuses to
disclose nearly 4,000 pages related to the former president's
actions. The Bush administration has taken a similar position
on documents related to former attorney general Janet Reno's
controversial decision not to appoint a special counsel to
investigate possible Clinton administration campaign finance
illegalities.
There was a time when at least one senior Bush
administration official thought the FOIA essential because
``no matter what party has held the political power of
government, there have been attempts to cover up mistakes and
errors.'' That same official added that ``disclosure of
government information is particularly important today
because government is becoming involved in more and more
aspects of every citizen's personal and business life, and so
access to information about how government is exercising its
trust becomes increasingly important.''
So spoke a young Illinois Republican congressman named
Donald Rumsfeld, in a floor speech on June 20, 1966,
advocating passage of the FOIA, of which he was a co-sponsor.
The writer is director of the Heritage Foundation's Center
for Media and Public Policy.
____

Fix the Critical Infrastructure Information Subtitle in the Homeland
Security Act of 2002

The undersigned organizations are concerned about the
current language for Critical Infrastructure Information in
the Homeland Security Act of 2002, which contains ambiguous
definitions that could unintentionally allow companies to
keep broad categories of information secret and provisions
that restrict the government's ability to use the
information. In order to better serve the goal of improving
public safety and security, we support efforts to fix the
Homeland Security Act by clarifying the scope of the
information protected and removing provisions that overly
restrict the government's ability to use the information.
Senators Leahy (D-VT), Levin (D-MI), Jeffords (I-VT),
Lieberman (D-CT), and Byrd (D-WV) will soon introduce
legislation entitled the Restoration of Freedom of
Information Act of 2003 (``Restore FOIA'') addressing these
concerns, using bipartisan language developed last year by
the Senate Governmental Affairs Committee. The Restore FOIA
solution would:
Clarify the FOIA exemption to be more consistent with
established law.
Remove the restrictions on the government's ability to act
as it sees fit in response to the information it receives.
Preserve whistleblower protections by removing unnecessary
criminal penalties.
The information provisions currently within the Homeland
Security Act of 2002 do not accomplish the goal of the law--
empowering the government to protect citizens using private-
sector information which is ``voluntarily'' shared and
identifies potential vulnerabilities to terrorist attacks.
The current language could have devastating effects on the
work of the government to protect public health, safety and
security, as well as government accountability. It is
essential that these problems in the Homeland Security Act be
fixed immediately before they become too firmly entrenched in
the law.
Jean AbiNader, Managing Director, Arab American Institute.
Prudence S. Adler, Associate Executive Director,
Association of Research Libraries.
Steven Aftergood, Project Director, Federation of American
Scientists.
Gary Bass, Executive Director, OMB Watch.
Jeremiah Baumann, Director, Toxics Right to Know Campaign,
U.S. Public Interest Research Group.
Ruth Berlin, Executive Director, MD Pesticide Network.
Lynne Bradley, Director, Government Relations, American
Library Association.
Danielle Brian, Executive Director, Project on Government
Oversight.
Sandy Buchanan, Executive Director, Ohio Citizen Action.
Jeanne Butterfield, Executive Director, American
Immigration Lawyers Association.
Alyssondra Campaigne, Legislative Director, Natural
Resources Defense Council.
Kevin S. Curtis, Vice President, Government Affairs,
National Environmental Trust.
Lucy Dalglish, Executive Director, Reporters Committee for
Freedom of the Press.
Charles N. Davis, Executive Director, Freedom of
Information Center, University of Missouri School of
Journalism.
Tom Devine, Legal Director, Government Accountability
Project.
Rick Engler, Director, New Jersey Work Environment Council.
Jason Erb, Director, Governmental Relations, Council on
American-Islamic Relations.
Darryl Fagin, Legislative Director, Americans for
Democratic Action.
Margaret Fung, Executive Director, Asian American Legal
Defense and Education Fund.
Vickie Goodwin, Organizer, Powder River Basin Resource
Council.
Evan Hendricks, Editor/Publisher, Privacy Times.
Rick Hind, Legislative Director, Greenpeace.
Khalil Jahshan, Director of Government Affairs, American-
Arab Anti-Discrimination Committee.
Susan E. Kegley, Staff Scientist/Program Coordinator,
Pesticide Action Network, North America.
Robert Leger, President, Society of Professional
Journalists.
Dave LeGrande, Director, Occupational Safety & Health, CWA/
AFL-CIO.
Sanford Lewis, Director, Strategic Counsel on Corporate
Accountability.
Conrad Martin, Executive Director, Fund for Constitutional
Government.
Alexandra McPherson, Director, Clean Production Action.
Dena Mottola, Acting Director, New Jersey Public Interest
Research Group.
Laura W. Murphy, Director, Washington National Office,
American Civil Liberties Union.
Ralph G. Neas, President, People for the American Way.
Robert Oakley, Washington Affairs Representative, American
Association of Law Libraries.
Paul Orum, Director, Working Group on Community Right-to-
Know.
Deborah Pierce, Executive Director, Privacy Activism.
Chellie Pingree, President and CEO, Common Cause.
Ari Schwartz, Associate Director, Center for Democracy and
Technology.
Debbie Sease, Legislative Director, Sierra Club.
Bob Shavelson, Executive Director, Cook Inlet Keeper.
Peggy M. Shepard, Executive Director, West Harlem
Environmental Action.
Ted Smith, Executive Director, Silicon Valley Toxics
Coalition.
David Sobel, General Counsel, Electronic Privacy
Information Center.
Ed Spar, Executive Director, Council on Professional
Association of Federal Statistics.
Vivian Stockman, Communications Coordinator, Ohio Valley
Environmental Coalition.
Daniel Swartz, Executive Director, Children's Environmental
Health Network.
Lee Tien, Senior Staff Attorney, Electronic Frontier
Foundation.
Elizabeth Thompson, Legislative Director, Environmental
Defense.
Sara Zdeb, Legislative Director, Friends of the Earth.

