Congressional Record, Volume 149 Issue 84 (Tuesday, June 10, 2003)

[Congressional Record Volume 149, Number 84 (Tuesday, June 10, 2003)]
[Senate]
[Pages S7621-S7643]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. HOLLINGS (for himself and Mr. Stevens):

S. 1218. A bill to provide for Presidential support and coordination
of interagency ocean science programs and development and coordination
of a comprehensive and integrated United States research and monitoring
program; to the Committee on Commerce, Science, and Transportation.
Mr. HOLLINGS. Mr. President, today I am introducing legislation to
spur the advent of an exciting new field of research, one that explores
the role of the oceans in human health. I am pleased to be joined in
this effort by the distinguished Senator from Alaska, Ted Stevens, who
is cosponsoring this bill. The Oceans and Human Health Act proposes to
establish a national interagency program that will coordinate research
efforts and ensure the availability of an adequate Federal investment
in this critical area. It also would establish a program at the
National Oceanic and Atmospheric Administration to strengthen and
coordinate its work in this very important arena.
In recent years, we have gained a renewed appreciation for the
importance of the ocean to our future and well-being. We now recognize
that human health is one are in which the oceans exert major influences
that are both positive and negative. However, studying this
relationship is challenging. To be successful, a research program must
integrate disciplines, bringing together oceanographers and biomedical
researchers to better understand marine processes, reduce public health
risks and enhance our biomedical capabilities. Pioneering scientists
are needed to tackle marine environmental issues that affect human and
marine life alike, such as ocean pollution, marine pathogens and
potential drug discoveries. A number of Federal agencies would share
responsibility and expertise for such a program, requiring that
capabilities be harnessed across such diverse entities as the National
Oceanic and Atmospheric Administration, the National Science Foundation
and the National Institute for Environmental Health Sciences.
The rich biodiversity of marine organisms represent an important
biomedical resource, a promising source of novel compounds with
therapeutic potential, and a potentially significant contribution to
the national economy. A 1999 National Research Council report, From
Monsoons to Microbes, noted that nature has been the traditional source
of new pharmaceuticals and found that over 50 percent of the marketed
drugs are extracted from natural sources or produced using natural
products. Virtually every type of life that exists on this planet is
found in the sea and many types of plants and animals are exclusively
marine. While the oceans are a repository for much of our biodiversity,
little of it has been catalogued or studied. One important aspect that
we have yet to explore is the potential of marine life to produce
chemicals for treating diseases. There are only three marine compounds
now in clinical use--and these were developed in the 1950s. While there
are some new compounds in the pipeline, we need to speed this effort up
to ensure we get more approved sooner.
But our relationship to the sea also has a darker side. The oceans
drive climate and weather factors causing severe weather events and
shifts in temperature and rainfall patterns. These changes in turn
affect the density and distribution of disease-causing organisms and
the ability of public health systems to address them. In addition, the
oceans act as a route of exposure for human disease and illnesses
through ingestion of contaminated seafood and direct contact with
seawater containing toxins and disease-causing organisms. We need to
know more about how our health is affected by the

[[Page S7622]]

marine environment. We must ensure that the sea maintains its capacity
to sustain itself without becoming a ``Dead Zone.'' We must find ways
to monitor and reduce the occurrence of ocean toxins that kill marine
mammals and taint seafood. As with cancer, our goal must be
understanding and prevention, rather than relying exclusively on
treatment.

Research on the health of marine organisms, including marine mammals
and other sentinel species, can assist scientists in their efforts to
investigate and understand human physiology and biochemical processes,
as well as providing a means for monitoring the health of marine
ecosystems. Unfortunately such research often does not fall clearly
within a single federal agency's mission. The dolphins of Florida's
Indian River Lagoon provide an example of a marine population that is
the victim of contaminated habitat and food. The result is unusually
high mortality rates and harmful health effects. Not only is the
population at risk, but it provides a clear indicator of environmental
pollution concerns for its human neighbors. We must harness the
sciences of genomics, forensics and ecology and put them to work in the
marine world, creating an ocean Center for Disease Control--a ``CDC for
the Oceans''.
An exciting example of this new interdisciplinary and medically-
oriented approach to ocean research can be found at NOAA's two marine
laboratories in Charleston, including a unique research partnership
among NOAA, the National Institute for Standards and Technology (NIST),
the State of South Carolina, the Medical University of South Carolina,
and the College of Charleston, formerly known as the Marine
Environmental Health Research Laboratory, and now referred to as the
Hollings Marine Laboratory (HML). HML works with a variety of Federal,
State, and academic partners around the Nation and is on the front
lines of discovery and prevention, particularly in the emerging field
of marine genomics. They are hard at work on today's important public
and marine environmental health issues. Their exciting dolphin health
research will for the first time utilize a traditional medical approach
to diagnosing and documenting dolphin health, which will help us learn
more about dolphins in the wild than we have ever known. In addition,
HML scientists, important partners in the Coral Disease and Health
Consortium, are already analyzing samples from the two Florida coral
reefs ``quarantined'' by NOAA today because of a fast-spreading coral
disease.
The HML epitomizes the variety of important disciplines that must
work side-by-side if we are to make progress in this area. It is home
to cutting-edge research involving algal toxins, natural products with
potential pharmaceutical applications, and viral and bacterial
pathogens that cause disease in marine animals, with potential links to
human illness and disease processes and natural product chemistry.
Scientists at HML and its partner NOAA facility use unique medical
tools such as nuclear magnetic resonators to help ``map'' cellular and
genetic structure of marine organisms and have developed methods for
detecting pesticides in water, sediments, fish and marine mammals that
may potentially affect both the health of the marine environment and
human health. They also are developing exposure, toxicology and disease
models to assess their effects on a variety of marine organisms. Their
work will better define ocean health and bridge the gap with existing
human health models.
A number of Federal agencies are now recognizing the importance of
understanding health-related ocean research and to make needed
investments. Last year, initiatives began both through our ocean
agency, the National Oceanic and Atmospheric Administration, as well as
two of our Federal research institutions, the National Institute for
Environmental Health Sciences, NIEHS, and the National Science
Foundation, NSF.

This past year, the National Oceanic and Atmospheric Administration,
NOAA, received appropriations of $8 million to develop an oceans and
human health initiative. Within NOAA, many programs and laboratories
perform research and related activities that could contribute
significantly to a national research effort, but such efforts have not
realized their potential. Establishment of this coordinated,
interdisciplinary program consisting of nationally-recognized research
centers and an external interdisciplinary research grant program will
enhance the NOAA program. In addition, last November, the National
Institute for Environmental Health Sciences, NIEHS, National Science
Foundation, NSF, invited applications for research programs to explore
the relationship between marine processes and public health. The joint
initiative commits $6 million annually to establish centers of
excellence focusing on harmful algal blooms, water and vector-borne
diseases, and marine pharmaceuticals and probes.
Taken together, the NIEHS-NSF and NOAA research initiatives offer an
excellent basis for building a comprehensive national program. In
addition, a number of other Federal agencies are poised to make
significant contributions.
The Oceans and Human Health Act provides the legislative framework
for a coordinated national investment to improve understanding of
marine ecosystems, address marine public health problems and tap into
the ocean's potential contribution to new biomedical treatments and
advances. The legislation would amend the 1976 Science and Technology
Act to clarify the role of the National Science and Technology Council
in coordinating interagency research efforts. It would also establish
an interagency committee on oceans and human health to develop a
research plan and coordinate participation by NOAA, NSF, NIEHS and
other agencies. Governing NOAA's contribution to the interagency
effort, the bill would establish a new NOAA program on oceans and human
health. At the heart of this legislation and key to its success is our
commitment to building new partnerships--among Federal health, science
and ocean agencies, among diverse scientific disciplines, and among
academic researchers and government experts.
A more detailed summary of the legislation follows:

Section-by-Section Analysis Oceans and Human Health Act

The Oceans and Human Health Act would authorize the
establishment of a coordinated federal research program to
aid in understanding and responding to the role of oceans in
human health. The bill would establish a Federal interagency
Oceans and Human Health initiative coordinated through the
National Science and Technology Council, NSTC, as well as
create an Oceans and Human Health program at the Department
of Commerce's National Oceanic and Atmospheric Administration
(NOAA). The bill also directs the Secretary of Commerce to
establish a coordinated public information and outreach
program with the Food and Drug Administration, FDA, the
Environmental Protection Agency, EPA, the Centers for
Disease Control CDC, and the States to provide information
on potential ocean-related human health risks.

Section 1. Short Title

Section 1 provides the short title of the Act is the
``Oceans and Human Health Act.''

Section 2. Findings

Section 2 sets forth findings and purposes for the Act.

Section 3. National Science and Technology Council

Section 3 would amend the National Science and Technology
Policy, Organization, and Priorities Act of 1976, 42 U.S.C.
6616, to codify the responsibilities of the National Science
and Technology Council NSTC, which was established by
executive Order in 1993, and whose functions have superceded
the Federal Coordinating Council for Science, Engineering,
and Technology, FCCSET, the functions of which were
transferred to the President under a 1977 executive order.
The Act is also amended to clarify the director of the Office
of Science and Technology Policy, OSTP, serves as chair of
the NSTC.
Subsection b replaces existing section 401 of the Act (42
U.S.C. 6651) with new text specifying NSTC functions, which
focus on prompting domestic and international coordination
among government, industry and university scientists.
Subsection b sets forth the following as NSTC functions: 1.
promote interagency efforts and communication with respect to
the planning and administration of Federal scientific,
engineering, and technology program. 2. identify research
needs; achieve more effective use of Federal facilities and
resources; 3. further international cooperation in science,
engineering and technology; and 4. develop long-range and
coordinated research plans. The NSTC is directed to carry out
these and other related duties with the assistance of the
Federal agencies represented on the Council. This subsection
also authorizes the NSTC Chairman to establish standing
committees and working

[[Page S7623]]

groups to assist in developing interagency plans, conduct
studies and make reports for the Chairman.

Section 4. Interagency Oceans and Human Health Research Program

Interagency Program. Section 4 provides for the
establishment of an Interagency Oceans and Human Health
Research Program, Interagency OHH Program, to be coordinated
and supported by the NSTC. Subsection (a) directs the NSTC to
establish a Committee on Oceans and Human Health comprised of
at least one representative from NOAA, the National Science
Foundation, NSF, the National Institutes of Health, NIH, CDC,
EPA, FDA, Department of Homeland Security, DHS, and other
agencies and department deemed appropriate by the NSTC. This
section also provides for the biennial selection of a
Chairman of the Committee, who shall represent an agency that
contributes substantially to the Interagency OHH Program.
10-Year Implementation Plan. Subsection b directs the NSTC,
through the Committee on the Oceans and Human Health, to
submit to Congress within one year of enactment a 10-year
implementation plan for coordinated federal activities under
the Interagency OHH Program. In developing the plan, the
Committee is required to consult with the Inter-Agency Task
Force on Harmful Algal Blooms and Hypoxia. The implementation
plan will complement the ongoing activities of NOAA, NSF, the
NIH National Institute of Environmental Health Sciences,
NIEHS, and other departments and agencies, and: 1. establish
the goals and priorities for Federal research related to
oceans and human health; 2. describe specific activities
required to achieve such goals; 3. identify relevant Federal
programs and activities that would contribute to the
Interagency OHH Program; 4. consider and use reports and
studies conducted by Federal agencies and departments, the
National Research Council, the Ocean Research Advisory Panel,
the U.S. Commission on Ocean Policy and other entities; 5.
make recommendations for the coordination of national and
international programs; and 6. estimate Federal funding for
research activities to be conducted under the Interagency OHH
Program.
Scope of Interagency Program. Subsection c outlines the
scope of the Interagency OHH Program, as follows:
1. Interdisciplinary and coordinated research and
activities to improve our understanding of how ocean
processes and marine organisms can relate to human health and
contribute to medicine and research;
2. Coordination with the National Ocean Leadership Council
(established under 10 U.S.C. 7902(a)) to ensure any ocean and
coastal observing system provides information necessary to
monitor, predict and reduce marine public health problems;
3. Development of new technologies and approaches for
detecting and reducing hazards to human health from ocean
sources and to strengthen understanding of the value of
marine biodiversity to biomedicine; and
4. Support for scholars, trainees and education
opportunities that encourage a multidisciplinary approach to
exploring the diversity of life in the oceans.

section 5. NOAA Oceans and human health program

Establishment of NOAA Program. Section 5 would establish a
NOAA program on Oceans and Human Health that would coordinate
NOAA activities with the Interagency OHH Program. Subsection
(a) directs the Secretary of Commerce to develop an Oceans
and Human Health Program, consistent with the interagency
program developed under Section 4, that will coordinate and
implement research and activities within NOAA related to the
role of the oceans in human health. In establishing the
program, the Secretary is required to consult with other
Federal agencies conducting integrated ocean health research
or research in related areas, including the CDC, NSF, and
HIEHS. The NOAA Oceans and Human Health Program will provide
support for the following components: 1. a Program and
Research Coordination Office; 2. an Advisory Panel; 3.
National Center(s) of Excellence; 4. Research grants and
5. Distinguished scholars and traineeships.
Program Office. Subsection (b) directs the Secretary to
establish a program to coordinate oceans and human health-
related research and activities within NOAA and to carry out
the elements of the program. In cooperation with the Oceans
and Human Health Advisory Panel established under subsection
(c), the program office will serve as liaison with academic
institutions and other agencies participating in the
Interagency OHH Program established under Section 3.
Advisory Panel. Under subsection (c), the Secretary will
establish an Oceans and Human Health Advisory Panel to assist
in the development and implementation of the NOAA Oceans and
Human Health Program. Membership of the Advisory Group will
include a balanced representation of individuals with multi-
disciplinary expertise in the marine and biomedical sciences.
The subsection provides that Federal Advisory Committee Act,
5 U.S.C. App. 1, shall not apply to the Panel.
Centers of Excellence. Subsection (d) provides that the
Secretary shall, through a competitive process, establish and
support Centers of Excellence that strengthen NOAA's
capabilities to carry out programs and activities related to
the ocean's role in human health. These NOAA Centers of
Excellence shall complement and be in addition to any centers
of excellence for oceans and human health established through
NSF or NIEHS. Centers selected for funding and support under
Section 4 would focus on areas related to NOAA missions,
including: 1. use of marine organisms as indicators for
marine environmental health; 2. ocean pollutants; 3. marine
toxins and pathogens, harmful algal blooms, seafood testing,
drug discovery, biology and pathobiology of marine mammals;
and 4. such disciplines as marine genomics, marine
environmental microbiology, ecological chemistry and
conservation medicine. The Secretary will consider the need
for geographic representation and will encourage proposals
that have strong scientific and interdisciplinary merit.
Research Grants. Subsection (e) authorizes the Secretary of
Commerce to provide grants for research and projects that
explore the relationship between the oceans and human health,
and that complement or strengthen NOAA-related programs and
activities. In implementing this subsection, the Secretary is
directed to consult with the Oceans and Human Health Advisory
Panel and the National Sea Grant College Program, and may
work cooperatively with other agencies in the Intergency OHH
Program to establish joint criteria for such research
projects. This subsection specifies that the grants shall be
awarded through a peer-review or other competitive process
and that such a process may be conducted jointly with other
agencies participating in the Interagency OHH Program or
under the National Oceanographic Partnership Program, 10
U.S.C. 7901.
Distinguished Scholars. Subsection (f) directs the
Secretary to provide financial assistance to support
distinguished scholars working in collaboration with NOAA
scientists and facilities. The Secretary is also authorized
to establish a training program, in consultation with NIEHS
and NSF, for scientists early in their careers who are
interested in oceans and human health.

Section 6. Public Information and Risk Assessment

This section directs the Secretary of Commerce, in
consultation with the CDC, FDA, EPA, and the States, to
design and implement a national public information and
outreach program on potential ocean-related human health
risks. The outreach program will collect and analyze
information, disseminate the results, to relevant Federal,
State, public, industry or other interested parties, provide
advice regarding precautions against illness or hazards, and
make recommendations on observing systems that would support
the program.
Subsection (b) requires the Secretary, in consultation with
the same agencies, to assess health hazards associated with
the human consumption of seafood. Under this subsection, the
Secretary, in consultation with CDC, FDA, EPA, and the
states, would assess risks associated with domestically
harvested and processed seafood as compared with imported
seafood harvested and processed outside the United States;
commercially harvested seafood as compared with recreational
and subsistence harvest; and contamination due to handling
and preparation of seafood.

Section 7. Authorization of appropriations

Section 7 provides the authorization of appropriations for
the NOAA Oceans and Human Health Program established under
Section 5, and the public information and risk assessment
program established under Section 6.
Subsection (a) provides that there are authorized to be
appropriated to the Secretary of Commerce to carry out the
program under Section 5, $8,000,000 for FY 2003, $15,000,000
for FY 2004, and $20,000,000 for FY2005-2007.
Subsection (b) provides authorizations of appropriations of
$5,000,000 for each of fiscal years 2004 through 2007 for the
public information and risk assessment program established
under Section 6.
I am extremely proud to sponsor this legislation, and hope
that this will mark the beginning of a new century of ocean
research that will reveal how integral and important the
oceans are to our daily lives and our health, whether we live
by the edge of the sea or in the heartland.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1218

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 ``Oceans and Human Health
Act''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--The Congress makes the following findings:
(1) The rich biodiversity of marine organisms provides
society with an essential biomedical resource, a promising
source of novel compounds with therapeutic potential, and a
potentially important contribution to the national economy.
(2) The diversity of ocean life and research on the health
of marine organisms, including marine mammals and other
sentinel species, helps scientists in their efforts to
investigate and understand human physiology and biochemical
processes, as well as providing a

[[Page S7624]]

means for monitoring the health of marine ecosystems.
(3) The oceans drive climate and weather factors causing
severe weather events and shifts in temperature and rainfall
patterns that affect the density and distribution of disease-
causing organisms and the ability of public health systems to
address them.
(4) The oceans act as a route of exposure for human disease
and illnesses through ingestion of contaminated seafood and
direct contact with seawater containing toxins and disease-
causing organisms.
(5) During the past two decades, the incidence of harmful
blooms of algae has increased around the world, contaminating
shellfish, causing widespread fish kills, threatening marine
environmental quality and resulting in substantial economic
losses to coastal communities.
(6) Existing Federal programs and resources support
research in a number of these areas, but gaps in funding,
coordination, and outreach have impeded national progress in
addressing ocean health issues.
(7) National investment in a coordinated program of
research and monitoring would improve understanding of marine
ecosystems, allow prediction and prevention of marine public
health problems and assist in realizing the potential of the
oceans to contribute to the development of effective new
treatments of human diseases and a greater understanding of
human biology.
(b) Purposes.--The purposes of this Act are to provide
for--
(1) Presidential support and coordination of interagency
ocean science programs; and
(2) development and coordination of a comprehensive and
integrated United States research and monitoring program that
will assist this Nation and the world to understand, use and
respond to the role of the oceans in human health.

SEC. 3. NATIONAL SCIENCE AND TECHNOLOGY COUNCIL.

(a) Director of Office of Science and Technology Policy To
Chair Council.--Section 207(a) of the National Science and
Technology Policy, Organization, and Priorities Act of 1976
(42 U.S.C. 6616(a)) is amended--
(1) by striking ``Chairman of Federal Coordinating Council
for Science, Engineering, and Technology'' in the subsection
heading and inserting ``Chair of the National Science and
Technology Council''; and
(2) by striking paragraph (1) and inserting the following:
``(1) serve as Chair of the National Science and Technology
Council; and''.
(b) Functions.--Section 401 of the National Science and
Technology Policy, Organization, and Priorities Act of 1976
(42 U.S.C. 6651) is amended to read as follows:

``SEC. 401. FUNCTIONS OF COUNCIL.

