Congressional Record, Volume 149 Issue 96 (Thursday, June 26, 2003)

[Congressional Record Volume 149, Number 96 (Thursday, June 26, 2003)]
[Senate]
[Pages S8729-S8762]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LEVIN:
S. 1338. A bill to decrease the matching funds requirement and
authorize additional appropriations for Keweenaw National Historical
Park in the State of Michigan; to the Committee on Energy and Natural
Resources.
Mr. LEVIN. Mr. President, I ask unanimous consent that the text of
the Keweenaw National Historical Park bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1338

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

SECTION 1. FUNDING FOR KEWEENAW NATIONAL HISTORICAL PARK.

(a) Matching Funds.--Section 8(b) of Public Law 102-543 (16
U.S.C. 410yy-7(b)) is amended by striking ``$4'' and
inserting ``$1''.
(b) Authorization of Appropriations.--Section 10(a) of
Public Law 102-543 (16 U.S.C. 410yy-9(a)) is amended--
(1) by striking ``$25,000,000'' and inserting
``$50,000,000''; and
(2) by striking ``$3,000,000'' and inserting
``$25,000,000''.

Mr. GRAHAM of Florida. Mr. President, I rise today to introduce
legislation that will authorize additional judgeships in the Middle and
Southern Federal Judicial Districts of Florida.
Additional judgeships are needed in these two districts in order to
deal with a large volume of filings, heavy pending caseloads, the
considerable number of senior judges, and a rapidly growing population.
It is vital that we add two additional permanent and one temporary
judgeship in the Middle District and four additional permanent
judgeships in the Southern District of Florida.
Florida's Middle District is one of the busiest Federal district
courts in the Nation. In 2001 it was ranked fifth in the Nation for the
number of criminal defendants charged with fraud and drug related
offenses among all district courts. It handles cases filed in three of
the four largest cities in the State of Florida, Jacksonville, Orlando
and Tampa, which comprise 60 percent of the State's population.
In 1999 four judges were added to the Middle District of Florida. The
numbers of weighted filings and pending caseload both decreased in
2000. However, numbers quickly rose again in 2001. A biennial judgeship
survey conducted in 2003 showed that in 2001 there were 553 weighted
filings in this district versus the national average of 490. In
addition, the United States Department of Justice has identified
Central Florida as a High Intensity Drug Trafficking Enforcement Area.
The Southern and Middle Districts are parallel in some of the
challenges that they face. Despite the additional judgeships that were
created in the Southern District in 2001, the amount of weighted
filings continues to rise. Since 1994, civil and criminal filings per
judgeship have stayed above the national average, with civil filings
rising by 67 percent and criminal filings increasing by 58 percent.
Many of these increases in criminal filings are linked to the increase
in fraud, drugs, firearms and immigration prosecutions.
The administration of justice will continue to be a challenge in
Florida's Federal courts unless adequate resources are committed. It is
projected that by 2015 Florida may surpass third-ranked New York in
population. As the population increases, so do the number of people
seeking justice from the Federal courts in our State. I ask that my
colleagues join me in supporting this important legislation.
______

By Mrs. FEINSTEIN:
S. 1342. A bill to amend the Graton Rancheria Restoration Act to give
the Secretary of the Interior discretion regarding taking land into
trust; to the Committee on Indian Affairs.
Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation
to amend the Graton Rancheria Restoration Act to give the State of
California and the local communities of Sonoma, Napa, and Marin
counties the opportunity for input and review of the tribe's plan for a
major casino in the Bay Area.
I am offering this legislation because the Boards of Supervisors of
the local communities impacted by this planned casino have asked me to
amend the Graton Rancheria Restoration Act. The Boards of Supervisors
of Sonoma, Marin, and Napa counties have each unanimously passed
resolutions seeking a change in Federal law to restore the Secretary of
Interior's discretion in approving land into trust and allowing the
State and local government to have a voice in the process.
Prior to today's introduction I have met with the Presidents of the
Sonoma and Marin Boards of Supervisors, the Graton tribe, and Senators
Campbell and Inouye the Chairman and Ranking Member of the Indian
Affairs Committee.
This week I had a very spirited and frank conversation with Graton
Tribal Chairman Greg Sarris and representatives from the casino
investors. During the meeting Chairman Sarris committed to work with
the local Boards of Supervisors and he committed to look at alternative
sites for the casino. Chairman Sarris also said the Tribe and the
casino investors would conduct an environmental review based on the
criteria laid out in the National Environmental Policy Act, NEPA,
before a site is selected. These are positive signs and I have told
both the Boards of Supervisors and the Tribe that I would like to see
them continue to work together.
This legislation guarantees that the local and State officials have a
voice in the process. Without this change to the Graton Rancheria
Restoration Act they do not have that voice.
In 2000, Congress passed the Graton Rancheria Restoration Act to
restore Federal recognition to the 355 members of the Federated Indians
of the Graton Rancheria.
The Graton Tribe's original Rancheria was in the northern Sonoma
County town of Graton on land purchased by the Bureau of Indian
Affairs, BIA, in 1920 for the ``village home'' of otherwise homeless
Miwok and Pomo Indians. The Rancheria was terminated in 1958 when the
BIA approved a plan to distribute the assets to resident Indians and
remove the Rancheria from Federal trust.
The original version of the Graton restoration bill, H.R. 946,
sponsored by Congresswoman Lynn Woolsey in the 106th Congress, passed
the House of Representatives with a gaming restriction, to which the
Tribe agreed.
In testimony before the House Resources Committee in May 2000, and in
other public comments, Graton Chairman Greg Sarris stated that the
Tribe had no intention of conducting gaming.
In fact, before the House Resources Committee, Chairman Sarris
stated, ``Many may think our motives for restoration have been
influenced by the opportunity gaming affords some other recognized
tribes. Because our local political constituency, both democratic and
republican has opposed any sort of development for environmental
reasons, we agreed with these local political forces to not develop a
gaming complex. So, as proof, we voted as a tribe to include a non-
gaming clause in our bill, stipulating that we will not be a gaming
tribe.''
Furthermore, in an article in the Marin Independent Journal on
September 21, 2000, Chairman Sarris said, ``All we want is to be
formally recognized as Indians and have the same rights that other
Indians do for education and health care. We are not interested in
gambling.'' I ask unanimous consent to print a copy of this article in
the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From the Marin Independent Journal, Sept. 21, 2000]

Gambling Dispute Threatens Miwok Bill

(By Gannet News Service)

Washington.--Legislation to formally re-establish the
identity and standing of Marin's band of Coast Miwok Indians
appears all but dead in the face of a House-Senate dispute
over how tight guarantees must be that the tribe will never
allow casino gambling.
``This is insane, this is frustrating, and I just can't see
why we can't find a way out of this,'' said Greg Sarris, the
tribe's chief who is an English professor at UCLA.

[[Page S8730]]

Rep. Lynn Woolsey, the Petaluma Democrat who authored the
original bill, said she shares the frustration but sees
little hope other than the fact that ``down the road there
will be other Congresses.''
The problem is that the bill to restore the all-but-
vanquished tribe, approved by the full House in June,
included specific language that waived in perpetuity any
right to establish gaming on the tribe's remaining one-acre
ancestral plot in the Sonoma County town of Graton.
Woolsey sought that waiver in agreement with the tiny
tribe. In hearings last spring and summer, she and Sarris
said the tribe was happy to agree to the waiver. They were
not interested in gaming, and their acreage was too small
even if they were interested. Additionally, the fine print in
a state-passed referendum in California to divide gaming
resources among tribes prevents them from operating any kind
of casino.
Adding a federal gaming ban on top of an existing state ban
was an easy and harmless layer of extra insurance to reassure
the community that the tribe would not be bringing high-
stakes bingo to Marin.
``All we want is to be formally recognized as Indians and
have the same rights that other Indians do for education and
health care,'' said Sarris, one of some 300 descendants of
the tribe that the government declared extinct in the 1950s.
``We are not interested in gambling.''
But when the bill reached the Senate as an identical
version of the bill sponsored by Sen. Barbara Boxer, D-
Calif., numerous Indian advocates and the government's Bureau
of Indian Affairs objected. The surrender of sovereignty by
the Miwoks, however well-intentioned, would set a precedent
that could be used against other tribes in other states--in
effect a means to pressure tribes on the sensitive issue of
gambling.
``It's not that we don't have sympathy with what the Miwoks
want to do, or in this case don't want to do. It's a question
of eroding the hard-won sovereignty that is the legal basis
for the gambling that has been an important resource of many
tribes,'' said John Sanchez, an expert on Indian sovereignty
at Pennsylvania State University and a member of the
Apache tribe.
Boxer's spokesman, David Sandretti, said his bill was still
hopeful, but the key lawmaker on the issue is Sen. Daniel
Inouye of Hawaii, vice chairman of the Indian Affairs
Committee and long a powerful voice on behalf of American
Indians and native Hawaiians. Without his support, the bill
wouldn't survive in the Senate, Sandretti said.
Inouye made it clear this week that the bill is dead unless
Woolsey agreed to drop the gambling ban in her legislation.
``If you set that precedent, that creates a lot of
problems,'' Inouye said. ``I would prefer to see a measure
without the waiver, and if I do I'd be likely to support
it.''
Inouye added that it's a meaningless, symbolic waiver to
begin with, because the tribe is already prevented from
opening a casino by state law. ``I just don't think this is
something that the federal government should be involved
in,'' he said.
Woolsey said she has no intention of agreeing to anything
that doesn't include the anti-gaming clause as written.
``I got it out of the House, and now it's in the Senate,
and I guess that's just where it is,'' Woolsey said. ``I've
heard some proposals for compromise, but I haven't seen
anything that would offer the level of protection against
gaming that the community and the 6th Congressional District
would be prepared to accept.''
Gene Buvelot of Novato, vice chairman of the Federated
Indians of Graton Rancheria, said his group is disappointed
in Woolsey, because members believe she should allow the bill
to go forward without the clause.
``We're disappointed, deeply disappointed with Woolsey
because she seems to be the one who's dropped the ball on
this, not Barbara Boxer,'' he said. ``It's a shame that it's
getting this far and that Woolsey is letting it bog down like
this.''
Coast Miwok tribal elder Joanne Campbell, a former Marin
resident now living in Daly City, said she often visited her
great aunt at the Miwok's Graton Rancheria in Sonoma County.
``I'm really steamed, I'm just so upset that this bill
maybe will not pass,'' Campbell said. ``I think it's a just
bill and it's about time we got some recognition because we
have all these other issues to deal with, Health issues,
education issues, and we need this recognition to move
forward.''
The bill would make the tribe eligible for a wide range of
U.S. and California health, education and housing grants and
assistance from various federal agencies, give the tribe the
right to establish a reservation and exempt the tribe from
some local, state, or federal taxes and local zoning
ordinances on reservation land.
If the bill is not passed by Oct. 5, when the Senate
recesses, a new restoration bill would have to wait until the
next Congress.
Camobell described Woolsey's refusal to drop the redundant
anti-gaming clause from the Senate version as ``unrelenting''
and ``unreasonable.''

Mrs. FEINSTEIN. Senator Boxer sponsored legislation identical to
Congresswoman Woolsey's in the Senate, but the gaming restriction was
stricken when the bill was ultimately passed as part of the Omnibus
Indian Advancement Act of 2000.
The day the legislation passed on December 11, 2000, Senator Boxer
stated on the Senate Floor that dropping the gaming restriction was
necessary because of opposition to the no-gaming clause by the Senate
Committee on Indian Affairs and the Clinton Administration and because,
according to Senator Boxer, ``Senator Inouye asserts that the no-gaming
clause is unnecessary because the Graton Rancheria have no intention of
conducting gaming.''
So what has changed one might ask?
Well, even though the Gratons voluntarily and repeatedly took a no-
gaming pledge while their restoration bill was under consideration by
Congress, on April 23, 2003, the Tribe and its partner, Stations
Casinos of Las Vegas, announced plans to purchase approximately 2,000
acres of land in Southern Sonoma County near Sears Point for the
development of a casino.
This site is located on environmentally sensative open space and San
Francisco--North Bay tidelands which have been the subject of a
decades-long conservation effort by environmentalists and local
residents.
This site is roughly 30 miles from San Francisco--along the gateway
to Sonoma that leads thousands of travelers into the beautiful wine
country each day.
The Tribe's casino proposal has outraged local elected officials and
residents who had sympathized with the Tribe's plight and supported
their restoration on the condition that they not seek to develop a
casino. The Sonoma and Marin County Boards of Supervisors have each
passed unanimous resolutions objecting to the Graton casino proposal.
In fact, even the Board of Supervisors of neighboring Napa has also
passed a resolution against the casino proposal. I ask unanimous
consent to print these resolutions and letters from the counties in the
Record.
There being no objection, the materials were ordered to be printed in
the Record, as follows:

Marin County, San Rafael, CA and Sonoma County, Santa
Rose, CA,
May 29, 2003.
Senator Dianne Feinstein,
U.S. Senate,
San Francisco, CA.
Dear Senator Feinstein: We write this joint letter to
request your assistance with an urgent matter facing Marin
and Sonoma counties. As you are aware, the Graton Rancheria
Tribe has announced plans to acquire lands adjacent to the
San Pablo Bay National Wildlife Refuge and to construct a
major casino in partnership with Stations Casinos of Las
Vegas. The proposal came as a shock to us since, at the time
it sought restoration in 2000, the Graton tribe represented
to Congress that it would not engage in gaming. It now
appears that the Secretary of the Interior believes she must
take into trust any land within our counties acquired by the
tribe, and that gaming will be permitted on these lands
without consultation with local governments or discretionary
review by the Secretary.
We ask that you sponsor legislation to require that tribal
trust land acquisitions be subject to consultation with local
governments and an appropriate administrative review. We ask
that restored tribal land acquired for gaming be subject to
the two part test that it is not detrimental to the community
and is supported by the Governor. Finally, we ask that the
Secretary be given discretion with respect to accepting land
into trust for the benefit of the Graton tribe. County
Counsel from our two counties have prepared a letter to you
providing background and supporting details regarding our
proposals.
We know that you share our concern about the proliferation
of casinos in California, especially those which are close to
metropolitan areas or have impacts on sensitive lands.
We look forward to working with you to bring about changes
in the law which can advance the economic interests of tribes
without harm to the local community.
Very truly yours,
Annette Rose,
President, Marin County Board of Supervisors.
Paul Kelley,
Chairman, Sonoma County Board of Supervisors.
____

Resolution No. 03-0512

[[Page S8731]]

Whereas, such lands provide one of the Bay Area's most
cherished community separators, and represent an important
scenic gateway to Sonoma County;
Whereas, these bay, agriculture and wet lands have been the
focus of preservation and conservation efforts by
environmentalists and local communities for many years;
Whereas, based upon press reports, approximately 2,000
acres of such lands are presently in imminent danger of being
withdrawn from County land use control and placed into trust
for the purposes of casino development--including the
potential of an extensive gaming complex, including a hotel,
parking and other support services as well as possible
residential development, by Station Casinos, a Las Vegas-
based developer and the Federated Indians of the Graton
Rancheria (``Tribe'');
Whereas, the Tribe was restored in 2000 based, in part, on
its promise not to engage in Indian casino gaming;
Whereas, the federal legislation restoring the Tribe
contains language that could be used to circumvent the
normally required environmental review and administrative
regulatory process for taking land into trust by the United
States government on behalf of the Tribe;
Whereas, the Tribe's gaming plans were announced in the
media without any government to government consultation with
affected local communities;
Whereas, the Board and Tribe have initiated communication
regarding the proposed casino but details regarding the
project and siting have not yet been made available;
Whereas, the proposed project could overwhelm the local
infrastructure in the area in which the casino project is
proposed;
Whereas, the environmental impacts of the prosed project
have the potential of being are reaching and of such a
magnitude that they would negatively affect a significant
portion of the North Bay, including grossly aggravating
existing traffic problems along State Highways 37 and 101 (as
well as County roads in the project vicinity), pose severe
water quality risks, and have profound negative visual
impacts in the scenic area;
Whereas, when California voters approved Proposition 1A
(Indian Gaming) in March of 2000 as a means of supporting the
laudable goal of Indian economic development and self-
sufficiency, they were not aware that such approval would
allow Nevada developers to seize prized off-reservation
environmental resources of intense development without
regarding to locally approved general plans or any meaningful
environmental review or protection;
Whereas, under the provisions of Proposition 1A and the
Tribal-State Compact, local communities have been granted no
effective input into the development of proposed tribal
casinos that threaten their rights and the State appears to
have no effective redress for significant environmental
impacts these gambling casinos impose on local communities:
Now, therefore, be it
Resolved, That the Sonoma County Board of supervisors,
based on the information currently available, strongly
opposes the creation of a gambling casino on the site
proposed by the Tribe; and be it further
Resolved, That County staff is directed to enter into good
faith discussions with tribal representatives for the
purposes of facilitating government to government
communications, exploring casino development and reviewing
alternative sites, as well as minimizing and mitigating
environmental impacts of any casino project; be it further
Resolved, That County staff is authorized to take all
reasonably required action, including submitting comments to
agencies involved in considering the trust application and
casino proposal, requesting assistance from State and Federal
elected representative, proposing legislation, participating
in administrative proceedings, and initiating litigation to
insure that any proposed gaming project in Sonoma County
complies with the county General Plan and meets all federal
and state environmental, public health, and public safety
requirements that otherwise would apply to a non-Indian
development project, and to require that any land proposed to
be taken into trust goes through a thorough regulatory and
environmental review process.
____

Resolution No. 2003-70

Resolution No. 03-94

Whereas, the agricultural lands and wetlands fronting the
San Francisco Bay along Highway 37 constitute one of the most
environmentally sensitive regions in the entire Bay Area in
light of their proximity to and drainage directly into the
Bay; and
Whereas, the agricultural lands along Lakeville Highway
afford an invaluable agricultural and scenic resource, not
only to the people of Sonoma County but also to the populace
of the entire Bay Area; and
Whereas, such lands provide one of the Bay Area's most
cherished community separators, enjoyed and remembered by all
who traverse Highway 37; and
Whereas, these agricultural lands, bay and wetlands have
been the focus of preservation and conservation efforts by
environmentalists and local communities for many years; and
Whereas, such land are presently in imminent danger of
intense development--including an enormous casino, a high-
rise hotel, an amphitheater, a residential development, and
acres of parking--by Station Casinos, a Las Vegas-based
developer, and
Whereas, the impact on traffic of a development of this
magnitude will be felt throughout the North Bay, with this
single development jeopardizing all traffic capacity, which
local jurisdictions have husbanded for purposes consistent
with their respective General Plans; and
Whereas, when California voters approved Proposition 1A
(Indian Gaming) in March 2000 as a means of supporting the
laudable goal of Indian economic development and self-
sufficiency, they had no way of knowing that such approval
would allow Nevada developers to seize our most prized
environmental resources for intense development in violation
of all local zoning controls and health and safety
ordinances; and
Whereas, under the provisions of Proposition 1A and the
tribal state compact, local residents have been granted no
effective input into the development of proposed tribal
casinos that threaten their civil and property rights, yet
these residents must nevertheless bear the resultant
environmental, societal, traffic, infrastructure, public
safety, and other burdens that these gambling casinos impose
on their communities: Now, therefore, be it
Resolved, That the Board of Supervisors of the County of
Napa strongly oppose the creation of a gambling casino along
highway 37 or Lakeville Highway; and be it further
Resolved, That the Board of Supervisors of the County of
Napa calls on Governor Davis, the California State
Legislature, the U.S. Congress, and the U.S. Department of
the Interior to take any and all steps within their powers
and prerogatives to block the creation of new tribal land
bases that are intended for gambling casinos and other
development inconsistent with local zoning and controls and
to require that all commercial development on new and
existing tribal lands comply with federal, state, and local
laws and regulations intended to safeguard the environment
and to protect public health and safety.

