[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

[[Page S7641]]

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

[[Page S7642]]

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

[[Page S7643]]

     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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