``(a) In General.--The National Science and Technology
Council (hereinafter referred to as the `Council') shall
consider problems and developments in the fields of science,
engineering, and technology and related activities affecting
more than one Federal agency, and shall recommend policies
and other measures designed to--
``(1) provide more effective planning and administration of
Federal scientific, engineering, and technology programs;
``(2) identify research needs, including areas requiring
additional emphasis;
``(3) achieve more effective use of the scientific,
engineering, and technological resources and facilities of
Federal agencies, including elimination of unwarranted
duplication; and
``(4) further international cooperation in science,
engineering and technology.
``(b) Coordination.--The Council may be assigned
responsibility for developing long-range and coordinated
plans for scientific and technical research which involve the
participation of more than 2 agencies. Such plans shall--
``(1) identify research approaches and priorities which
most effectively advance scientific understanding and provide
a basis for policy decisions;
``(2) provide for effective cooperation and coordination of
research among Federal agencies; and
``(3) encourage domestic and, as appropriate, international
cooperation among government, industry and university
scientists.
``(c) Other Duties.--The Council shall perform such other
related advisory duties as shall be assigned by the President
or by the Chair of the Council.
``(d) Assistance of Other Agencies.--For the purpose of
carrying out the provisions of this section, each Federal
agency represented on the Council shall furnish necessary
assistance to the Council. Such assistance may include--
``(1) detailing employees to the Council to perform such
functions, consistent with the purposes of this section, as
the Chairman of the Council may assign to them; and
``(2) undertaking upon the request of the Chair, such
special studies for the Council as come within the scope of
authority of the Council.
``(e) Standing Committees; Working Groups.--For the purpose
of developing interagency plans, conducting studies, and
making reports as directed by the Chairman, standing
committees and working groups of the Council may be
established.''.

SEC. 4. INTERAGENCY OCEANS AND HUMAN HEALTH RESEARCH PROGRAM.

(a) Establishment of Committee.--
(1) The National Science and Technology Council shall
coordinate and support a national research program to improve
understanding of the role of the oceans in human health. In
planning the program, the Council shall establish a Committee
on Oceans and Human Health that shall consist of
representatives from those agencies with programs or missions
that could contribute to or benefit from the program. The
Committee shall consist of at least one representative from--
(A) the National Oceanic and Atmospheric Administration;
(B) the National Science Foundation;
(C) the National Institute of Environmental Health Sciences
and other institutes within the National Institutes of
Health;
(D) the Centers for Disease Control;
(E) the Environmental Protection Agency;
(F) the Food and Drug Administration;
(G) the Department of Homeland Security; and
(H) such other agencies and departments as the Council
deems appropriate.
(2) The members of the Committee biennially shall select
one of its members to serve as Chair. The Chair shall be
knowledgeable and experienced with regard to the
administration of scientific research programs, and shall be
a representative of an agency that contributes substantially,
in terms of scientific research capability and budget, to the
interagency program.
(b) Implementation Plan.--Within one year after the date of
enactment of this Act, the Chair of the National Science and
Technology Council, through the Committee on the Oceans and
Human Health, shall develop and submit to the Congress a plan
for coordinated Federal activities under the program. In
developing the plan, the Committee will consult with the
Inter-Agency Task Force on Harmful Algal Blooms and Hypoxia.
Such plan will build on and complement the ongoing activities
of the National Oceanic and Atmospheric Administration, the
National Science Foundation, the National Institute of
Environmental Health Sciences, and other departments and
agencies and shall--
(1) establish, for the 10-year period beginning in the year
it is submitted, the goals and priorities for Federal
research which most effectively advance scientific
understanding of the connections between the oceans and human
health, provide usable information for the prediction and
prevention of marine public health problems and use the
biological potential of the oceans for development of new
treatments of human diseases and a greater understanding of
human biology;
(2) describe specific activities required to achieve such
goals and priorities, including establishment of national
centers of excellence, the funding of competitive research
grants, ocean and coastal observations, training and support
for scientists, and participation in international research
efforts;
(3) identify and address, as appropriate, relevant programs
and activities of the Federal agencies and departments that
would contribute to the program;
(4) consider and use, as appropriate, reports and studies
conducted by Federal agencies and departments, the National
Research Council, the Ocean Research Advisory Panel, the
Commission on Ocean Policy and other entities;
(5) make recommendations for the coordination of program
activities with ocean and human health-related activities of
other national and international organizations; and
(6) estimate Federal funding for research activities to be
conducted under the program.
(c) Program Scope.--The program shall include the following
activities related to the role of oceans in human health:
(1) Interdisciplinary research among the ocean and medical
sciences, and coordinated research and activities to improve
understanding of processes within the ocean that may affect
human health and to explore the potential contribution of
marine organisms to medicine and research, including--
(A) vector- and water-borne diseases of humans and marine
organisms, including marine mammals and fish;
(B) harmful algal blooms;
(C) marine-derived pharmaceuticals;
(D) marine organisms as models for biomedical research and
as indicators of marine environmental health;
(E) marine environmental microbiology;
(F) bioaccumulative and endocrine-disrupting chemical
contaminants; and
(G) predictive models based on indicators of marine
environmental health.
(2) Coordination with the National Ocean Research
Leadership Council (10 U.S.C. 7902(a)) to ensure that any
integrated ocean and coastal observing system provides
information necessary to monitor, predict and reduce marine
public health problems including--
(A) baseline observations of physical ocean properties to
monitor climate variation;
(B) measurement of oceanic and atmospheric variables to
improve prediction of severe weather events;
(C) compilation of global health statistics for analysis of
the effects of oceanic events on human health;
(D) documentation of harmful algal blooms; and
(E) development and implementation of sensors to measure
biological processes, acquire health-related data on
biological populations and detect contaminants in marine
waters and seafood.
(3) Development through partnerships among Federal
agencies, States, or academic institutions of new
technologies and approaches for detecting and reducing
hazards

[[Page S7625]]

to human health from ocean sources and to strengthen
understanding of the value of marine biodiversity to
biomedicine, including--
(A) genomics and proteomics to develop genetic and
immunological detection approaches and predictive tools and
to discover new biomedical resources;
(B) biomaterials and bioengineering;
(C) in situ and remote sensors to detect and quantify
contaminants in marine waters and organisms and to identify
new genetic resources;
(D) techniques for supplying marine resources, including
chemical synthesis, culturing and aquaculturing marine
organisms, new fermentation methods and recombinant
techniques; and
(E) adaptation of equipment and technologies from human
health fields.
(4) Support for scholars, trainees and education
opportunities that encourage an interdisciplinary and
international approach to exploring the diversity of life in
the oceans.

SEC. 5. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
OCEANS AND HUMAN HEALTH PROGRAM.

(a) Establishment.--As part of the interagency program
planned and coordinated under section 4, the Secretary of
Commerce shall establish an Oceans and Human Health Program
to coordinate and implement research and activities of the
National Oceanic and Atmospheric Administration related to
the role of the oceans in human health. In establishing the
program, the Secretary shall consult with other Federal
agencies conducting integrated oceans and human health
research and research in related areas, including the Centers
for Disease Control, the National Science Foundation, and the
National Institute of Environmental Health Sciences. The
Oceans and Human Health Program shall provide support for--
(1) a program and research coordination office;
(2) an advisory panel;
(3) one or more National Oceanic and Atmospheric
Administration national centers of excellence;
(4) research grants; and
(5) distinguished scholars and traineeships.
(b) Program Office.--The Secretary shall establish a
program office to identify and coordinate oceans and human
health-related research and activities within the National
Oceanic and Atmospheric Administration and carry out the
elements of the program. The program office will provide
support for administration of the program and, in cooperation
with the oceans and human health advisory panel, will serve
as liaison with academic institutions and other agencies
participating in the interagency oceans and human health
research program planned and coordinated under section 3.
(c) Advisory Panel.--The Secretary shall establish an
oceans and human health advisory panel to assist in the
development and implementation of the Oceans and Human Health
Program. Membership of the advisory group shall provide for
balanced representation of individuals with multi-
disciplinary expertise in the marine and biomedical sciences.
The Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to the oceans and human health advisory panel.
(d) National Centers.--
(1) The Secretary shall identify and provide financial
support through a competitive process to develop, within the
National Oceanic and Atmospheric Administration, for one or
more centers of excellence that strengthen the capabilities
of the Administration to carry out programs and activities
related to the oceans' role in human health. Such centers
shall complement and be in addition to the centers
established by the National Science Foundation and the
National Institute of Environmental Health Sciences.
(2) The centers shall focus on areas related to agency
missions, including use of marine organisms as indicators for
marine environmental health, ocean pollutants, marine toxins
and pathogens, harmful algal blooms, seafood testing, drug
discovery, and biology and pathobiology of marine mammals,
and on disciplines including marine genomics, marine
environmental microbiology, ecological chemistry and
conservation medicine.
(3) In selecting centers for funding, the Secretary will
consider the need for geographic representation and give
priority to proposals with strong interdisciplinary
scientific merit that encourage educational opportunities and
provide for effective partnerships among the Administration,
other Federal entities, State, academic, medical, and
industry participants.
(e) Research Grants.--
(1) The Secretary is authorized to provide grants of
financial assistance for critical research and projects that
explore the relationship between the oceans and human health
and that complement or strengthen Administration programs and
activities related to the ocean's role in human health. The
Secretary shall consult with the oceans and human health
advisory panel established under subsection (c) and the
National Sea Grant College Program and may work cooperatively
with other agencies participating in the interagency program
under section 3 to establish joint criteria for such research
and projects.
(2) Grants under this subsection shall be awarded through a
peer-review process that may be conducted jointly with other
agencies participating in the interagency program established
in section 3 or under the National Oceanographic Partnership
Program under section 7901 of title 10, United States Code.
(f) Distinguished Scholars and Traineeships.--
(1) The Secretary shall designate and provide financial
assistance to support distinguished scholars from academic
institutions, industry or State governments for collaborative
work with scientists and facilities of the Administration.
(2) In consultation with the Directors of the National
Institutes of Health and the National Science Foundation, the
Secretary of Commerce may establish a program to provide
training and experience to scientists at the beginning of
their careers who are interested in the role of the oceans in
human health.

SEC. 6. PUBLIC INFORMATION AND OUTREACH.

(a) Establishment.--The Secretary of Commerce, in
consultation with the Centers for Disease Control, the Food
and Drug Administration, the Environmental Protection Agency
and the States, shall design and implement a national public
information and outreach program on potential ocean-related
human health risks, including health hazards associated with
the human consumption of seafood. Under such program, the
Secretary shall--
(1) collect and analyze information on ocean-related health
hazards and illnesses, including information on the number of
individuals affected, causes and geographic location of the
hazard or illness;
(2) disseminate the results of the analysis to any
appropriate Federal or State agency, the public, involved
industries, and other interested persons;
(3) provide advice regarding precautions that may be taken
to safeguard against the hazard or illness; and
(4) assess and make recommendations for observing systems
to support the program.
(b) Seafood Safety.--To address health hazards associated
with human consumption of seafood, the Secretary, in
consultation with the Centers for Disease Control, the Food
and Drug Administration, the Environmental Protection Agency
and the States, shall assess risks related to--
(1) seafood that is domestically harvested and processed as
compared with imported seafood that is harvested and
processed outside the United States;
(2) seafood that is commercially harvested and processed as
compared with that harvested for recreational or subsistence
purposes and not prepared commercially; and
(3) contamination originating from certain practices that
occur both prior to and after sale of seafood to consumers,
especially those connected to the manner in which consumers
handle and prepare seafood.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

(a) NOAA Oceans and Human Health Program.--There are
authorized to be appropriated to the Secretary of Commerce to
carry out the NOAA Oceans and Human Health program
established under section 5, $8,000,000 for fiscal year 2004,
$15,000,000 for fiscal year 2005, and $20,000,000 annually
for fiscal year 2006 through fiscal year 2008.
(b) Public Information.--There are authorized to be
appropriated to the Secretary to carry out the public
information and outreach program established under section 6,
$5,000,000 for each of fiscal years 2004 through 2007.
______

By Mr. EDWARDS (for himself, Mr. Smith, and Mrs. Clinton):
S. 1219: A bill to amend the national and Community Service Act of
1990 to establish a Community Corps, and for other purposes; to the
Committee on Health, Education, Labor, and Pensions.
Mr. EDWARDS. Mr. President, today I rise to introduce the School
Service Act of 2003.
Across our Nation, as more and more people participate in national
service programs, young people, too, are making real contributions to
their communities. These students are learning lessons that are more
valuable than any taught in the classroom, lessons about what it means
to be a part of a community and what it means to be an American.
In my home State, schools and communities have seen the benefit of
student service. High school kids have built community centers in run-
down neighborhoods. They've cleaned up polluted ponds. They've helped
small children learn to read, and offered comfort to the elderly and
sick.
And the students have learned that their efforts matter, a lesson
that they'll carry with then their whole lives. The research shows
this. In one study, adults who had completed service projects more than
15 years earlier were still more likely to be volunteers and voters
than adults who hadn't. In another program, kids who served had a 60
percent lower drop-out rate and 18 percent lower rate of school
suspension than kids who didn't.
I applaud these students' dedication, as well as the dedication of
the teachers, parents and administrators who support them. But we
should do more than simply applaud these efforts--we

[[Page S7626]]

should provide the resources to support and expand them.
That is why I am introducing, together with Senator Gordon Smith and
Senator Clinton, the School Service Act of 2003. The proposal is very
simple: We say to a limited number of States and cities, if you have
schools that will make sure students engage in high-quality service
before graduation, we will support those schools' efforts. All that we
ask is that you ensure that students are engaging in meaningful service
with real benefits to communities. We want kids seeing these
experiences not as another chore, but as an exciting initiation into
long lives of active citizenship.
Here in Congress, it is our responsibility to give opportunities for
service to our young people. We do not want to create a new national
mandate, and we will not require any State or city to do anything. But
for those State and school districts with schools that are ready, we
ought to make sure every child has the opportunity and the
responsibility to engage in service. When we do, our country will be
richly rewarded in the years and decades to come.
______

By Mr. ALLARD (for himself, , Mr. Wyden, Mr. Smith, Mr. Inouye,
Mr. Akaka, Mr. Coleman, Mrs. Hutchison, and Mr. Campbell):
S. 1220. A bill to amend title XVIII of the Social Security Act to
extend reasonable cost contracts under the medicare program, to expand
the area in which plans offered under such contracts may operate, to
apply certain provisions of the Medicare+Choice program to such plans,
and for other purposes; to the Committee on Finance.
Mr. ALLARD. Mr. President, currently approximately 19,500 Colorado
seniors are beneficiaries of Medicare health plans called ``cost
contracts.'' Under current law, cost contracts will expire. Along with
Senator Wyden, Senator Smith, Senator Inouye, Senator Akaka, and
Senator Coleman, I am pleased to introduce the Medicare Cost Contract
Extension and Refinement Act of 2003 to refine and to allow seniors to
continue using these valued health plans.
Medicare cost contracts are managed care plans that are reimbursed at
the cost of providing health benefits. Currently, seniors have three
Medicare plans to choose from: basic Medicare fee-for-service,
Medicare+Choice, and Medicare cost contracts.
Cost contract plans offer more benefits than basic Medicare and is
available in more areas than Medicare+Choice. Cost contracts also offer
lower out-of-pocket expenses and more benefits than supplemental
Medigap, such as preventive care and prescription drug benefits. In
addition, cost contract premiums cover Medicare deductibles and
additional benefits not covered by basic Medicare. Further, for the
costs of a normal Medicare fee-for-service copayment, seniors with cost
contracts can use any Medicare provider whether they participate in the
health plan's network.
Cost contracts are especially important in rural Colorado. Of the
19,500 Coloradans with cost contract plans, about 90 percent live in
rural Colorado, where few basic Medicare and Medicare+Choice providers
operate. If Medicare cost contracts are eliminated, then thousands of
seniors will be forced into these other Medicare programs.
Seniors with cost contracts value them. According to the 1999
Medicare Managed Care Consumer Assessment of Health Plans Study,
conducted by the U.S. Department of Health and Human Services, Medicare
beneficiaries gave Medicare cost contract health insurers higher
ratings than non-cost contract providers. Beneficiaries noted cost
contracting HMOs solved problems, provided care, and provided customer
service better than the majority of non-cost contracting providers.
These ratings demonstrate that cost contract plans provide the quality
service seniors want and need.
Unfortunately, under current law cost contracts soon will terminate.
In 1997, in an effort to refine Medicare+Choice, Congress passed the
Balanced Budget Act. Among other provisions, this bill terminated the
Medicare cost contract program effective December 31, 2002. To prevent
the termination of this valuable plan, in 1999 I introduced legislation
to extend cost contracts. That year Congress passed the Balanced Budget
and Refinement Act, which extended cost contracts for two years through
2004.
Congress should extend Medicare cost contracts further. Legislation I
am introducing, the Cost Contracting Extension and Refinement Act,
would accomplish this by extending by ten years the cost contract
sunset date of December 31, 2004 to December 31, 2014.

While the goal of Congress in the Balanced Budget Act of 1997 was to
provide an alternative to basic Medicare through Medicare+Choice,
Medicare+Choice has not yet met this goal in rural Colorado. Until
Medicare+Choice coverage is readily available to rural cost contract
recipients, Congress should extend the current cost contract sunset for
an additional 10 years.
This legislation would provide another reform. It would apply certain
existing requirements under the Medicare+Choice program to Medicare
cost contract plans in order to allow better administration, education,
and protections to patients, providers, and insurers. The legislation
would allow beneficiaries to be informed and educated about the option
of cost contracts, apply quality assurance requirements, prevent plans
from discriminating against certain patients by offering lower
premiums, and prohibit States from taxing cost contract premiums. These
provisions help refine and strengthen the Medicare cost contract
program, and they help streamline the dual administration of
Medicare+Choice and cost contracts.
Last, the Medicare Cost Contract Extension and Refinement Act would
allow certain health plans, called group model health plans, to offer
Medicare patients a cost contract plan. These group model health plans
have traditionally been shown to provide care efficiently and at a cost
lower than the costs that would be incurred if the services are
furnished under the Medicare fee-for-service program. Group health
plans are health insurers that offer health care through providers that
are employed by the insurer, such as the Kaiser Foundation Health Plan.
If, for example, Kaiser provides Medicare patients the cost contract
option, then Colorado's approximate 50,000 seniors, who are now
enrolled in Kaiser's Medicare+Choice plans, would be eligible to obtain
a cost contract plan.
Medicare beneficiaries deserve a choice in how they receive their
health care. Congress should allow one of these choices to remain
Medicare cost contracts. On behalf of the 19,500 Colorado Medicare
beneficiaries who obtain their health care from cost contract plans, I
am pleased to sponsor the Medicare Cost Contract Extension Act.
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. 1220

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 ``Medicare Cost Contract
Extension and Refinement Act of 2003''.

SEC. 2. EXTENSION OF REASONABLE COST CONTRACTS.

(a) Ten-Year Extension.--Section 1876(h)(5)(C) of the
Social Security Act (42 U.S.C. 1395mm(h)(5)(C)) is amended by
striking ``2004'' and inserting ``2014''.
(b) Ten-Year Extension of Period During Which Cost
Contracts May Expand Service Areas.--Section 1876(h)(5)(B)(i)
of the Social Security Act (42 U.S.C. 1395mm(h)(5)(B)(i)) is
amended by striking ``2003'' and inserting ``2013''.

SEC. 3. APPLICATION OF CERTAIN MEDICARE+CHOICE REQUIREMENTS
TO COST CONTRACTS EXTENDED OR RENEWED AFTER
2003.