Mrs. FEINSTEIN. Let me just read one part of the Resolution from
Marin County which will give you an idea of the opposition to the
Graton tribe's proposed casino:
RESOLVED, that the Board of Supervisors of the County of Marin calls
on its elected members of the United States Senate, Dianne Feinstein
and Barbara Boxer, and its elected member of the House of
Representatives, Lynn Woolsey, to assist the residents of Marin and the
entire North Bay to preserve their environment by introducing
legislation that would amend the Graton Rancheria Restoration Act and/
or the Indian Gaming Regulatory Act to stop the unregulated creation of
tribal lands and to subject development of tribal lands in the Marin
and Sonoma Counties at a minimum to the regulatory and approval
processes applicable to newly acquired tribal lands by the Indian
Gaming Regulatory Act.
While the counties acknowledge that the Graton have a right to be
recognized, they object to the site selected by the tribe and they
especially object to language in the Restoration Act

[[Page S8732]]

that precludes the local community, the Governor, or the Secretary of
the Interior from providing input on the suitability of this location
for land taken into trust for gaming purposes.
There is a problematic section of the Restoration Act that states,
``Upon application by the Tribe, the Secretary shall accept into trust
for the benefit of the Tribe any real property located in Marin or
Sonoma County . . .'' According to the Department of the Interior, this
language removes any discretion by the Secretary as well as any tribal
obligations for consultation with the surrounding community or
environmental review, as required by the normal process under the
Indian Gaming Regulatory Act for newly acquired land taken into trust
for gaming purposes.
According to the Department of the Interior, the tribe must only
conduct a hazardous materials review and show title to the land for
land to be taken into trust. This could be completed in 9 months--and
it is an inadequate review in my opinion.
Since the local communities are seeking a remedy which would restore
the Secretary's discretion in approving its land trust application and
allow local government to provide input in the process, I am
introducing this legislation today that will change the ``shall take
land into trust'' to ``may take land into trust.'' This legislation
will also require the two-part test that is standard under the Indian
Gaming Regulatory Act of 1988 to apply so that the State and local
communities have input in the process.
There is precedent for this change. In 1994, legislation was passed
restoring the United Auburn Tribe with the same directive to the
Secretary of the Interior, requiring that land ``shall'' be taken into
trust for the Tribe. One of the restoration act's sponsors, Congressman
John Doolittle sponsored an amendment to change ``shall'' to ``may''
after it had been passed, thereby affording the Secretary of Interior
discretion in accepting particular parcels of land into trust and local
government officials an opportunity to weigh in on the Tribe's proposed
site.
The result of that change was that the Auburn Tribe and Placer County
officials successfully cooperated in not only identifying a mutually
agreeable site, but they signed a Memorandum of Understanding to
mitigate potential impacts from the proposed Thunder Valley Casino. And
earlier this month, the tribe opened its casino.
Today California is home to 109 federally recognized tribes. 61
tribes have gaming compacts with the State and there are 54 tribal
casinos. With more than 50 tribes seeking Federal recognition and
approximately 23 recognized tribes seeking gaming compacts from the
Governor, revenues from California's tribal gaming industry are
expected to surpass Nevada's by the end of the decade.
The dramatic growth in tribal gaming in California has the potential
to yield much needed benefits for tribal members in terms of
healthcare, education and general welfare, as Congress and California
voters intended. However, the question is not whether gaming should be
permitted, but rather how and where. Those questions were asked and
answered in the Indian Gaming Regulatory Act of 1988, IGRA. But without
the modest change made by this legislation, the Graton tribe will be
allowed to develop an off-reservation casino outside the requirements
established in IGRA, the first time such an exception has ever been
made for a California tribe. Allowing this to happen would set a
dangerous precedent not only for California, but every State where
tribal gaming is permitted.
The changes we are seeking today are extremely modest. We are not
reversing any restoration of the tribe. We are not infringing on Native
American sovereignty. We are not even blocking the casino proposal. We
are only seeking to give the State and the local communities a voice in
the process. They were promised the tribe would not open a casino. That
promise was broken, so the least we can do is ensure a normal review
will take place.
I hope my colleagues will support this legislation and I look forward
to working with the Chairman and Ranking Member of the Indian Affairs
Committee to pass this legislation quickly.
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. 1342

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

SECTION 1. AMENDMENT TO GIVE SECRETARY DISCRETION CONCERNING
LANDS TAKEN INTO TRUST.

(a) Review.--Section 1404 of the Graton Rancheria
Restoration Act (25 U.S.C. 1300n-2) is amended by adding at
the end the following new subsection:
``(f) Review.--No land taken into trust for the benefit of
the Tribe shall be construed to satisfy the terms for an
exception under section 20(b)(1)(B) of the Indian Gaming
Regulatory Act (25 U.S.C. 2719(b)(1)(B)) to the prohibition
on gaming on lands acquired by the Secretary in trust for the
benefit of an Indian tribe after October 17, 1988, under
section 20(a) of such Act (25 U.S.C. 2719(a)).''.
(b) Land Into Trust.--Section 1405(a) of the Graton
Rancheria Restoration Act (25 U.S.C. 1300n-3(a)) is amended
by striking ``shall'' and inserting ``may''.
______

By Mr. CORZINE (for himself, Mr. Schumer, Mr. Akaka, and Mrs.
Boxer):
S. 1344. A bill to amend the Electronic Fund Transfer Act to require
additional disclosures relating to exchange rates in transfers
involving international transactions, and for other purposes; to the
Committee on Banking, Housing, and Urban Affairs.
Mr. CORZINE. Mr. President, today, along with my distinguished
colleagues Senators Schumer, Akaka, and Boxer, I am introducing ``The
Money Wire Improvement and Remittance Enhancement Act'' (The ``Money
WIRE Act''), legislation that will protect consumers who send cash
remittances through international money wire transmitters by providing
them with increased disclosure of the exchange rate and service fees,
as well as hidden costs, for those transactions. The legislation also
expands access to mainstream money wiring, check cashing, and other
important services for millions of the unbanked in America,
particularly immigrants, through our Nation's credit unions.
Every year, thirty million Americans send their friends and relatives
$40 billion in cash remittances through wire transfers. The majority of
these transfers are remittances sent to their native countries by
immigrants to the United States. For these individuals, many of whom
are in low-to-minimum wage jobs, sending this money only increases
their own personal financial burdens--but they do so to aid their
families and their loved ones.
Unfortunately, these immigrants increasingly find themselves being
preyed upon by the practices of some money wire transfer providers who
not only charge consumers with an upfront charge for the money wire
transfer service, but also hit them on the back end with hidden costs.
Many of these charges are extracted when the dollars sent by the
consumer are converted to the foreign currency value that is supposed
to be paid out to the friend of the family member.
This exploitation is especially pervasive in Latin American and
Caribbean countries, where much of these types of transactions occur.
According to the Multilateral Investment Fund and the Inter-American
Development Bank, Latin American and Caribbean immigrants sent a record
$32 billion to their home countries in 2002--a dramatic increase
compared with $23 billion in 2001. Many of these dollars were used to
pay for basic needs, such as food, medicine, and schooling, and to
alleviate the suffering of loved ones during a difficult economic year.
To bring this amount into even greater perspective, the remittances
that flowed into Latin America and the Caribbean last year equaled
roughly the amount of direct foreign investment that flowed into the
region, and exceeded the amount of development aid to Latin America
from all sources. For this decade alone, Latin America and the
Caribbean could receive more than $300 billion. And experts believe
that number is likely to grow significantly in coming years.
These large cash flows have proven to be a powerful incentive for
greed in the case of some wire transfer companies. Customers wiring
money to Latin America and elsewhere in the world lose billions of
dollars annually to undisclosed ``currency conversion fees,'' and other
service costs.

[[Page S8733]]

In fact, many large companies aggressively target immigrant
communities, often advertising ``low fee'' or ``no fee'' rates for
international transfers. But these misleading ads do not always clearly
disclose the fees charged when the currency is exchanged.
While large wire service companies typically obtain foreign
currencies at bulk rates, they charge a significant currency conversion
fee to their U.S. customers. For example, customers wiring money to
Mexico are charged an exchange rate that routinely varies from the
benchmark by as much as 15 percent. These hidden fees create staggering
profits, allowing companies to reap billions of dollars on top of the
stated fees they charge for the wire transfer services.
Last year alone, immigrants who sent money to Latin America and the
Caribbean paid approximately $4 billion in transaction costs to the
money wire transfer companies that dominate this business. In other
words, for every $100 that an immigrant sent home, to help their family
and loved ones, $12 was siphoned off by these businesses in order to
``service'' that transaction.
That adds up to a $20-$30 average cost, occasionally it can be
considerably more, for poor, hard-working folks for whom the typical
remittance--around $250 to $300 a month--represents a significant
percentage of their monthly income.
Multiplied by millions, these excessive charges constitute a
significant major economic force. These millions could have otherwise
been used to feed children, house a family, or invest in a small
business--all of which markedly improve overall quality of life.
The ``Money WIRE Act'' would require money wire transmitting
businesses to disclose to senders, and receivers, of international
money wire transfers the exchange rate used in association with the
transaction; any surcharges, commissions or fees charged to the
customer for the service; and the exact amount of the foreign currency
to be received by the recipient in the foreign country.
It also requires that that rate and fee information be prominently
displayed at the wire transmitting service location and on all receipts
associated with the money wire transaction--and it ensures that those
disclosures occur in the same language as that principally used by the
business to advertise its money transmitting services, if that language
is other than English.
The bill also requires Federal banking regulators and the Department
of Treasury to conduct a study, and submit a report to Congress, of the
fees and fees disclosure at traditional financial institutions compared
to those that occur at money transmitting businesses for money wire
transactions.
Finally, the Act includes a provision that expands the ``field of
membership'' definition for credit unions to give non-members,
particularly unbanked and immigrant communities, access to credit
unions for international money transfer, money order, and check cashing
services, where the costs for these services are significantly less.
This legislation does more than merely provide better information to
consumers--it actually helps them and their families financially.
Consumers will see increased competition among wire transfer service
providers because they are better-informed and more knowledgeable. That
competition will result in lower fees for the wire transfer services
that will free up a greater portion of these cash remittances to go to
the friends and families that they were originally intended for.
In short, this is sound public policy that empowers those who do
their part to help America's economy move forward.
I hope that my colleagues will support this legislation and 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. 1344

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 ``Money Wire Improvement and
Remittance Enhancement Act of 2003'' (or the ``Money WIRE Act
of 2003'').

SEC. 2. DISCLOSURE OF EXCHANGE RATES IN CONNECTION WITH
INTERNATIONAL MONEY TRANSFERS.

(a) In General.--The Electronic Fund Transfer Act (15
U.S.C. 1693 et seq.) is amended--
(1) by redesignating sections 918, 919, 920, and 921 as
sections 919, 920, 921, and 922, respectively; and
(2) by inserting after section 917 the following new
section:

``SEC. 918. DISCLOSURE OF EXCHANGE RATES IN CONNECTION WITH
INTERNATIONAL MONEY TRANSFERS.

``(a) Definitions.--
``(1) International money transfer.--The term
`international money transfer' means any money transmitting
service involving an international transaction which is
provided by a financial institution or a money transmitting
business.
``(2) Money transmitting service.--The term `money
transmitting service' has the meaning given to such term in
section 5330(d)(2) of title 31, United States Code.
``(3) Money transmitting business.--The term `money
transmitting business' means any business which--
``(A) provides check cashing, currency exchange, or money
transmitting or remittance services, or issues or redeems
money orders, travelers' checks, and other similar
instruments; and
``(B) is not a depository institution (as defined in
section 5313(g) of title 31, United States Code).
``(b) Exchange Rate and Fees Disclosures Required.--
``(1) In general.--Any financial institution or money
transmitting business which initiates an international money
transfer on behalf of a consumer (whether or not the consumer
maintains an account at such institution or business) shall
provide the following disclosures in the manner required
under this section:
``(A) The exchange rate used by the financial institution
or money transmitting business in connection with such
transaction.
``(B) The exchange rate prevailing at a major financial
center of the foreign country whose currency is involved in
the transaction, as of the close of business on the business
day immediately preceding the date of the transaction (or the
official exchange rate, if any, of the government or central
bank of such foreign country).
``(C) All commissions and fees charged by the financial
institution or money transmitting business in connection with
such transaction.
``(D) The exact amount of foreign currency to be received
by the recipient in the foreign country, which shall be
disclosed to the consumer before the transaction is
consummated and printed on the receipt referred to in
paragraph (3).
``(2) Prominent disclosure inside and outside the place of
business where an international money transfer is
initiated.--The information required to be disclosed under
subparagraphs (A), (B), and (C) of paragraph (1) shall be
prominently displayed on the premises of the financial
institution or money transmitting business both at the
interior location to which the public is admitted for
purposes of initiating an international money transfer and on
the exterior of any such premises.
``(3) Prominent disclosure in all receipts and forms used
in the place of business where an international money
transfer is initiated.--The information required to be
disclosed under paragraph (1) shall be prominently displayed
on all forms and receipts used by the financial institution
or money transmitting business when initiating an
international money transfer in such premises.
``(c) Advertisements in Print, Broadcast, and Electronic
Media and Outdoor Advertising.--The information required to
be disclosed under subparagraphs (A) and (C) of subsection
(b)(1) shall be included--
``(1) in any advertisement, announcements, or solicitation
which is mailed by the financial institution or money
transmitting business and pertains to international money
transfer; or
``(2) in any print, broadcast, or electronic medium or
outdoor advertising display not on the premises of the
financial institution or money transmitting business and
pertaining to international money transfer.
``(d) Disclosures in Languages Other Than English.--The
disclosures required under this section shall be in English
and in the same language as that principally used by the
financial institution or money transmitting business, or any
of its agents, to advertise, solicit, or negotiate, either
orally or in writing, at that office if other than
English.''.
(b) Effective Date.--The amendments made by subsection (a)
shall take effect at the end of the 3-month period beginning
on the date of the enactment of this Act.

SEC. 3. STUDY ON FEE DISCLOSURES FOR MONEY WIRE
TRANSMISSIONS.

(a) Study.--The Federal banking agencies (as defined in
section 3 of the Federal Deposit Insurance Act) and the
Secretary of the Treasury shall jointly conduct a study on
fees charged and fee disclosures for money wire
transmissions.
(b) Comparison of Prices.--The study required by subsection
(a) shall compare the disclosures provided by federally
insured depository institutions for money wire transmissions
with disclosures provided by money transmitting businesses
(as defined in section 5330(d)(1) of title 31, United States
Code) for such transmissions.

[[Page S8734]]

(c) Report Required.--The Federal banking agencies and the
Secretary of the Treasury shall jointly submit a report on
the study required under subsection (a) to the Congress
before the end of the 1-year period beginning on the date of
enactment of this Act.

SEC. 4. FEDERAL CREDIT UNION ACT AMENDMENT.

Paragraph (12) of section 107 of the Federal Credit Union
Act (12 U.S.C. 1757(12)) is amended to read as follows:
``(12) in accordance with regulations prescribed by the
Board--
``(A) to sell, to persons in the field of membership,
negotiable checks (including travelers checks), money orders,
and other similar money transfer instruments; and
``(B) to cash checks and money orders for persons in the
field of membership for a fee;''.

Mr. AKAKA. Mr. President, I rise as a cosponsor of the Money Wire
Improvement and Remittance Enhancement Act introduced by my colleague,
Senator Corzine. I thank Senator Corzine for his leadership on this
issue.
Immigrants often send a portion of their hard-earned wages to their
relatives abroad. Remittances are often used to improve the standard of
living of recipients by increasing access to health care, education,
and essentials of daily life. In addition, remittances contribute
significantly to the economic development of nations. For example,
Philippines workers across the globe sent an estimated $6.4 billion
back to the Philippines in 2001.
Despite the tremendous importance of remittances, people who send
them are often unaware of the fees and exchange rates assessed in these
transactions which reduce the amount of money received by their family
members. Fees for sending remittances often can be ten to twenty
percent of the value of the transaction. Also, the exchange rate used
in the transaction can be significantly lower than the market rate.
Consumers and their families cannot afford to remain uninformed about
their financial service options and the fees placed on their
transactions. This legislation would ensure that each customer is fully
informed of all of the fees and the exchange rates used in sending
money.
I am hopeful that the enactment of this legislation will result in
more people utilizing banks and credit unions for remittances because
these institutions do not charge the exorbitant fees often associated
with remittances processed by certain other entities. In addition, if
unbanked immigrants take advantage of the remittance services offered
by banks and credit unions, they will be more likely to open up an
account. This would allow immigrants to take advantage of the
opportunities for saving and borrowing found at mainstream financial
institutions and offer them alternatives to fringe banking products,
such as check cashing services.
The Money Wire Improvement and Remittance Enhancement Act has special
significance to my home State of Hawaii. Hawaii is home to significant
numbers of recent immigrants from many nations, including the
Philippines, who send remittances to their relatives abroad. We must do
what we can to ensure that their hard-earned dollars are not eroded by
unnecessary fees or a lack of transparency regarding exchange rates.
I encourage my colleagues to support this much-needed legislation.
______

By Mrs. MURRAY (for herself, Mrs. Boxer, Ms. Cantwell, Mrs.
Clinton, Mr. Corzine, Mr. Edwards, Mrs. Feinstein, Mr. Kennedy,
Mr. Lautenberg, Mr. Schumer, and Mr. Hollings):
S. 1345. A bill to extend the authorization for the ferry boat
discretionary program, and for other purposes; to the Committee on
Environment and Public Works.
Mrs. MURRAY. Mr. President, I rise today to introduce legislation
that will greatly enhance Federal participation in financing and
improving our Nation's ferry transportation system.
Today I am introducing the Ferry Transportation Enhancement Act. I am
proud to have Senators Boxer, Cantwell, Corzine, Clinton, Edwards,
Feinstein, Hollings, Kennedy, Lautenberg, and Schumer as original
cosponsors. This bill will provide significantly more resources to
state governments, public ferry systems, and public entities
responsible for developing facilities for ferries.
Specifically, the bill would: provide $150 million a year for the
Federal Highway Administration's Ferry Boat Discretionary Program for
fiscal years 2004 through 2009. This is approximately four times the
$38 million a year that is currently being provided under this program;
add ``ferry maintenance facilities'' to the list of allowable use of
funds under this program; add ``ferries'' to the Clean Fuels Program;
establish a Ferry Joint Program Office to coordinate Federal programs
affecting ferry boat and ferry facility construction, maintenance, and
operations and to promote ferry service as a component of the Nation's
transportation system; establish an information database on ferry
systems, routes, vessels, passengers and vehicles carried; and
establish an institute for ferries to conduct R&D, conduct training
programs, encourage collaborative efforts to promote ferry service, and
preserve historical information. This will parallel institutes that now
exist for highways, transit, and rail.
Currently, the Federal investment in ferries is only one-tenth of one
percent of the total Surface Transportation Program. There is virtually
no coordination at the Federal level to encourage and promote ferries
as there are for other modes of transportation.
We need better coordinated ferry services because it's the sole means
of surface transportation in many areas of the country, including
Hawaii, Alaska and my home State of Washington.
Ferries are also the preferred, and the only feasible, method of
commuting from home to work in places like Washington State, New York/
New Jersey, North Carolina, Hawaii and Alaska.
Finally, in many States--like my home State of Washington--they are
an important part of the tourism industry and represent a part of our
cultural identity.
The symbol of ferries moving people and vehicles on the waterways of
the Puget Sound is as much a part of our cultural identity as
computers, coffee, commercial aircraft and the Washington Apple.
Ferry use is growing.
In Washington State our ferry system--the Nation's largest--currently
transports 26 million passengers each year and carries 11 million
vehicles.
Other systems that serve New York/New Jersey, North Carolina, San
Francisco, and Alaska also have significant numbers of passengers using
the ferries.
The Nation's six largest ferry systems carried 73 million people and
13 million vehicles last year.
The growth projection for ferry use is very high. For these larger
systems, it is projected that by 2009 there will be a 14-percent
increase in passengers and a 17-percent increase in vehicles being
carried by ferries compared to 2002.
In San Francisco, that projection is a 46-percent increase.
It is clear that many people are using ferries and more will be using
them in the future.
This is all with very little help from the Federal Government.
Our investment in ferries pails in comparison to the Federal
investments in highways and other forms of mass transit.
Our bill would provide the needed funding for these growing systems
for new ferry boat construction, for ferry facilities and terminals,
and for maintenance facilities.
The bill also would make ferries eligible under the Clean Fuels
Program.
Like busses, ferries are a form of mass transit that is
environmentally cleaner than mass use of cars and trucks. Making them
eligible for the Clean Fuels Program will encourage boat makers to
design cleaner and more efficient vessels in the future. This will make
ferry travel an even more environmentally friendly means of
transportation than it already is today.
Finally, setting up a Ferry Joint Program Office, keeping track of
ferry statistics, and establishing a National Ferry Institute will
increase the profile of ferries as part of our Nation's infrastructure
and provide a method to analyze and research ways to improve their use.
In the end, I hope this proposal can be included in the TEA-21
Reauthorization.
Ferries are an important part of our Nation's transportation
infrastructure.