[[Page S3637]]

____
March 12, 2003.
Hon. Susan Collins,
Chair, Senate Committee on Governmental Affairs, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Hon. Orrin Hatch,
Chair, Senate Committee on the Judiciary, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Hon. Joseph Lieberman,
Ranking Member, Senate Committee on Governmental Affairs,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Hon. Patrick Leahy,
Ranking Member, Senate Committee on the Judiciary, U.S.
Senate, Dirksen Senate Office Building, Washington, DC.
Dear Senators Collins, Hatch, Lieberman, and Leahy: The
Homeland Security Act of 2002 was a very important
legislative accomplishment that responded to new challenges
facing our country.
On the path to passage of the Act, however, certain
sections, particularly Section 214, dealing with Critical
Infrastructure Information, left a number of journalistic
organizations concerned that broad categories of
information--particularly information that relates to the
public's health and safety--would unnecessarily be shielded
from public view.
Thus, we support efforts to clarify the language in favor
of essential openness, which, in fact, will also resolve
potential barriers that restrict the government's own use of
information provided by companies. The ``Restoration of
Freedom of Information Act of 2003'' would substitute
bipartisan language developed last year by the Senate
Government Affair Committee for that which was enacted into
law. This bill would:
Clarify the FOIA exemption to be more consistent with
established law, while still protecting records on critical
infrastructure vulnerabilities submitted to the Department of
Homeland Security by private firms.
Remove the restrictions on the government's ability to act
as it sees fit in response to the information it receives.
Preserve whistleblower protections by removing unnecessary
criminal penalties.
It is important for both citizens and the government
process that these changes in law are made quickly.
Thank you for your consideration.
Sincerely,
American Society of Magazine Editors; American Society of
Newspaper Editors; Associated Press Managing Editors;
Freedom of Information Center, University of Missouri
School of Journalism; Magazine Publishers of America;
National Federation of Press Women; National Newspaper
Association; National Press Club; Newsletter &
Electronic Publishers Association; Newspaper
Association of America; Radio-Television News Directors
Association; Reporters Committee for Freedom of the
Press; Society of Professional Journalists.
____

Let Freedom Ring

(By Maurice J. Freedman)