Section 1876(h) of the Social Security Act (42 U.S.C.
1395mm(h)), as amended by subsections (a) and (b), is
amended--
(1) by redesignating paragraph (5) as paragraph (6); and
(2) by inserting after paragraph (4) the following new
paragraph:
``(5)(A) Any reasonable cost reimbursement contract with an
eligible organization under this subsection that is extended
or renewed on or after the date of enactment of the Medicare
Cost Contract Extension and Refinement Act of 2003 or that is
entered into pursuant to paragraph (6)(C) for plan years
beginning on or after January 1, 2004, shall provide that the
provisions of the Medicare+Choice program under part C
described in subparagraph (B) shall apply to

[[Page S7627]]

such organization and such contract in a substantially
similar manner as such provisions apply to Medicare+Choice
organizations and Medicare+Choice plans under such part.
``(B) The provisions described in this subparagraph are as
follows:
``(i) Section 1851(d) (relating to the provision of
information to promote informed choice).
``(ii) Section 1851(h) (relating to the approval of
marketing material and application forms).
``(iii) Section 1852(a)(3)(A) (regarding the authority of
organizations to include supplemental health care benefits
under the plan subject to the approval of the Secretary).
``(iv) Paragraph (1) of section 1852(e) (relating to the
requirement of having an ongoing quality assurance program)
and paragraph (2)(B) of such section (relating to the
required elements for such a program).
``(v) Section 1852(e)(4) (relating to treatment of
accreditation).
``(vi) Section 1852(j)(4) (relating to limitations on
physician incentive plans).
``(vii) Section 1854(c) (relating to the requirement of
uniform premiums among individuals enrolled in the plan).
``(viii) Section 1854(g) (relating to restrictions on
imposition of premium taxes with respect to payments to
organizations).
``(ix) Section 1856(b)(3) (relating to relation to State
laws).
``(x) Section 1857(i) (relating to Medicare+Choice program
compatibility with employer or union group health plans).
``(xi) The provisions of part C relating to timelines for
contract renewal and beneficiary notification.''.

SEC. 4. PERMITTING DEDICATED GROUP PRACTICE HEALTH
MAINTENANCE ORGANIZATIONS TO PARTICIPATE IN THE
MEDICARE COST CONTRACT PROGRAM.

Section 1876(h)(6) of the Social Security Act (42 U.S.C.
1395mm(h)(6)), as redesignated and amended by section 2, is
amended--
(1) in subparagraph (A), by striking ``After the date of
the enactment'' and inserting ``Except as provided in
subparagraph (C), after the date of the enactment'';
(2) in subparagraph (B), by striking ``subparagraph (C)''
and inserting ``subparagraph (D)'';
(3) by redesignating subparagraph (C) as subparagraph (D);
and
(4) by inserting after subparagraph (B), the following new
subparagraph:
``(C) Subject to paragraph (5) and subparagraph (D), the
Secretary shall approve an application to enter into a
reasonable cost contract under this section if--
``(i) the application is submitted to the Secretary by a
health maintenance organization (as defined in section
1301(a) of the Public Health Service Act) that, as of January
1, 2004, and except as provided in section 1301(b)(3)(B) of
such Act, provides at least 85 percent of the services of a
physician which are provided as basic health services through
a medical group (or groups), as defined in section 1302(4) of
such Act; and
``(ii) the Secretary determines that the organization meets
the requirements applicable to such organizations and
contracts under this section.''.
______

By Mr. BINGAMAN (for himself, Ms. Collins, Mr. Jeffords, and Mr.
Dodd):
S. 1223. A bill to increase the number of well-trained mental health
service professionals (including those based in schools) providing
clinical mental health care to children and adolescents, and for other
purposes; to the Committee on Health, Education, Labor, and Pensions.
Mr. BINGAMAN. Mr. President, I rise today because there is a crisis
in our country that begs our attention. This crisis is the overwhelming
lack of adequate mental health services available to the children and
adolescents in our Nation and it is time that we address it. As I
speak, over 13,700,000 young people are suffering from diagnosable
psychiatric disorders. Sadly, fewer than one-third of these have access
to mental healthcare. Today I am introducing the ``Child Healthcare
Crisis Relief Act'' along with Senators Collins, Jeffords, and Dodd in
an effort to reduce the disparity between the need for mental health
services and resources available to meet that need.
The landmark report ``Mental Health: A Report of the Surgeon
General'' illuminated the crisis in 1999. 13,700,000 young people have
diagnosable mental disorders including 6-9,000,000 children and
adolescents who meet the definition for having a serious emotional
disturbance and 5-9 percent of youth who meet the definition for having
severe functional impairment. Unfortunately, few of these young people
have access to adequate mental health services. The resulting lack of
treatment leads to a lifetime cycle of difficulties from unresolved
mental health issues. These difficulties are often as severe as school
failure, substance abuse, job and relationship instability, and even
criminal behavior or suicide. In many cases, young people who do not
receive the mental health treatment that they need end up in foster
care or even in the juvenile justice system. In my state of New Mexico,
a 2002 report concluded that 1 in 7 incarcerated youth is currently in
a detention center solely because there is no appropriate treatment
option available. These youth are actually cleared to leave as soon as
they have adequate treatment in place. In fact, from January 2001 to
December of 2001 an estimated 718 New Mexico youth were collectively
incarcerated for 31.3 years waiting for a treatment opening. Most other
States are facing similar situations. In fact, studies have found that
nationally more than 1 in 3 youth in detention centers have a mental
health disorder. Clearly, this is an issue that demands our immediate
attention.
One of the key barriers to treatment is the shortage of available
specialists trained in the identification, diagnosis, and treatment of
children and adolescents with emotional and behavioral disorders. The
1999 Surgeon General's Report stated, ``there is a dearth of child
psychiatrists, appropriately trained clinical child psychologists, and
social workers.'' There are particularly acute shortages in the number
of mental health service professionals serving children and adolescents
with serious emotional disorders as well as those serving rural areas.
Nationwide, 4,358 urban, suburban, and rural localities have been
designated mental health Professional Shortage Areas by the Federal
Government. The President's New Freedom Commission has recognized the
shortage and has made a recommendation to develop a strategic plan to
address it. The Council on Graduate Medical Education and the State
Mental Health Commissioners have also recognized this shortage of
mental health professionals.

The Child Healthcare Crisis Relief Act will help remove one of the
key barriers to treatment for children and adolescents with mental
illnesses: the lack of available specialists trained in this field.
This bill creates incentives to help recruit and retain child mental
health professionals providing direct clinical care and to improve,
expand, or help create programs to train child mental health
professionals through several mechanisms. The bill provides loan
repayment and scholarships for child mental health and school-based
service professionals to help pay back educational loans. It provides
grants to graduate schools to provide for internships and field
placements in child mental health services. It provides grants to help
with the preservice and inservice training of paraprofessionals who
work in the children's mental health clinical settings. It also
provides grants to graduate schools to help develop and expand child
and adolescent mental health programs. Finally, the bill allows for an
increase in the number of child and adolescent psychiatrists permitted
under the Medicare Graduate Medical Education Program, extends the
Board Eligibility period for residents and fellows from 4 years to 6
years, and instructs the secretary to prepare a report on the
distribution and need for child mental health and school-based
professionals.
I ask my colleagues in the Senate to join me along with Senators
Collins, Jeffords, and Dodd in supporting this essential legislation.
Over 13 million children in our country are counting on us.
As Walt Disney once said, ``Our Nation's greatest national resource
is the minds of our children.'' Let us not fail these 13 million
people.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1223

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 ``Child Health Care Crisis
Relief Act''.

SEC. 2. FINDINGS.

Congress finds the following:
(1) The Center for Mental Health Services estimates that 20
percent or 13,700,000 of the Nation's children and
adolescents have a diagnosable mental health disorder, and
about \2/3\ of these children and adolescents do not receive
mental health care.
(2) According to ``Mental Health: A Report of the Surgeon
General'' in 1999, there are

[[Page S7628]]

approximately 6,000,000 to 9,000,000 children and adolescents
in the United States (accounting for 9 to 13 percent of all
children and adolescents in the United States) who meet the
definition for having a serious emotional disturbance.
(3) According to the Center for Mental Health Services,
approximately 5 to 9 percent of children and adolescents in
the United States meet the definition for extreme functional
impairment.
(4) According to the Surgeon General's Report, there are
particularly acute shortages in the numbers of mental health
service professionals serving children and adolescents with
serious emotional disorders.
(5) According to the National Center for Education
Statistics in the Department of Education, there are
approximately 513 students for each school counselor in
United States schools, which ratio is more than double the
recommended ratio of 250 students for each school counselor.
(6) According to a year 2000 estimate of the Bureau of
Health Professions, the demand for the services of child and
adolescent psychiatry is projected to increase by 100 percent
by 2020.
(7) The development and application of knowledge about the
impact of disasters on children, adolescents, and their
families has been impeded by critical shortages of qualified
researchers and practitioners specializing in this work.
(8) According to the Bureau of the Census, the population
of children and adolescents in the United States under the
age of 18 is projected to grow by more than 40 percent, from
70,000,000 to more than 100,000,000 by 2050.

SEC. 3. LOAN REPAYMENTS, SCHOLARSHIPS, AND GRANTS TO IMPROVE
CHILD AND ADOLESCENT MENTAL HEALTH CARE.

Part B of title VII of the Public Health Service Act (42
U.S.C. 293 et seq.) is amended by adding at the end the
following:

``SEC. 742. LOAN REPAYMENTS, SCHOLARSHIPS, AND GRANTS TO
IMPROVE CHILD AND ADOLESCENT MENTAL HEALTH
CARE.

``(a) Loan Repayments for Child and Adolescent Mental
Health Service Professionals.--
``(1) Establishment.--The Secretary, acting through the
Administrator of the Health Resources and Services
Administration, may establish a program of entering into
contracts on a competitive basis with eligible individuals
(as defined in paragraph (2)) under which--
``(A) the eligible individual agrees to be employed full-
time for a specified period of at least 2 years in providing
mental health services to children and adolescents; and
``(B) the Secretary agrees to make, during the period of
employment described in subparagraph (A), partial or total
payments on behalf of the individual on the principal and
interest due on the undergraduate and graduate educational
loans of the eligible individual.
``(2) Eligible individual.--For purposes of this section,
the term `eligible individual' means an individual who--
``(A) is receiving specialized training or clinical
experience in child and adolescent mental health in
psychiatry, psychology, school psychology, psychiatric
nursing, social work, school social work, marriage and family
therapy, school counseling, or professional counseling and
has less than 1 year remaining before completion of such
training or clinical experience; or
``(B)(i) has a license in a State to practice allopathic
medicine, osteopathic medicine, psychology, school
psychology, psychiatric nursing, social work, school social
work, marriage and family therapy, school counseling, or
professional counseling; and
``(ii)(I) is a mental health service professional who
completed (but not before the end of the calendar year in
which this section is enacted) specialized training or
clinical experience in child and adolescent mental health
services described in subparagraph (A); or
``(II) is a physician who graduated from (but not before
the end of the calendar year in which this section is
enacted) an accredited child and adolescent psychiatry
residency or fellowship program in the United States.
``(3) Additional eligibility requirements.--The Secretary
may not enter into a contract under this subsection with an
eligible individual unless the individual--
``(A) is a United States citizen or a permanent legal
United States resident; and
``(B) if enrolled in a graduate program (including a
medical residency or fellowship), has an acceptable level of
academic standing as determined by the Secretary.
``(4) Priority.--In entering into contracts under this
subsection, the Secretary shall give priority to applicants
who--
``(A) are or will be working with high priority
populations;
``(B) have familiarity with evidence-based methods in child
and adolescent mental health services;
``(C) demonstrate financial need; and
``(D) are or will be--
``(i) working in the publicly funded sector;
``(ii) working in organizations that serve underserved
populations; or
``(iii) willing to provide patient services--

``(I) regardless of the ability of a patient to pay for
such services; or
``(II) on a sliding payment scale if a patient is unable to
pay the total cost of such services.

``(5) Meaningful loan repayment.--If the Secretary
determines that funds appropriated for a fiscal year to carry
out this subsection are not sufficient to allow a meaningful
loan repayment to all expected applicants, the Secretary
shall limit the number of contracts entered into under
paragraph (1) to ensure that each such contract provides for
a meaningful loan repayment.
``(6) Amount.--
``(A) Maximum.--For each year of the employment period
described in paragraph (1)(A), the Secretary shall not, under
a contract described in paragraph (1), pay more than $35,000
on behalf of an individual.
``(B) Consideration.--In determining the amount of payments
to be made on behalf of an eligible individual under a
contract described in paragraph (1), the Secretary shall
consider the income and debt load of the eligible individual.
``(7) Applicability of certain provisions.--The provisions
of sections 338E and 338F shall apply to the program
established under paragraph (1) to the same extent and in the
same manner as such provisions apply to the National Health
Service Corps Loan Repayment Program established in subpart
III of part D of title III.
``(8) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $10,000,000
for each of fiscal years 2004 through 2008.
``(b) Scholarships for Students Studying To Become Child
and Adolescent Mental Health Service Professionals.--
``(1) Establishment.--The Secretary, acting through the
Administrator of the Health Resources and Services
Administration, may establish a program to award scholarships
on a competitive basis to eligible students who agree to
enter into full-time employment (as described in paragraph
(4)(C)) as a child and adolescent mental health service
professional after graduation or completion of a residency or
fellowship.
``(2) Eligible student.--For purposes of this subsection,
the term `eligible student' means a United States citizen or
a permanent legal United States resident who--
``(A) is enrolled or accepted to be enrolled in a graduate
program that includes specialized training or clinical
experience in child and adolescent mental health in
psychology, school psychology, psychiatric nursing, social
work, school social work, marriage and family therapy, school
counseling, or professional counseling; or
``(B) is enrolled or accepted to be enrolled in an
accredited graduate training program of allopathic or
osteopathic medicine in the United States and intends to
complete an accredited residency or fellowship in child and
adolescent psychiatry.
``(3) Priority.--In awarding scholarships under this
subsection, the Secretary shall give--
``(A) highest priority to applicants who previously
received a scholarship under this subsection and satisfy the
criteria described in subparagraph (B); and
``(B) second highest priority to applicants who--
``(i) demonstrate a commitment to working with high
priority populations;
``(ii) have familiarity with evidence-based methods in
child and adolescent mental health services;
``(iii) demonstrate financial need; and
``(iv) are or will be--

``(I) working in the publicly funded sector;
``(II) working in organizations that serve underserved
populations; or
``(III) willing to provide patient services--

``(aa) regardless of the ability of a patient to pay for
such services; or
``(bb) on a sliding payment scale if a patient is unable to
pay the total cost of such services.
``(4) Requirements.--The Secretary may award a scholarship
to an eligible student under this subsection only if the
eligible student agrees--
``(A) to complete any graduate training program,
internship, residency, or fellowship applicable to that
eligible student under paragraph (2);
``(B) to maintain an acceptable level of academic standing
(as determined by the Secretary) during the completion of
such graduate training program, internship, residency, or
fellowship; and
``(C) to be employed full-time after graduation or
completion of a residency or fellowship, for at least the
number of years for which a scholarship is received by the
eligible student under this subsection, in providing mental
health services to children and adolescents.
``(5) Use of scholarship funds.--A scholarship awarded to
an eligible student for a school year under this subsection
may be used to pay for only tuition expenses of the school
year, other reasonable educational expenses (including fees,
books, and laboratory expenses incurred by the eligible
student in the school year), and reasonable living expenses,
as such tuition expenses, reasonable educational expenses,
and reasonable living expenses are determined by the
Secretary.
``(6) Amount.--The amount of a scholarship under this
subsection shall not exceed the total amount of the tuition
expenses, reasonable educational expenses, and reasonable
living expenses described in paragraph (5).
``(7) Applicability of certain provisions.--The provisions
of sections 338E and 338F shall apply to the program
established under paragraph (1) to the same extent and in the
same manner as such provisions apply to the National Health
Service Corps Scholarship Program established in subpart III
of part D of title III.

[[Page S7629]]

``(8) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $5,000,000
for each of fiscal years 2004 through 2008.
``(c) Clinical Training Grants for Professionals.--
``(1) Establishment.--The Secretary, acting through the
Administrator of the Health Resources and Services
Administration, and in cooperation with the Administrator of
the Substance Abuse and Mental Health Services
Administration, may establish a program to award grants on a
competitive basis to accredited institutions of higher
education to establish or expand internships or other field
placement programs for students receiving specialized
training or clinical experience in child and adolescent
mental health in the fields of psychiatry, psychology, school
psychology, psychiatric nursing, social work, school social
work, marriage and family therapy, school counseling, or
professional counseling.
``(2) Priority.--In awarding grants under this subsection,
the Secretary shall give priority to applicants that--
``(A) have demonstrated the ability to collect data on the
number of students trained in child and adolescent mental
health and the populations served by such students after
graduation;
``(B) have demonstrated familiarity with evidence-based
methods in child and adolescent mental health services; and
``(C) have programs designed to increase the number of
professionals serving high priority populations.
``(3) Requirements.--The Secretary may award a grant to an
applicant under this subsection only if the applicant agrees
that--
``(A) any internship or other field placement program
assisted under the grant will prioritize cultural competency;
``(B) students benefiting from any assistance under this
subsection will be United States citizens or permanent legal
United States residents;
``(C) the institution will provide to the Secretary such
data, assurances, and information as the Secretary may
require; and
``(D) with respect to any violation of the agreement
between the Secretary and the institution, the institution
will pay such liquidated damages as prescribed by the
Secretary by regulation.
``(4) Application.--Each institution of higher education
desiring a grant under this section shall submit to the
Secretary an application at such time, in such manner, and
containing such information as the Secretary may require
including a description of the experience of such institution
in working with child and adolescent mental health issues.
``(5) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $10,000,000
for each of fiscal years 2004 through 2008.
``(d) Progressive Education Grants for Paraprofessionals.--
``(1) Establishment.--The Secretary, acting through the
Administrator of the Health Resources and Services
Administration, and in cooperation with the Administrator of
the Substance Abuse and Mental Health Services
Administration, may establish a program to award grants on a
competitive basis to State-licensed mental health nonprofit
and for-profit organizations, including accredited
institutions of higher education, (in this subsection
referred to as `organizations') to enable such organizations
to pay for programs for preservice or in-service training of
paraprofessional child and adolescent mental health workers.
``(2) Definition.--For purposes of this subsection, the
term `paraprofessional child and adolescent mental health
worker' means an individual who is not a mental health
service professional, but who works at the first stage of
contact with children and families who are seeking mental
health services.
``(3) Priority.--In awarding grants under this subsection,
the Secretary shall give priority to organizations that--
``(A) have demonstrated the ability to collect data on the
number of paraprofessional child and adolescent mental health
workers trained by the applicant and the populations served
by these workers after the completion of the training;
``(B) have familiarity with evidence-based methods in child
and adolescent mental health services; and
``(C) have programs designed to increase the number of
paraprofessional child and adolescent mental health workers
serving high priority populations.
``(4) Requirements.--The Secretary may award a grant to an
organization under this subsection only if the organization
agrees that--
``(A) any training program assisted under the grant will
prioritize cultural competency;
``(B) the organization will provide to the Secretary such
data, assurances, and information as the Secretary may
require; and
``(C) with respect to any violation of the agreement
between the Secretary and the organization, the organization
will pay such liquidated damages as prescribed by the
Secretary by regulation.
``(5) Application.--Each organization desiring a grant
under this subsection shall submit to the Secretary an
application at such time, in such manner, and containing such
information as the Secretary may require including a
description of the experience of the organization in working
with paraprofessional child and adolescent mental health
workers.
``(6) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $5,000,000
for each of fiscal years 2004 through 2008.
``(e) Child and Adolescent Mental Health Program
Development Grants.--
``(1) Establishment.--The Secretary, acting through the
Administrator of the Health Resources and Services
Administration, may establish a program to increase the
number of well-trained child and adolescent mental health
service professionals in the United States by awarding grants
on a competitive basis to accredited institutions of higher
education to enable such institutions to establish or expand
accredited graduate child and adolescent mental health
programs.
``(2) Priority.--In awarding grants under this subsection,
the Secretary shall give priority to applicants that--
``(A) demonstrate familiarity with the use of evidence-
based methods in child and adolescent mental health services;
``(B) provide experience in and collaboration with
community-based child and adolescent mental health services;
``(C) have included normal child development education in
their curricula; and
``(D) demonstrate commitment to working with high priority
populations.
``(3) Use of funds.--Funds awarded under this subsection
may be used to establish or expand any accredited graduate
child and adolescent mental health program in any manner
deemed appropriate by the Secretary, including improving the
coursework, related field placements, or faculty of such
program.
``(4) Requirements.--The Secretary may award a grant to an
accredited institution of higher education under this
subsection only if the institution agrees that--
``(A) any child and adolescent mental health program
assisted under the grant will prioritize cultural competency;
``(B) the institution will provide to the Secretary such
data, assurances, and information as the Secretary may
require; and
``(C) with respect to any violation of the agreement
between the Secretary and the institution, the institution
will pay such liquidated damages as prescribed by the
Secretary by regulation.
``(5) Authorization of appropriations.--There is authorized
to be appropriated to carry out this subsection $15,000,000
for each of fiscal years 2004 through 2008.
``(f) Definitions.--In this section:
``(1) High priority population.--The term `high priority
population' means a population that has a high incidence of
children and adolescents who have serious emotional
disturbances, are racial and ethnic minorities, or live in
underserved urban or rural areas.
``(2) Mental health service professional.--The term `mental
health service professional' means an individual with a
graduate or postgraduate degree from an accredited
institution of higher education in psychiatry, psychology,
school psychology, psychiatric nursing, social work, school
social work, marriage and family counseling, school
counseling, or professional counseling.
``(3) Specialized training or clinical experience in child
and adolescent mental health.--The term `specialized training
or clinical experience in child and adolescent mental health'
means training and clinical experience that--
``(A) is part of or occurs after completion of an
accredited graduate program in the United States for training
mental health service professionals;
``(B) consists of at least 500 hours of training or
clinical experience in treating children and adolescents; and
``(C) is comprehensive, coordinated, developmentally
appropriate, and of high quality to address the unique ethnic
and cultural diversity of the United States population.''.