[[Page S8735]]

This bill recognizes their importance by providing the resources and
support they need to grow and serve passengers.
I urge the Senate support this bill, and I look forward to working
with my colleagues to see it passed.
______

By Ms. CANTWELL (for herself and Ms. Collins):
S. 1346. A bill to amend the Workforce Investment Act of 1998 to
provide for strategic sectoral skills gap assessments, strategic skills
gap action plans, and strategic training capacity enhancement seed
grants, and for other purposes; to the Committee on Health, Education,
Labor, and Pensions.
______

By Ms. CANTWELL:
S. 1347. A bill to amend the Workforce Investment Act of 1998 to
provide for training service and delivery innovation projects; to the
Committee on Health, Education, Labor, and Pensions.
______

By Ms. CANTWELL:
S. 1348. A bill to amend the Higher Education Act of 1965 to modify
the computation of eligibility for certain Federal Pell Grants, and for
other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Ms. CANTWELL. Mr. President, I come to the floor today to discuss a
topic that I believe is critical to our Nation's economic growth and
future competitiveness--the training of our workforce.
We are living in tough economic times. The economy of the State of
Washington and the Nation at large are suffering through a recession
where jobs are scarce and workers are scrambling to pay the bills. The
most recent employment data available from the Bureau of Labor
Statistics have offered little comfort in Washington where the
unemployment rate is 7.3 percent. Washington, along with the other
Pacific Northwest States of Oregon and Alaska, continues to have among
the highest unemployment rates in the nation.
Just a month ago, the Senate moved quickly to extend the temporary
extension of unemployment compensation program, so that approximately
four million workers across this country will not lose their Federal
extended unemployment benefits. I am proud that the Senate acted
quickly to extend this important program. This means that over 100,000
unemployed workers in Washington State will receive 26 weeks of Federal
extended benefits. I am disappointed, however, that we were not able to
pass coverage for the estimated 1.1 million unemployed workers who have
entirely exhausted their State and Federal benefits. Therefore, I am
fighting to pass a bill that would extend coverage to the long-term
unemployed, so that help is available to the hardest hit workers in
this weak economy.
Nonetheless, our efforts should not stop with an unemployment
insurance extension. We must continue to pursue long-term strategies
for a sustained economic recovery. The fundamental strength of our
economy lies in the working men and women of this Nation whose
innovation and hard work propelled the massive economic expansion of
the past decade.
The competitive edge that will keep our workers ahead in this
changing global economy is their skills. Our economy is global, linked
by international markets and communications networks. The sustained
success of U.S. companies depends on adaptability and innovation, which
means that workers themselves need to remain flexible and continually
update job skills.
Even in this time of high unemployment, businesses throughout the
country cannot find workers with the skills they need. According to a
study completed by Heldrich Work Trends Survey, American employers are
finding it difficult to hire qualified workers. Nearly half, 46
percent, of American businesses say they have had trouble finding
workers with the necessary skills. At the same time, over three million
workers are laid off each year, but well under 500,000 receive any sort
of training to learn the skills demanded by those businesses that face
worker shortages. Job training is an answer to meeting those skill
demands and bridging the skills gaps that persist. However, it will not
occur widely without a strong financial commitment from the Federal
Government to ensure access to job training programs, and ongoing
efforts to maximize the effectiveness of those funds that we already
invest.
Investment in job training must be our first priority not our last--
the decisions we make today to invest in our workers will pay off many
times over in the form of stronger local economies, healthier
communities, and improved quality of life.
But the reality is that we are delivering a trickle of funding while
faced with a tidal wave of need. I have traveled across my state, from
Olympia to Kelso, Vancouver to Bellingham, the Tri-cities to Spokane
and received a great deal of feedback from Washingtonians who are
seeking training, are providing it, or are serving as employers who
need to hire skilled workers. And I heard similar concerns repeated in
each of these areas: first, as our economy continues to evolve, the
demand for new skills has grown; second, the enormous increase in
demand for skills training by individual workers who are upgrading
skills or changing jobs is a trend that appears to be widespread
throughout the Nation; but third, far too many of those workers seeking
access to training cannot get the training they need due to limited
space at training institutions and the limited tuition assistance.
Last year, my office released a study of this apparent shortfall in
capacity of training systems in my State, and the results of that study
were staggering to me. There are over 110,000 dislocated workers in my
state, the majority of whom want to upgrade their skills but cannot do
so because of budgetary limitations that prevent institutions from
offering enough courses, and the limited numbers of available training
vouchers.
To make things worse, this year, the State of Washington received
approximately 40 percent less in Workforce Investment Act, WIA, formula
funding compared to last year. This drastic cut in WIA funding means
that services will be cut back at a time when the demand is at an all
time high. It is imperative that during this time of State deficits,
States receive additional help from the Federal Government for
important services such as education and job training.
As my colleagues know, the Workforce Investment Act is up for
reauthorization this year. The WIA system is clearly the centerpiece of
the Federal job training programs. It provides a one-stop delivery
system designed to meet a broad range of worker needs, and it emerged
from years of bipartisan work by Congress to consolidate over 33
Federal programs into one system for delivering employment and training
services.
Today, I am introducing three bills that are designed to build upon
the existing workforce structure to expand opportunities for training
and improve its effectiveness.
The first piece of legislation would change the Pell Grant program to
make certain that student financial aid is available to recently laid
off workers. Under current law, the standard practice in the
determination of Pell Grant eligibility for student aid is to base
grant awards upon the applicant's income during the previous year. The
use of tax forms for this purpose, in many cases, is the most
appropriate and easiest administrative method of obtaining a clear and
official statement of financial need. But, as a result, many recently
laid-off workers are not eligible for critical financial assistance at
a time when the workers' families are experiencing a dramatic decrease
in income. My legislation would explicitly provide the authority for
educational institutions, after taking sufficient precautions to
prevent fraud, to consider current-year income levels for applicants
seeking training through Pell Grant-eligible programs. It does this in
a very narrow way, by only allowing institutions in States with high
unemployment rates to consider current year financial circumstances
rather than previous year income.
The second bill addresses issues of distance-learning and delivery of
training to hard to reach areas in a comprehensive manner. While many
distance-learning technologies have been developed in recent years,
those technologies have not necessarily reached many of those who are
most in need of training. Many workers in need of

[[Page S8736]]

training may not be aware of online distance learning opportunities and
may not be able to take advantage of them even if they do know about
them. I believe, it is not enough to create a distance learning
curriculum and passively provide it through an educational institution
website. Rather, comprehensive solutions need to be developed that
integrate curriculum innovations, technological access, and the
promotion and linkage of workers in need of training with such
opportunities, especially to help workers in rural areas. That's why my
bill encourages the local workforce development boards to plan a
comprehensive approach to improve access to and delivery of employment
training services by using technology and online resources to connect
workers with the information and tools they need to upgrade their
skills.
The third bill that I am introducing today is designed to help local
workforce development boards better understand regional labor market
dynamics and improve system performance by identifying emerging sectors
and industries with chronic worker shortages. My legislation encourages
local workforce development boards to target employment and training
resources so that workers can get training in occupations where
employers need workers.
My legislation provides new resources to the state level so that
states can direct funding down to the local workforce development
boards to form partnerships with employers, unions, service providers
and other key players in order to develop a strategic plan for
addressing regional industry and workforce needs.
I want to make clear that this legislation is not intended to
reinvent the wheel for areas that are already developing sectoral
approaches within existing workforce development systems. In fact,
Washington State is a leader in sector approaches: in 2000, the
Washington State Legislature enacted legislation to support industry
skills panels known as the ``Skills Initiative.'' The Skills Initiative
provides grants to local workforce development councils to engage
business and industry in strategies to close the skill gaps in my
State. My legislation emphasizes this work by providing funding to
support these partnerships.
This is a first step on a long journey as we work to improve Federal
job training systems, and it is critical, now more than ever, that
Congress increase funding for the job training programs under the
Workforce Investment Act. By providing the necessary resources, we send
a strong message to the American public that our government must invest
in our greatest resource--the American worker. Each of these bills is
an important component of that broader strategy, and I look forward to
working with my colleagues as we begin to look at the reauthorization
of WIA and the Higher Education Act this year and next.
Mr. President, I ask unanimous consent that the text of each bill be
printed in the Record.
There being no objection, the bills were ordered to be printed in the
Record, as follows:

S. 1346

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 ``Sectoral Market Assessment
for Regional Training Enhancement and Revitalization Act''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) More than \1/3\ of the Nation's current workforce lacks
the basic skills necessary to succeed in today's labor
market.
(2) Globalization of the economy is leading to losses of
jobs in key domestic industries, as well as challenges to
competitiveness and productivity in other domestic
industries.
(3) To remain economically vital and competitive, the
Nation must invest in generating jobs and train a workforce
skilled enough to contribute productively to the United
States economy.
(4) Strategic planning that links workforce development and
economic development, and the targeting of resources to
industries that can build strong regional economies and
create jobs with living wages for workers, need to be
priorities for the workforce investment system.
(5) States and local workforce investment boards can play
lead roles in guiding a more strategic process for achieving
economic growth through workforce development.

SEC. 3. SKILLS GAP CAPACITY ENHANCEMENT GRANTS.

Subtitle B of title I of the Workforce Investment Act of
1998 (29 U.S.C. 2811 et seq.) is amended--
(1) by redesignating section 137 as section 138; and
(2) by inserting after section 136 the following:

``SEC. 137. SKILLS GAP CAPACITY ENHANCEMENT GRANTS.

``(a) Purposes.--The purposes of this section are--
``(1) to assist States and local boards in better focusing
funds provided under this subtitle on activities and programs
that address labor shortages and meet the emerging demand for
skills in high-quality jobs in area industries;
``(2) to enhance the efficiency of the one-stop delivery
systems and providers of training services;
``(3) to establish and improve partnerships between local
boards, industry sectors, economic development agencies,
providers of training services (including secondary schools,
postsecondary educational institutions, community-based
organizations, business associations, and providers of joint
labor-management programs), providers of supportive services,
and other related public and private entities;
``(4) to strengthen integration of workforce development
strategies and economic development strategies in States,
local areas, and labor markets;
``(5) to retain vital industries in the local areas and
regions involved, avoid dislocation of workers, and
strengthen the competitiveness of key industries; and
``(6) to encourage the development of career ladders and
advancement efforts in local industries.
``(b) Definitions.--In this section:
``(1) Consortium.--The term `consortium' means a consortium
of local boards, established as described in subsection
(d)(3).
``(2) Region.--The term `region' means 2 or more local
areas that comprise a common labor market for an industry
sector or group of related occupations.
``(3) Training services.--The term `training services'
means services described in section 134(d)(4).
``(c) Grants to States.--
``(1) In general.--The Secretary shall make grants to
States, to enable the States to assist local boards and
consortia in carrying out the activities described in
subsection (e).
``(2) Formula.--
``(A) In general.--The Secretary shall make the grants in
accordance with the formula used to make grants to States
under section 132(b)(1)(B) (other than clause (iv)), subject
to subparagraph (B).
``(B) Small state minimum allotment.--The Secretary shall
ensure that no State shall receive an allotment under this
paragraph for a fiscal year that is less than \1/2\ of 1
percent of the funds made available to carry out this section
for that fiscal year.
``(d) Grants to Local Boards.--
``(1) In general.--A State that receives a grant under
subsection (c)--
``(A) shall use the funds made available through the grant
to make grants to local boards and consortia to carry out the
activities described in subsection (e); and
``(B) may use not more than 15 percent of the funds made
available through the grant, at the election of the State, to
prepare strategic sectoral skills gap assessments, as
described in subsection (e)(2), in the local areas or regions
involved, or to provide technical assistance to local boards,
consortia, or partnerships described in subsection (e)(3).
``(2) Consideration.--In making the grants, the State may
take into account the size of the workforce in each local
area or region.
``(3) Consortia.--States shall encourage local boards to
aggregate, to the maximum extent practicable, into consortia
representing regions, for purposes of carrying out activities
described in subsection (e). Nothing in this paragraph shall
be construed to require local boards to aggregate into such
consortia.
``(4) Applications.--To be eligible to receive a grant
under this section, a local board or consortium shall submit
an application to the State, at such time and in such manner
as the State may require, containing--
``(A) information identifying the members of the
partnership described in subsection (e)(3) that will carry
out the activities described in subsection (e); and
``(B) an assurance that the board or consortium will use,
or ensure that the partnership uses, the funds to carry out
the activities described in subsection (e).
``(e) Use of Funds.--
``(1) In general.--A local board or consortium that
receives a grant under this section--
``(A) shall ensure that the partnership described in
paragraph (3) uses the funds made available through the grant
to--
``(i) prepare a strategic sectoral skills gap assessment,
as described in paragraph (2), unless the State elects to
prepare the assessment;
``(ii) develop a strategic skills gap action plan, as
described in paragraph (4); and
``(iii) provide strategic training capacity enhancement
seed grants to providers of training services specified in
subsection (a)(3), one-stop operators, and other appropriate
intermediaries, as described in paragraph (5); and
``(B) may use funds made available through the grant to
ensure that activities carried

[[Page S8737]]

out under this subtitle are carried out in accordance with
the strategic skills gap action plan.
``(2) Strategic sectoral skills gap assessment.--
``(A) In general.--Except as provided in subparagraph (E),
the local board or consortium (or, at the election of the
State, that State) shall prepare a strategic sectoral skills
gap assessment, which shall--
``(i) identify areas of current and expected demand for
labor and skills in a specific industry sector or group of
related occupations that is--

``(I) producing high-quality jobs in the local area or
region involved;
``(II) developing emerging jobs in that area or region; or
``(III) suffering chronic worker shortages;

``(ii) identify the current and expected supply of labor
and skills in that sector or group in the local area or
region; and
``(iii) identify gaps between the current and expected
demand and supply of labor and skills in that sector or group
in the local area or region.
``(B) Specific contents.--The assessment shall contain data
regarding--
``(i)(I) specific high-quality employment opportunities
offered by industries in the local area or region; and
``(II) specific skills desired for such opportunities;
``(ii)(I) occupations and positions in the local area or
region that are difficult to fill; and
``(II) specific skills desired for such occupations and
positions;
``(iii)(I) areas of growth and decline among industries and
occupations in the local area or region; and
``(II) specific skills desired for such growth areas; and
``(iv) specific inventories of skills of unemployed or
underemployed individuals in the local area or region.
``(C) Information.--The assessment shall contain current
(as of the date of preparation of the assessment) information
including specific information from multiple employers in the
sector or group described in subparagraph (A)(i), labor
organizations, and others connected to the businesses and
workers in that sector or group, to illuminate local needs of
both employers and workers. To the maximum extent possible,
the information shall be regularly updated information.
``(D) Survey.--The assessment shall contain the results of
a survey or focus group interviews of employers and labor
organizations and other relevant individuals and
organizations in the local area or region.
``(E) Exception.--
``(i) State.--A State shall not be required to use the
funds made available through a grant received under this
section, to prepare an assessment described in this
paragraph.
``(ii) Local board or consortium.--A local board or
consortium shall not be required to use the funds
made available through a grant received under this
section, to prepare an assessment described in this
paragraph, if the local board or consortium demonstrates
that, within the 2 years prior to receiving the grant, an
assessment that meets the requirements of this paragraph
has been prepared for the local area or region involved.
``(3) Skills partnership.--In carrying out this section,
local boards and consortia shall enter into partnerships that
include--
``(A) representatives of the local boards for the local
area or region involved;
``(B) representatives of multiple employers for a specific
industry sector or group of related occupations, and related
sectors or occupations, identified through the assessment
described in paragraph (2) as having identified gaps between
the current and expected demand and supply of labor and
skills in the industry sector or group of related occupations
in the local area or region involved;
``(C) representatives of economic development agencies for
the local area or region;
``(D) representatives of providers of training services
described in subsection (a)(3) in the local area or region;
``(E) representatives nominated by State labor federations
or local labor federations; and
``(F) other entities that can provide needed supportive
services tailored to the needs of workers in the sector or
group.
``(4) Strategic skills gap action plan.--The partnership
shall develop a strategic skills gap action plan, based on
the assessment, that--
``(A)(i) identifies specific barriers to adequate supply of
labor and skills in demand in a specific industry sector or
group of related occupations that is producing high-quality
jobs in the local area or region involved; and
``(ii) identifies activities (which may include the
provision of needed supportive services) that will remove or
alleviate the barriers described in clause (i) that could be
undertaken by one-stop operators and providers of training
services described in subsection (a)(3);
``(B) specifies how the local board (or consortium) and
economic development agencies in the partnership will
integrate the board's or consortium's workforce development
strategies with local or regional economic development
strategies in that sector or group; and
``(C) identifies resources and strategies that will be used
in the local area or region to address the skill gaps for
both unemployed and incumbent workers in that sector or
group.
``(5) Strategic training capacity enhancement seed
grants.--
``(A) In general.--The local board or consortium, after
consultation with the partnership, shall make grants to
providers of training services described in subsection
(a)(3), one-stop operators, and other appropriate
intermediaries to pay for the Federal share of the cost of--
``(i) developing curricula to meet needs identified in the
assessment described in paragraph (2) and to overcome
barriers identified in the plan described in paragraph (4);
``(ii) modifying the programs of training services offered
by the providers in order to meet those needs and overcome
those barriers;
``(iii) operating pilot training efforts that demonstrate
new curricula, or modifications to curricula, described in
clause (i);
``(iv) expanding capacity of providers of training services
in sectors or groups described in paragraph (2)(A)(i);
``(v) reorganizing service delivery systems to better serve
the needs of employers and workers in the sectors or groups;
or
``(vi) developing business services to ensure retention and
greater competitiveness of the sectors or groups.
``(B) Federal share.--
``(i) In general.--The Federal share of the cost described
in subparagraph (A) shall be 75 percent.
``(ii) Non-federal share.--The non-Federal share of the
cost may be provided in cash or in kind, fairly evaluated,
including plant, equipment, or services.''.

SEC. 4. AUTHORIZATION OF APPROPRIATIONS.

Section 138 of the Workforce Investment Act of 1998 (29
U.S.C. 2872), as redesignated by section 3(1), is amended by
adding at the end the following:
``(d) Skills Gap Capacity Enhancement Grants.--In addition
to any amounts authorized to be appropriated under subsection
(a), (b), or (c), there are authorized to be appropriated to
carry out section 137 such sums as may be necessary for
fiscal years 2004 through 2007.''.

SEC. 5. CONFORMING AMENDMENTS.

(a) Table of Contents.--The table of contents in section
1(b) of the Workforce Investment Act of 1998 is amended by
striking the item relating to section 137 and inserting the
following:

``Sec. 137. Skills gap capacity enhancement grants.
``Sec. 138. Authorization of appropriations.''.

(b) References to Authorization of Appropriations.--
(1) Youth activities.--Subsections (a) and (b)(1) of
section 127 of the Workforce Investment Act of 1998 (29
U.S.C. 2852) are amended by striking ``section 137(a)'' each
place it appears and inserting ``section 138(a)''.
(2) Adult employment and training activities.--Section
132(a)(1) of the Workforce Investment Act of 1998 (29 U.S.C.
2862(a)(1)) is amended by striking ``section 137(b)'' and
inserting ``section 138(b)''.
(3) Dislocated worker employment and training activities.--
Subsections (a)(2) and (b)(2)(A)(i) of section 132 of the
Workforce Investment Act of 1998 (29 U.S.C. 2862) are amended
by striking ``section 137(c)'' each place it appears and
inserting ``section 138(c)''.

S. 1347

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

SECTION 1. TRAINING SERVICE AND DELIVERY INNOVATION PROJECTS.

Section 171(b)(1)(D) of the Workforce Investment Act of
1998 (29 U.S.C. 2916(b)(1)(D)) is amended to read as follows:
``(D) targeted innovation projects that improve access to
and delivery of employment and training services, with
emphasis given to projects that incorporate advanced
technologies to facilitate the connection of individuals to
the information and tools they need to upgrade skills,
including projects that link individuals in need of training
to opportunities for self-guided learning, and with priority
given to projects that--
``(i) actively promote sources of information about
training opportunities and training content by providing
technology directly to eligible training recipients;
``(ii) provide for the conduct of online eligibility
determinations for Federal and State training programs, and
direct individuals to the appropriate programs in the area;
and
``(iii) integrate high-quality employment and training
services information with the delivery of information
regarding other social services and health care programs;''.