What if you want to find out if toxic chemicals are buried
under your child's schoolyard? How could you tell if your
veterans' benefits hinged on proving you were exposed to
biohazards during a top-secret mission? Or perhaps a
candidate for your city council wants to better understand
formerly classified plans for emergency evacuation.
These days, it's possible, with considerable patience,
determination, and a few clicks of a mouse, to file a request
for answers to questions like these and a broad range of
government information that are critical to our lives, work,
health and well being.
But like registering to vote, in some places and for some
people, this precious freedom hasn't always been so easy to
exercise.
The main tool for such fact-finding, the Freedom of
Information Act, known as FOIA, which we honor each year on
the anniversary of James Madison's birthday, was first
enacted on July 4, 1966. Before that, any-one who wanted to
get records from the federal government had to establish his
or her legal right to examine those records. That was
expensive, time-consuming and a barrier for countless
legitimate requests for information on issues from whether
the nuclear reactor downwind had a record of safety
violations to how the Nixon administration tried to deport
John Lennon as detailed in his FBI files.
With FOIA, the burden shifted to government agencies,
requiring them to meet these requests unless they fell within
a handful of specific national security exemptions. Indeed,
since then, any decision by an agency to withhold a document
could be challenged in federal court.
From John Lennon's or Rev. Dr. Martin Luther King Jr.'s FBI
files to record of debates on whether to use nuclear weapons
in Vietnam, FOIA requests now run the gamut of what we need
to know about what our government is doing with our tax
dollars in our name. Whether it's internal NASA memos about
space shuttle safety or exchanges among federal officials
about Japanese internment camps during World War II, our
right to know about the deliberations and actions of our
federal government is a cornerstone of American democracy.
In 1974, in reaction to Watergate, Congress moved to
strengthen FOIA. Unwilling to let our country be run more
like a closed corporation than an open, democratic society,
this change allowed courts to order the release of documents,
even when the President said they couldn't be made public.
Our system of representative democracy depends on the free
flow of information produced, collected and published by our
government and available to the public so we can participate
as an informed electorate.
Since the early 19th century, libraries have served as
depositories for the written record of our nation's
development and gateways to the decisions of its leaders,
thus assuring public access to government information. Today,
21st-century librarians are committed to ensuring the
public's right to know is protected in the electronic age. As
organizers, navigators and providers of government
information that serves the public, we help file FOIA
requests and otherwise support freedom of information @ your
library.
Many Americans depend on access to information collected,
organized and disseminated by the federal government--from
farmers and health care professionals, to journalists and
veterans, community interest groups to local and state
government officials, and indeed, all voters.
Americans come to libraries to find Census and other
statistics; to help plan new business and marketing
strategies; to research environmental issues and hazards,
laws and regulations; and to learn about job opportunities
from government and other employment lists.
The ongoing transition to predominantly electronic
transmission of federal information offers both promise and
problems for the public in this realm. Information that is
only in electronic form quickly appears on--and as quickly
disappears from--Web sites. There is often no one charged
with capturing, preserving or making electronic data
available to future generations, as well as those, who for a
variety of reasons, cannot access or work with electronic
information.
True national security is built on a vibrant democracy and
a well-informed citizenry, not a culture of secrecy. Said
James Madison, on whose birthday we make Freedom of
Information Day, ``Knowledge will forever govern ignorance,
and a people who mean to be their own governors must arm
themselves with the power which knowledge gives.'' Although
he wrote in response to abuses by Britain's King George III,
his warnings ring equally true today.
Every country has hospitals, police and schools. But only
free countries allow the free flow of ideas. Free libraries
are the hub of public access to government information.
Challenges to an informed citizenry range from the complexity
and inequality in information technology to illiteracy,
limited information literacy skills and unequal access to
education and information resources.
Thankful for our freedoms, we must do our best as we
prepare to fight halfway around the world to ensure that we
continue to guard with unrelating vigilance the right to know
here at home.

Mr. LEVIN. Mr. President, today I join with Senators Leahy, Byrd,
Jeffords, and Lieberman to introduce the Restore Freedom of Information
Act, Restore FOIA, that will provide the public with access to
information, while at the same time ensuring that information
voluntarily submitted to the government by companies is not improperly
disclosed. In order to ensure public access and limit improper
disclosure, we need to reexamine some aspects of the Homeland Security
Act, HSA, which was rushed through Congress last year, dropping several
carefully-crafted, bipartisan measures which had been adopted by the
Senate Governmental Affairs Committee, along the way. Dropping those
measures left ambiguities in the law that need to be clarified, and
today's bill is an attempt to make those clarifications and address
certain problems that could otherwise result.
The issue this bill addresses is public access to information in the
possession of the Homeland Security Department. Although some seem to
want to shroud all homeland security efforts in secrecy, as Judge Damon
Keith, writing for the U.S. Sixth Circuit of Appeals, recently warned
``Democracies die behind closed doors.'' The principles of open
government and the public's right to know are cornerstones of our
democracy. We cannot sacrifice those principles in the name of
protecting them.
One of the reasons that I voted against the Homeland Security Act
last year was because the final bill dropped a bipartisan provision,
passed by the Senate Governmental Affairs Committee, clarifying how the
new Department of Homeland Security, DHS, should comply with the
Freedom of Information Act, FOIA. The final bill substituted a poorly
drafted provision that could inappropriately close the door on persons
seeking unclassified information from the Department related to
critical infrastructure.
What is critical infrastructure? Critical infrastructure is the
backbone that holds our country together and