SEC. 4. AMENDMENTS TO SOCIAL SECURITY ACT TO IMPROVE CHILD
AND ADOLESCENT MENTAL HEALTH CARE.

(a) Increasing Number of Child and Adolescent Psychiatry
Residents Permitted To Be Paid Under the Medicare Graduate
Medical Education Program.--Section 1886(h)(4)(F) of the
Social Security Act (42 U.S.C. 1395ww(h)(4)(F)) is amended by
adding at the end the following:
``(iii) Increase allowed for training in child and
adolescent psychiatry.--In applying clause (i), there shall
not be taken into account such additional number of full-time
equivalent residents in the field of allopathic or
osteopathic medicine who are residents or fellows in child
and adolescent psychiatry as the Secretary determines
reasonable to meet the need for such physicians as
demonstrated by the 1999 report of the Department of Health
and Human Services entitled `Mental Health: A Report of the
Surgeon General'.''.
(b) Extension of Medicare Board Eligibility Period for
Residents and Fellows in Child and Adolescent Psychiatry.--
(1) In general.--Section 1886(h)(5)(G) of the Social
Security Act (42 U.S.C. 1395ww(h)(5)(G)) is amended--
(A) in clause (i), by striking ``and (v)'' and inserting
``(v), and (vi)''; and
(B) by adding at the end the following:
``(vi) Child and adolescent psychiatry training programs.--
In the case of an individual enrolled in a child and
adolescent psychiatry residency or fellowship program
approved by the Secretary, the period of board eligibility
and the initial residency period shall be the period of board
eligibility for the specialty of general psychiatry, plus 2
years

[[Page S7630]]

for the subspecialty of child and adolescent psychiatry.''.
(2) Conforming amendment.--Section 1886(h)(5)(F) of the
Social Security Act (42 U.S.C. 1395ww(h)(5)(F)) is amended by
striking ``subparagraph (G)(v)'' and inserting ``clauses (v)
and (vi) of subparagraph (G)''.
(3) Effective date.--The amendments made by paragraph (1)
shall apply to residency training years beginning on or after
July 1, 2003.

SEC. 5. CHILD MENTAL HEALTH PROFESSIONAL REPORT.

(a) Study.--The Administrator of the Health Resources and
Services Administration (in this section referred to as the
``Administrator'') shall study and make findings and
recommendations on the distribution and need for child mental
health service professionals, including--
(1) the need for specialty certifications;
(2) the breadth of practice types;
(3) the adequacy of locations;
(4) the adequacy of education and training; and
(5) an evaluation of best practice characteristics.
(b) Disaggregation.--The results of the study required by
subsection (a) shall be disaggregated by State.
(c) Report.--Not later than 1 year after the date of
enactment of this Act, the Administrator shall submit to the
appropriate committees of Congress and make publicly
available a report on the study, findings, and
recommendations required by subsection (a).
(d) Revision.--Each year the Administrator shall revise the
report required under subsection (c).
(e) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section such sums as may
be necessary for each of fiscal years 2004 through 2008.

SEC. 6. REPORTS.

(a) Transmission.--The Secretary of Health and Human
Services shall transmit a report described in subsection (b)
to Congress--
(1) not later than 3 years after the date of the enactment
of this Act; and
(2) not later than 5 years after the date of the enactment
of this Act.
(b) Contents.--The reports transmitted to Congress under
subsection (a) shall address each of the following:
(1) The effectiveness of the amendments made by, and the
programs carried out under, this Act in increasing the number
of child and adolescent mental health service professionals
and paraprofessional child and adolescent mental health
workers.
(2) The demographics of the individuals served by such
increased number of child and adolescent mental health
service professionals and paraprofessional child and
adolescent mental health workers.
______

By Mr. CORZINE (for himself and Mr. Lautenberg):
S. 1224. A bill to expand the powers of the Attorney General to
regulate the manufacture, distribution, and sale of firearms and
ammunition, and to expand the jurisdiction of the Attorney General to
include firearm products and nonpowder firearms; to the Committee on
the Judiciary.
Mr. CORZINE. Mr. President, I rise today to introduce the Firearms
Safety and Consumer Protection Act of 2003, legislation to protect gun
owners and the public by establishing safety standards for firearms
such as those currently in place for other consumer products.
Because of a loophole in current law, firearms are virtually the only
consumer product not subject to any Federal health and safety
standards. Yet firearms are the second leading cause of product-related
death in America. In 2000 alone, 28,663 Americans died by gunfire and
nearly twice that number were treated in emergency rooms for non-fatal
gunshot injuries.
Of course, all firearms are lethal. But many guns are much more
dangerous than they have to be. First, many firearms are manufactured
poorly or with components of inadequate quality. These guns can pose a
severe threat to gun owners, as well as members of the public. For
example, one firearm manufacturer settled a class action suit for more
than $31 million in 1995, and thereafter improved the quality of their
guns, after gun owners alleged that their firearms were produced from
steel that was too weak, and thus prone to explode.
Unfortunately, the lack of safety standards in current law means that
many defective firearms remain in circulation, with the government
largely unable to do anything about it. We cannot recall such firearms.
We cannot require that warning labels be attached to them. We can do
very little to protect gun owners and the public from the threat they
pose.
Beyond the need to better regulate firearms that are manufactured
defectively, we also need to do more to ensure that firearms are
designed properly, with features that reduce unreasonable risks.
Unfortunately, too many firearms lack readily available features that
could make them much less likely to be involved in an accident. For
example, many guns lack so-called magazine disconnects, which disable a
firearm when its magazine is removed. This feature could prevent many
accidental deaths caused when a firearm user, seeing that the magazine
has been removed, wrongly concludes that a gun is not loaded. Along the
same lines, too few firearms include a load indicator, which allows an
individual to readily see whether the gun is loaded. Both of these
features would address the most common scenario for unintentional
shootings, which involves a person who does not realize that there is
still a round in a gun's chamber.
By regulating the manufacture and design of firearms, we can
significantly reduce the number of accidental shootings, and the
serious injuries and deaths they cause. However, better safety
regulation also holds the promise of reducing the number of deaths from
homicides and suicides.
In recent years, firearm manufacturers have taken a number of steps
to make firearms more likely to be used in crimes, and more deadly if
they are. For example, many guns are being produced in a manner that
makes them readily concealable, and thus more attractive to criminals.
In addition, many manufacturers have increased the number of rounds
that a gun can fire without reloading, and have increased the size of
their ammunition, making the firearms far more lethal.
Given the threat posed by unreasonably dangerous firearms to gun
owners and the general public, there is no excuse for exempting
firearms from health and safety standards applicable to most other
consumer products. In fact, there is evidence that the public would
support such regulation. A 1999 National Opinion Research Center survey
found that two-thirds of Americans want the Federal Government to
regulate the safety design of guns.
The Firearms Safety and Consumer Protection Act would do just that.
The bill would give the Department of Justice the authority to: set
minimum safety standards for the manufacture, design and distribution
of firearms; issue recalls and warnings; collect data on gun-related
death and injury; and limit the sale of products when no other remedy
is sufficient. It is important to emphasize that the bill would not
limit the public's access to guns for hunting and other legitimate
sporting purposes.
More than 120 national, state and local organizations support this
bill, including: the American Academy of Pediatrics, American Bar
Association, American Jewish Congress, American Public Health
Association, Brady Campaign to Prevent Gun Violence, Coalition to Stop
Gun Violence, Consumer Federation of America, the NAACP, National
Coalition Against Domestic Violence, United Church of Christ Justice
and Witness Ministries, and the Violence Policy Center.
There simply is no reason to maintain the existing loophole that
exempts firearms from basic health and safety protections. This
loophole is creating a serious public safety problem, especially for
gun owners themselves.
In conclusion, I hope my colleagues will consider this: under current
law, the safety of toy guns is regulated. The safety of real guns is
not. Even if my colleagues in the Senate cannot agree on much else when
it comes to guns, surely we should all agree that this makes no sense.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1224

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Firearms
Safety and Consumer Protection Act of 2003''.
(b) Table of Contents.--The table of contents for this Act
is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.

TITLE I--REGULATION OF FIREARM PRODUCTS

Sec. 101. Regulatory authority.
Sec. 102. Orders; inspections.

[[Page S7631]]

TITLE II--PROHIBITIONS

Sec. 201. Prohibitions.
Sec. 202. Inapplicability to governmental authorities.

TITLE III--ENFORCEMENT

Subtitle A--Civil Enforcement

Sec. 301. Civil penalties.
Sec. 302. Injunctive enforcement and seizure.
Sec. 303. Imminently hazardous firearms.
Sec. 304. Private cause of action.
Sec. 305. Private enforcement of this Act.
Sec. 306. Effect on private remedies.

Subtitle B--Criminal Enforcement

Sec. 351. Criminal penalties.

TITLE IV--ADMINISTRATIVE PROVISIONS

Sec. 401. Firearm injury information and research.
Sec. 402. Annual report to Congress.

TITLE V--RELATIONSHIP TO OTHER LAW

Sec. 501. Subordination to the Arms Export Control Act.
Sec. 502. Effect on State law.

SEC. 2. PURPOSES.

The purposes of this Act are to--
(1) protect the public against unreasonable risk of injury
and death associated with firearms and related products;
(2) develop safety standards for firearms and related
products;
(3) assist consumers in evaluating the comparative safety
of firearms and related products;
(4) promote research and investigation into the causes and
prevention of firearm-related deaths and injuries; and
(5) restrict the availability of weapons that pose an
unreasonable risk of death or injury.

SEC. 3. DEFINITIONS.

(a) Specific Terms.--In this Act:
(1) Firearms dealer.--The term ``firearms dealer'' means--
(A) any person engaged in the business (as defined in
section 921(a)(21)(C) of title 18, United States Code) of
dealing in firearms at wholesale or retail;
(B) any person engaged in the business (as defined in
section 921(a)(21)(D) of title 18, United States Code) of
repairing firearms or of making or fitting special barrels,
stocks, or trigger mechanisms to firearms; and
(C) any person who is a pawnbroker.
(2) Firearm part.--The term ``firearm part'' means--
(A) any part or component of a firearm as originally
manufactured;
(B) any good manufactured or sold--
(i) for replacement or improvement of a firearm; or
(ii) as any accessory or addition to the firearm; and
(C) any good that is not a part or component of a firearm
and is manufactured, sold, delivered, offered, or intended
for use exclusively to safeguard individuals from injury by a
firearm.
(3) Firearm product.--The term ``firearm product'' means a
firearm, firearm part, nonpowder firearm, and ammunition.
(4) Firearm safety regulation.--The term ``firearm safety
regulation'' means a regulation prescribed under this Act.
(5) Firearm safety standard.--The term ``firearm safety
standard'' means a standard promulgated under this Act.
(6) Imminently hazardous firearm product.--The term
``imminently hazardous firearm product'' means any firearm
product with respect to which the Attorney General determines
that--
(A) the product poses an unreasonable risk of injury to the
public; and
(B) time is of the essence in protecting the public from
the risks posed by the product.
(7) Nonpowder firearm.--The term ``nonpowder firearm''
means a device specifically designed to discharge BBs,
pellets, darts, or similar projectiles by the release of
stored energy.
(8) Qualified firearm product defined.--The term
``qualified firearm product'' means a firearm product--
(A) that--
(i) is being transported;
(ii) having been transported, remains unsold;
(iii) is sold or offered for sale; or
(iv) is imported or is to be exported; and
(B) that--
(i) is not in compliance with a regulation prescribed or an
order issued under this Act; or
(ii) with respect to which relief has been granted under
section 303.
(b) Other Terms.--Each term used in this Act that is not
defined in subsection (a) shall have the meaning (if any)
given that term in section 921(a) of title 18, United States
Code.

TITLE I--REGULATION OF FIREARM PRODUCTS

SEC. 101. REGULATORY AUTHORITY.

(a) In General.--The Attorney General shall prescribe such
regulations governing the design, manufacture, and
performance of, and commerce in, firearm products, consistent
with this Act, as are reasonably necessary to reduce or
prevent unreasonable risk of injury resulting from the use of
those products.
(b) Maximum Interval Between Issuance of Proposed and Final
Regulation.--Not later than 120 days after the date on which
the Attorney General issues a proposed regulation under
subsection (a) with respect to a matter, the Attorney General
shall issue a regulation in final form with respect to the
matter.
(c) Petitions.--
(1) In general.--Any person may petition the Attorney
General to--
(A) issue, amend, or repeal a regulation prescribed under
subsection (a) of this section; or
(B) require the recall, repair, or replacement of a firearm
product, or the issuance of refunds with respect to a firearm
product.
(2) Deadline for action on petition.--Not later than 120
days after the date on which the Attorney General receives a
petition referred to in paragraph (1), the Attorney General
shall--
(A) grant, in whole or in part, or deny the petition; and
(B) provide the petitioner with the reasons for granting or
denying the petition.

SEC. 102. ORDERS; INSPECTIONS.

(a) Authority To Prohibit Manufacture, Sale, or Transfer of
Firearm Products Made, Imported, Transferred, or Distributed
in Violation of Regulation.--The Attorney General may issue
an order prohibiting the manufacture, sale, or transfer of a
firearm product which the Attorney General finds has been
manufactured, or has been or is intended to be imported,
transferred, or distributed in violation of a regulation
prescribed under this Act.
(b) Authority To Require the Recall, Repair, or Replacement
of, or the Provision of Refunds With Respect to Firearm
Products.--The Attorney General may issue an order requiring
the manufacturer of, and any dealer in, a firearm product
which the Attorney General determines poses an unreasonable
risk of injury to the public, is not in compliance with a
regulation prescribed under this Act, or is defective, to--
(1) provide notice of the risks associated with the
product, and of how to avoid or reduce the risks, to--
(A) the public;
(B) in the case of the manufacturer of the product, each
dealer in the product; and
(C) in the case of a dealer in the product, the
manufacturer of the product and the other persons known to
the dealer as dealers in the product;
(2) bring the product into conformity with the regulations
prescribed under this Act;
(3) repair the product;
(4) replace the product with a like or equivalent product
which is in compliance with those regulations;
(5) refund the purchase price of the product, or, if the
product is more than 1 year old, a lesser amount based on the
value of the product after reasonable use;
(6) recall the product from the stream of commerce; or
(7) submit to the Attorney General a satisfactory plan for
implementation of any action required under this subsection.
(c) Authority To Prohibit Manufacture, Importation,
Transfer, Distribution, or Export of Unreasonably Risky
Firearm Products.--The Attorney General may issue an order
prohibiting the manufacture, importation, transfer,
distribution, or export of a firearm product if the Attorney
General determines that the exercise of other authority under
this Act would not be sufficient to prevent the product from
posing an unreasonable risk of injury to the public.
(d) Inspections.--When the Attorney General has reason to
believe that a violation of this Act, or of a regulation or
order issued under this Act, is being, or has been,
committed, the Attorney General may, at reasonable times--
(1) enter any place in which firearm products are
manufactured, stored, or held, for distribution in commerce,
and inspect those areas where the products are manufactured,
stored, or held; and
(2) enter and inspect any conveyance being used to
transport a firearm product.

TITLE II--PROHIBITIONS

SEC. 201. PROHIBITIONS.

(a) Failure of Manufacturer to Test and Certify Firearm
Products.--It shall be unlawful for the manufacturer of a
firearm product to transfer, distribute, or export a firearm
product unless--
(1) the manufacturer has tested the product in order to
ascertain whether the product is in conformity with the
regulations prescribed under section 101;
(2) the product is in conformity with those regulations;
and
(3) the manufacturer has included in the packaging of the
product, and furnished to each person to whom the product is
distributed, a certificate stating that the product is in
conformity with those regulations.
(b) Failure of Manufacturer to Provide Notice of New Types
of Firearm Products.--It shall be unlawful for the
manufacturer of a new type of firearm product to manufacture
the product, unless the manufacturer has provided the
Attorney General with--
(1) notice of the intent of the manufacturer to manufacture
the product; and
(2) a description of the product.
(c) Failure of Manufacturer or Dealer to Label Firearm
Products.--It shall be unlawful for a manufacturer of or
dealer in firearms to transfer, distribute, or export a
firearm product unless the product is accompanied by a label
that is located prominently in conspicuous and legible type
in contrast by typography, layout, or color with other
printed matter on the label and that contains--
(1) the name and address of the manufacturer of the
product;
(2) the name and address of any importer of the product;
(3) the model number of the product and the date the
product was manufactured;

[[Page S7632]]

(4) a specification of the regulations prescribed under
this Act that apply to the product; and
(5) the certificate required by subsection (a)(3) with
respect to the product.
(d) Failure to Maintain or Permit Inspection of Records.--
It shall be unlawful for an importer of, manufacturer of, or
dealer in a firearm product to fail to--
(1) maintain such records, and supply such information, as
the Attorney General may require in order to ascertain
compliance with this Act and the regulations and orders
issued under this Act; and
(2) permit the Attorney General to inspect and copy those
records at reasonable times.
(e) Importation and Exportation of Uncertified Firearm
Products.--It shall be unlawful for any person to import into
the United States or export a firearm product that is not
accompanied by the certificate required by subsection (a)(3).
(f) Commerce in Firearm Products in Violation of Order
Issued or Regulation Prescribed Under This Act.--It shall be
unlawful for any person to manufacture, offer for sale,
distribute in commerce, import into the United States, or
export a firearm product--
(1) that is not in conformity with the regulations
prescribed under this Act; or
(2) in violation of an order issued under this Act.
(g) Stockpiling.--It shall be unlawful for any person to
manufacture, purchase, or import a firearm product, after the
date a regulation is prescribed under this Act with respect
to the product and before the date the regulation takes
effect, at a rate that is significantly greater than the rate
at which the person manufactured, purchased, or imported the
product during a base period (prescribed by the Attorney
General in regulations) ending before the date the regulation
is so prescribed.