S. 1348

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Federal Pell Grant
Eligibility Clarification Act of 2003''.

SEC. 2. CONSIDERATION OF CURRENT YEAR CIRCUMSTANCES.

Section 480(a) of the Higher Education Act of 1965 (20
U.S.C. 1087vv(a)) is amended--
(1) in paragraph (1), by striking ``paragraph (2)'' and
inserting ``paragraphs (2) and (3)''; and
(2) by adding at the end the following:
``(3) Consideration of current year circumstances for
certain pell grant awards.--
``(A) In general.--If a student is a resident of a State
that is in an extended benefit period (within the meaning of
section 203 of the

[[Page S8738]]

Temporary Extended Unemployment Compensation Act of 2002
(Public Law 107-147)), then for purposes of calculating total
income under paragraph (1) for a student seeking assistance
under subpart 1 of part A, the Secretary shall reduce the
student's total income by an amount by which--
``(i) the adjusted gross income plus untaxed income and
benefits for the preceding tax year minus excludable income
(as defined in subsection (e)), exceeds
``(ii) the projected gross income plus untaxed income and
benefits for the current tax year minus the projected
excludable income (as defined in subsection (e)).
``(B) Anti-fraud procedures.--The Secretary shall establish
procedures to ensure that computations made pursuant to
subparagraph (A) are not fraudulent.''.
______

By Mr. SMITH (for himself, Mr. Kohl, Mrs. Boxer, Mr. Cornyn, Mr.
Feingold, Mrs. Hutchison, Ms. Murkowski, and Mr. Wyden):
S. 1349. A bill to amend the Internal Revenue Code of 1986 with
respect to the eligibility of veterans for mortgage bond financing, and
for other purposes; to the Committee on Finance.
Mr. SMITH. Mr. President, on behalf of myself and my colleagues, Mr.
Kohl of Wisconsin, Mrs. Boxer of California, Mr. Cornyn of Texas, Mr.
Feingold of Wisconsin, Mrs. Hutchison of Texas, Ms. Murkowski of
Alaska, and Mr. Wyden of Oregon, I ask unanimous consent that the text
of the bill, the ``Veterans American Dream Home Ownership Act'' be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1349

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

SECTION 1. ALL VETERANS ELIGIBLE FOR STATE HOME LOAN PROGRAMS
FUNDED BY QUALIFIED VETERANS' MORTGAGE BONDS.

(a) In General.--Section 143(l)(4) of the Internal Revenue
Code of 1986 (defining qualified veteran) is amended--
(1) by striking ``at some time before January 1, 1977'' in
subparagraph (A), and
(2) by striking subparagraph (B) and inserting the
following:
``(B) who applied for the financing before the date 30
years after the last on which such veteran left active
service.''.
(b) Effective Date.--The amendments made by this section
shall apply to financing provided and mortgage credit
certificates issued after June 30, 2003.

SEC. 2. REVISION OF STATE VETERANS LIMIT.

(a) In General.--Subparagraph (B) of section 143(l)(3) of
the Internal Revenue Code of 1986 (relating to volume
limitation) is amended to read as follows:
``(B) State veterans limit.--A State veterans limit for any
calendar year is the amount equal to--
``(i) $425,000,000 for the State of Texas,
``(ii) $537,000,000 for the State of California,
``(iii) $200,000,000 for the State of Oregon,
``(iv) $200,000,000 for the State of Wisconsin, and
``(v) $200,000,000 for the State of Alaska.''.
(b) Effective Date.--The amendment made by this section
shall apply to bonds issued after December 31, 2003.

SEC. 3. ELECTIVE CARRYFORWARD OF UNUSED LIMITATION.

(a) In General.--Section 143(l)(3) of the Internal Revenue
Code of 1986 (relating to volume limitation) is amended by
adding at the end the following:
``(D) Elective carryforward of unused limitation.--
``(i) In general.--If--

``(I) a State veterans limit for any calendar year after
2002, exceeds
``(II) the aggregate amount of qualified veterans' mortgage
bonds issued by such State,

such State may irrevocably elect to treat such excess as a
carryforward for qualified veterans' mortgage bonds.
``(ii) Use of carryforward.--

``(I) In general.--If a State elects a carryforward under
clause (i), qualified veterans' mortgage bonds issued during
the 3 calendar years following the calendar year in which the
carryforward arose shall not be taken into account under
subparagraph (A) to the extent the amount of such bonds does
not exceed the amount of the carryforward so elected.
``(II) Order in which carryforward used.--Carryforwards
elected shall be used in the order of the calendar years in
which such carryforwards arose.''.

(b) Effective Date.--The amendment made by this section
shall apply to bonds issued and carryforward elections made
after December 31, 2003.
______

By Mrs. FEINSTEIN:
S 1350. A bill to require Federal agencies, and persons engaged in
interstate commerce, in possession of electronic data containing
personal information, to disclose any unauthorized acquisition of such
information; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I rise to introduce the Notification
of Risk to Personal Data Act of 2003. This legislation will require
that individuals are notified when their most sensitive personal
information is stolen from a corporate or government database.
Specifically, the bill would require government or private entities
to notify individuals if a data breach has compromised their Social
Security number, driver's license number, credit card number, debit
card number, or financial account numbers.
In most cases, if authorities know that someone is a victim of a
crime, the victim is notified. But that isn't the case if an
individual's most sensitive personal information is stolen from an
electronic database.
Unfortunately, data breaches are becoming all too common. Consider
the following incidents which have compromised the records of hundreds
of thousands of Americans.
On April 5, 2002, a hacker broke into the electronic records of
Steven P. Teale Data Center, the payroll facility for California State
employees. The hacker compromises files containing the first initials,
middle initials, and last names, Social Security numbers, and payroll
deduction information of approximately 265,000 people. Despite the
breathtaking potential harm of the crime, the breach was not publicly
acknowledged and State employees were not made aware of their
vulnerability to identify theft until May 24, 2002--17 days later.
On December 14, 2002, TriWest Health Care Alliance, a company that
provides health care coverage for military personnel and their
families, was burglarized at its Phoenix, AZ offices. Thieves broke
into a management suite and stole laptop computers and computer hard
drives containing the names, addressed, telephone numbers, birth dates
and Social Security numbers of 562,000 military service members,
dependents and retirees, as well as medical claims records for people
on active duty in the Persian Gulf.
In February 2003, a hacker gained access to 10 million Visa,
MasterCard, American Express Card and Discovery Card numbers from the
databases of a credit processor, DPI Merchant services of Omaha, NE.
Company officials maintained that the intruder did not obtain any
personal information for these card numbers such as the account
holder's name, address, telephone number or Social Security number.
However, at least one bank canceled and replaced 8,800 cards when it
found out about the security breach.
And in March of this year, a University of Texas student was charged
with hacking into the university's computer system and stealing 55,000
Social Security numbers.
These are just some examples of the types of breaches that are
occurring today. Except for California, which as a notification law
going into effect in July, no State of Federal law requires companies
or agencies to tell individuals of the misappropriation of their
personal data.
I strongly believe Americans should be notified if a hacker gets
access to their most personal data. This is both a matter of principle
and a practical measure to curb identity theft.
Let me take a moment to describe the proposed legislation.
The Notification of Risk to Personal Data Act will set a national
standard for notification of consumers when a data breach occurs.
Specifically, the legislation requires a business or government
entity to notify an individual when there is a reasonable basis to
conclude that a hacker or other criminal has obtained unencrypted
personal data maintained by the entity.
Personal data is defined by the bill as an individual's Social
Security number, State identification number, driver's license number,
financial account number, or credit card number.
The legislation's notification scheme minimizes the burdens on
companies or agencies that must report a data breach.
In general, notice would have to be provided to each person whose
data was compromised in writing or through e-mail. But there are
important exceptions.
First, companies that have developed their own reasonable
notification policies are given a safe harbor under the

[[Page S8739]]

bill and are exempted from its notification requirements.
Second, encrypted data is exempted.
Third, where it is too expensive or impractical, e.g., contact
address information is incomplete, to notify every individual who is
harmed, the bill allows entities to send out an alternative form of
notice called ``substitute notice.'' Substitute notice includes posting
notice on a website or notifying major media.
Substitute notice would be triggered if any of the following factors
exist: 1. the agency or person demonstrates that the cost of providing
direct notice would exceed $250,000; 2. the affected class of subject
persons to be notified exceeds 500,000; or 3. the agency or person does
not have sufficient contact information to notify people whose
information is at risk.
The bill has a tough, but fair enforcement regime. Entities that fail
to comply with the bill will be subject to fines by the Federal Trade
Commission of $5,000 per violation or up to $25,000 per day while the
violation persists. State Attorneys General can also file suit to
enforce the statute.
Additionally, the bill would allow California's new law to remain in
effect, but preempt conflicting State laws. It is my understanding that
legislators in a number of States are developing bills modeled after
the California law. Reportedly, some of these bills have requirements
that are inconsistent with the California legislation. It is not fair
to put companies in a situation that forces them to comply with
database notification laws of 50 different States.
I strongly believe individuals have a right to be notified when their
most sensitive information is compromised--because it is truly their
information. Ask the ordinary person on the street if he or she would
like to know if a criminal had illegally gained access to their
personal information from a database--the answer will be a resounding
yes.
Enabling consumers to be notified in a timely manner of security
breaches involving their personal data will help combat the growth
scourge of identity theft. According to the Identity Theft Resources
Center, a typical identity theft victim takes six to 12 months to
discover that a fraud has been perpetuated against them.
As Linda Foley, Executive Director of the Identity Theft Resources
center puts it: ``Identity theft is a crime of opportunity and time is
essential at every junction. Every minute that passes after the breach
until detection and notification increases the damage done to the
consumer victim, the commercial entities, and law enforcement's ability
to track and catch the criminals. It takes less than a minute to fill
out a credit application and to start an action that could permanently
affect the victim's life. Multiply that times hundreds of minutes,
hundreds of opportunities to use or sell the information stolen and you
just begin to understand the enormity of the problem that the lack of
notification can cause.''
If individuals are informed of the theft of their Social Security
numbers or other sensitive information, they can take immediate
preventative action.
They can place a fraud alert on their credit report to prevent crooks
from obtaining credit cards in their name; they can monitor their
credit reports to see if unauthorized activity has occurred; they can
cancel any affected financial or consumer or utility accounts; they can
change their phone numbers if necessary.
I look forward to working with my colleagues to pass this vitally
needed legislation. This bill will give ordinary Americans more control
and confidence about the safety of their personal information.
Americans will have the security of knowing that should a breach occur,
they will be notified and be able to take protective action.
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. 1350

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 ``Notification of Risk to
Personal Data Act''.

SEC. 2. DEFINITIONS.

In this Act, the following definitions shall apply:
(1) Agency.--The term ``agency'' has the same meaning given
such term in section 551(1) of title 5, United States Code.
(2) Breach of security of the system.--The term ``breach of
security of the system''--
(A) means the compromise of the security, confidentiality,
or integrity of computerized data that results in, or there
is a reasonable basis to conclude has resulted in, the
unauthorized acquisition of and access to personal
information maintained by the person or business; and
(B) does not include good faith acquisition of personal
information by an employee or agent of the person or business
for the purposes of the person or business, if the personal
information is not used or subject to further unauthorized
disclosure.
(3) Person.--The term ``person'' has the same meaning given
such term in section 551(2) of title 5, United States Code.
(4) Personal information.--The term ``personal
information'' means an individual's last name in combination
with any 1 or more of the following data elements, when
either the name or the data elements are not encrypted:
(A) Social security number.
(B) Driver's license number or State identification number.
(C) Account number, credit or debit card number, in
combination with any required security code, access code, or
password that would permit access to an individual's
financial account.
(5) Substitute notice.--The term ``substitute notice''
means--
(A) e-mail notice, if the agency or person has an e-mail
address for the subject persons;
(B) conspicuous posting of the notice on the Internet site
of the agency or person, if the agency or person maintains an
Internet site; or
(C) notification to major media.

SEC. 3. DATABASE SECURITY.

(a) Disclosure of Security Breach.--
(1) In general.--Any agency, or person engaged in
interstate commerce, that owns or licenses electronic data
containing personal information shall, following the
discovery of a breach of security of the system containing
such data, notify any resident of the United States whose
unencrypted personal information was, or is reasonably
believed to have been, acquired by an unauthorized person.
(2) Notification of owner or licensee.--Any agency, or
person engaged in interstate commerce, in possession of
electronic data containing personal information that the
agency does not own or license shall notify the owner or
licensee of the information if the personal information was,
or is reasonably believed to have been, acquired by an
unauthorized person through a breach of security of the
system containing such data.
(3) Timeliness of notification.--Except as provided in
paragraph (4), all notifications required under paragraph (1)
or (2) shall be made as expediently as possible and without
unreasonable delay following--
(A) the discovery by the agency or person of a breach of
security of the system; and
(B) any measures necessary to determine the scope of the
breach, prevent further disclosures, and restore the
reasonable integrity of the data system.
(4) Delay of notification authorized for law enforcement
purposes.--If a law enforcement agency determines that the
notification required under this subsection would impede a
criminal investigation, such notification may be delayed
until such law enforcement agency determines that the
notification will no longer compromise such investigation.
(5) Methods of notice.--An agency, or person engaged in
interstate commerce, shall be in compliance with this
subsection if it provides the resident, owner, or licensee,
as appropriate, with--
(A) written notification;
(B) e-mail notice, if the person or business has an e-mail
address for the subject person; or
(C) substitute notice, if--
(i) the agency or person demonstrates that the cost of
providing direct notice would exceed $250,000;
(ii) the affected class of subject persons to be notified
exceeds 500,000; or
(iii) the agency or person does not have sufficient contact
information for those to be notified.
(6) Alternative notification procedures.--Notwithstanding
any other obligation under this subsection, an agency, or
person engaged in interstate commerce, shall be deemed to be
in compliance with this subsection if the agency or person--
(A) maintains its own reasonable notification procedures as
part of an information security policy for the treatment of
personal information; and
(B) notifies subject persons in accordance with its
information security policy in the event of a breach of
security of the system.
(7) Reasonable notification procedures.--As used in
paragraph (6), with respect to a breach of security of the
system involving personal information described in section
2(4)(C), the term ``reasonable notification procedures''
means procedures that--
(A) use a security program reasonably designed to block
unauthorized transactions before they are charged to the
customer's account;

[[Page S8740]]

(B) provide for notice to be given by the owner or licensee
of the database, or another party acting on behalf of such
owner or licensee, after the security program indicates that
the breach of security of the system has resulted in fraud or
unauthorized transactions, but does not necessarily require
notice in other circumstances; and
(C) are subject to examination for compliance with the
requirements of this Act by 1 or more Federal functional
regulators (as defined in section 509 of the Gramm-Leach
Bliley Act (15 U.S.C. 6809)), with respect to the operation
of the security program and the notification procedures.
(b) Civil Remedies.--
(1) Penalties.--Any agency, or person engaged in interstate
commerce, that violates this section shall be subject to a
fine of not more than $5,000 per violation, to a maximum of
$25,000 per day while such violations persist.
(2) Equitable relief.--Any person engaged in interstate
commerce that violates, proposes to violate, or has violated
this section may be enjoined from further violations by a
court of competent jurisdiction.
(3) Other rights and remedies.--The rights and remedies
available under this subsection are cumulative and shall not
affect any other rights and remedies available under law.
(c) Enforcement.--The Federal Trade Commission is
authorized to enforce compliance with this section, including
the assessment of fines under subsection (b)(1).

SEC. 4. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

(a) In General.--
(1) Civil actions.--In any case in which the attorney
general of a State has reason to believe that an interest of
the residents of that State has been or is threatened or
adversely affected by the engagement of any person in a
practice that is prohibited under this Act, the State, as
parens patriae, may bring a civil action on behalf of the
residents of the State in a district court of the United
States of appropriate jurisdiction to--
(A) enjoin that practice;
(B) enforce compliance with this Act;
(C) obtain damage, restitution, or other compensation on
behalf of residents of the State; or
(D) obtain such other relief as the court may consider to
be appropriate.
(2) Notice.--
(A) In general.--Before filing an action under paragraph
(1), the attorney general of the State involved shall provide
to the Attorney General--
(i) written notice of the action; and
(ii) a copy of the complaint for the action.
(B) Exemption.--
(i) In general.--Subparagraph (A) shall not apply with
respect to the filing of an action by an attorney general of
a State under this subsection, if the State attorney general
determines that it is not feasible to provide the notice
described in such subparagraph before the filing of the
action.
(ii) Notification.--In an action described in clause (i),
the attorney general of a State shall provide notice and a
copy of the complaint to the Attorney General at the time the
State attorney general files the action.
(b) Construction.--For purposes of bringing any civil
action under subsection (a), nothing in this Act shall be
construed to prevent an attorney general of a State from
exercising the powers conferred on such attorney general by
the laws of that State to--
(1) conduct investigations;
(2) administer oaths or affirmations; or
(3) compel the attendance of witnesses or the production of
documentary and other evidence.
(c) Venue; Service of Process.--
(1) Venue.--Any action brought under subsection (a) may be
brought in the district court of the United States that meets
applicable requirements relating to venue under section 1391
of title 28, United States Code.
(2) Service of process.--In an action brought under
subsection (a), process may be served in any district in
which the defendant--
(A) is an inhabitant; or
(B) may be found.

SEC. 5. EFFECT ON STATE LAW.

The provisions of this Act shall supersede any inconsistent
provisions of law of any State or unit of local government
relating to the notification of any resident of the United
States of any breach of security of an electronic database
containing such resident's personal information (as defined
in this Act), except as provided under sections 1798.82 and
1798.29 of the California Civil Code.

SEC. 6. EFFECTIVE DATE.

This Act shall take effect on the expiration of the date
which is 6 months after the date of enactment of this Act.
______

By Mr. FRIST:
S. 1351. A bill to amend the Tennessee Valley Authority Act of 1933
to modify provisions relating to the Board of Directors of the
Tennessee Valley Authority, and for other purposes; to the Committee on
Environment and Public Works.
Mr. FRIST. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1351

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

SECTION 1. CHANGE IN COMPOSITION, OPERATION, AND DUTIES OF
THE BOARD OF DIRECTORS OF THE TENNESSEE VALLEY
AUTHORITY.

(a) In General.--The Tennessee Valley Authority Act of 1933
(16 U.S.C. 831 et seq.) is amended by striking section 2 and
inserting the following:

``SEC. 2. MEMBERSHIP, OPERATION, AND DUTIES OF THE BOARD OF
DIRECTORS.