[[Page S3638]]

makes it work--our roads, computer grids, telephones, pipelines, water
treatment plants, utilities, and other facilities essential to a fully
functioning Nation. It so happens that, in the United States, much of
our critical infrastructure is controlled by private entities, often
privately owned or publicly traded corporations. To strengthen existing
protections for these facilities, the Federal Government asked the
companies that own them to submit unclassified information about their
facilities to assist the government in evaluating them, identifying
possible problems, and designing stronger protections from terrorist
attack, natural disasters, or other threats to homeland security.
Some companies asked to voluntarily submit this information feared
that it might be improperly disclosed, and sought a new exemption from
the Federal Freedom of Information Act, FOIA, to prohibit disclosure of
so-called ``critical infrastructure information.'' Reporters, public
interest groups, and others feared that, if this FOIA exemption were
granted, companies could send important environmental and safety
information to DHS under the general heading of ``critical
infrastructure information'' and thereby put this information out of
the public's reach. To bring these sides together, last July, Senators
Bennett, Leahy and I worked out a bipartisan FOIA compromise that
codified existing case law with regard to companies voluntarily
submitting information. At the Senate Governmental Affairs Committee
mark-up of the homeland security legislation, Senator Bennett said that
the Administration supported our compromise, but the language was
ultimately dropped from the final Homeland Security Act. As a result,
the media, public interest groups, and others continue to fear that
companies may be hiding important health and safety information that
has long been public and should be public behind the mask of ``critical
infrastructure.''
To rectify this situation, today we are introducing a bill that would
change the existing HSA language in several important ways. First, our
bill defines the key term, ``critical infrastructure,'' in a more
focused way than the overly broad language in the HSA. To do that, our
bill draws from language in existing case law, that has already been
tested by the courts. The existing HSA language, it interpreted
broadly, could expand the prohibition on disclosing critical
infrastructure information to include virtually every aspect of a
company's operations, denying public access to a great deal of health
and safety information that the public has a right to know. If this
expansive interpretation was not the intent of the bill's drafters,
then they should be willing to accept our court-tested language.
A second important change that our bill would make in the existing
HSA involves the issue of civil immunity for companies that violate the
law. As currently worded, the HSA seems to suggest that companies
which voluntarily submit to DHS critical infrastructure information
indicating that the company is in violation of public health or safety
regulations may gain protection from legal action in court to halt or
penalize this wrongdoing, even if the information shows that the
company is acting negligently. For example, the current HSA provisions
could lead to the disturbing situation where DHS learns, through a
critical infrastructure submission, that a company is leaking polluted
sludge into a nearby waterway in violation of environmental
restrictions, but is barred from going to court to stop the pollution
because the law appears to prohibit the agency's use of the critical
infrastructure information in a civil action. Our bill would eliminate
the possibility that the HSA would provide companies with civil
immunity under these circumstances.