SEC. 202. INAPPLICABILITY TO GOVERNMENTAL AUTHORITIES.

Section 201 does not apply to any department or agency of
the United States, of a State, or of a political subdivision
of a State, or to any official conduct of any officer or
employee of such a department or agency.

TITLE III--ENFORCEMENT

Subtitle A--Civil Enforcement

SEC. 301. CIVIL PENALTIES.

(a) Authority To Impose Fines.--
(1) In general.--The Attorney General shall impose upon any
person who violates section 201 a civil fine in an amount
that does not exceed the applicable amount described in
subsection (b).
(2) Scope of offense.--Each violation of section 201 (other
than of subsection (a)(3) or (d) of that section) shall
constitute a separate offense with respect to each firearm
product involved.
(b) Applicable Amount.--
(1) First 5-year period.--The applicable amount for the 5-
year period immediately following the date of enactment of
this Act is $5,000, or $10,000 if the violation is willful.
(2) After 5-year period.--The applicable amount during any
time after the 5-year period described in paragraph (1) is
$10,000, or $20,000 if the violation is willful.

SEC. 302. INJUNCTIVE ENFORCEMENT AND SEIZURE.

(a) Injunctive Enforcement.--The Attorney General may bring
an action to restrain any violation of section 201 in the
United States district court for any district in which the
violation has occurred, or in which the defendant is found or
transacts business.
(b) Condemnation.--The Attorney General may bring an action
in rem for condemnation of a qualified firearm product in the
United States district court for any district in which the
Attorney General has found and seized for confiscation the
product.

SEC. 303. IMMINENTLY HAZARDOUS FIREARMS.

(a) In General.--Notwithstanding the pendency of any other
proceeding in a court of the United States, the Attorney
General may bring an action in a United States district court
to restrain any person who is a manufacturer of, or dealer
in, an imminently hazardous firearm product from
manufacturing, distributing, transferring, importing, or
exporting the product.
(b) Relief.--In an action brought under subsection (a), the
court may grant such temporary or permanent relief as may be
necessary to protect the public from the risks posed by the
firearm product, including--
(1) seizure of the product; and
(2) an order requiring--
(A) the purchasers of the product to be notified of the
risks posed by the product;
(B) the public to be notified of the risks posed by the
product; or
(C) the defendant to recall, repair, or replace the
product, or refund the purchase price of the product (or, if
the product is more than 1 year old, a lesser amount based on
the value of the product after reasonable use).
(c) Venue.--An action under subsection (a) may be brought
in the United States district court for the District of
Columbia or for any district in which any defendant is found
or transacts business.

SEC. 304. PRIVATE CAUSE OF ACTION.

(a) In General.--Any person aggrieved by any violation of
this Act or of any regulation prescribed or order issued
under this Act by another person may bring an action against
such other person in any United States district court for
damages, including consequential damages. In any action under
this section, the court, in its discretion, may award to a
prevailing plaintiff a reasonable attorney's fee as part of
the costs.
(b) Rule of Interpretation.--The remedy provided for in
subsection (a) shall be in addition to any other remedy
provided by common law or under Federal or State law.

SEC. 305. PRIVATE ENFORCEMENT OF THIS ACT.

(a) In General.--Any interested person may bring an action
in any United States district court to enforce this Act, or
restrain any violation of this Act or of any regulation
prescribed or order issued under this Act.
(b) Attorney's Fee.--In any action under this section, the
court, in its discretion, may award to a prevailing plaintiff
a reasonable attorney's fee as part of the costs.

SEC. 306. EFFECT ON PRIVATE REMEDIES.

(a) Irrelevancy of Compliance With This Act.--Compliance
with this Act or any order issued or regulation prescribed
under this Act shall not relieve any person from liability to
any person under common law or State statutory law.
(b) Irrelevancy of Failure To Take Action Under This Act.--
The failure of the Attorney General to take any action
authorized under this Act shall not be admissible in
litigation relating to the product under common law or State
statutory law.

Subtitle B--Criminal Enforcement

SEC. 351. CRIMINAL PENALTIES.

Any person who has received from the Attorney General a
notice that the person has violated a provision of this Act
or of a regulation prescribed under this Act with respect to
a firearm product and knowingly violates that provision with
respect to the product shall be fined under title 18, United
States Code, imprisoned not more than 2 years, or both.

TITLE IV--ADMINISTRATIVE PROVISIONS

SEC. 401. FIREARM INJURY INFORMATION AND RESEARCH.

(a) Injury Data.--The Attorney General shall, in
coordination with the Secretary of Health and Human
Services--
(1) collect, investigate, analyze, and share with other
appropriate government agencies circumstances of death and
injury associated with firearms; and
(2) conduct continuing studies and investigations of
economic costs and losses resulting from firearm-related
deaths and injuries.
(b) Other Data.--The Attorney General shall--
(1) collect and maintain current production and sales
figures for each licensed manufacturer, broken down by the
model, caliber, and type of firearms produced and sold by the
licensee, including a list of the serial numbers of such
firearms;
(2) conduct research on, studies of, and investigation into
the safety of firearm products and improving the safety of
firearm products; and
(3) develop firearm safety testing methods and testing
devices.
(c) Availability of Information.--On a regular basis, but
not less frequently than annually, the Attorney General shall
make available to the public the results of the activities of
the Attorney General under subsections (a) and (b).

SEC. 402. ANNUAL REPORT TO CONGRESS.

(a) In General.--The Attorney General shall prepare and
submit to the President and Congress at the beginning of each
regular session of Congress, a comprehensive report on the
administration of this Act for the most recently completed
fiscal year.
(b) Contents.--Each report submitted under subsection (a)
shall include--
(1) a thorough description, developed in coordination with
the Secretary of Health and Human Services, of the incidence
of injury and death and effects on the population resulting
from firearm products, including statistical analyses and
projections, and a breakdown, as practicable, among the
various types of such products associated with the injuries
and deaths;
(2) a list of firearm safety regulations prescribed that
year;
(3) an evaluation of the degree of compliance with firearm
safety regulations, including a list of enforcement actions,
court decisions, and settlements of alleged violations, by
name and location of the violator or alleged violator, as the
case may be;
(4) a summary of the outstanding problems hindering
enforcement of this Act, in the order of priority; and
(5) a log and summary of meetings between the Attorney
General or employees of the Attorney General and
representatives of industry, interested groups, or other
interested parties.

TITLE V--RELATIONSHIP TO OTHER LAW

SEC. 501. SUBORDINATION TO ARMS EXPORT CONTROL ACT.

In the event of any conflict between any provision of this
Act and any provision of the Arms Export Control Act, the
provision of the Arms Export Control Act shall control.

SEC. 502. EFFECT ON STATE LAW.

(a) In General.--This Act shall not be construed to preempt
any provision of the law of any State or political
subdivision thereof, or prevent a State or political
subdivision thereof from enacting any provision of law
regulating or prohibiting conduct with respect to a firearm
product, except to the extent that such provision of law is
inconsistent with any provision of this Act, and then only to
the extent of the inconsistency.
(b) Rule of Construction.--A provision of State law is not
inconsistent with this Act if the provision imposes a
regulation or prohibition of greater scope or a penalty of
greater severity than any prohibition or penalty imposed by
this Act.

[[Page S7633]]

______

By Mrs. CLINTON (for herself, Ms. Collins, Mrs. Murray, and Mr.
Bingaman):
S. 1226. A bill to coordinate efforts in collecting and analyzing
data on the incidence and prevalence of developmental disabilities, and
for other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Mrs. CLINTON. Mr. President, I rise today to discuss a rising
epidemic that is preventing a growing number of children in our Nation
from learning and contributing fully as members of our society.
Twelve million children under the age of eighteen now suffer from a
developmental, learning or behavioral disability. Since 1977,
enrollment in special education programs for children with learning
disabilities has doubled. In New York, there are 206,000 learning
disabled children--this is fifty percent of the special education
population in New York.
While we know that developmental disabilities are affecting more
children and costing us more money, we still know relatively little
about the causes of developmental disabilities. A National Academy of
Sciences study suggests that genetic factors explain only ten to twenty
percent of developmental disabilities. Considerable research suggests
that toxic chemicals such as mercury, pesticides, and dioxin contribute
to these problems, but proving the exact role of environmental factors
in these problems will take time and significant research dollars.
We can simply not stand back and watch our children suffer from this
increasing epidemic. That is why I have worked hard to develop the 2003
Act to Prevent Developmental Disabilities in Education, which I am
proud to introduce today with my colleague, Senator Collins. It would
help us lower the costs of developmental disabilities by identifying
the preventable, non-genetic causes that are affecting so many children
in our nation.
Our legislation would require the Department of Education to
coordinate with the CDC to improve data collection on environmental
hazards that cause disabilities. At this time, the Department of
Education collects information on the prevalence of disabilities among
children in schools and the CDC collects information on environmental
toxins, but the two data systems are not coordinated. If they were,
policymakers and researchers could better identify where environmental
hazards may be causing developmental disabilities and target resources
to these areas for abatement. A National Academy of Sciences study
suggests that 28 percent of developmental disabilities are due to
environmental causes, and a recent study in the New England Journal of
Medicine demonstrated that exposure to low levels of lead can result in
a drop of 7.4 IQ points, which can turn a healthy child into one with a
developmental disability.
I am working to incorporate this legislation into the reauthorization
of the Individuals with Disabilities Education Act because I believe so
strongly that our children and families, indeed our entire society,
benefits when we prevent developmental diseases rather than treating
them after they occur.
And thank you to my friend Senator Collins for her hard work and
commitment to this important issue.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1226

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 ``2003 Act to Prevent
Developmental Disabilities in Education''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress makes the following findings:
(1) Seventeen percent of children in the United States
under 18 years of age have a developmental disability.
(2) Since 1977, enrollment in special education programs
for children with learning disabilities has doubled.
(3) Federal and State education departments spend about
$43,000,000,000 each year on special education programs for
individuals with developmental disabilities who are between 3
and 21 years of age.
(4) Research suggests that genetic factors explain only 10
to 20 percent of developmental diseases, and a National
Academy of Sciences study suggests that at least 28 percent
of developmental disabilities are due to environmental
causes.
(b) Purpose.--It is the purpose of this Act to ensure a
collaborative tracking effort between the Department of
Education and the Centers for Disease Control and Prevention
for developmental disabilities and potential environmental
links.

SEC. 3. DEPARTMENT OF EDUCATION TRACKING ACTIVITIES.

(a) In General.--The Secretary of Education (in this
section referred to as the ``Secretary'') shall coordinate
efforts with the Director of the National Center for Birth
Defects and Developmental Disabilities of the Centers for
Disease Control and Prevention (in this section referred to
as the ``Director'') in collecting and analyzing data on the
incidence and prevalence of developmental disabilities to
determine localities with a high incidence of developmental
disabilities and study possible causes of the increased
incidence of these diseases, disorders, and conditions.
(b) Existing Surveillance Systems, Registries, and
Surveys.--To the maximum extent practicable in implementing
the activities under this section, the Secretary and the
Director shall develop methods for reconciling data collected
in accordance with the Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.) on the prevalence of
developmental disabilities with existing surveillance and
data collection systems, registries, and surveys that are
administered by the Centers for Disease Control and
Prevention, including--
(1) State birth defects surveillance systems as supported
under section 317C of the Public Health Service Act (42
U.S.C. 247b-4); and
(2) environmental public health tracking program grants
authorized under section 301 of the Public Health Service Act
(42 U.S.C. 241).
(c) Privacy.--In pursuing activities under this section,
the Secretary and the Director shall ensure the protection of
individual health privacy consistent with regulations
promulgated in accordance with section 264(c) of the Health
Insurance Portability and Accountability Act of 1996 (42
U.S.C. 1320d-2 note), the Family Educational Right to Privacy
Act (20 U.S.C. 1232g), and State and local privacy
regulations, as applicable.
______

By Mr. SANTORIUM (for himself and Mrs. Lincoln):
S. 1227. A bill to amend title XVIII of the Social Security Act to
provide for coverage of substitute adult day services under the
medicare program; to the Committee on Finance.

Mr. SANTORUM. Mr. President, I rise to join my colleague Mrs. Lincoln
of Arkansas to reintroduce bipartisan legislation aimed at improving
long-term care health and rehabilitation options for Medicare
beneficiaries, and also assisting family caregivers.
We all recognize that our Nation needs to address sooner rather than
later the challenges of financing long-term care services for our
growing aging population. The Congressional Budget Office has projected
that national expenditures for long-term care services for the elderly
will increase each year through 2040. But it is in just over a decade
when we will see these challenges become even more pronounced, when the
76 million baby boomers begin to turn 65. Baby boomers are expected to
live longer and greater numbers will reach 85 and older.
Congress' attention in this area is critical, given the expected
growing costs of long-term care services, and the fact that so many
American families are already serving as caregivers for aging or ailing
seniors and providing a large portion of long-term care services. It is
more important than ever that we have in place quality options in how
to best care for our senior population about to dramatically increase.
This is why we are introducing the Medicare Adult Day Services
Alternative Act. This legislation would offer home health beneficiaries
more options for receiving care in a setting of their own choosing,
rather than confining the provision of those benefits solely to the
home.
This legislation would give beneficiaries the option to receive some
or all of their Medicare home health services in an adult day setting.
This would be a substitution, not an expansion, of services. The bill
would not make new people eligible for Medicare home health benefits or
expand the list of services paid for. In fact, this legislation may be
designed to produce net savings for the Medicare program.
Permitting homebound patients to receive their home health care in a
clinically-based senior day center, as an alternative to receiving it
at home, could result in significant benefits to

[[Page S7634]]

the Medicare program, such as reduced cost-per-episode, reduced numbers
of episodes, as well as mental and physical stimulation for patients.
Moreover, the Medicare Adult Day Services Alternative Act could well
have a positive impact on our economy, as it would enable caregivers to
attend to other facets in today's fast-paced family life, such as
working a full- or part-time job and caring for children, knowing their
loved ones are well cared for. It is unfortunate that today many
caregivers have to choose between working or caring for a family
member. It is estimated that the average loss of income to these
caregivers is more than $600,000 in wages, pension, and Social Security
benefits. And by extension, the loss in productivity in United States
businesses is pegged at more than $10 billion annually.
But it does not have to be an either-or proposition. The Medicare
Adult Day Services Alternative Act is a creative solution to health
care delivery, which would adequately reimburse providers in a fiscally
responsible way. Located in every state in the United States and the
District of Columbia, adult day centers generally offer transportation,
meals, personal care, and counseling in addition to the medical
services and socialization benefits offered.
We can and should offer both our Medicare beneficiaries and family
caregivers more and better options for health care delivery, and that
is exactly what the Medicare Adult Day Services Alternative Act is
designed to do. This legislation is bipartisan, and has been supported
by more than 20 national non-profit organizations concerned with the
well-being of America's older population and committed to representing
their interests.
I hope our colleagues will join us in this cause. I again thank
Senator Lincoln for working with me in this effort, and ask unanimous
consent that the text of the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1227

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 ``Medicare Adult Day Services
Alternative Act of 2003''.

SEC. 2. FINDINGS.

Congress finds that--
(1) adult day services offers services, including medical
care, rehabilitation therapies, dignified assistance with
activities of daily living, social interaction, and
stimulating activities, to seniors who are frail, physically
challenged, or cognitively impaired;
(2) access to adult day services provides seniors and their
familial caregivers support that is critical to keeping the
senior in the family home;
(3) more than 22,000,000 families in the United States
serve as caregivers for aging or ailing seniors, nearly 1 in
4 American families, providing close to 80 percent of the
care to individuals requiring long-term care;
(4) nearly 75 percent of those actively providing such care
are women who also maintain other responsibilities, such as
working outside of the home and raising young children;
(5) the average loss of income to these caregivers has been
shown to be $659,130 in wages, pension, and Social Security
benefits;
(6) the loss in productivity in United States businesses
ranges from $11,000,000,000 to $29,000,000,000 annually;
(7) the services offered in adult day services facilities
provide continuity of care and an important sense of
community for both the senior and the caregiver;
(8) there are adult day services facilities in every State
in the United States and the District of Columbia;
(9) these centers generally offer transportation, meals,
personal care, and counseling in addition to the medical
services and socialization benefits offered; and
(10) with the need for quality options in how to best care
for our senior population about to dramatically increase with
the aging of the baby boomer generation, the time to address
these issues is now.

SEC. 3. MEDICARE COVERAGE OF SUBSTITUTE ADULT DAY SERVICES.