``(a) Membership.--
``(1) Appointment.--The Board of Directors of the
Corporation (referred to in this Act as the `Board') shall be
composed of 9 members appointed by the President by and with
the advice and consent of the Senate, who shall be legal
residents of the service area.
``(2) Chairman.--The members of the Board shall select 1 of
the members to act as chairman of the Board.
``(b) Qualifications.--
``(1) In general.--To be eligible to be appointed as a
member of the Board, an individual--
``(A) shall be a citizen of the United States;
``(B) shall have widely recognized experience or applicable
expertise in the management of or decisionmaking for a large
corporate structure;
``(C) shall not be an employee of the Corporation;
``(D) shall have no substantial direct financial interest
in--
``(i) any public-utility corporation engaged in the
business of distributing and selling power to the public; or
``(ii) any business that may be adversely affected by the
success of the Corporation as a producer of electric power;
and
``(E) shall profess a belief in the feasibility and wisdom
of this Act.
``(2) Party affiliation.--Not more than 5 of the 9 members
of the Board may be affiliated with a single political party.
``(c) Recommendations.--In appointing members of the Board,
the President shall--
``(1) consider recommendations from such public officials
as--
``(A) the Governors of States in the service area;
``(B) individual citizens;
``(C) business, industrial, labor, electric power
distribution, environmental, civic, and service
organizations; and
``(D) the congressional delegations of the States in the
service area; and
``(2) seek qualified members from among persons who reflect
the diversity and needs of the service area of the
Corporation.
``(d) Terms.--
``(1) In general.--A member of the Board shall serve a term
of 5 years, except that in first making appointments after
the date of enactment of this paragraph, the President shall
appoint--
``(A) 2 members to a term of 2 years;
``(B) 1 member to a term of 3 years; and
``(C) 2 members to a term of 4 years.
``(2) Vacancies.--A member appointed to fill a vacancy in
the Board occurring before the expiration of the term for
which the predecessor of the member was appointed shall be
appointed for the remainder of that term.
``(3) Reappointment.--
``(A) In general.--A member of the Board that was appointed
for a full term may be reappointed for 1 additional term.
``(B) Appointment to fill vacancy.--For the purpose of
subparagraph (A), a member appointed to serve the remainder
of the term of a vacating member for a period of more than 2
years shall be considered to have been appointed for a
full term.
``(e) Quorum.--
``(1) In general.--Six members of the Board shall
constitute a quorum for the transaction of business.
``(2) Minimum number of members.--A vacancy in the Board
shall not impair the power of the Board to act, so long as
there are 6 members in office.
``(f) Compensation.--
``(1) In general.--A member of the Board shall be entitled
to receive--
``(A)(i) a stipend of $30,000 per year; plus
``(ii) compensation, not to exceed $10,000 for any year, at
a rate that does not exceed the daily equivalent of the
annual rate of basic pay prescribed under level V of the
Executive Schedule under section 5316 of title 5, United
States Code, for each day the member is engaged in the actual
performance of duties as a member of the Board at meetings or
hearings; and
``(B) travel expenses, including per diem in lieu of
subsistence, in the same manner as persons employed
intermittently in Government service under section 5703 of
title 5, United States Code.
``(2) Adjustments in stipends.--The amount of the stipend
under paragraph (1)(A)(i) shall be adjusted by the same
percentage, at the same time and manner, and subject to the
same limitations as are applicable to adjustments under
section 5318 of title 5, United States Code.
``(g) Duties.--
``(1) In general.--The Board shall--
``(A) establish the broad goals, objectives, and policies
of the Corporation that are appropriate to carry out this
Act;
``(B) develop long-range plans to guide the Corporation in
achieving the goals, objectives, and policies of the
Corporation and provide assistance to the chief executive
officer to achieve those goals, objectives, and policies,
including preparing the Corporation

[[Page S8741]]

for fundamental changes in the electric utilities industry;
``(C) ensure that those goals, objectives, and policies are
achieved;
``(D) approve an annual budget for the Corporation;
``(E) establish a compensation plan for employees of the
Corporation in accordance with subsection (i);
``(F) approve the salaries, benefits, and incentives for
managers and technical personnel that report directly to the
chief executive officer;
``(G) ensure that all activities of the Corporation are
carried out in compliance with applicable law;
``(H) create an audit committee, composed solely of Board
members independent of the management of the Corporation,
which shall--
``(i) recommend to the Board an external auditor;
``(ii) receive and review reports from the external
auditor; and
``(iii) make such recommendations to the Board as the audit
committee considers necessary;
``(I) create such other committees of Board members as the
Board considers to be appropriate;
``(J) conduct public hearings on issues that could have a
substantial effect on--
``(i) the electric ratepayers in the service area; or
``(ii) the economic, environmental, social, or physical
well-being of the people of the service area; and
``(K) establish the electricity rate schedule.
``(2) Meetings.--The Board shall meet at least 4 times each
year.
``(h) Chief Executive Officer.--
``(1) Appointment.--The Board shall appoint a person to
serve as chief executive officer of the Corporation.
``(2) Qualifications.--To serve as chief executive officer
of the Corporation, a person--
``(A) shall be a citizen of the United States;
``(B) shall have management experience in large, complex
organizations;
``(C) shall not be a current member of the Board or have
served as a member of the Board within 2 years before being
appointed chief executive officer; and
``(D) shall have no substantial direct financial interest
in--
``(i) any public-utility corporation engaged in the
business of distributing and selling power to the public; or
``(ii) any business that may be adversely affected by the
success of the Corporation as a producer of electric power;
and
``(3) Tenure.--The chief executive officer shall serve at
the pleasure of the Board.
``(i) Compensation Plan.--
``(1) In general.--The Board shall approve a compensation
plan that specifies salaries, benefits, and incentives for
the chief executive officer and employees of the Corporation.
``(2) Annual survey.--The compensation plan shall be based
on an annual survey of the prevailing salaries, benefits, and
incentives for similar work in private industry, including
engineering and electric utility companies, publicly owned
electric utilities, and Federal, State, and local
governments.
``(3) Considerations.--The compensation plan shall provide
that education, experience, level of responsibility,
geographic differences, and retention and recruitment needs
will be taken into account in determining salaries of
employees.
``(4) Submission to congress.--No salary shall be
established under a compensation plan until after the
compensation plan and the survey on which it is based have
been submitted to Congress and made available to the public
for a period of 30 days.
``(5) Positions at or below level iv.--The chief executive
officer shall determine the salary and benefits of employees
whose annual salary is not greater than the annual rate
payable for positions at level IV of the Executive
Schedule under section 5315 of title 5, United States
Code.
``(6) Positions above level iv.--On the recommendation of
the chief executive officer, the Board shall approve the
salaries of employees whose annual salaries would be in
excess of the annual rate payable for positions at level IV
of the Executive Schedule under section 5315 of title 5,
United States Code.''.
(b) Current Board Members.--A member of the board of
directors of the Tennessee Valley Authority who was appointed
before the effective date of the amendment made by subsection
(a)--
(1) shall continue to serve as a member until the date of
expiration of the member's current term; and
(2) may not be reappointed.

SEC. 2. CHANGE IN MANNER OF APPOINTMENT OF STAFF.

Section 3 of the Tennessee Valley Authority Act of 1933 (16
U.S.C. 831b) is amended--
(1) by striking the first undesignated paragraph and
inserting the following:
``(a) Appointment by the Chief Executive Officer.--The
chief executive officer shall appoint, with the advice and
consent of the Board, and without regard to the provisions of
the civil service laws applicable to officers and employees
of the United States, such managers, assistant managers,
officers, employees, attorneys, and agents as are necessary
for the transaction of the business of the Corporation.'';
and
(2) by striking ``All contracts'' and inserting the
following:
``(b) Wage Rates.--All contracts''.

SEC. 3. CONFORMING AMENDMENTS.

(a) The Tennessee Valley Authority Act of 1933 (16 U.S.C.
831 et seq.) is amended--
(1) by striking ``board of directors'' each place it
appears and inserting ``Board of Directors''; and
(2) by striking ``board'' each place it appears and
inserting ``Board''.
(b) Section 9 of the Tennessee Valley Authority Act of 1933
(16 U.S.C. 831h) is amended--
(1) by striking ``The Comptroller General of the United
States shall audit'' and inserting the following:
``(c) Audits.--The Comptroller General of the United States
shall audit''; and
(2) by striking ``The Corporation shall determine'' and
inserting the following:
``(d) Administrative Accounts and Business Documents.--The
Corporation shall determine''.

SEC. 4. EFFECTIVE DATE.

The amendments made by this Act take effect, and 7
additional members of the Board of Directors of the Tennessee
Valley Authority shall be appointed so as to commence their
terms on, the first date following the date of enactment of
this Act on which the term of a member of the Board of
Directors of the Tennessee Valley Authority expires.
______

By Mr. WYDEN (for himself and Mrs. Feinstein):
S. 1352. A bill to expedite procedures for hazardous fuels reduction
activities and restoration in wildland fire prone National Forests and
for other purposes; to the Committee on Agriculture, Nutrition, and
Forestry.
Mr. WYDEN. Mr. President: Today, I introduce, for myself and Mrs.
Feinstein, the Community and Forest Protection Act. I ask unanimous
consent that the text of the bill to be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
(a) Findings.--Congress finds that:
(1) In 2002, approximately six and one half million acres
of forest lands in the U.S. burned with varying degrees of
severity, 21 people lost their lives, and over 3000
structures were destroyed. The Forest Service and Bureau of
Land Management spent more than $1 billion fighting these
fires.
(2) 73 million acres of public lands are classified as
condition class 3 fire risks. This includes 23 million acres
that are in strategic areas designated by the U.S. Forest
Service for emergency treatment to withstand catastrophic
fire.
(3) The forest management policy of fire suppression has
resulted in an accumulation of fuel loads, dead and dying
trees, and non-native species that create fuel ladders which
allow fires to reach the crowns of large old trees and cause
catastrophic fire.
(4) The U.S. Forest Service and the Department of the
Interior should immediately undertake an emergency program to
reduce the risk of catastrophic fire.
(5) This emergency program should prioritize the protection
of homes and communities and the restoration of forest health
on lands at the highest risk of catastrophic fire. All fuel
reduction treatments should protect old growth stands and
large trees to ensure a rich and continued species diversity
in the nation's forests.

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

Sec. 1 Short title; table of contents.
Sec. 2 Hazardous fuels reduction projects.
Sec. 3 Expedited process.
Sec. 4 Judicial review in the United States District Courts.
Sec. 5 Contracting.
Sec. 6 Biomass grants.
Sec. 7 Forest stands inventory and monitoring program.
Sec. 8 Emergency fuels reduction grants.
Sec. 9 Market incentives for home protection.
Sec. 10 Ongoing projects and existing authorities.
Sec. 11 Preference to communities that have ordinances on fire
prevention.
Sec. 12 Sunset.
Sec. 13 Authorization of appropriations.
Sec. 14 Definitions.

SEC. 2. HAZARDOUS FUELS REDUCTION PROJECTS.

(a) In General.--The Secretaries of Agriculture and the
Interior shall conduct immediately and to completion
hazardous fuels reduction projects consistent with the
Comprehensive Strategy for a Collaborative Approach for
Reducing Wildland Fire Risks to Communities and the
Environment on an aggregate area of 20 million acres of
federal land.
(1) These projects shall be conducted on the priority lands
identified in subsection (d), using the expedited procedures
in section 3.
(2) The Secretaries shall protect old growth stands and
large trees pursuant to subsection (h).
(b) Selection of Projects.--The Secretaries of Agriculture
and the Interior shall

[[Page S8742]]

jointly select hazardous fuels reduction projects identified
by the Implementation Plan of the Comprehensive Strategy.
(c) Consistency With Existing Forest Management Plans and
Environmental Laws.--Any project carried out pursuant to this
Act shall be consistent with the applicable forest plan,
resource management plan, or other applicable agency plans or
environmental laws except as specifically amended by this
Act.
(d) Priority Lands.--In implementing projects under this
Act, the Secretaries of Agriculture and the Interior shall
give highest priority to:
(1) Wildland-urban interface: Condition class 3 or
condition class 2 federal lands or, where appropriate, non-
federal lands;
(2) Municipal watersheds: Condition class 3 federal lands
located in such proximity to a municipal water supply system
that a hazardous fuels reduction project must be carried out
to reduce the risk of harm to such system resulting from
wildfire;
(3) Fire Regime I lands: Federal lands that are condition
class 3; and
(4) Fire Regimes II and III lands: Condition class 3
federal lands identified by the Secretary as an area where
windthrow or blowdown, or the existence of disease or insect
infestation, pose a significant threat to forest health or
adjacent private lands.
(e) Public Notice and Public Response.--
(1) Quarterly notice.--The Secretary shall provide
quarterly notice of each hazardous fuels reduction project
which uses the streamlined processes established by this Act.
The quarterly notice shall be provided for all projects in
the Federal Register and on an agency website and in a local
paper of record for local projects. The Secretary may combine
this quarterly notice with other quarterly notices otherwise
issued regarding federal forest management.
(2) Content.--For each hazardous fuels reduction project
for which the processes established by this Act are to be
used the notice required by paragraph (1) shall include at a
minimum:
(A) identification of each project as a hazardous fuels
reduction project for which the processes established by this
Act are to be used;
(B) a description of the project, including as much
information on its geographic location as practicable;
(C) the approximate date on which scoping for the project
will begin; and
(D) information regarding how interested members of the
public can take part in the development of the project,
including, but not limited to, project related public meeting
notification.
(3) Public meeting.--Following publication of each
quarterly notice under paragraph (1), but before the
beginning of scoping under section 3(a), the Secretary shall
conduct a public meeting at an appropriate location in each
administrative unit of the federal lands regarding those
hazardous fuels reduction projects contained in the quarterly
notice that are proposed to be conducted in that
administrative unit. The Secretary shall provide advance
notice of the date and time of the meeting in the quarterly
notice or using the same means described in paragraph (1).
(4) Public response to notice of Projects.--
(A) In general.--A federally formed resource advisory
committee may petition, with supporting evidence, the
Secretary to better assess ground conditions of land to be
covered by projects, during scoping or public comment on
specific hazardous fuels reduction projects identified under
subsection (b).
(B) Priority lands included in the projects.--For specific
hazardous fuels reduction projects the petitioner may seek to
correct the inclusion or exclusion of priority lands
identified in subsection (d). The petitioner may also seek
designation of large trees or old growth stands to be
protected under subsection (h).
(C) Secretarial response.--The Secretary must respond to
the petition within 30 days by. public notice by the same
means described in paragraph (1). The Secretary shall provide
a public viewing of the area in question if requested in the
petition within 90 days of receipt. of the petition, with the
petitioner and any other interested parties.
(D) Determination of petition.--The Secretary must accept
or deny the petition within 120 days of its receipt, based on
site-specific review of historic ecological conditions,
forest type, present fuel loads, and determination of whether
the area properly qualifies as priority lands under
subsection (d).
(5) Final agency action.--The Secretary shall provide
notice by the same means described in paragraph (1) of any
final agency action regarding a hazardous fuels reduction
project for which the processes established by this Act are
used.
(f) Priority Hazardous Fuels Reduction Funding.--The
Secretaries shall expend no less than 70 percent of funds
under this Act on projects within the wildland-urban
interface, provided that the Secretaries may adjust this
funding formula for a particular State at the request of its
governor. In no event shall the Secretaries expend less than
50 percent or greater than 75 percent of funds within the
wildland-urban interface for a particular State.
(g) Monitoring.--The Secretaries shall establish a
multiparty monitoring process with representation from
resource industries, environmentalists, independent
scientists, community-based organizations, and other
interested parties in order for Congress to assess a
representative sampling of the hazardous fuels reduction
projects implemented pursuant to this Act.
(h) Limitations.--In implementing hazardous fuels reduction
projects under this Act the Secretary:
(1) shall not undertake any hazardous fuels reduction
projects in wilderness study areas or components of the
National Wilderness Preservation System;
(2) shall not construct new roads in inventoried roadless
areas as part of any hazardous fuels reduction project;
(3) shall fully maintain the structure, function, processes
and composition of structurally complex older forests (old
growth) according to each ecosystem type; and
(4) outside old growth stands:
(A) shall focus on small diameter trees and thin from below
to modify fire behavior as measured by rate of spread, height
to live crown, and flame length; and
(B) shall maximize the retention of large trees to the
extent that they promote fire-resistant stands and species
diversity as appropriate for the forest type and site.

SEC. 3. EXPEDITED PROCESS.

(a) Scoping.--The Secretary shall conduct scoping for each
hazardous fuels reduction project implemented pursuant to
this Act.
(b) Categorical Exclusions in the Wildland-Urban
Interface.--
(1) In general.--The wildland-urban interface hazardous
fuels reduction projects authorized by this Act are
conclusively determined to be categorically excluded from
further analysis under the National Environmental Policy Act
of 1969 (``NEPA''), 42 U.S.C. 4332, and the Secretary need
not make any findings as to whether the projects individually
or cumulatively have a significant effect on the environment.
(2) Varied treatments.--The Secretary shall vary the
treatments and avoid clear cuts inside the wildland-urban
interface to ensure forest health. The Secretary shall also
protect old growth and large trees pursuant to subsection
2(h).
(3) Extraordinary circumstances exception.--For all
hazardous fuels reduction projects implemented pursuant to
this subsection, if there are extraordinary circumstances,
the Secretary shall follow agency procedures related to
categorical exclusions and extraordinary circumstances. For
the purposes of this subsection, a project's location within
a municipal watershed shall not be considered an
extraordinary circumstance.
(4) Appeals.--No hazardous fuels reduction projects
implemented pursuant to this subsection shall be subject to
appeal requirements of the Appeals Reform Act (section 322 of
Public Law 102-381) or the Department of the Interior Office
of Hearings and Appeals.
(c) Environmental Assessments Outside the Wildland-Urban
Interface.--
(1) In general.--For hazardous fuels reduction projects
implemented pursuant to this Act on priority lands identified
in section 2(d), if a categorical exclusion does not apply,
the Secretary shall determine, consistent with NEPA, whether
an environmental assessment is sufficient and use the
procedures set forth in the Council on Environmental Quality
``Guidance for Environmental Assessments of Forest Health
Projects,'' of December 9, 2002, or as amended.
(2) Issuance of documentation and shortened appeals.--
Notwithstanding the Appeals Reform Act, section 322 of the
Department of the Interior and Related Agencies
Appropriations Act, 1993 (Public Law 102 381; 16 U.S.C. 1612
note), or regulations pertaining to the Department of the
Interior Office of Hearings and Appeals procedures, for
hazardous fuels reduction projects implemented by
environmental assessments pursuant to subsection (c)(1):
(A) The Secretary may issue the environmental documentation
and the decision document for the project simultaneously
without public comment. Such issuance shall begin the
administrative appeals process immediately.
(B) Persons must file any administrative appeal of projects
under this subsection within 30 days after the date of
issuance of a decision;
(C) The Secretary shall resolve any appeal not later than
30 days after the closing date for filing an appeal;
(D) If the review officer determines that an appeal has
merit, in lieu of remanding the proposed agency action, the
review officer, in consultation with the parties, may sign a
new decision; and (E) The Secretary shall stay implementation
of the project for 15 days beginning on the date on which the
Secretary resolves any administrative appeal that complies
with the requirements in subsection (d).
(d) Standing to Appeal.--If a draft document prepared
pursuant to NEPA for a hazardous fuels reduction project was
available for public comment, or the project had scoping, the
Secretary may require that a person filing an administrative
appeal with respect to the project must have been involved in
the public comment process for the project by submitting
specific and substantive written comments with regard to the
project or must have participated in the scoping of the
project.
(e) Salvage Monitoring Pilot Program.--
(1) Salvage pilot.--The Secretary is authorized to use the
administrative appeals authorities under this subsection,
pursuant to paragraph (2), for salvage hazardous fuels
reduction projects in the area popularly known as the Biscuit
Fire and reference on

[[Page S8743]]

the map entitled and dated ____ on file at the Forest Service
____ office.
(2) Monitoring.--The Secretary shall require that any
salvage hazardous fuels reduction project on the Biscuit Fire
be subject to ecological and economic monitoring of its
effects, including on-site evaluation and inspections. The
monitoring shall be conducted by a group with representation
from independent scientists, industry representatives,
environmentalists, community-based organizations, and other
interested parties. Group selection shall be through the
Western Governors Association Collaborative process. The
group shall report to the public under section 2(e)(1) on the
ecological and economic effects of individual salvage
hazardous fuels projects.

SEC. 4. JUDICIAL REVIEW IN THE UNITED STATES DISTRICT COURTS.

(a) Venue.--A hazardous fuels reduction project conducted
under this Act shall be subject to judicial review only in
the United States district court for the district in which
the federal lands to be treated by the hazardous fuels
reduction project are located, notwithstanding 28 U.S.C. 1391
or any other applicable venue statutes.
(b) Expeditious Completion of Judicial Review.--Congress
intends and encourages any court in which is filed a lawsuit
or appeal of a lawsuit concerning an authorized hazardous
fuels reduction project to expedite, to the maximum extent
practicable, the proceedings in such lawsuit or appeal with
the goal of rendering a final determination on jurisdiction,
and if jurisdiction exists, a final determination on the
merits, as soon as possible from the date the complaint or
appeal is filed.
(c) Duration of Injunction.--Any temporary injunctive
relief granted regarding a project undertaken pursuant to
this Act shall be limited to 60 days, with authority to renew
each temporary injunction without limitation. For each
injunctive renewal the parties shall present the court with
updates on the status of the project.
(d) Standard of Review.--Nothing in this section shall
change the standards of judicial review for any action
concerning a project authorized under this Act.

SEC. 5. CONTRACTING.