A third key problem with the existing HSA language is that it
includes a provision that could send a Federal whistleblower who
discloses critical infrastructure information, even to an appropriate
authority, to prison. The language is clear that if a DHS employee
discloses unclassified critical infrastructure information, even when
acting as a whistleblower who reveals the information to Congress in an
act of conscience or patriotism, that whistleblower could wind up in
jail. My colleague, Senator Leahy, describes a whistleblower who works
at the FAA who blew the whistle on government collusion to coverup
failures by airlines to meet tests on airline preparedness. That
whistleblower could have ended up in jail had he blown the whistle
under today's law. A year in jail is quite a deterrent for a Federal
employee who is thinking about blowing the whistle, and we have never
before threatened Federal whistleblowers with jail terms. It is a bad
idea, and it is counterproductive to homeland safety.
There are other troubling provisions in the current HSA law as well,
equally detrimental to the public's right to know. For example, the HSA
exempts all communication of critical infrastructure information from
the open meeting and other sunshine requirements of the Federal
Advisory Committee Act, and places critical infrastructure information
outside restrictions on ex parte contacts. The HSA also pre-empts state
and local sunshine laws, an undue intrusion on the power of the States.
The bill we are introducing today would strike all of these unnecessary
provisions, and create in their stead a narrow FOIA exemption that
balances the prohibition against improper disclosures of critical
infrastructure information with the public's right to know.
Finally, I would like to include in the Record two examples of
situations that could occur under the language in the HSA but would not
occur under our bill. These disturbing examples were provided by Dr.
Rena Steinzor, Professor at the University of Maryland School of Law,
on behalf of the center for Progressive Regulation.
Case Study Number 1 is the following:
A large Midwest utility decides to replace an old coal burning
electric generation unit with a new one. The new unit, much larger than
the first, will produce significantly greater air pollution emissions.
The company could mitigate these increases by installing additional
pollution control equipment, but decides it does not wish to incur the
expense. It begins construction and simultaneously reports its plans to
the DHS as ``critical infrastructure information,'' so Federal security
experts will know about its increased capacity to generate electricity.
A Department of Homeland Security employee, visiting the plant to
consult on government purchases of power during emergency situations,
notices readings on internal gauges reflecting the dramatically
increased emissions. She telephones EPA to report the situation. EPA
issues a Notice of Violation to the company, and threatens to bring an
action for civil penalties, but is instructed to desist by DHS
officials who inform EPA that the HSA prohibits disclosing the
information provided to the agency in court and that DHS wants to list
the company as an emergency supplier capable of providing expanded
electricity production in an upcoming report to Congress. EPA drops its
enforcement action, and the DHS employee not only loses her job but
also is prosecuted criminally.
Case Study Number 2 is the following:
Lobbyists representing companies that provide goods and services to
the Department of Homeland Security routinely submit materials
describing their companies' products in glowing terms. They arrange
repeated trips for government purchasing agents to exotic locations
under the guise of briefing them regarding the technical aspects of the
products. All of this information is designated as critical
infrastructure by the companies, and is therefore protected from
disclosure and oversight by the media or possibly even individual
members of Congress who could see the information but not reveal it.
The Homeland Security Act was never intended to protect polluters or
special interests from public scrutiny. But as these examples
demonstrate, that is exactly what could happen if the current, vague
language in the law is not corrected. The bill we are introducing today
would make the needed corrections.
On January 17, 2003 at his confirmation hearing before the
Governmental Affairs Committee, I questioned Governor Ridge about these
problems with the current wording of the Homeland

[[Page S3639]]

Security Act. I asked him whether the HSA could have the unintended
consequences of providing protections for wrongdoing while impeding
access to necessary information to protect public health and safety.
Governor Ridge replied: ``[T]hat certainly wasn't the intent, I am
sure, of those who advocated the Freedom of Information Act exemption,
to give wrongdoers protection or to protect illegal activity, and I
will certainly work with you to clarify that language.'' If that was
not the intent, then let us fix the vague, and potentially dangerous
provisions that are in this bill.
I would also note, for the record, that many organizations have
endorsed our bill including the following:
American Association of Law Libraries, American Civil Liberties
Union, American Immigration Lawyers Association, American Library
Association, American-Arab Anti-Discrimination Committee, Americans for
Democratic Action, American Society of Magazine Editors, American
Society of Newspaper Editors, Arab American Institute, Asian American
Legal Defense and Education Fund, Associated Press Managing Editors,
Association of Research Libraries, Center for Democracy and Technology,
Children's Environmental Health Network, Clean Production Network,
Common Cause, Communications Workers of America, Cook Inlet Keeper,
Council on American-Islamic Relations, Council on Professional
Association of Federal Statistics, Electronic Frontier Foundation,
Electronic Privacy Information Center, Environmental Defense,
Federation of American Scientists, Freedom of Information Center,
Friends of the Earth, Fund for Constitutional Government, Government
Accountability Project, Greenpeace, Magazine Publishers of America,
Maryland Pesticide Network, National Federation of Press Women,
National Newspaper Association, National Press Club, Natural Resources
Defense Council, New Jersey Work Environment Council, Newsletter &
Electronic Publishers Association, Newspaper Association of America,
Ohio Valley Environmental Coalition, OMB Watch, Pesticide Action
Network, North America Powder River Basin Resource Council, Privacy
Activism, Privacy Times, Project on Government Oversight, Radio-
Television News Directors Association, Reporters Committee for Freedom
of the Press, Sierra Club, Silicon Valley Toxics Coalition, Society of
Professional Journalists, Strategic Counsel on Corporate
Accountability, U.S. Public Interest Research Group, University of
Missouri School of Journalism, West Harlem Environmental Action Working
Group on Community Right-to-Know.

____________________