(a) Substitute Adult Day Services Benefit.--
(1) In general.--Section 1861(m) of the Social Security Act
(42 U.S.C. 1395x(m)) is amended--
(A) in the matter preceding paragraph (1), by inserting
``or (8)'' after ``paragraph (7)'';
(B) in paragraph (6), by striking ``and'' at the end;
(C) in paragraph (7), by adding ``and'' at the end; and
(D) by inserting after paragraph (7), the following new
paragraph:
``(8) substitute adult day services (as defined in
subsection (ww));''.
(2) Substitute adult day services defined.--Section 1861 of
the Social Security Act (42 U.S.C. 1395x) is amended by
adding at the end the following new subsection:

``Substitute Adult Day Services; Adult Day Services Facility

``(ww)(1)(A) The term `substitute adult day services' means
the items and services described in subparagraph (B) that are
furnished to an individual by an adult day services facility
as a part of a plan under subsection (m) that substitutes
such services for some or all of the items and services
described in subparagraph (B)(i) furnished by a home health
agency under the plan, as determined by the physician
establishing the plan.
``(B) The items and services described in this subparagraph
are the following items and services:
``(i) Items and services described in paragraphs (1)
through (7) of subsection (m).
``(ii) Meals.
``(iii) A program of supervised activities designed to
promote physical and mental health and furnished to the
individual by the adult day services facility in a group
setting for a period of not fewer than 4 and not greater
than 12 hours per day.
``(iv) A medication management program (as defined in
subparagraph (C)).
``(C) For purposes of subparagraph (B)(iv), the term
`medication management program' means a program of services,
including medicine screening and patient and health care
provider education programs, that provides services to
minimize--
``(i) unnecessary or inappropriate use of prescription
drugs; and
``(ii) adverse events due to unintended prescription drug-
to-drug interactions.
``(2)(A) Except as provided in subparagraphs (B) and (C),
the term `adult day services facility' means a public agency
or private organization, or a subdivision of such an agency
or organization, that--
``(i) is engaged in providing skilled nursing services and
other therapeutic services directly or under arrangement with
a home health agency;
``(ii) provides the items and services described in
paragraph (1)(B); and
``(iii) meets the requirements of paragraphs (2) through
(8) of subsection (o).
``(B) Notwithstanding subparagraph (A), the term `adult day
services facility' shall include a home health agency in
which the items and services described in clauses (ii)
through (iv) of paragraph (1)(B) are provided--
``(i) by an adult day services program that is licensed or
certified by a State, or accredited, to furnish such items
and services in the State; and
``(ii) under arrangements with that program made by such
agency.
``(C) The Secretary may waive the requirement of a surety
bond under paragraph (7) of subsection (o) in the case of an
agency or organization that provides a comparable surety bond
under State law.''.
(b) Payment for Substitute Adult Day Services.--Section
1895 of the Social Security Act (42 U.S.C. 1395fff) is
amended by adding at the end the following new subsection:
``(f) Payment Rate for Substitute Adult Day Services.--
``(1) Payment rate.--For purposes of making payments to an
adult day services facility for substitute adult day services
(as defined in section 1861(ww)), the following rules shall
apply:
``(A) Estimation of payment amount.--The Secretary shall
estimate the amount that would otherwise be payable to a home
health agency under this section for all home health services
described in paragraph (1)(B)(i) of such section under the
plan of care.
``(B) Amount of payment.--Subject to paragraph (3)(B), the
total amount payable for substitute adult day services under
the plan of care is equal to 95 percent of the amount
estimated to be payable under subparagraph (A).
``(2) Limitation on balance billing.--An adult day services
facility shall accept as payment in full for substitute adult
day services (including those services described in clauses
(ii) through (iv) of section 1861(ww)(1)(B)) furnished by the
facility to an individual entitled to benefits under this
title the amount of payment provided under this subsection
for home health services consisting of substitute adult day
services.
``(3) Adjustment in case of overutilization of substitute
adult day services.--
``(A) Monitoring expenditures.--Beginning with fiscal year
2005, the Secretary shall monitor the expenditures made under
this title for home health services, including such services
consisting of substitute adult day services, for the fiscal
year and shall compare such expenditures to expenditures that
the Secretary estimates would have been made under this title
for home health services for the fiscal year if the Medicare
Adult Day Services Alternative Act of 2003 had not been
enacted.
``(B) Required reduction in payment rate.--If the Secretary
determines, after making the comparison under subparagraph
(A) and making such adjustments for changes in demographics
and age of the medicare beneficiary population as the
Secretary determines appropriate, that expenditures for home
health services under the this title, including such services
consisting of substitute adult day services, for the fiscal
year exceed expenditures that would have been made under this
title for home health

[[Page S7635]]

services for the fiscal year if the Medicare Adult Day
Services Alternative Act of 2003 not been enacted, then the
Secretary shall adjust the rate of payment to adult day
services facilities under paragraph (1)(B) for home health
services consisting of substitute adult day services
furnished in the fiscal year in order to eliminate such
excess.''.
(c) Effective Date.--The amendments made by this section
shall apply to items and services furnished on or after
January 1, 2004.
______

By Mrs. CLINTON (for herself and Mr. DeWine):
S. 1228: A bill to amend the Internal Revenue Code of 1986 to provide
a tax credit for property owners who remove lead-based paint hazards;
to the Committee on Finance.
Mrs. CLINTON. Mr. President, I rise today to discuss a persistent,
serious, and entirely preventable threat to our children's
intelligence, behavior, and learning.
Lead poisoning affects 300,000 children in our Nation between the
ages of one and five, and has been linked with developmental
disabilities, behavioral problems, and anemia. One recent study from
the New England Journal of Medicine also found that children suffered
up to a 7.4 percent decrease in IQ at lead levels that CDC considers
safe. At very high levels, lead poisoning can cause seizures, coma, and
even death.
In New York State in 1999, over twelve thousand children suffered
from lead poisoning, 9,533 of those children in New York City alone. In
fact, we may even be underestimating the significance of this important
public health problem.
I am glad that the Secretary of Health and Human Services considers
lead poisoning to be a priority, and established a national goal of
ending childhood lead poisoning by 2010. However, federal programs only
have resources to remove lead-based paint hazards from less than 0.1
percent of the twenty-five million housing units that have these
hazards. At this pace, we will not be able to end childhood lead
poisoning by 3010, let alone 2010.
We will never stop childhood lead poisoning unless we get lead out of
the buildings in which children live, work, and play. In Brooklyn, more
than a third of the buildings in one community have a lead-based paint
hazard. Parents of children with lead poisoning are being told that
nothing can be done until their children's lead poisoning becomes
worse. How can we ask children to watch and wait while their sons and
daughters suffer from lead poisoning before we remove the lead from
their homes?
That is why today, I am proud to introduce the Home Lead Safety Tax
Credit Act of 2003 with my colleague, Senator Mike DeWine. This
legislation would provide a tax credit to aide and encourage homeowners
in removing lead-based paint hazards in their homes. Specifically, it
would provide a tax credit for owners of residential properties built
before 1978 that pay for abatement performed by a certified lead
abatement contractor. Owners would receive a maximum tax credit of 50
percent of the cost of the abatement, not to exceed $1,500 per dwelling
unit. In Massachusetts, a similar tax credit helped reduce the number
of new cases of childhood lead poisoning by almost two-thirds in a
decade.

The Home Lead Safety Tax Credit Act of 2003 would help homeowners
make approximately 85,000 homes each year safe from lead, which is more
than ten times the number of homes made lead safe by current Federal
programs. It would greatly accelerate our progress in ridding our
nation of the significant problem of childhood lead poisoning. I ask my
colleagues to join me in supporting this legislation, which will help
us achieve our common goal of protecting children from threats in our
environment.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1228

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

SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

(a) Short Title.--This Act may be cited as the ``Home Lead
Safety Tax Credit Act of 2003''.
(b) Findings.--Congress finds that:
(1) Of the 98,000,000 housing units in the United States,
38,000,000 have lead-based paint.
(2) Of the 38,000,000 housing units with lead-based paint,
25,000,000 pose a hazard, as defined by Environmental
Protection Agency and Department of Housing and Urban
Development standards, due to conditions such as peeling
paint and settled dust on floors and windowsills that contain
lead at levels above Federal safety standards.
(3) Though the number of children in the United States ages
1 through 5 with blood levels higher than the Centers for
Disease Control action level of 10 micrograms per deciliter
has declined to 300,000, lead poisoning remains a serious,
entirely preventable threat to a child's intelligence,
behavior, and learning.
(4) The Secretary of Health and Human Services has
established a national goal of ending childhood lead
poisoning by 2010.
(5) Current Federal lead abatement programs, such as the
Lead Hazard Control Grant Program of the Department of
Housing and Urban Development, only have resources sufficient
to make approximately 7,000 homes lead-safe each year. In
many cases, when State and local public health departments
identify a lead-poisoned child, resources are insufficient to
reduce or eliminate the hazards.
(6) Approximately 15 percent of children are lead-poisoned
by home renovation projects performed by remodelers who fail
to follow basic safeguards to control lead dust.
(7) Old windows typically pose significant risks because
wood trim is more likely to be painted with lead-based paint,
moisture causes paint to deteriorate, and friction generates
lead dust. The replacement of old windows that contain lead
based paint significantly reduces lead poisoning hazards in
addition to producing significant energy savings.
(c) Purpose.--The purpose of this section is to encourage
the safe removal of lead hazards from homes and thereby
decrease the number of children who suffer reduced
intelligence, learning difficulties, behavioral problems, and
other health consequences due to lead-poisoning.

SEC. 2. LEAD ABATEMENT TAX CREDIT.

(a) In General.--Subpart B of part IV of subchapter A of
chapter 1 (relating to foreign tax credit, etc.) is amended
by adding at the end the following new section:

``SEC. 30B. HOME LEAD ABATEMENT.

``(a) Allowance of Credit.--There shall be allowed as a
credit against the tax imposed by this chapter an amount
equal to 50 percent of the abatement cost paid or incurred by
the taxpayer during the taxable year for each eligible
dwelling unit of the taxpayer.
``(b) Limitation.--The amount of the credit allowed under
subsection (a) for any eligible dwelling unit shall not
exceed--
``(1) $1,500, over
``(2) the aggregate cost taken into account under
subsection (a) with respect to such unit for all preceding
taxable years.
``(c) Definitions and Special Rules.--For purposes of this
section:
``(1) Abatement cost.--
``(A) In general.--The term `abatement cost' means, with
respect to any eligible dwelling unit--
``(i) the cost for a certified risk assessor to conduct an
assessment to determine the presence of a lead-based paint
hazard,
``(ii) the cost for a certified lead abatement supervisor
to perform the removal of paint and dust, the permanent
enclosure or encapsulation of lead-based paint, the
replacement of painted surfaces or fixtures, or the removal
or permanent covering of soil when lead-based paint hazards
are present in such paint, dust, or soil,
``(iii) the cost for a certified lead abatement supervisor
to perform all preparation, cleanup, disposal, and
postabatement clearance testing activities associated with
the activities described in clause (ii), and
``(iv) costs incurred by or on behalf of any occupant of
such dwelling unit for any relocation which is necessary to
achieve occupant protection (as defined under section 1345 of
title 24, Code of Federal Regulations).
``(B) Limitation.--The term `abatement cost' does not
include any cost to the extent such cost is funded by any
grant, contract, or otherwise by another person (or any
governmental agency).
``(2) Eligible dwelling unit.--
``(A) In general.--The term `eligible dwelling unit' means
any dwelling unit--
``(i) placed in service before 1978,
``(ii) located in the United States, and
``(iii) determined by a certified risk assessor to have a
lead-based paint hazard.
``(B) Dwelling unit.--The term `dwelling unit' has the
meaning given such term by section 280A(f)(1).
``(3) Lead-based paint hazard.--The term `lead-based paint
hazard' has the meaning given such term under part 745 of
title 40, Code of Federal Regulations.
``(4) Certified lead abatement supervisor.--The term
`certified lead abatement supervisor' means an individual
certified by the Environmental Protection Agency pursuant to
section 745.226 of title 40, Code of Federal Regulations, or
an appropriate State agency pursuant to section 745.325 of
title 40, Code of Federal Regulations.
``(5) Certified inspector.--The term `certified inspector'
means an inspector certified by the Environmental Protection
Agency pursuant to section 745.226 of title 40, Code of
Federal Regulations, or an appropriate State agency pursuant
to section 745.325 of title 40, Code of Federal Regulations.
``(6) Certified risk assessor.--The term `certified risk
assessor' means a risk assessor

[[Page S7636]]

certified by the Environmental Protection Agency pursuant to
section 745.226 of title 40, Code of Federal Regulations, or
an appropriate State agency pursuant to section 745.325 of
title 40, Code of Federal Regulations.
``(7) Documentation required for credit allowance.--No
credit shall be allowed under subsection (a) with respect to
any eligible dwelling unit unless--
``(A) after lead abatement is complete, a certified
inspector or certified risk assessor provides written
documentation to the taxpayer that includes--
``(i) a certification that the postabatement procedures (as
defined by section 745.227 of title 40, Code of Federal
Regulations) have been performed and that the unit does not
contain lead dust hazards (as defined by section
745.227(e)(8)(viii) of title 40, Code of Federal
Regulations), and
``(ii) documentation showing that the lead abatement meets
the requirements of this section, and
``(B) the taxpayer files with the appropriate State
agency--
``(i) the documentation described in subparagraph (A),
``(ii) a receipt from the certified risk assessor
documenting the costs of determining the presence of a lead-
based paint hazard,
``(iii) a receipt from the certified lead abatement
supervisor documenting the abatement cost (other than the
costs described in paragraph (1)(A)(i)), and
``(iv) a statement indicating the age of the dwelling unit.
``(8) Basis reduction.--The basis of any property for which
a credit is allowable under subsection (a) shall be reduced
by the amount of such credit (determined without regard to
subsection (d)).
``(d) Limitation based on amount of tax.--The credit
allowed under subsection (a) for the taxable year shall not
exceed the excess of--
``(1) the sum of the regular tax liability (as defined in
section 26(b)) plus the tax imposed by section 55, over
``(2) the sum of the credits allowable under subpart A and
sections 27, 29, 30, and 30A for the taxable year.
``(e) Carryforward Allowed.--
``(1) In general.--If the credit amount allowable under
subsection (a) for a taxable year exceeds the amount of the
limitation under subsection (d) for such taxable year
(referred to as the `unused credit year' in this subsection),
such excess shall be allowed as a credit carryforward for
each of the 20 taxable years following the unused credit
year.
``(2) Rules.--Rules similar to the rules of section 39
shall apply with respect to the credit carryforward under
paragraph (1).''.
(b) Conforming Amendments.--
(1) Section 1016(a) is amended by striking ``and'' in
paragraph (27), by striking the period and inserting ``,
and'' in paragraph (28), and by inserting at the end the
following new paragraph:
``(29) in the case of an eligible dwelling unit with
respect to which a credit for lead abatement was allowed
under section 30B, to the extent provided in section
30B(c)(8).''.
(2) The table of sections for subpart B of part IV of
subchapter A of chapter 1 is amended by inserting after the
item relating to section 30A the following new item:

``Sec. 30B. Home lead abatement.''.

(c) Effective Date.--The amendments made by this section
shall apply to abatement costs incurred after December 31,
2003, in taxable years ending after that date.
______

By Mr. AKAKA (for himself, Mr. Levin, Mr. Leahy, Mr. Durbin, and
Mr. Dayton):
S. 1229. A bill to amend chapter 23 of title 5, United States Code,
to clarify the disclosures of information protected from prohibited
personnel practices, require a statement in nondisclosure policies,
forms, and agreements that such policies, forms, and agreements conform
with certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes; to the Committee on
Governmental Affairs.
Mr. AKAKA. Mr. President. Today I rise to introduce the Federal
Employee Protection of Disclosures Act with Senators Levin, Leahy,
Durbin, and Dayton to amend the Whistleblower Protection Act, WPA.
These amendments are necessary to protect Federal employees from
retaliation and protect the American people from government waste,
fraud, and abuse. The Federal Employee Protection of Disclosures Act
builds on the foundation laid in the 107th Congress with S. 995 and S.
3070, the latter of which was favorably reported by the Governmental
Affairs Committee last year. The bill also incorporates recommendations
received during a hearing I chaired on similar legislation in 2001.
Last year, Time magazine honored Sherron Watkins, Colleen Rowley, and
Cynthia Cooper as its ``persons of the year.'' These brave women are
whistleblowers--Colleen Rowley is the Minneapolis FBI agent who penned
the memo on the FBI headquarter's handling of the Zacarias Mousssoui
case. In 2002, Ms. Rowley and the two other women went public with
disclosures of mismanagement and wrongdoing within their workplaces.
They captured the nation's attention and earned our respect in their
roles as whistleblowers. Congress encourages Federal employees like Ms.
Rowley to come forward with information of threats to public safety and
health through the WPA, which has been amended twice in order to shore
up congressional intent.
Once again, Congress must act to guarantee protections from
retaliation for Federal whistleblowers. First and foremost, our bill
would codify the repeated and unequivocal statements of congressional
intent that Federal employees are to be protected when making ``any
disclosure'' evidencing violations of law, gross mismanagement, or a
gross waste of funds. The bill would also clarify the test that must be
met to prove that a Federal employee reasonably believed that his or
her disclosure was evidence of wrongdoing. Despite the clear language
of the WPA that an employee is protected from disclosing information he
or she reasonably believes evidences a violation, the Federal Circuit
Court of Appeals, which has sole jurisdiction over whistleblower cases,
ruled in 1999 that the reasonableness review must begin with the
presumption that public officers perform their duties in good faith and
that this presumption stands unless there is ``irrefragable proof'' to
the contrary. By definition, irrefragable means impossible to refute.
To address this unreasonable burden placed on whistleblowers, our bill
would replace the ``irrefragable proof'' standard with ``substantial
evidence.''
The bill would provide some method of relief for those whistleblowers
who face retaliation by having their security clearance removed.
According to former Special Counsel Elaine Kaplan, removal of a
security clearance in this manner is a way of camouflaging retaliation.
To address this issue, the bill would make it a prohibited personnel
practice for a manager to suspend, revoke or take other action with
respect to an employee's security clearance in retaliation for
whistleblowing and allow the Merit Systems Protection Board, MSPB, to
review the action. Under an expedited review process, the MSPB may
issue declaratory and other appropriate relief, but may not direct the
President to restore a security clearance. MSPB and subsequent
Congressional review of the agency's action provides sound oversight
for this process without encroaching upon the President's authority in
the national security arena.
The measure would also provide independent litigating authority to
the Office of Special Counsel, OSC. Under current law, OSC has no
authority to request MSPB to reconsider its decision or to seek review
of a MSPB decision by the Federal Circuit. The limitation undermines
both OSC's ability to protect whistleblowers and the integrity of the
WPA. As such, our bill would provide OSC authority to appear in any
civil action brought in connection with the WPA and obtain review of
any MSPB order where OSC determines MSPB erred and the case will impact
the enforcement of the WPA. The bill would also help protect the
integrity of the Act by removing sole jurisdiction of such cases from
the Federal Circuit and provide for review of whistleblower cases in
the same manner that is afforded in Equal Employment Opportunity
Commission cases. This review system is designed to address holdings by
the Federal Circuit which have repeatedly ignored congressional intent.
Enactment of the Federal Employee Protection of Disclosures Act will
strengthen the rights and protections afforded to Federal
whistleblowers and encourage the disclosure of information vital to an
effective government. Congress should act quickly to assure
whistleblowers that disclosing illegal activities within their agencies
will not be met with retaliation. I urge my colleagues to join with me
in protecting the dedicated Federal employees who come forward to
disclose wrongdoing to help the American people.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

[[Page S7637]]

S. 1229

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

SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.

(a) Short Title.--This Act may be cited as the ``Federal
Employee Protection of Disclosures Act''.
(b) Clarification of Disclosures Covered.--Section
2302(b)(8) of title 5, United States Code, is amended--
(1) in subparagraph (A)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, that the employee or applicant reasonably
believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation'';
(2) in subparagraph (B)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties, to the Special Counsel, or to the
Inspector General of an agency or another employee designated
by the head of the agency to receive such disclosures, of
information that the employee or applicant reasonably
believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''; and
(3) by adding at the end the following:
``(C) a disclosure that--
``(i) is made by an employee or applicant of information
required by law or Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs that the employee or applicant reasonably believes is
direct and specific evidence of--

``(I) any violation of any law, rule, or regulation;
``(II) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety; or
``(III) a false statement to Congress on an issue of
material fact; and

``(ii) is made to--

``(I) a member of a committee of Congress having a primary
responsibility for oversight of a department, agency, or
element of the Federal Government to which the disclosed
information relates and who is authorized to receive
information of the type disclosed;
``(II) any other Member of Congress who is authorized to
receive information of the type disclosed; or
``(III) an employee of Congress who has the appropriate
security clearance and is authorized to receive information
of the type disclosed.''.