(a) Best Value Contracting.--The Secretary shall use best
value contracting criteria in awarding at least fifty percent
of contracts and agreements for hazardous fuels reduction
projects pursuant to this Act. Best value contract criteria
will include, but not be limited to:
(1) the ability of the contractor to meet the ecological
goals of the projects;
(2) the use of equipment that will minimize or eliminate
impacts on soils; and (3) benefit to local economies in
performing the restorative treatments and ensuring that wood
by-products are processed locally.
(b) Monitoring.--The Forest Service shall monitor the
business and employment impacts of hazardous fuels reduction
projects including the total dollar value of contracts and
agreements awarded to qualifying entities.
(c) Public Lands Corps.--
(1) Contracts and agreements.--
(A) In general.--The Secretaries are authorized to enter
into contracts or cooperative agreements with a Public Lands
Corps
(i) to implement and complete projects prioritized in
section 2(b) and (d) of this Act; and
(ii) to perform appropriate rehabilitation, enhancement, or
beautification projects with the Department of Natural
Resources, Department of Forestry or Department of
Agriculture of any State.
(B) Indian lands.--Such projects may also be carried out on
Indian lands with the approval of the relevant Indian tribe.
(C) Preference.--The Secretaries shall give preference to
those projects which take place on lands identified as
priorities in section 2(d) of this Act and can be planned and
initiated promptly.
(D) Supportive services.--The Secretaries are authorized to
provide such services as the Secretaries deem necessary to
carry out the purposes of this Act.
(E) Technical assistance.--The Secretaries shall work with
the National Association of Service and Conservation Corps to
provide technical assistance, oversight, monitoring, and
evaluation to the United States Departments of Agriculture
and the Interior, State Departments of Natural Resources and
Agriculture, and Public Lands Corps.
(2) Nondisplacement.--The nondisplacement requirements of
Section 177 of the National and Community Service Trust Act
of 1990 shall be applicable to all activities carried out
under this Act by the Public Lands Corps.
(3) Authorization of appropriations.--For the purposes of
this subsection there are authorized to be appropriated
$12,500,000 annually for 5 years after the enactment of this
Act.
(d) Definitions.-- For the purposes of this section--
(1) Contracts and agreements.--The term ``contracts and
agreements'' means service contracts, timber sale contracts,
construction contracts, supply contracts, emergency equipment
rental agreements, architectural and engineering contracts,
challenge cost-share agreements, cooperative agreements, and
participating agreements.
(2) Qualifying entity.--The term ``qualifying entity''
means--
(A) a natural-resource related small or micro-enterprise;
(B) a Youth Conservation Corps or Public Lands Corps crew
or related partnership with State, local and other non-
federal conservation corps;
(C) an entity that will hire and train local people to
complete the contract or agreement;
(D) an entity that will re-train non-local traditional
forest workers to complete the contract or agreement; or
(E) a local entity that meets the criteria to qualify for
the Historically Underutilized Business Zone Program under
section 32 of the Small Business Act (15 U.S.C. 657a).
(3) Public lands corps.--The term ``Public Lands Corps''
means any organization established by a state or local
government, non-profit organization, or Indian tribe that:
(A) has demonstrated the ability:
(i) to provide labor intensive productive work to
individuals;
(ii) to recruit and train economically disadvantaged or at-
risk youth;
(iii) to give participants a combination of work
experience, basic and life skills, education, training and
support services; and
(iv) to provide participants with the opportunity to
develop citizenship values through service to their
communities and the United States; and
(B) has also successfully completed, or is engaged in, a
peer-reviewed, standards based program assessment process.
(4) State.--The term ``State'' means any State of the
United States, the District of Columbia, Puerto Rico, Guam,
the Virgin Islands of the United States, or the Commonwealth
of the Northern Mariana Islands.

SEC. 6. BIOMASS GRANTS.

(a) Definitions.--For the purposes of this section:
(1) Eligible operation.--The term ``eligible operation''
means a facility, that is located within the boundaries of an
eligible community and uses biomass from federal or Tribal
lands as a raw material to produce electric energy, sensible
heat, transportation fuels, or substitutes for petroleum-
based products.
(2) Biomass.--The term ``biomass'' means pre-commercial
thinnings of trees and woody plants, or non-merchantable
material, from hazardous fuels reduction projects.
(3) Green ton.--The term ``green ton'' means 2,000 pounds
of biomass that has not been mechanically or artificially
dried.
(4) Eligible community.--The term ``eligible community''
means any Indian Reservation, or any county, town, township,
municipality, or other similar unit of local government that
has a population of not more than 50,000 individuals and is
determined by the Secretary to be located in an area near
federal or Tribal lands which is at significant risk of
catastrophic wildfire, disease, or insect infestation or
which suffers from disease or insect infestation.
(5) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4(e) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b(e)).
(b) Biomass Commercial Utilization Grant Program.--
(1) In general.--The Secretary may make grants to any
individual, community, Indian tribe, small business or
corporation, or nonprofit that owns or operates an eligible
operation to offset capital expenses and costs incurred to
purchase biomass for use by such eligible operation with
priority given to operations using biomass from the highest
risk areas.
(2) Limitation.--No grant provided under this subsection
shall be paid at a rate that exceeds $20 per green ton of
biomass delivered.
(3) Records.--Each grant recipient shall keep such records
as the Secretary may require to fully and correctly disclose
the use of the grant funds and all transactions involved in
the purchase of biomass. Upon notice by the Secretary, the
grant recipient shall provide the Secretary reasonable access
to examine the inventory and records of any eligible
operation receiving grant funds.
(4) Authorization of appropriations.--For the purposes of
this subsection, there are authorized to be appropriated
$12,500,000 each to the Secretary of the Interior and the
Secretary of Agriculture for each fiscal year for five years
after the date of enactment of this Act.
(c) Improved Biomass Utilization Program.--
(1) In general.--The Secretary may make grants to persons
in eligible communities to offset the costs of developing or
researching proposals to improve the use of biomass or add
value to biomass utilization.
(2) Selection.--Grant recipients shall be selected based on
the potential for the proposal to--
(A) develop affordable thermal or electric energy resources
for the benefit of an eligible community;
(B) provide opportunities for the creation or expansion of
small businesses within an eligible community;
(C) create new job opportunities within an eligible
community, and
(D) reduce the hazardous fuels from the highest risk areas.
(3) Limitation.--No grant awarded under this subsection
shall exceed $500,000.
(4) Authorization of appropriations.-- For the purposes of
this subsection, there are authorized to be appropriated
$12,500,000 each to the Secretary of the Interior and the
Secretary of Agriculture for each fiscal year for the five
years after enactment of this Act.
(d) Report.--Not later than 3 years after the date of
enactment of this Act, the Secretary of the Interior and the
Secretary of

[[Page S8744]]

Agriculture shall jointly submit to the Congress a report
that describes the interim results of the programs authorized
under this section.

SEC. 7. FOREST STANDS INVENTORY AND MONITORING PROGRAM.

(a) In General.--The Secretary of Agriculture and the
Secretary of the Interior shall carry out, in conjunction
with the National Aeronautics and Space Administration and
other relevant agencies and research facilities (including
the Forest Service Research Stations and academic
institutions), a comprehensive program to inventory and
assess forest stands on federal forest land and, with the
consent of the owner, private forest land. The objective of
this program shall be to evaluate current and future forest
health conditions and address ecological impacts of insect,
disease, invasive species, fire and weather-related episodic
events. Emphasis shall be placed upon coordinating,
reconciling, and field verification of existing data
(including remotely sensed and modeled data utilized to
characterize vegetation/cover types, density, fire regimes,
fire effects, and condition classes), and improving the
accuracy of such data to assist in management activities.
(b) Location.--The facility for this program shall be
located at the Ochoco National Forest Headquarters in
Prineville, Oregon.
(c) Authorization of Appropriations.-- For the purposes of
this section, there are authorized to be appropriated
$5,000,000 each fiscal year for the five years after
enactment of this Act.

SEC. 8. EMERGENCY FUELS REDUCTION GRANTS.

(a) In General.--The Secretary of Agriculture shall
establish an Emergency Fuels Reduction Grant program to
provide State and local agencies with financial assistance
for hazardous fuels reduction projects addressing threats of
catastrophic fire that have been determined by the United
States Forest Service to pose a serious threat to human life.
(b) Eligibility.--Fuels reduction projects eligible for
funding under the Emergency Fuels Reduction Grant program
shall:
(1) be surrounded by or immediately adjacent to national
forest boundaries;
(2) have been determined to be of paramount urgency by
virtue of declarations of emergency by both local officials
and the governor of the State in which they are located; and
(3) remove fuel loading determined to pose a serious threat
to human life by the United States Forest Service.
(c) Use of Grant Funds.--Funds authorized under this
section shall be limited to the following uses:
(1) removal of trees, shrubs or other potential fuels
adjacent to primary evacuation routes;
(2) removal of trees, shrubs or other potential fuels
adjacent to emergency response centers, emergency
communication facilities or sites designated as shelter-in-
place facilities; and
(3) evacuation drills and preparation.
(d) Revolving Fund.--For work done on private property and
county lands, the grant recipients shall deposit into a
revolving fund any proceeds from sale of the timber or
biomass from the projects funded under this section. The
revolving fund shall be used to assist with subsequent grants
under this section.
(e) Emergency Fuels Reduction Grants.--For the purposes of
funding the Emergency Fuels Reduction Grant program under
this Act, there are authorized to be appropriated to the
Secretary of Agriculture $50,000,000 each fiscal year that
this Act is in effect. Subject to section 13, amounts
appropriated in one fiscal year and unobligated before the
end of that fiscal year shall remain available for use in
subsequent fiscal years.

SEC. 9. MARKET INCENTIVES FOR HOME PROTECTION.

It is the Sense of Congress that insurers should reduce
premiums for homeowners in condition class 2 and condition
class 3 areas within the wildland-urban interface who:
(1) clear brush and other flammable material in the
vicinity of their homes;
(2) use non-flammable building materials for roofs and
other critical structures; or
(3) otherwise improve the defensibility of their homes
against catastrophic fire.

SEC. 10. ONGOING PROJECTS AND EXISTING AUTHORITIES.

Nothing in this Act shall affect projects begun prior to
enactment of this Act or affect authorities otherwise granted
to the Secretaries under existing law.

SEC. 11. PREFERENCE TO COMMUNITIES THAT HAVE ORDINANCES ON
FIRE PREVENTION.

(a) In General.--In determining the allocation of funding
for the Community and Private Land Fire Assistance Program
(16 USC 2106c/PL-171 Sec. l0A(b)), the Secretary shall
prioritize funding to those communities which have taken
proactive steps through the enactment of ordinances and other
means, including those that have developed a comprehensive
fire protection plan encompassing all ownerships, to
encourage property owners to reduce fire risk on private
property.
(b) Private Lands.--Nothing in this Act shall affect
existing authorities to use appropriations authorized by this
Act to carry out the provisions under this Act on non-federal
lands with the consent of the land owner.

SEC. 12. SUNSET.

The provisions of this Act shall expire five years after
the date of enactment, except that projects for which a
decision notice has been issued by that date may continue to
be implemented.

SEC. 13. AUTHORIZATION OF APPROPRIATIONS.

(a) National Forest System Lands.--For the purposes of
planning and conducting hazardous fuels reduction projects
under this Act on National Forest System Lands, there are
authorized to be appropriated to the Secretary of Agriculture
$1,943,100,000 during the five-fiscal year period beginning
October 1, 2003. Subject to section 12, amounts appropriated
in one fiscal year and unobligated before the end of that
fiscal year shall remain available for use in subsequent
fiscal years.
(b) BLM Lands.--For the purpose of planning and conducting
hazardous fuels reduction projects under this Act on Federal
lands managed by the Secretary of the Interior, there are
authorized to be appropriated to the Secretary of the
Interior $1,888,000,000 during the five-fiscal year period
beginning October 1, 2003. Subject to section 12, amounts
appropriated in one fiscal year and unobligated before the
end of that fiscal year shall remain available for use in
subsequent fiscal years.

SEC. 14. DEFINITIONS.

(a) Land Types and Fire Regime Areas.--In this Act
definitions of land types and fire regimes originate from the
U.S. Forest Service Rocky Mountain Research Station, as
follows--
(1) Condition Class 2.--The term ``condition class 2''
refers to lands on which--
(A) fire frequencies have been moderately altered and have
departed from historic fire return frequencies (either
increased or decreased) by one or more return interval, which
results in moderate changes to fire size, frequency,
intensity, severity or landscape patterns;
(B) there exists a moderate risk of losing key ecosystem
components; and
(C) vegetation attributes have been moderately altered from
their historic range.
(2) Condition Class 3.--The term ``condition class 3''
refers to lands on which--
(A) fire regimes have been significantly altered from
their. historic range, which results in dramatic changes to
fire size, frequency, intensity, severity, or landscape
patterns;
(B) there exists a high risk of losing key ecosystem
components; and
(C) vegetation attributes have been significantly altered
from their historic range.
(3) Fire Regime i.--The term ``fire regime I'' refers to
lands on which historically fire recurs in 0-35 year
intervals and burns with low severity.
(4) Fire Regime ii.--The term ``fire regime IP' refers to
lands on which historically fire recurs in .0-35 year
intervals and replaces existing vegetation.
(5) Fire Regime iii.--The term ``fire regime III'' refers
to lands on which historically fire recurs in 35-100 year
intervals and burns with mixed severity.
(b) At-Risk Community.--The term ``at-risk community''
means a geographic area designated by the Secretary as any
area--
(1) defined as an interface community in Volume 66, page
753, of the January 4, 2001 Federal Register;
(2) on which conditions are conducive to large-scale
wildland fire disturbance events; and
(3) for which a significant threat to human life exists as
a result of wildland fire disturbance events.
(c) Best Value Contracting.--The term ``best value
contracting'' means the contracting process described in
section 15.101 of title 48, Code of Federal Regulations,
which allows the inclusion of non-cost factors in the federal
contract process.
(d) Comprehensive Strategy.--The term ``Comprehensive
Strategy'' means the Comprehensive Strategy for a
Collaborative Approach for Reducing Wildland Fire Risks to
Communities and the Environment, dated May 2002, including by
reference the related Implementation Plan, which was
developed pursuant to the conference report to accompany the
Department of Interior and Related Agencies Appropriations
Act, 2001 (House Report 106-646).
(e) Federal Lands.--The term ``federal lands'' means
National Forest System lands and public forested lands
administered by the Secretary of the Interior acting through
the Bureau of Land Management.
(f) Geographic Feature.--The term ``geographic feature''
means a ridge top, road, stream, or other landscape feature
which can serve naturally as a firebreak, staging ground for
firefighting, or boundary affecting fire behavior.
(g) Hazardous Fuels Reduction Project.--The term
``hazardous fuels reduction project'' means a project--
(1) undertaken for the purpose of reducing the amount of
hazardous fuels resulting from alteration of a natural fire
regime as a result of fire suppression or other management
activities; and
(2) accomplished through the use of prescribed burning or
mechanical treatment, or a combination thereof.
(h) Inventoried Roadless Area.--The term ``inventoried
roadless area'' means one of the areas identified in the set
of inventoried roadless area maps contained in the Forest
Service Roadless Areas Conservation, Final Environmental
Impact Statement, Volume 2, dated November, 2000.
(i) Local Preference Contracting.--The term ``local
preference contracting'' means the federal contracting
process that gives preference to local businesses described
in section 333 of the Department of Interior and

[[Page S8745]]

Related Agencies Appropriations Act, 2003 (division F of
Public Law 108-7, 117 Stat. 277).
(j) Municipal Water Supply System.--The term ``municipal
water supply system'' means reservoirs, canals, ditches,
flumes, laterals, pipes, pipelines, or other surface
facilities and systems constructed or installed for the
impoundment, storage, transportation, or distribution of
drinking water for a community.
(k) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture, or the Secretary's designee, with respect to
National Forest System lands; and the Secretary of the
Interior, or the Secretary's designees, with respect to
public lands administered by the Secretary through the Bureau
of Land Management.
(1) Wildland-Urban Interface.--The term ``wildland-urban
interface'' means the area either within an at-risk community
or within the area.
(1) extending out to a geographic feature, if there is such
a feature within approximately three-quarters of a mile of
the community boundary; or
(2) if there is no such geographic feature, extending out
one-half mile from the community boundary.

Mrs. FEINSTEIN. I rise to introduce with Senator Wyden a bill to
reduce the risk of catastrophic fire in our country's magnificent
national forests.
No one who watched last week as Arizona's community of Summerhaven on
Mount Lemmon burned can doubt the importance of this issue. My heart
goes out to the residents of Summerhaven, and to the others who will be
displaced by the fires yet to come this summer.
Americans know that there is something wrong with our national
forests. For too long we have suppressed fires, gradually letting brush
and small trees multiply until many of our forests are now choked by a
dense thicket.
Today, there are 57 million acres of Federal lands at the highest
risk of catastrophic forest fires. If we do not take action now, these
forests could go up in smoke. This bill we are introducing today is
balancing, and it will reduce the risk of catastrophic fire in our
country's magnificent national forests.
This legislation would speed up the environmental review process--
without sacrificing the most important environmental protections. It
also would protect the communities which face the highest risk and
safeguard old growth stands and large trees. And it would include
sensible provisions on judicial review that will help projects go
forward quickly without compromising our independent judiciary. These
are provisions that makes sense, and I hope that my colleagues will
support the bill.
We have crafted our bill around three fundamental principles:
We should focus limited Federal resources on protecting communities
and on the forest lands truly most at risk;
We should speed up the environmental review process, but without
sacrificing the most important environmental protections; and
We should protect old growth stands and large trees.
Let me show how the bill achieves these three goals.
First, the bill prioritizes our efforts. Many people believe that we
should protect communities first. The bill does so. Seventy percent of
the funding is directed to the wildland-urban interface near
communities.
Of course, conditions vary by State. The bill allows Governors to
adjust the percentage of work that is to be done within the wildland--
urban interface for their State, up to a maximum of 75 percent, or down
to a minimum of 50 percent.
By way of contrast, H.R. 1904, which passed the House, includes no
focus on protecting communities. All the money can be spent far from
communities under H.R. 1904, even if the Governor of a State wishes
otherwise.
Senator Wyden and I believe that in addition to protecting
communities, there are some forest lands that should be thinned to
ensure that catastrophic fires do not devastate the forest and
eliminate habitat for the species that have there.
In the last century, Americans have rigorously suppressed fires,
stamping them out whenever they start. In certain forests like
ponderosa pine, these fires would naturally have cleared out the brush
and small trees every 10 or 20 years or so.
In the absence of these fires, brush has grown into ``doghair
thickets'' with dangerous levels of fuel loadings. When fires burn now
in these forests, they will be so hot that they won't just clear out
the brush but will kill the large trees and often scorch the soil.
These are the forests where we need to focus our efforts. We thus
target thinning projects to forests that are both Fire Regime I and
Condition Class 3. Fire Regime I forests are those that used to have
low-intensity, brush-clearing fires; and Condition Class 3 forests are
the most altered from their natural condition. The combination of Fire
Regime I and Condition Class 3 are the highest priority lands for
treatment.
We also direct projects to municipal watersheds and diseased or
windblown forests that are in Condition Class 3. If we don't protect
the municipal watersheds, catastrophic fires could strip off the tree
cover that prevents soils from eroding into creeks and lakes.
Municipalities' water quality could suffer.
In contrast to our bill, H.R. 1904 fails to prioritize brush-clearing
projects for the areas that need it the most. Instead, H.R. 1904
provides expedited processes for lands that are only moderately altered
by fire suppression--Condition Class 2 lands in addition to Condition
Class 3.
In many of the forests where H.R. 1904 would direct brush-clearing
work, there naturally would have been severe fires that burned all the
trees in the stand. After a thinning project, fires in these forests
will still behave the same way, scorching and killing most of the
trees. Thus, much of the thinning called for in H.R. 1904 would have
little effect on the fire behavior or forest health.
Senator Wyden and I have worked very hard to develop a bill that
speeds up the review process so important work can get done without
sacrificing environmental protections.
Almost everyone agrees that we need to work quickly to protect the
areas immediately around communities. There is little controversy or
debate over these projects.
The Forest Service has proposed an analytical short-cut for these
projects, which requires very little environmental analysis and no
formal pubic comment process or administrative appeal.
There is some uncertainty, however, over the Forest Service's
proposed approach. People can claim that laws Congress has previously
passed will require some of these projects to be held up by more
environmental analysis or administrative appeals.
Our bill eliminates this uncertainty. When the Forest Service works
in the immediate vicinity of a community, the bill would make
absolutely clear that there need to be no environmental analysis or
administrative appeals. The only exception is where there might be
extraordinary circumstances, such as a major threat to endangered
species. We also prohibit the Forest Service from conducting clearcuts
around communities, requiring them to focus on clearing out the brush.
By way of comparison, the House-passed bill does not provide any
assistance to thinning projects in the immediate vicinity of
communities, even though everyone agrees on the need for these
projects.
Senator Wyden and I have also sped up the process for projects
outside the immediate vicinity of communities. These projects are more
controversial, so we want to make sure that the public has some
opportunity for input.
In the past, the Forest Service and the Department of the Interior
have been able to conduct the majority of brush-clearing mechanical
treatment following a National Environmental Policy Act process known
as environmental assessments. Our bill simplified these environmental
assessments in several ways.