(c) Covered Disclosures.--Section 2302(b) of title 5,
United States Code, is amended--
(1) in the matter following paragraph (12), by striking
``This subsection'' and inserting the following:
``This subsection''; and
(2) by adding at the end the following:
``In this subsection, the term `disclosure' means a formal
or informal communication or transmission.''.
(d) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by adding after the matter
following paragraph (12) (as amended by subsection (c) of
this section) the following:
``For purposes of paragraph (8), any presumption relating
to the performance of a duty by an employee who has authority
to take, direct others to take, recommend, or approve any
personnel action may be rebutted by substantial evidence.''.
(e) Nondisclosure Policies, Forms, and Agreements; Security
Clearances; and Retaliatory Investigations.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the semicolon;
and
(B) by redesignating clause (xi) as clause (xiv) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
``(xii) a suspension, revocation, or other determination
relating to a security clearance;
``(xiii) an investigation of an employee or applicant for
employment because of any activity protected under this
section; and''.
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
a semicolon; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement:
`` `These provisions are consistent with and do not
supersede, conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by Executive
Order No. 12958; section 7211 of title 5, United States Code
(governing disclosures to Congress); section 1034 of title
10, United States Code (governing disclosure to Congress by
members of the military); section 2302(b)(8) of title 5,
United States Code (governing disclosures of illegality,
waste, fraud, abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50 U.S.C. 421
et seq.) (governing disclosures that could expose
confidential Government agents); and the statutes which
protect against disclosures that could compromise national
security, including sections 641, 793, 794, 798, and 952 of
title 18, United States Code, and section 4(b) of the
Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)).
The definitions, requirements, obligations, rights,
sanctions, and liabilities created by such Executive order
and such statutory provisions are incorporated into this
agreement and are controlling.'; or
``(14) conduct, or cause to be conducted, an investigation
of an employee or applicant for employment because of any
activity protected under this section.''.
(3) Board and court review of actions relating to security
clearances.--
(A) In general.--Chapter 77 of title 5, United States Code,
is amended by inserting after section 7702 the following:

``Sec. 7702a. Actions relating to security clearances

``(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance, the
Merit Systems Protection Board or any reviewing court--
``(1) shall determine whether section 2302 was violated;
``(2) may not order the President to restore a security
clearance; and
``(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
``(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regards to a security clearance was made
in violation of section 2302, the affected agency shall
conduct a review of that suspension, revocation, or other
determination, giving great weight to the Board or court
judgment.
``(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, or other determination was made in violation of
section 2302, the affected agency shall issue an unclassified
report to the congressional committees of jurisdiction (with
a classified annex if necessary), detailing the circumstances
of the agency's security clearance suspension, revocation, or
other determination. A report under this paragraph shall
include any proposed agency action with regards to the
security clearance.
``(c) An allegation that a security clearance was revoked
or suspended in retaliation for a protected disclosure shall
receive expedited review by the Office of Special Counsel,
the Merit Systems Protection Board, and any reviewing
court.''.
(B) Technical and Conforming Amendment.--The table of
sections for chapter 77 of title 5, United States Code, is
amended by inserting after the item relating to section 7702
the following:

``7702a. Actions relating to security clearances.''.

(f) Exclusion of Agencies by the President.--Section
2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Imagery and Mapping Agency, the National Security
Agency; and
``(II) as determined by the President, any Executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
(g) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking ``agency involved'' and
inserting ``agency where the prevailing party is employed or
has applied for employment''.
(h) Compensatory Damages.--Section 1214(g)(2) of title 5,
United States Code, is amended by inserting ``compensatory
or'' after ``forseeable''.
(i) Disciplinary Action.--Section 1215 of title 5, United
States Code, is amended in subsection (a), by striking
paragraph (3) and inserting the following:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under section
2302(b) (1), (8), or (9), the Board may order disciplinary
action if the Board finds that the activity or status
protected under section 2302(b) (1), (8), or (9) was a
motivating factor for the employee's decision to take, fail
to take, or threaten to take or fail to take a personnel
action, even if other factors also motivated the decision.''.
(j) Disclosures to Congress.--Section 2302 of title 5,
United States Code, is amended by adding at the end the
following:

[[Page S7638]]

``(f) Each agency shall establish a process that provides
confidential advice to employees on making a lawful
disclosure to Congress of information that is specifically
required by law or Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs.''.
(k) Authority of Special Counsel Relating to Civil
Actions.--
(1) Representation of special counsel.--Section 1212 of
title 5, United States Code, is amended by adding at the end
the following:
``(h) Except as provided in section 518 of title 28,
relating to litigation before the Supreme Court, attorneys
designated by the Special Counsel may appear for the Special
Counsel and represent the Special Counsel in any civil action
brought in connection with section 2302(b)(8) or subchapter
III of chapter 73, or as otherwise authorized by law.''.
(2) Judicial review of merit systems protection board
decisions.--Section 7703 of title 5, United States Code, is
amended by adding at the end the following:
``(e)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Special
Counsel. The Special Counsel may obtain review of any final
order or decision of the Board by filing a petition for
judicial review in the United States Court of Appeals for the
Federal Circuit if the Special Counsel determines, in the
discretion of the Special Counsel, that the Board erred in
deciding a case arising under section 2302(b)(8) or
subchapter III of chapter 73 and that the Board's decision
will have a substantial impact on the enforcement of section
2302(b)(8) or subchapter III of chapter 73. If the Special
Counsel was not a party or did not intervene in a matter
before the Board, the Special Counsel may not petition for
review of a Board decision under this section unless the
Special Counsel first petitions the Board for reconsideration
of its decision, and such petition is denied. In addition to
the named respondent, the Board and all other parties to the
proceedings before the Board shall have the right to appear
in the proceedings before the Court of Appeals. The granting
of the petition for judicial review shall be at the
discretion of the Court of Appeals.
``(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review obtained by the
Special Counsel. The Special Counsel may obtain review of any
final order or decision of the Board by filing a petition for
judicial review in the United States Court of Appeals for the
Federal Circuit or any court of appeals of competent
jurisdiction as provided under subsection (b)(2) if the
Special Counsel determines, in the discretion of the Special
Counsel, that the Board erred in deciding a case arising
under section 2302(b)(8) or subchapter III of chapter 73 and
that the Board's decision will have a substantial impact on
the enforcement of section 2302(b)(8) or subchapter III of
chapter 73. If the Special Counsel was not a party or did not
intervene in a matter before the Board, the Special Counsel
may not petition for review of a Board decision under this
section unless the Special Counsel first petitions the Board
for reconsideration of its decision, and such petition is
denied. In addition to the named respondent, the Board and
all other parties to the proceedings before the Board shall
have the right to appear in the proceedings before the court
of appeals. The granting of the petition for judicial review
shall be at the discretion of the court of appeals.''.
(l) Judicial Review.--
(1) In general.--Section 7703(b) of title 5, United States
Code, is amended by striking paragraph (1) and inserting the
following:
``(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a
final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of
the Board.
``(B) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act, a
petition to review a final order or final decision of the
Board shall be filed in the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent
jurisdiction as provided under subsection (b)(2).
Notwithstanding any other provision of law, any petition for
review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of
the Board.''.
(2) Review obtained by office of personnel management.--
Section 7703 of title 5, United States Code, is amended by
striking subsection (d) and inserting the following:
``(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
``(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management. The Director
of the Office of Personnel Management may obtain review of
any final order or decision of the Board by filing, within 60
days after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under subsection (b)(2) if the Director determines,
in his discretion, that the Board erred in interpreting a
civil service law, rule, or regulation affecting personnel
management and that the Board's decision will have a
substantial impact on a civil service law, rule, regulation,
or policy directive. If the Director did not intervene in a
matter before the Board, the Director may not petition for
review of a Board decision under this section unless the
Director first petitions the Board for a reconsideration of
its decision, and such petition is denied. In addition to the
named respondent, the Board and all other parties to the
proceedings before the Board shall have the right to appear
in the proceeding before the court of appeals. The granting
of the petition for judicial review shall be at the
discretion of the Court of Appeals.''.
(m) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: ``These restrictions are consistent with
and do not supersede, conflict with, or otherwise alter the
employee obligations, rights, or liabilities created by
Executive Order No. 12958; section 7211 of title 5, United
States Code (governing disclosures to Congress); section 1034
of title 10, United States Code (governing disclosure to
Congress by members of the military); section 2302(b)(8) of
title 5, United States Code (governing disclosures of
illegality, waste, fraud, abuse or public health or safety
threats); the Intelligence Identities Protection Act of 1982
(50 U.S.C. 421 et seq.) (governing disclosures that could
expose confidential Government agents); and the statutes
which protect against disclosure that may compromise the
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.''
(B) Enforceability.--Any nondisclosure policy, form, or
agreement described under subparagraph (A) that does not
contain the statement required under subparagraph (A) may not
be implemented or enforced to the extent such policy, form,
or agreement is inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the Federal
Government or a State or local government, may contain
provisions appropriate to the particular activity for which
such document is to be used. Such form or agreement shall, at
a minimum, require that the person will not disclose any
classified information received in the course of such
activity unless specifically authorized to do so by the
United States Government. Such nondisclosure forms shall also
make it clear that such forms do not bar disclosures to
Congress or to an authorized official of an executive agency
or the Department of Justice that are essential to reporting
a substantial violation of law.
(n) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland
Security Act of 2002 (Public Law 107-296) is amended by
adding at the end the following: ``For purposes of this
section a permissible use of independently obtained
information includes the disclosure of such information under
section 2302(b)(8) of title 5, United States Code.''.
(o) Effective Date.--This Act shall take effect 30 days
after the date of enactment of this Act.
Mr. LEVIN. Mr. President, I am pleased to join Senators Akaka, Leahy,
Durbin and Dayton today in introducing the Federal Employees Protection
of Disclosures Act. Our bill strengthens the law protecting employees
who blow the whistle on fraud, waste, and abuse in Federal programs.
Whistleblowers play a crucial role in ensuring that Congress and the
public are aware of serious cases of waste,

[[Page S7639]]

fraud, and mismanagement in government. Whistleblowing is never more
important than when our national security is at stake. Since the
terrorist attacks of September 11, 2001, courageous individuals have
stepped forward to blow the whistle on significant lapses in our
efforts to protect the United States against potential future attacks.
Most notably, FBI Agent Coleen Rowley alerted Congress to serious
institutional problems at the FBI and their impact on the agency's
ability to effectively investigate and prevent terrorism.
In another example, two Border Patrol agents from my State of
Michigan, Mark Hall and Bob Lindemann, risked their careers when they
blew the whistle on Border Patrol and INS policies that were
compromising security on the Northern Border. Their disclosure led to
my holding a hearing at the Permanent Subcommittee on Investigations in
November 2001, that exposed serious deficiencies in the way Border
Patrol and INS were dealing with aliens who were arrested while trying
to enter the country illegally. Since the hearing, some of the most
troublesome policies have been changed, improving the security
situation and validating the two agents' concerns. Despite the fact
that their concerns proved to be dead on, shortly after they blew the
whistle, disciplinary action was proposed against the two agents.
Fortunately in this case, whistleblower protections worked. The Office
of Special Counsel conducted an investigation and the decision to
discipline the agents was reversed. However, that disciplinary action
was proposed in the first place is a troubling reminder of how
important it is for us to both strengthen protections for
whistleblowers and empower the Office of Special Counsel to discipline
managers who seek to muzzle employees.
Agent Rowley, Mark Hall and Bob Lindemann are simply the latest in a
long line of Federal employees who have taken great personal risks in
blowing the whistle on government waste, fraud, and mismanagement.
Congress has long recognized the obligation we have to protect a
Federal employee when he or she discloses evidence of wrongdoing in a
federal program. If an employee reasonably believes that a fraud or
mismanagement is occurring, and that employee has the courage and the
sense of responsibility to make that fraud or mismanagement known, it
is our duty to protect the employee from any reprisal. We want federal
employees to identify problems so we can fix them, and if they fear
reprisal for doing so, then we are not only failing to protect the
whistleblower, but we are also failing to protect the taxpayer.
I sponsored the Whistleblower Protection Act in 1989 which
strengthened and clarified whistleblower rights, as well as the bill
passed by Congress to strengthen the law further in 1994.
Unfortunately, however, repeated holdings by the United States Court of
Appeals for the Federal Circuit have corrupted the intent of Congress,
with the result that additional clarifying language is sorely needed.
The case of LaChance versus White represents perhaps the most notable
example of the Federal Circuit's misinterpretation of the whistleblower
law.
In LaChance, decided on May 14, 1999, the court imposed an unfounded
and virtually unattainable standard on Federal employee whistleblowers
in proving their cases. In that case, John E. White was an education
specialist for the Air Force who spoke out against a new educational
system that purported to mandate quality standards for schools
contracting with the Air Force bases. White criticized the new system
as counterproductive because it was too burdensome and seriously
reduced the education opportunities available on base. After making
these criticisms, local agency officials reassigned White, relieving
him of his duties and allegedly isolating him. However, after an
independent management review supported White's concerns, the Air Force
canceled the program White had criticized. White appealed the
reassignment in 1992 and the case has been in litigation ever since.
The administrative judge initially dismissed White's case, finding
that his disclosures were not protected by the Whistleblower Protection
Act. The MSPB, however, reversed the administrative judge's decision
and remanded the case back to the administrative judge, holding that
since White disclosed information he reasonably believed evidenced
gross mismanagement, this disclosure was protected under the Act. On
remand, the administrative judge found that the Air Force had violated
the Whistleblower Protection Act and ordered the Air Force to return
White to his prior status; the MSPB affirmed the decision of the
administrative judge. OPM petitioned the Federal Circuit for a review
of the board's decision. The Federal Circuit subsequently reversed the
MSPB's decision, holding that there was not adequate evidence to
support a violation under the Whistleblower Protection Act. The Federal
Circuit held that the evidence that White was a specialist on the
subject at issue and aware of the alleged improper activities and that
his belief was shared by other employees was not sufficient to meet the
``reasonable belief'' test in the law. The court held that ``the board
must look for evidence that it was reasonable to believe that the
disclosures revealed misbehavior'' by the Air Force. The court went on
to say: ``In this case, review of the Air Force's policy and
implementation via the QES standards might well show them to be
entirely appropriate, even if not the best option. Indeed, this review
would start out with a presumption that public officers perform their
duties correctly, fairly, in good faith, and in accordance with the law
and governing regulations. . . . And this presumption stands unless
there is ``irrefragable proof to the contrary'.''
It was appropriate for the Federal Circuit to remand the case to the
MSPB to have it reconsider whether it was reasonable for White to
believe that what the Air Force did in this case involved gross
mismanagement. However, the Federal Circuit went on to impose a clearly
erroneous and excessive standard for him to demonstrate his
``reasonable belief''--requiring him to provide ``irrefragable'' proof
that the Air Force had engaged in gross mismanagement.
Irrefragable means ``undeniable, incontestable, incontrovertible,
incapable of being overthrown.'' How can a Federal employee meet a
standard of ``irrefragable'' in proving gross mismanagement? It is a
virtually impossible standard of proof to meet. Moreover, there is
nothing in the law or legislative history that even suggests such a
standard applies to the Whistleblower Protection Act. The intent of the
law is not for a Federal employee to act as an investigator and compile
``irrefragable'' proof that the Federal Government, in fact, committed
fraud, waste or abuse. Rather, under the clear language of the statute,
the employee needs only to have ``a reasonable belief'' that there is
fraud, waste or abuse occurring in order to make a protected
disclosure.
LaChance is only one example of the Federal Circuit misinterpreting
the law. Our bill corrects LaChance and as well as several other
Federal Circuit holdings. In addition, the bill strengthens the Office
of Special Counsel and creates additional protections for federal
employees who are retaliated against for blowing the whistle.
One of the most important issues addressed in the bill is to clarify
again that the law is intended to protect a broad range of
whistleblower disclosures. The legislative history supporting the 1994
Whistleblower Protection Act amendments emphasized: ``[I]t also is not
possible to further clarify the clear language in section 2302(b)(8)
that protection for ``any'' whistleblowing disclosure truly means
``any.'' A protected disclosure may be made as part of an employee's
job duties, may concern policy or individual misconduct, and may be
oral or written and to any audience inside or outside the agency,
without restriction to time, place, motive or content.''
Despite this clear Congressional intent that was clearly articulated
in 1994, the Federal Circuit has acted to push a number of
whistleblower disclosures outside the protections of the whistleblower
law. For example, in Horton versus the Department of the Navy, the
Federal Circuit ruled that a whistleblower's disclosures to co-workers,
or to the wrong-doer, or to a supervisor were not protected by the WPA.
In Willis versus the Department of Agriculture, the court ruled that a
whistleblower's disclosures to officials in

[[Page S7640]]

the agency chain of command or those made in the course of normal job
duties were not protected. In Huffman versus Office of Personnel
Management, the Federal Circuit reaffirmed Horton and Willis. And in
Meuwissen versus Department of Interior, the Federal Circuit held that
a whistleblower's disclosures of previously known information do not
qualify as ``disclosures'' under the WPA. All of these rulings violate
clear Congressional intent to afford broad protection to whistleblower
disclosures.
In order to make it clear that any lawful disclosure that an employee
or job applicant reasonably believes is evidence of waste, fraud,
abuse, or gross mismanagement is covered by the WPA, the bill codifies
previous statements of Congressional intent. Using the 1994 legislative
history, it amends the whistleblower statute to cover any disclosure of
information without restriction to time, place, form, motive or
context, or prior disclosure made to any person by an employee or
applicant, including a disclosure made in the ordinary course of an
employee's duties that the employee or applicant reasonably believes is
credible evidence of any violation of any law, rule, or regulation, or
other misconduct specified in the whistleblower law. I want to
emphasize here that, other than the explicitly listed exceptions
identified in the statute, we intend for there to be no exceptions,
inferred or otherwise, as to what is a protected disclosure. And the
prohibition on inferred exceptions is intended to apply to all
protected speech categories in section 2302(b)(8) of the law. The
intent here, again, is to make it clear that when the WPA speaks of
protecting disclosures by federal employees ``any'' means ``any.''
The bill also addresses the clearly erroneous standard established by
the Federal Circuit's LaChance decision I mentioned earlier. Rather
than needing ``irrefragable proof'' to overcome the presumption that a
public officer performed his or her duties correctly, fairly, in good
faith, and in accordance with the law and regulations, the bill makes
it clear that the whistleblower can rebut this presumption with
``substantial evidence.'' This burden of proof is a far more reasonable
and appropriate standard for whistleblowing cases.
In the 1994 WPA amendments, Congress attempted to expand relief for
whistleblowers by replacing ``compensatory'' damages with all direct or
indirect ``consequential'' damages. Again, despite clear Congressional
intent, the Federal Circuit has narrowed the scope of relief available
to whistleblowers who have been hurt by adverse personnel actions. Our
legislation would clarify the law to provide whistleblowers with relief
for ``compensatory or consequential damages.''
The Federal Circuit's repeated misinterpretations of the
whistleblower law are unacceptable and demand Congressional action. In
response to the court's inexplicable and inappropriate rulings, our
bill would suspend for five years the Federal Circuit's exclusive
jurisdiction over whistleblower appeals. It would instead allow a
whistleblower to file a petition to review a final order or final
decision of the MSPB in the Federal Circuit or in any other United
States appellate court of competent jurisdiction as defined under 5
U.S.C. 7703(b)(2). In most cases, using another court would mean going
to the federal circuit where the contested personnel action took place.
This five year period would allow Congress to evaluate whether other
appellate courts would issue whistleblower decisions which are
consistent with the Federal Circuit's interpretation of WPA protections
and guide Congressional efforts to clarify the law if necessary.
In addition to addressing jurisdictional issues and troublesome
Federal Circuit precedents, our bill would also make important
additions to the list of protected disclosures. First, it would subject
certain disclosures of classified information to whistleblower
protections. However, in order for a disclosure of classified
information to be protected, the employee would have to possess a
reasonable belief that the disclosure was direct and specific evidence
of a violation of law, rule or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, a substantial and specific
danger to public health or safety, or a false statement to Congress on
an issue of material fact. A whistleblower must also limit the
disclosure to a member of Congress or staff of the executive or
legislative branch holding the appropriate security clearance and
authorized to receive the information disclosed. Federal agencies
covered by the WPA would be required to establish a process to provide
confidential advice to employees on how to lawfully make a protected
disclosure of classified information to Congress.
Current law permits Federal employees to file a case at the MSPB when
they feel that a manager has taken a personnel action against them in
retaliation for blowing the whistle. The legislation would add three
new personnel actions to the list of adverse actions that cannot be
taken against whistleblowers for engaging in protected activity. These
actions would include enforcement of any nondisclosure policy, form or
agreement against a whistleblower for making a protected disclosure;
the suspension, revocation, or other determination relating to a
whistleblower's security clearance; and an investigation of an employee
or applicant for employment if taken due to their participation in
whistleblowing activity.
It is important to note that, if it is demonstrated that a security
clearance was suspended or revoked in retaliation for whistleblowing,
the legislation limits the relief that the MSPB and reviewing court can
order. The bill specifies that the MSPB or reviewing court may issue
declaratory and other appropriate relief but may not direct a security
clearance to be restored. Appropriate relief may include back pay, an
order to reassign the employee, attorney fees, or any other relief the
Board or court is authorized to provide for other prohibited personnel
practices. In addition, if the Board finds an action on a security
clearance to have been illegal, it may bar the agency from directly or
indirectly taking any other personnel action based on that illegal
security clearance action. Our legislation would also require the
agency to review and provide a report to Congress detailing the
circumstances of the agency's security clearance decision, and
authorizes expedited MSPB review of whistleblower cases where a
security clearance was revoked or suspended. The latter is important
because a person whose clearance has been suspended or revoked and
whose job responsibilities require clearance may be unable to work
while their case is being considered.
Our bill would also add two prohibited personnel practices to the
whistleblower law. First, it would codify the ``anti-gag'' provision
that has been in force since 1988, by virtue of its inclusion in
appropriations bills. Second, it would prohibit a manager from
initiating an investigation of an employee or applicant for employment
because they engaged in a protected activity, including whistleblowing.
Another issue addressed in the bill involves certain employees who
are excluded from the WPA. Among these are employees who hold
``confidential policy-making positions.'' In 1994, Congress amended the
WPA to keep agencies from designating employees confidential
policymakers after the employees filed whistleblower complaints. The
WPA also allows the President to exclude from WPA jurisdiction any
agency whose principal function is the conduct of foreign intelligence
or counterintelligence activities. Our legislation maintains this
authority but makes it clear that a decision to exclude an agency from
WPA protections must also be made prior to a personnel action being
taken against a whistleblower from that agency. This provision is
necessary to ensure that agencies cannot argue that employees are
exempt from whistleblower protections after an employee files a claim
that they were retaliated against.
Another key section of the bill would strengthen the Office of
Special Counsel. OSC is the independent federal agency responsible for
investigating and prosecuting federal employee complaints of
whistleblower retaliation. Current law, however, limits OSC's ability
to effectively enforce and defend whistleblower laws. For example, the
law provides the OSC with no authority to request the Merit Systems
Protection Board to reconsider one of its decisions or to seek
appellate review of an MSPB decision. Even when