The bill provides one round of public comment--the administrative
appeal process--rather than two.
The bill shortens the time frame for administrative appeals from 90
to 60 days.
Finally, the appeal deciding offer can make necessary changes rather
than having to send the project back to the original decisionmaker for
further time-consuming review.
Together, these changes will likely speed up the process by a few
months or more. We do all this without eliminating public comment or
gutting core parts of the environmental analysis.
In contrast, the House-passed bill would eliminate the requirement
that the Forest Service consider alternatives to the proposed project
as part of its environmental analysis. In other

[[Page S8746]]

words, the Forest Service doesn't have to study other, less damaging
ways of undertaking the project--it can just do the project the way it
wants.
Many people think that public debate over alternatives is the core of
the National Environmental Policy Act. Our bill does not eliminate this
important environmental protection.
Another important part of our bill is its protection of magnificent
old growth stands. The remaining groves of these trees provide a
connection to nature untrammeled by human activity, a connection that
many of us cherish.
Our bill would require full protection of these old growth stands. In
addition, outside old growth stands, the bill focuses on small-diameter
trees and protects large trees that promote fire-resistant stands and
species diversity.
By way of contrast, H.R. 1904 provides no protection for these
magnificent resources.
Let me now talk about judicial review. No one wants court cases to go
on too long. In addition, people should not be able to tie up projects
by gaming the system and picking and choosing the friendliest courts to
hear their lawsuits.
Our bill addresses these problems. The bill encourages courts, to the
maximum extent practicable, to resolve lawsuits over brush-clearing
projects quickly. These are important projects for the safety of our
communities and our forests, and it is appropriate to give them some
priority.
In addition, we require that potential litigants file suit in the
same judicial district where a fuels reduction project takes place, No
one can game the system by looking for a friendly judge somewhere else.
Finally, we limit temporary injunctions that are typically issued at
the outset of a case to 60 days. They can be renewed if necessary--but
the challengers to a projects must submit updates explaining why the
injunctions should be extended. This provision prevents projects from
being held up any longer than is strictly necessary.
These changes will expedite the process--but they still respect our
court system's essential autonomy. As a member of the Judiciary
Committee, I spend much of my time trying to make sure our court system
is as fair as possible.
Americans count on a judiciary independent of the executive branch to
preserve their liberties and to right any wrongs that their government
commits. I think it is very important that we do not interfere with the
independence of our judiciary.

The House-passed bill would require the courts to give weight to
certain findings by the Forest Service and the Department of the
Interior. Even if projects had been found to violate the environmental
laws, courts would be told to give weight to the agencies' findings and
allow many of the projects to go ahead anyway.
This is a dangerous provision for a bill to include, and I cannot
support it. I believe our bill includes more sensible provisions on
judicial review that will help projects go forward quickly without
compromising the independence of our judiciary.
Our bill includes several provisions to address forest health
problems on private and State lands.
We authorize $50 million annually in emergency grants to States and
localities where lives are at risk. The last few years have seen vast
insect epidemics killing millions of trees in Southern California,
Arizona, and elsewhere.
In places like Lake Arrowhead, Big Bear and Idyllwild in Southern
California, communities are surrounded by dead and dying trees that are
perfect kindling for a catastrophic fire. There is a real threat to
people's lives that we must address.
There is now no good funding source for clearing evacuation routes
and clearing around schools and other emergency shelters that are on
State and private lands. The emergency grants in the bill would
authorize funds for these essential purposes.
The bill also includes two measures to encourage homeowners to clear
brush around their houses and install non-flammable roofs. A study of
Southern California fires by Forest Service researcher Jack Cohen has
shown that these measures could reduce a blaze's threat to homes by as
much as 85 to 95 percent.
Our bill would encourage these home-saving practices in two ways:
The bill would prioritize grants to those communities that encourage
brush-clearing and use of non-flammable roofs or develop comprehensive
fire plans.
The bill would record the Sense of Congress that insurers should
offer lower premiums to homeowners who take steps to protect their
homes.
Our bill would also include grants to encourage the use of woody
material, or biomass, for energy production. Biomass-to-energy plants
serve multiple beneficial purposes: one, they are a clean and renewable
source of energy; and two, they make brush-clearing projects more cost-
effective, so we can protect more with the finite Federal dollars
available.
Finally, our bill would also include contracting provisions to
benefit rural communities. The Forest Service and the Department of the
Interior would be required to use ``best value contracting'' for brush-
clearing projects under the Act.
This contracting approach requires the agencies to consider other
factors besides the price of the bid in awarding contractors. Bidders
would be rewarded for such factors as their commitment to hire local
workers, and their past record of environmental stewardship.
I would like to close by saying that this is truly a bipartisan
issue. All of us, Democrat and Republican, have an interest in clearing
out dangerous accumulations of brush in our national forests. All of us
have an interest as well in protecting the magnificent old growth
stands and species habitat that Americans cherish, and in upholding our
environmental laws.
I look forward to working with my colleagues on both sides of the
aisle to pass a bill as soon as possible.
______

By Mr. BROWNBACK (for himself and Mr. DeWine):
S. 1353. A bill to establish new special immigrant categories; to the
Committee on the Judiciary.
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the text
of the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1353

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 ``Widows and Orphans Act of
2003''.

SEC. 2. NEW SPECIAL IMMIGRANT CATEGORY.

(a) Certain Children and Women at Risk of Harm.--Section
101(a)(27) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(27)) is amended--
(1) in subparagraph (L), by inserting a semicolon at the
end;
(2) in subparagraph (M), by striking the period at the end
and inserting ``; or''; and
(3) by adding at the end the following:
``(N) subject to subsection (j), an immigrant who is not
present in the United States--
``(i) who is--

``(I) referred to a consular, immigration, or other
designated official by a United States Government agency, an
international organization, or recognized nongovernmental
entity designated by the Secretary of State for purposes of
such referrals; and
``(II) determined by such official to be a minor under 10
years of age (as determined under subsection (j)(5))--

``(aa) for whom no parent or legal guardian is able to
provide adequate care;
``(bb) who faces a credible fear of harm related to his or
her age;
``(cc) who lacks adequate protection from such harm; and
``(dd) for whom it has been determined to be in his or her
best interests to be admitted to the United States; or
``(ii) who is--

``(I) referred to a consular or immigration official by a
United States Government agency, an international
organization or recognized nongovernmental entity designated
by the Secretary of State for purposes of such referrals; and
``(II) determined by such official to be a female who has--

``(aa) a credible fear of harm related to her sex; and
``(bb) a lack of adequate protection from such harm.''.
(b) Statutory Construction.--Section 101 of the Immigration
and Nationality Act (8 U.S.C. 1101) is amended by adding at
the end the following:
``(j)(1) No natural parent or prior adoptive parent of any
alien provided special immigrant status under subsection
(a)(27)(N)(i) shall thereafter, by virtue of such parentage,
be accorded any right, privilege, or status under this Act.
``(2)(A) No alien who qualifies for a special immigrant
visa under subsection

[[Page S8747]]

(a)(27)(N)(ii) may apply for derivative status or petition
for any spouse who is represented by the alien as missing,
deceased, or the source of harm at the time of the alien's
application and admission. The Secretary of Homeland Security
may waive this requirement for an alien who demonstrates that
the alien's representations regarding the spouse were bona
fide.
``(B) An alien who qualifies for a special immigrant visa
under subsection (a)(27)(N) may apply for derivative status
or petition for any sibling under the age of 10 years or
children under the age of 10 years of any such alien, if
accompanying or following to join the alien. For purposes of
this subparagraph, a determination of age shall be made using
the age of the alien on the date the petition is filed with
the Department of Homeland Security.
``(3) An alien who qualifies for a special immigrant visa
under subsection (a)(27)(N) shall be treated in the same
manner as a refugee solely for purposes of section 412.
``(4) The provisions of paragraphs (4), (5), and (7)(A) of
section 212(a) shall not be applicable to any alien seeking
admission to the United States under subsection (a)(27)(N),
and the Secretary of Homeland Security may waive any other
provision of such section (other than paragraph 2(C) or
subparagraph (A), (B), (C), or (E) of paragraph (3) with
respect to such an alien for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest.
Any such waiver by the Secretary of Homeland Security shall
be in writing and shall be granted only on an individual
basis following an investigation. The Secretary of Homeland
Security shall provide for the annual reporting to Congress
of the number of waivers granted under this paragraph in the
previous fiscal year and a summary of the reasons for
granting such waivers.
``(5) For purposes of subsection (a)(27)(N)(i)(II), a
determination of age shall be made using the age of the alien
on the date on which the alien was referred to the consular,
immigration, or other designated official.
``(6) The Secretary of Homeland Security shall waive any
application fee for a special immigrant visa for an alien
described in section 101(a)(27)(N).''.
(c) Allocation of Special Immigrant Visas.--Section
203(b)(4) of the Immigration Nationality Act (8 U.S.C.
1153(b)(4)) is amended by striking ``(A) or (B) thereof'' and
inserting ``(A), (B), or (N) thereof''.
(d) Expedited Process.--Not later than 45 days from the
date of referral to a consular, immigration, or other
designated official as described in section 101(a)(27)(N) of
the Immigration and Nationality Act, as added by subsection
(a), special immigrant status shall be adjudicated and, if
granted, the alien shall be paroled to the United States
pursuant to section 212(d)(5) of that Act (8 U.S.C.
1182(d)(5)) and allowed to apply for adjustment of status to
permanent residence under section 245 of that Act (8 U.S.C.
1255) within 1 year of the alien's arrival in the United
States.
(e) Report to Congress.--Not later than 1 year after the
date of enactment of this section, the Secretary of Homeland
Security shall report to the Committees on the Judiciary of
the Senate and the House of Representatives on the progress
of the program, including--
(1) data related to the implementation of this section;
(2) data regarding the number of placements of females and
children at risk of harm as referred to in section
101(a)(27)(N) of the Immigration and Nationality Act, as
added by subsection (a); and
(3) any other appropriate information that the Secretary of
Homeland Security determines to be appropriate.
(f) Authorization of Appropriations.--There is authorized
to be appropriated such sums as may be necessary to carry out
this section and the amendments made by this section.
______

By Ms. MURKOWSKI (for herself and Mr. Stevens):
S. 1354. A bill to resolve certain conveyances and provide for
alternative land selections under the Alaska Native Claims Settlement
Act related to Cape Fox Corporation and Sealaska Corporation, and for
other purposes; to the Committee on Energy and Natural Resources.
Ms. MURKOWSKI. Mr. President, I rise today to reintroduce a bill that
passed the Senate with bipartisan support in the 107th Congress. This
legislation addresses an equity issue for one of Alaska's rural village
corporations.
Cape Fox Corporation is an Alaskan Village Corporation organized
pursuant to the Alaska Native Claims Settlement Act, by the Native
Village of Saxman, near Ketchikan, AK. As with other ANCSA village
corporations in Southeast Alaska, Cape Fox was limited to selecting
23,040 acres under Section 16. However, unlike other village
corporations, Cape Fox was further restricted from selecting lands
within 6 miles of the boundary of the home rule city of Ketchikan. All
other ANCSA corporations were restricted from selecting within 2 miles
of such a home rule of city.
The 6-mile restriction went beyond protecting Ketchikan's watershed
and damaged Cape Fox by preventing the corporation from selecting
valuable timber lands, industrial sites, and other commercial property,
not only in its core township, but in surrounding lands far removed
from Ketchikan and its watershed. AS a result of the 6-mile
restriction, only the mountainous northeast corner of Cape Fox's core
township, which is nonproductive and of no economic value, was
available for selection by the corporation. Cape Fox's land selections
were further limited by the fact that the Annette Island Indian
Reservation is within its selection area, and those lands were
unavailable for ANCSA selection. Cape Fox is the only ANCSA village
corporation affected by this restriction.
Clearly, Cape Fox was placed on unequal economic footing relative to
other village corporations in Southeast Alaska. Despite its best
efforts during the years since ANCSA was signed into law, Cape Fox has
been unable to overcome the disadvantage the law built into its land
selection opportunities by this inequitable treatment.
To address this inequity, I have introduced the Cape Fox Land
Entitlement Adjustment Act of 2003. This bill will address the Cape Fox
problem by providing three interrelated remedies:
(1) The obligation of Cape Fox to select and seek conveyance of the
approximately 160 acres of unusable land in the mountainous northeast
corner of Cape Fox's core township will be annulled.
(2) Cape Fox will be allowed to select and the Secretary of the
Interior will be directed to convey 99 acres of timber land adjacent to
Cape Fox's current holdings on Revilla Island.
(3) Cape Fox and the Secretary of Agriculture will be authorized to
enter into an equal value exchange of lands in Southeast Alaska that
will be of mutual benefit to the Corporation and the U.S. Forest
Service. Lands conveyed to Cape Fox in this exchange will not be
timberlands, but will be associated with a mining property containing
existing Federal mining claims, some of which are patented. Lands
anticipated to be returned to Forest Service ownership will be of
wildlife habitat, recreation and watershed values and will consolidate
Forest Service holdings in the George Inlet area of Revilla Island.
The land exchange provisions of this bill will help rectify the long-
standing inequities associated with restrictions placed on Cape Fox in
ANCSA. It will help allow this Native village corporation to make the
transition from its major dependence on timber harvest to a more
diversified portfolio of income-producing lands.
The bill also provides for the resolution of a long-standing land
ownership problem with the Tongass National Forest. The predominant
private landowner in the region, Sealaska Corporation, holds the
subsurface estate on several thousand acres of National Forest System
lands. This split estate poses a management problem which the Forest
Service has long sought to resolve. Efforts to address this issue go
back more than a decade. Provisions in the Cape Fox Land Entitlement
Act of 2003 will allow the agency to consolidate its surface and
subsurface estate and greatly enhance its management effectiveness and
efficiency in the Tongass National Forest. I urge my colleagues to
support this important legislation. I ask unanimous consent that the
text of the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1354

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

SEC. 1. SHORT TITLE.

This Act may be cited as the ``Cape Fox Land Entitlement
Adjustment Act of 2003''.

SEC. 2. FINDINGS.

Congress finds that:
(1) Cape Fox Corporation (Cape Fox) is an Alaska Native
Village Corporation organized pursuant to the Alaska Native
Claims Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.) for
the Native Village of Saxman.
(2) As with other ANCSA village corporations in Southeast
Alaska, Cape Fox was limited to selecting 23,040 acres under
section 16 of ANCSA.
(3) Except for Cape Fox, all other Southeast Alaska ANCSA
village corporations were restricted from selecting within
two miles of a home rule city.

[[Page S8748]]

(4) To protect the watersheds in the vicinity of Ketchikan,
Cape Fox was restricted from selecting lands within six miles
from the boundary of the home rule City of Ketchikan under
section 22(1) of ANCSA (43 U.S.C. 1621(1)).
(5) The six mile restriction damaged Cape Fox by precluding
the corporation from selecting valuable timber lands,
industrial sites, and other commercial property, not only in
its core township but in surrounding lands far removed from
Ketchikan and its watershed.
(6) As a result of the 6 mile restriction, only the remote
mountainous northeast corner of Cape Fox's core township,
which is nonproductive and of no known economic value, was
available for selection by the corporation. Selection of this
parcel was, however, mandated by section 16(b) of ANCSA (43
U.S.C. 1615(b)).
(7) Cape Fox's land selections were further limited by the
fact that the Annette Island Indian Reservation is within its
selection area, and those lands were unavailable for ANCSA
selection. Cape Fox is the only ANCSA village corporation
affected by this restriction.
(8) Adjustment of Cape Fox's selections and conveyances of
land under ANCSA requires adjustment of Sealaska
Corporation's (Sealaska) selections and conveyances to avoid
creation of additional split estate between National Forest
System surface lands and Sealaska subsurface lands.
(9) Sealaska is the Alaska native regional corporation for
Southeast Alaska, organized under the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.).
(10) There is an additional need to resolve existing areas
of Sealaska/Tongass split estate, in which Sealaska holds
title or conveyance rights to several thousand acres of
subsurface lands that encumber management of Tongass National
Forest surface lands.
(11) The Tongass National Forest lands identified in this
Act for selection by and conveyance to Cape Fox and Sealaska,
subject to valid existing rights, provide a means to resolve
some of the Cape Fox and Sealaska ANCSA land entitlement
issues without significantly affecting Tongass National
Forest resources, uses or values.
(12) Adjustment of Cape Fox's selections and conveyances of
land under ANCSA through the provisions of this Act, and the
related adjustment of Sealaska's selections and conveyances
hereunder, are in accordance with the purposes of ANCSA and
otherwise in the public interest.

SEC. 3. WAIVER OF CORE TOWNSHIP REQUIREMENT FOR CERTAIN
LANDS.

Notwithstanding the provisions of section 16(b) of ANCSA
(43 U.S.C. 1615(b)), Cape Fox shall not be required to select
or receive conveyance of approximately 160 acres of Federal
unconveyed lands within Section 1, T. 75 S., R. 91 E., C.R.M.

SEC. 4. SELECTION OUTSIDE EXTERIOR SELECTION BOUNDARY.

(a) Selection and Conveyance of Surface Estate.--In
addition to lands made available for selection under ANCSA,
within 24 months after the date of enactment of this Act,
Cape Fox may select, and, upon receiving written notice of
such selection, the Secretary of the Interior shall convey
approximately 99 acres of the surface estate of Tongass
National Forest lands outside Cape Fox's current exterior
selection boundary, specifically that parcel described as
follows:
(1) T. 73 S., R. 90 E., C.R.M.
(2) Section 33: SW portion of SE\1/4\: 38 acres.
(3) Section 33: NW portion of SE\1/4\: 13 acres.
(4) Section 33: SE\1/4\ of SE\1/4\: 40 acres.
(5) Section 33: SE\1/4\ of SW\1/4\: 8 acres.
(b) Conveyance of Subsurface Estate.--Upon conveyance to
Cape Fox of the surface estate to the lands identified in
subsection (a), the Secretary of the Interior shall convey to
Sealaska the subsurface estate to the lands.
(c) Timing.--The Secretary of the Interior shall complete
the interim conveyances to Cape Fox and Sealaska under this
section within 180 days after the Secretary of the Interior
receives notice of the Cape Fox selection under subsection
(a).

SEC. 5. EXCHANGE OF LANDS BETWEEN CAPE FOX AND THE TONGASS
NATIONAL FOREST.

(a) General.--The Secretary of Agriculture shall offer, and
if accepted by Cape Fox, shall exchange the Federal lands
described in subsection (b) for lands and interests therein
identified by Cape Fox under subsection (c) and, to the
extent necessary, lands and interests therein identified
under subsection (d).
(b) Lands To Be Exchanged to Cape Fox.--The lands to be
offered for exchange by the Secretary of Agriculture are
Tongass National Forest lands comprising approximately
2,663.9 acres in T. 36 S., R. 62 E., C.R.M. and T. 35 S., R.
62 E., C.R.M., as designated upon a map entitled ``Proposed
Kensington Project Land Exchange'', dated March 18, 2002, and
available for inspection in the Forest Service Region 10
regional office in Juneau, Alaska.
(c) Lands To Be Exchanged to the United States.--Cape Fox
shall be entitled, within 60 days after the date of enactment
of this Act, to identify in writing to the Secretaries of
Agriculture and the Interior the lands and interests in lands
that Cape Fox proposes to exchange for the Federal lands
described in subsection (b). The lands and interests in lands
shall be identified from lands previously conveyed to Cape
Fox comprising approximately 2,900 acres and designated as
parcels A-1 to A-3, B-1 to B-3, and C upon a map entitled
``Cape Fox Corporation ANCSA Land Exchange Proposal'', dated
March 15, 2002, and available for inspection in the Forest
Service Region 10 regional office in Juneau, Alaska. Lands
identified for exchange within each parcel shall be
contiguous to adjacent National Forest System lands and in
reasonably compact tracts. The lands identified for exchange
shall include a public trail easement designated as D on said
map, unless the Secretary of Agriculture agrees otherwise.
The value of the easement shall be included in determining
the total value of lands exchanged to the United States.
(d) Valuation of Exchange Lands.--The Secretary of
Agriculture shall determine whether the lands identified by
Cape Fox under subsection (c) are equal in value to the lands
described in subsection (b). If the lands identified under
subsection (c) are determined to have insufficient value to
equal the value of the lands described in subsection (b),
Cape Fox and the Secretary shall mutually identify additional
Cape Fox lands for exchange sufficient to equalize the value
of lands conveyed to Cape Fox. Such land shall be contiguous
to adjacent National Forest System lands and in reasonably
compact tracts.
(e) Conditions.--The offer and conveyance of Federal lands
to Cape Fox in the exchange shall, notwithstanding section
14(f) of ANCSA, be of the surface and subsurface estate, but
subject to valid existing rights and all other provisions of
section 14(g) of ANCSA.
(f) Timing.--The Secretary of Agriculture shall attempt,
within 90 days after the date of enactment of this Act, to
enter into an agreement with Cape Fox to consummate the
exchange consistent with this Act. The lands identified in
the exchange agreement shall be exchanged by conveyance at
the earliest possible date after the exchange agreement is
signed. Subject only to conveyance from Cape Fox to the
United States of all its rights, title and interests in the
Cape Fox lands included in the exchange consistent with this
title, the Secretary of the Interior shall complete the
interim conveyance to Cape Fox of the Federal lands included
in the exchange within 180 days after the execution of the
exchange agreement by Cape Fox and the Secretary of
Agriculture.