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another party petitions for a review of a MSPB decision, OSC is
typically denied the right to participate in the proceedings.
Our bill would provide explicit authority for the Office of Special
Counsel to appear in any civil action brought in connection with the
whistleblower law. In addition, it would authorize OSC to obtain
circuit court review of any MSPB order in a whistleblowing case if the
OSC determines the Board erred and the case would have a substantial
impact on the enforcement of the whistleblower statute. In a letter to
me addressing these provisions, Special Counsel Elaine Kaplan said, ``I
believe that these changes are necessary, not only to ensure OSC's
effectiveness, but to address continuing concerns about the whittling
away of the WPA's protections by narrow judicial interpretations of the
law.'' I ask unanimous consent that the OSC letter be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

U.S. Office of Special Counsel,

Washington, DC, September 11, 2002.
Hon. Carl Levin,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Levin: Thank you for giving me the opportunity
to comment on the proposed Title VI of H.R. 5005, concerning
the protection of federal employee whistleblowers.
As the head of the U.S. Office of Special Counsel (OSC),
the independent federal agency that is responsible for
investigating and prosecuting federal employees' complaints
of whistleblower retaliation, I share your recognition that
it is crucial to ensure that the laws protecting
whistleblowers are strong and effective. Federal employees
are often in the best position to observe and identify
official misconduct or malfeasance as well as dangers to the
public health and safety, and the national security.
Now, perhaps more than ever before, our national interest
demands that federal workers feel safe to come forward to
bring appropriate attention to these conditions so that they
may be corrected. Further, and again more than ever, the
public now needs assurance that the workforce which is
carrying out crucial operations is alert, and that its
leaders welcome and encourage their constructive
participation in making the government a highly efficient and
effective steward of the public interest.
To these ends, Title VI contains a number of provisions
that will strengthen the Whistleblower Protection Act (WPA)
and close loopholes in the Act's coverage. The amendment
would reverse the effects of several judicial decisions that
have imposed unduly narrow and restrictive tests for
determining whether employees qualify for the protection of
the WPA. These decisions, among other things, have held that
employees are not protected against retaliation when they
make their disclosures in the line of duty or when they
confront subject officials with their suspicions of
wrongdoing. They have also made it more difficult for
whistleblowers to secure the Act's protection by interposing
what the Court of Appeal for the Federal Circuit has called
an ``irrefragable'' presumption that government officials
perform their duties lawfully and in good faith.
In addition to reversing these rulings, Title VI would
grant the Special Counsel independent litigating authority
and the right to request judicial review of decisions of the
Merit Systems Protection Board (MSPB) in cases that will have
a substantial impact upon the enforcement of the WPA. I
firmly believe that these changes are necessary, not only to
ensure OSC's effectiveness, but to address continuing
concerns about the whittling away of the WPA's protections
by narrow judicial interpretations of the law. The changes
would ensure that, OSC, the government agency charged with
protecting whistleblowers, will have a meaningful
opportunity to participate in the shaping of the law.
Further, Title VI would strengthen OSC's capacity to use
its disciplinary action authority to deter agency
supervisors, managers, and other officials from engaging in
retaliation, and to punish those who do so. The amendment
does this in two ways. First, it clarifies the burden of
proof in disciplinary action cases that OSC brings by
employing the test first set forth by the Supreme Court in
Mt. Healthy School District v. Board of Education. Under this
test, in order to secure discipline of an agency official
accused of engaging in whistleblower retaliation, OSC would
have to show that protected whistleblowing was a
``significant, motivating factor'' in the decision to take or
threaten to take a personnel action. If OSC made such a
showing, the MSPB would order appropriate discipline unless
the official showed, by preponderant evidence, that he or she
would have taken or threatened to take the same action even
had there been no protected activity.
This change is necessary in order to ensure that the burden
of proof in these cases is not so onerous as to make it
virtually impossible to secure discipline against
retaliators. Under current law, OSC bears the unprecedented
burden of demonstrating that protected activity was the but-
for cause of an adverse personnel action against a
whistleblower. The amendment would correct the imbalance by
imposing the well-established Mt. Healthy test in these
cases.
In addition, the bill would relieve OSC of attorney fee
liability in disciplinary action cases in which it ultimately
does not prevail. The amendment would shift liability for
fees to the manager's employing agency, where an award of
fees would be in the interest of justice. The employing
agency would indemnify the manager for these costs which
would have been incurred by him in the course of performing
his official duties.
Under current law, if OSC ultimately does not prevail in a
case it brings against a manager whom our investigation shows
has engaged in retailiation, then we must pay attorney fees,
even if our prosecution decision was an entirely reasonable
one. For a small agency like OSC, with a limited budget, the
specter of having to pay large attorney fee awards simply
because we do not ultimately prevail in a case, is a
significant obstacle to our ability to use this important
authority to hold managers accountable. It is, moreover, an
unprecedented burden; virtually all fee shifting provisions
which could result in an award of fees against a government
agency, depend upon a showing that the government agency has
acted unreasonably or in bad faith.
In addition to these provisions, the bill would also
provide that for a period of five years, beginning on
February 1, 2003, there would be multi-circuit review of
decisions of the MSPB, just as there is now multi-circuit
review of decisions of the MSPB's sister agency, the
Federal Labor Relations Authority. This experiment will
give Congress the opportunity to judge whether providing
broader perspectives of all of the nation's courts of
appeals will enhance the development of the law under the
WPA.
There are several other provisions of the amendments that
would strengthen the Act's coverage and remedies. The
amendments, for example, would extend coverage of the WPA to
circumstances in which an agency initiated an investigation
of an employee or applicant in reprisal for whistleblowing or
where an agency implemented an illegal non-disclosure form or
policy. The amendments also would authorize an award of
compensatory damages in federal employee whistleblower cases.
Such awards are authorized for federal employees under the
civil rights acts, and for environmental and nuclear
whistleblowers, among others, under other federal statutes.
Given the important public policies underlying the WPA, it
seems appropriate that the same sort of make whole relief
should be available to federal employee whistleblowers.
Finally, Title VI contains a provision that would provide
relief to employees who allege that their security clearances
were denied or revoked because of protected whistleblowers,
without interfering with the longstanding authority of the
President to make security clearance determinations. The
amendment would allow employees to file OSC complaints
alleging they suffered a retaliatory adverse security
clearance determination. OSC would be given the authority to
investigate such complaints and the MSPB would have the
authority to issue declaratory and appropriate relief other
than ordering the restoration of the clearance. Further,
where the Board found retaliation, the employing agency would
be required to conduct its own investigation of the
revocation and report back to Congress.
The amendment provides a balanced resolution of the tension
between protecting national security whistleblowers against
retaliation and maintaining the President's traditional
prerogative to decide who will have access to classified
information. Especially in light of the current heightened
concerns about issues of national security, this change in
the law is clearly warranted.
Thank you again for providing me with an opportunity to
comment on these amendments, and for your continuing interest
in the work of the Office of Special Counsel.
Sincerely,
Elaine Kaplan.

Mr. LEVIN. OSC currently has the authority to pursue disciplinary
action against managers who retaliate against whistleblowers. However,
Federal Circuit decisions, like LaChance, have undermined the agency's
ability to successfully pursue such cases. The Special Counsel has said
that ``change is necessary in order to ensure that the burden of proof
in these cases is not so onerous as to make it virtually impossible to
secure disciplinary action against retaliators.'' In addition to it
being difficult to win, if the OSC loses a disciplinary case, it has to
pay the legal fees of those against whom OSC initiates disciplinary
action. In its letter, OSC said that ``the specter of having to pay
large attorney fee awards . . . is a significant obstacle to our
ability to use this important authority to hold managers accountable.''
Our bill addresses these problems by establishing a reasonable burden
of proof for disciplinary actions and requiring the employing agency,
not the OSC, to reimburse the prevailing party for attorney fees in a
disciplinary proceeding.
Finally, the bill addresses a new issue that has arisen in connection

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with the recent enactment of the Homeland Security Act or HSA. To
evaluate the vulnerability to terrorist attack of certain critical
infrastructure such as chemical plants, computer networks and other key
facilities, the HSA asks private companies that own these facilities to
submit unclassified information about them to the government. In doing
so, the law also created some ambiguity on the question of whether
federal employee whistleblowers would be protected by the WPA if they
should disclose information that has been independently obtained by the
whistleblower about such facilities but which may also have been
disclosed to the government as under the critical infrastructure
information program.
While I believe it was Congress' intent to extend whistleblower
protections to federal employees who disclose such independently
obtained information, the law's ambiguities are troublesome in the
context of the tendency of the Federal Circuit to narrowly construe the
scope of protections afforded by the WPA. Our bill would thus clarify
that whistleblower protections do extend to federal employees who
disclose independently obtained information that may also have been
disclosed to the government as part of the critical infrastructure
information program.
We need to encourage federal employees to blow the whistle on waste,
fraud and abuse in federal government agencies and programs. These
people take great risks and often face enormous obstacles in doing what
they believe is right. The Congress and the country owe a particular
debt of gratitude to those whistleblowers who put their careers on the
line to protect national security. Since September 11, 2001, we have
seen a number of examples of how crucial people like Coleen Rowley,
Mark Hall and Bob Lindemann are to keeping our country safe. I request
unanimous consent to print a letter from Agent Rowley in the Record. In
the letter she says that when she blew the whistle, she was lucky
enough to garner the support of many of her colleagues and members of
Congress. However, her letter warns that for every Coleen Rowley,
``there are many more who do not benefit from the relative safety of
public notoriety.'' It is to protect those responsible, courageous many
that we offer this legislation. We need more like them.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

September 2, 2002.
Dear Senators: I have proudly served in federal law
enforcement for over 21 years. Prior to my personal
involvement in a specific matter, I did not fully appreciate
the strong disincentives that sometimes keep government
employees from exposing waste, fraud, abuse, or other
failures they witness on the job. Nor did I appreciate the
strong incentives that do exist for agencies to avoid
institutional embarrassment.
The decision to step forward with information that exposed
my agency to scrutiny was one of the most difficult of my
career. I did not come to it quickly or lightly. I first
attempted to warn my superiors through regular channels. Only
after those warnings failed to bring about the necessary
response and congressional inquiry was initiated, did it go
outside the agency with my concerns. I had no intention or
desire to be in the public spotlight, so I did not go to the
news media. I provided the information to Members of Congress
with oversight responsibility. I felt compelled to do so
because my responsibility is to the American people, not to a
government agency.
Unfortunately, the cloak of secrecy which is necessary for
the effective operation of government agencies involved in
national security and criminal investigations fosters an
environment where the incentives to avoid embarrassment and
the disincentives to step forward combine. When that happens,
the public loses. We need laws that strike a better balance,
that are able to protect effective government operation
without sacrificing accountability to the public. I was lucky
enough to garner a good deal of support from my colleagues in
the Minneapolis office and Members of Congress. But for every
one like me, there are many more who do not benefit from the
relative safety of public notoriety. They need credible,
functioning rights and remedies to retain the freedom to
warn.
I also need to state that I write this letter in my
personal capacity, and that it reflects my personal views
only, not those of the government agency for which I work.
Thank you for your consideration.
Coleen Rowley.

Mr. LEVIN. I ask unanimous consent to print in the Record a section-
by-section explanation of the bill.
There being no objection, the analysis was ordered to be printed in
the Record, as follows:

Section-by-Section Analysis of the Federal Employee Protection of
Disclosures Act

The Federal Employee Protection of Disclosures Act would
strengthen protections for federal employees who blow the
whistle on waste, fraud and abuse in the federal government.
Protected Whistleblower Disclosures. To correct court
decisions improperly limiting the disclosures protected by
the Whistleblower Protection Act (WPA), section (b) of the
bill would clarify Congressional intent that the law covers
`any' whistleblowing disclosure, whether that disclosure is
made as part of an employee's job duties, concerns policy or
individual misconduct, is oral or written, or is made to any
audience inside or outside an agency, and without restriction
to time, place, motive or context. This section would also
protect certain disclosures of classified information to
Congress when the disclosure is to a Member or legislative
staff holding an appropriate security clearance and
authorized to receive the type of information disclosed.
Informal Disclosures. Section (c) would clarify the
definition of ``disclosure'' to include a formal or informal
communication or transmission.
Irrefragable Proof. In LaChance v. White, the U.S. Court of
Appeals for the Federal Circuit imposed an erroneous standard
for determining when an employee makes a protected disclosure
under the WPA. Under the clear language of the statute, an
employee need only have a reasonable belief that he or she is
providing evidence of fraud, waste or abuse to make a
protected disclosure. But the court ruled that an employee
had to have ``irrefragable proof'' meaning undeniable and
incontestable proof to overcome the presumption that a public
officer is performing their duties in accordance with law.
Section (d) would replace this unreasonable standard of proof
by providing that a whistleblower can rebut the presumption
with ``substantial evidence.''
Prohibited Personnel Actions. Section (e)(1) would add
three actions to the list of prohibited personnel actions
that may not be taken against whistleblowers for protected
disclosures: enforcement of a nondisclosure policy, form or
agreement; suspension, revocation, or other determination
relating to an employee's security clearance; and
investigation of an employee or applicant for employment due
to protected whistleblowing activities.
Nondisclosure Actions Against Whistleblowers. Section
(e)(2) would bar agencies from implementing or enforcing
against whistleblowers any nondisclosure policy, form or
agreement that fails to contain specified language preserving
the right of government employees to disclose certain
protected information. It would also prohibit a manager from
initiating an investigation of an employee or applicant for
employment because they engaged in protected activity.
Retaliations Involving Security Clearances. Section (e)(3)
would make it a prohibited personnel practice for a manager
to suspend, revoke or take other action with respect to an
employee's security clearance in retaliation for
whistleblowing. This section would also authorize the Merit
Systems Protection Board (MSPB) to conduct an expedited
review of such matters and issue declaratory and other
appropriate relief, but would not empower MSPB to restore a
security clearance. If MSPB or a reviewing court were to find
that a security clearance decision was retaliatory, the
agency involved would be required to review its security
clearance decision and issue a report to Congress explaining
it.
Exclusions from WPA. Current law allows the President to
exclude certain employees and agencies from the WPA if they
perform certain intelligence related or policy making
functions. In 1994, Congress amended the WPA to stop agencies
from removing employees from WPA coverage after the employees
filed whistleblower complaints. Section (f) would also
require that removal of an agency from the WPA be made prior
to a personnel action being taken against a whistleblower at
that agency.
Attorney Fees. The Office of Special Counsel (OSC) has
authority to pursue disciplinary action against managers who
retaliate against whistleblowers. Currently, if OSC loses a
disciplinary case, it must pay the legal fees of those
against whom it initiated the action. Because the amounts
involved could significantly deplete OSC's limited resources,
section (g) would require the employing agency, rather than
OSC, to reimburse the manager's attorney fees.
Compensatory Damages. In the 1994 WPA amendments, Congress
attempted to expand relief for whistleblowers by replacing
``compensatory'' damages with direct and indirect
``consequential'' damages. Despite Congressional intent, the
Federal Circuit narrowed the scope of relief available to
whistleblowers. To correct the court's misinterpretation of
the law, section (h) would provide whistleblowers with relief
for compensatory or consequential damages.
Burden of Proof in Disciplinary Actions. Currently, when
OSC pursues disciplinary action against managers who
retaliate against whistleblowers, OSC must demonstrate that
an adverse personnel action would not have occurred ``but
for'' the whistleblower's protected activity. Section (i)
would establish a more reasonable burden of proof by
requiring OSC to demonstrate that the whistleblower's
protected disclosure was

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a ``motivating factor'' in the decision by the manager to
take the adverse action, even if other factors also motivated
the decision. This burden would be similar to the approach
taken in the 1991 Civil Rights Act.
Disclosures to Congress. Section (j) would require agencies
to establish a process to provide confidential advice to
employees on how to lawfully make a protected disclosure of
classified information to Congress.
Authority of Special Counsel. Under current law, OSC has no
authority to request MSPB to reconsider a decision or seek
appellate review of a MSPB decision. This limitation
undermines OSC's ability to protect whistleblowers and
integrity of the WPA. Section (k) would authorize OSC to
appear in any civil action brought in connection with the WPA
and request appellate review of any MSPB order where OSC
determines MSPB erred and the case would have a substantial
impact on WPA enforcement.
Judicial Review. In 1982, Congress replaced normal
Administrative Procedures Act appellate review of MSPB
decisions with exclusive jurisdiction in the U.S. Court of
Appeals for the Federal Circuit. While the 1989 WPA and its
1994 amendments strengthened and clarified whistleblower
protections, Federal Circuit holdings have repeatedly
misinterpreted key provisions of the law. Subject to a five
year sunset, section (l) would suspend the Federal Circuit's
exclusive jurisdiction over whistleblower appeals and allow
petitions for review to be filed either in the Federal
Circuit or any other federal circuit court of competent
jurisdiction.
Nondisclosure Restrictions on Whistleblowers. Section (m)
would require all federal nondisclosure policies, forms and
agreements to contain specified language preserving the right
of government employees to disclose certain protected
information. This section would codify the so-called anti-gag
provision that has been included in federal appropriations
bills since 1988.
Critical Infrastructure Information. Section (n) would
clarify that section 214(c) of the Homeland Security Act
(HSA) maintains existing WPA rights for independently
obtained information that may also qualify as critical
infrastructure information under the HSA.

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