SEC. 6. EXCHANGE OF LANDS BETWEEN SEALASKA AND THE TONGASS
NATIONAL FOREST.

(a) General.--Upon conveyance of the Cape Fox lands
included in the exchange under section 5 and conveyance and
relinquishment by Sealaska in accordance with this title of
the lands and interests in lands described in subsection (c),
the Secretary of the Interior shall convey to Sealaska the
Federal lands identified for exchange under subsection (b).
(b) Lands To Be Exchanged to Sealaska.--The lands to be
exchanged to Sealaska are to be selected by Sealaska from
Tongass National Forest lands comprising approximately 9,329
acres in T. 36 S., R. 62 E., C.R.M., T. 35 S., R. 62 E.,
C.R.M., and T. 34 S., Range 62 E., C.R.M., as designated upon
a map entitled ``Proposed Sealaska Corporation Land Exchange
Kensington Lands Selection Area'', dated April 2002 and
available for inspection in the Forest Service Region 10
Regional Office in Juneau, Alaska. Within 60 days after
receiving notice of the identification by Cape Fox of the
exchange lands under section 5(c), Sealaska shall be entitled
to identify in writing to the Secretaries of Agriculture and
the Interior the lands that Sealaska selects to receive in
exchange for the Sealaska lands described in subsection (c).
Lands selected by Sealaska shall be in no more than two
contiguous and reasonably compact tracts that adjoin the
lands described for exchange to Cape Fox in section 5(b). The
Secretary of Agriculture shall determine whether these
selected lands are equal in value to the lands described in
subsection (c) and may adjust the amount of selected lands in
order to reach agreement with Sealaska regarding equal value.
The exchange conveyance to Sealaska shall be of the surface
and subsurface estate in the lands selected and agreed to by
the Secretary but subject to valid existing rights and all
other provisions of section 14(g) of ANCSA.
(c) Lands To Be Exchanged to the United States.--The lands
and interests therein to be exchanged by Sealaska are the
subsurface estate underlying the Cape Fox exchange lands
described in section 5(c), an additional approximately 2,506
acres of the subsurface estate underlying Tongass National
Forest surface estate, described in Interim Conveyance No.
1673, and rights to be additional approximately 2,698 acres
of subsurface estate of Tongass National Forest lands
remaining to be conveyed to Sealaska from Group 1, 2 and 3
lands as set forth in the Sealaska Corporation/United States
Forest Service Split Estate Exchange Agreement of November
26, 1991, at Schedule B, as modified on January 20, 1995.
(d) Timing.--The Secretary of Agriculture shall attempt,
within 90 days after receipt of the selection of lands by
Sealaska under subsection (b), to enter into an agreement
with Sealaska to consummate the exchange consistent with this
Act. The lands identified in the exchange agreement shall be
exchanged by conveyance at the earliest possible date after
the exchange agreement is signed. Subject only to the Cape
Fox and Sealaska conveyances and relinquishments described in
subsection (a), the Secretary of the Interior shall complete
the interim conveyance to Sealaska of the Federal lands
selected for exchange within 180 days after execution of the

[[Page S8749]]

agreement by Sealaska and the Secretary of Agriculture.
(e) Modification of Agreement.--The executed exchange
agreement under this section shall be considered a further
modification of the Sealaska Corporation/United States Forest
Service Split Estate Exchange Agreement, as ratified in
section 17 of Public Law 102-415 (October 14, 1992).

SEC. 7. MISCELLANEOUS PROVISIONS.

(a) Equal Value Requirement.--The exchanges described in
this Act shall be of equal value. Cape Fox and Sealaska shall
have the opportunity to present to the Secretary of
Agriculture estimates of value of exchange lands with
supporting information.
(b) Title.--Cape Fox and Sealaska shall convey and provide
evidence of title satisfactory to the Secretary of
Agriculture for their respective lands to be exchanged to the
United States under this Act, subject only to exceptions,
reservations and encumbrances in the interim conveyance or
patent from the United States or otherwise acceptable to the
Secretary of Agriculture.
(c) Hazardous Substances.--Cape Fox, Sealaska, and the
United States each shall not be subject to liability for the
presence of any hazardous substance in land or interests in
land solely as a result of any conveyance or transfer of the
land or interests under this Act.
(d) Effect on ANCSA Selections.--Any conveyance of Federal
surface or subsurface lands to Cape Fox or Sealaska under
this Act shall be considered, for all purposes, land conveyed
pursuant to ANCSA. Nothing in this Act shall be construed to
change the total acreage of land entitlement of Cape Fox or
Sealaska under ANCSA. Cape Fox and Sealaska shall remain
charged for any lands they exchange under this Act and any
lands conveyed pursuant to section 4, but shall not be
charged for any lands received under section 5 or section 6.
The exchanges described in this Act shall be considered, for
all purposes, actions which lead to the issuance of
conveyances to Native Corporations pursuant to ANCSA. Lands
or interests therein transferred to the United States under
this Act shall become and be administered as part of the
Tongass National Forest.
(e) Effect on Statehood Selections.--Lands conveyed to or
selected by the State of Alaska under the Alaska Statehood
Act (Public Law 85-508; 72 Stat. 339; 48 U.S.C. note prec.
21) shall not be eligible for selection or conveyance under
this Act without the consent of the State of Alaska.
(f) Maps.--The maps referred to in this Act shall be
maintained on file in the Forest Service Region 10 Regional
Office in Juneau, Alaska. The acreages cited in this Act are
approximate, and if there is any discrepancy between cited
acreage and the land depicted on the specified maps, the maps
shall control. The maps do not constitute an attempt by the
United States to convey State or private land.
(g) Easements.--Notwithstanding section 17(b) of ANCSA,
Federal lands conveyed to Cape Fox or Sealaska pursuant to
this Act shall be subject only to the reservation of public
easements mutually agreed to and set forth in the exchange
agreements executed under this Act. The easements shall
include easements necessary for access across the lands
conveyed under this Act for use of national forest or other
public lands.
(h) Old Growth Reserves.--The Secretary of Agriculture
shall add an equal number of acres to old growth reserves on
the Tongass National Forest as are transferred out of Federal
ownership as a result of this Act.

SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

(a) Department of Agriculture.--There are authorized to be
appropriated to the Secretary of Agriculture such sums as may
be necessary for value estimation and related costs of
exchanging lands specified in this Act, and for road
rehabilitation, habitat and timber stand improvement,
including thinning and pruning, on lands acquired by the
United States under this Act.
(b) Department of the Interior.--There are authorized to be
appropriated to the Secretary of the Interior such sums as
may be necessary for land surveys and conveyances pursuant to
this Act.
______

By Mr. AKAKA (for himself, Mr. Grassley Mr. Levin, Mr. Leahy, and
Mr. Durbin):
S. 1358. A bill to amend chapter 23 of title 5, United States Code,
to clarify the disclosure of information protected from prohibited
personnel practices, require a statement in non-disclosure policies,
forms, and agreements that such policies, forms, and agreements conform
with certain disclosure protections, provide certain authority for the
Special Council, and for other purposes; to the Committee on
Governmental Affairs.
Mr. AKAKA. Mr. President, I rise today to discuss the Federal
Employee Protection of Disclosures Act. I offered legislation under
this title earlier this month. I am modifying that measure, S. 1229, by
introducing a new bill today which is cosponsored by Senators Grassley,
Levin, Leahy, and Durbin. This bill, as with S. 1229, amends the
Whistleblower Protection Act, WPA. These amendments are necessary to
safeguard Federal employees from retaliation and protect American
taxpayers from government waste, fraud, and abuse. Our bill follows S.
995 and S. 3070, the latter of which was favorably reported by the
Governmental Affairs Committee in the 107th Congress. The bill we
introduce today is the result of a bipartisan compromise to protect our
federal whistleblowers.
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. The
clear language of the WPA says that an employee is protected for
disclosing information he or she reasonably believes evidences a
violation. However, 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. As
irrefragable means impossible to refute, our bill replaces this
excessively high burden with the more reasonable standard of
substantial evidence.
The measure would also provide independent litigating authority to
the Office of Special Counsel, OSC. Under current law, OSC has no
authority to request the Merit Systems Protection Board, 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.
Our bill would codify an ``anti-gag'' provision that Congress has
passed annually since 1988 as part of the appropriations process. The
yearly appropriations language bars agencies from implementing or
enforcing any nondisclosure policy, form, or agreement that does not
contain specified language preserving open government statutes. In
addition, the bill would make it a prohibited personnel practice to
enforce a non-disclosure agreement that does not comply with open
government statutes.
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. Following the events of September 11, we realized
that whistleblowing is even more important when our national security
is at stake. In many instances, the security of our Nation depends upon
those who step forward to blow the whistle on significant lapses in our
efforts to protect the United States against potential terrorist
attacks. Congress should act quickly to assure whistleblowers that
disclosing illegal activities and mismanagement within their agencies
will not be met with retaliation. I urge my colleagues to join with me
in protecting our federal whistleblowers.
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. 1358

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'';

[[Page S8750]]

(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) 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) (8) or (9), the Board shall impose disciplinary
action if the Board finds that the activity protected under
section 2302(b) (8) or (9) was a significant motivating
factor, even if other factors also motivated the decision,
for the employee's decision to take, fail to take, or
threaten to take or fail to take a personnel action, unless
that employee demonstrates, by preponderance of evidence,
that the employee would have taken, failed to take, or
threatened to take or fail to take the same personnel action,
in the absence of such protected activity.''.
(i) Disclosures to Congress.--Section 2302 of title 5,
United States Code, is amended by adding at the end the
following:
``(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.''.
(j) 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:

[[Page S8751]]

``(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.''.
(k) 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.''.
(l) 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 United
States 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.
(m) 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.''.
(n) 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,
Grassley, Leahy, and Durbin 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, 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

[[Page S8752]]

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 an 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 Lindermann 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
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 court ruled that a whistleblower's
disclosures to official in 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

[[Page S8753]]

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.
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 and 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 specified
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 of the
whistleblower law. First, it would codify the ``anti-gag'' provision
that has been in force since 1988, by virture 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 engage 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 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 whisltleblower 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

[[Page S8754]]

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
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 Appeals 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 retaliation, 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 whistleblowing,
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.
This amendment provides a balance 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
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 under the critical infrastructure
information program.
While I believe it was Congress's 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

[[Page S8755]]

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 Lindermann are to keeping our country safe. I request
unanimous consent that a letter from Agent Rowley be printed 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.
I ask unanimous consent to print in the Record a section-by-section
explanation of the bill.
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 I 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.

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 federal 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.
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 a ``significant motivating factor''
in the decision by the manager to take the adverse action,
even if other factors also motivated the decision. This
standard would be equivalent of the Mt. Healthy standard.
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 federal 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

[[Page S8756]]

the Homeland Security Act, HSA, maintains existing WPA rights
for independently obtained information that may also qualify
as critical infrastructure information under the HSA.
______

By Mrs. BOXER:
S. 1359. A bill to allow credit unions to provide international money
transfer services and to require disclosures in connection with
international money transfers from all money transmitting service
providers; to the Committee on Banking, Housing, and Urban Affairs.
Mrs. BOXER. Mr. President, today, I am introducing the International
Remittances Services Enhancement and Protection Act of 2003.
Remittances are the funds that immigrants send to their families
abroad to help those relatives meet their basic needs. In the Latino
community, 47 percent of all Latinos born outside the United States
regularly send money to their country of origin. But since 43 percent
to 58 percent of those who send remittances abroad regularly do not
have a bank account, much of their hard earned money is lost in fees
paid to check cashing agencies and wire transfer companies. They rely
on check cashing services to cash their paychecks at hefty fees and
then pay another fee to send some portion of that money through a wire
service to their relatives in Latin America and elsewhere at varying
exchange rates.
This legislation will increase competition and transparency in the
remittances market. It will provide immigrants with access to more
choices for sending remittances by allowing credit unions to provide
wire transfer and check cashing services to nonmembers. It will also
provide immigrants with access to information in more than one language
from all money transmitters about the fees and exchange rates that they
pay. That information will make it easier for consumers to compare the
value of the services they can receive from different service
providers.
The larger goal is to provide immigrants with more control over their
finances. I believe this bill with encourage financial institutions to
develop better services for immigrants and build stronger relationships
with immigrant communities.
According to the Multilateral Investment Fund, immigrants living in
the United States sent $23 billion to Latin America in 2001. More than
$3 billion of that total was consumed in fees paid to money transfer
agencies. If current growth rates in remittance transfers are
maintained, cumulative remittances to Latin America could reach $300
billion for the 10-year period ending in 2010. We need to work to
ensure that competition in the market and modern technology come
together to lower the portion of those monies lost in fees and instead
are used for productive purposes.
______

By Mr. GRAHAM of Florida:
S. 1360. A bill to amend section 7105 of title 38, United States
Code, to clarify the requirements for notices of disagreement for
appellate review of Department of Veterans Affairs activities; to the
Committee on Veterans' Affairs.
Mr. GRAHAM of Florida. Mr. President, I rise today to introduce
legislation that will remove a significant and arbitrary barrier to
appellate review of veterans' benefits claims. In 1988, when Congress
created judicial review for veterans' claims it intended to provide
``an opportunity for those aggrieved by VA decisions to have such
decisions reviewed by a court'' and found such review ``necessary in
order to provide such claimants with fundamental justice.''
A veteran or survivor of a veteran seeking VA benefits must file a
claim for such benefits, generally at a VA Regional Office. If the VA
denies the claim for benefits, the claimant must file a ``Notice of
Disagreement,'' or NOD, as defined in section 7105 of title 38 of the
United States Code. This NOD initiates appellate review by the agency
and begins a series of events where VA communicates the basis of the
denial to the claimant and allows various levels of review of this
denial at the regional office. If the claimant still disagrees with the
VA decision, the claimant may file a ``Substantive Appeal'' that vests
jurisdiction of the claim with the Board of Veterans' Appeals, the
appellate arm of VA.
Section 7105 defines what is required of a valid NOD. It must be
filed within 1 year from the notice of the initial denial, in writing,
and filed with the regional office that issued the decision over which
there is disagreement. The NOD may be filed by the claimant or the
claimant's guardian or representative.
VA has promulgated regulations to implement section 7105. In Section
20.201 or title 38 of the Code of Federal Regulations, the Secretary
defined a NOD to not require special wording. The regulation does
require that the NOD ``must be in terms which can be reasonably
construed as disagreement with the determination and a desire for
appellate review.'' The second component of that sentence--``a desire
for appellate review''--is not required under the statute.
In 1997, Raymond Gallegos, a veteran, again filed an application for
service connection for post-traumatic stress disorder that had been
previously denied. The VA regional office granted his claim. However,
Mr. Gallegos believed the effective date assigned to his claim was
wrong and filed what was then thought to be a NOD. He appealed this
issue to the Board, which reasoned that the letter expressing his
disagreement was not a valid NOD because it did not express his desire
for appellate review. Mr. Gallegos appealed the Board's determination
to the United States Court of Appeals for Veterans Claims, or the CAVC.
In 2000, the CAVC determined in Gallegos v. Gober that the VA
regulation was invalid because it required more of the claimant than
Congress required in statute. Last year, in Gallegos v. Principi, the
United States Court of Appeals for the Federal Circuit reversed the
CAVC and upheld the VA regulation, finding that the agency
interpretation was entitled to deference because Congressional intent
was not clear in limiting the requirements of a NOD to those in section
7105.
Congress never intended to require that level of formality from
veterans, in this uniquely pro-claimant system. Therefore, I offer
legislation that would specify that if a claimant's filing meets the
criteria defined in section 7105 of title 38 of the United States Code,
the document will be deemed a Notice of Disagreements with all the
rights and procedures that accompany that determination. It will also
ensure that claimants whose NODs were found to be defective since the
court decision will have the opportunity to have their NOD reevaluated
under this new provision.
This is very significant because there are two key consequences of
not having a valid, timely NOD. First, if a claimant fails to file a
timely, valid NOD, the VA denial becomes final. The claimant will need
to submit ``new and material evidence'' that VA erred in order to
reopen the case. If successful, the claimant will only be able to
receive benefits dating to the beginning of the newly reopened claim,
potentially losing years of retroactive benefits. This may affect a
veteran's ability to receive VA health care, a dependent's ability to
use educational benefits, and all the other benefits that flow from a
finding of service-connection.
Second, if a claimant has not been deemed to file a NOD, there can be
no appeal of the VA decision. A NOD is required to initiate an appeal.
It is a prerequisite to review by the Board of Veterans' Appeals and
ultimately judicial review at the CAVC. This contravenes Congress's
intent to remove arbitrary barriers to judicial review as it did in
Public Law 107-103.
We face the tragic fact that in 2002, America lost 646,264 veterans.
The many aging veterans who still await justice cannot afford this
debate. I ask my colleagues to support this critical measure and
restore this fundamental justice to our veterans.
I ask unanimous consent that the text of this bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1360

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

SECTION 1. CLARIFICATION OF NOTICE OF DISAGREEMENT FOR
APPELLATE REVIEW OF DEPARTMENT OF VETERANS
AFFAIRS ACTIVITIES.

(a) Clarification.--Section 7105(b) of title 38, United
States Code, is amended by adding at the end the following
new paragraph:

[[Page S8757]]

``(3) A document that meets the requirements of the second
sentence of paragraph (1) and the first sentence of paragraph
(2) shall be recognized as a notice of disagreement for
purposes of this section.''.
(b) Effective Date.--(1) Except as specifically provided
otherwise, paragraph (3) of section 7105(b) of title 38,
United States Code (as added by subsection (a) of this
section), shall apply to any document--
(A) filed under section 7105 of such title on or after the
date of the enactment of this Act; or
(B) filed under section 7105 of such title before the date
of the enactment of this Act and not rejected by the
Secretary of Veterans Affairs as a notice of disagreement
pursuant to section 20.201 of title 38, Code of Federal
Regulations, as of that date.
(2) In the case of a document described in paragraph (3) of
this subsection, the Secretary shall, upon the request of the
claimant or the Secretary's own motion, order the document
treated as a notice of disagreement under section 7105 of
such title as if the document had not been rejected by the
Secretary as a notice of disagreement pursuant to section
20.201 of title 38, Code of Federal Regulations.
(3) A document described in this paragraph is a document
that--
(A) was filed as a notice of disagreement under section
7105 of such title during the period beginning on March 15,
2002, and ending on the date of the enactment of this Act;
and
(B) was rejected by the Secretary as a notice of
disagreement pursuant to section 20.201 of title 38, Code of
Federal Regulations.
(4) A document may not be treated as a notice of
disagreement under paragraph (2) unless a request for such
treatment is filed by the claimant, or a motion is made by
the Secretary, not later than one year after the date of the
enactment of this Act.
______

By Mr. SMITH:
S. 1361. A bill to amend the Internal Revenue Code of 1986 to provide
that foreign base company shipping income shall include only income
from aircraft and income from certain vessels transporting petroleum
and related products; to the Committee on Finance.
Mr. SMITH of Oregon. Mr. President, today I am introducing
legislation which would deal with a real problem facing our Nation, the
decline of our U.S.-owned shipping fleet. A U.S. owned shipping fleet
is essential as a matter of national and economic security. My bill
would help make U.S. based shipping companies more competitive in the
global market.
This is important to our country and to my state. Oregon plays a key
role as a facilitator of international commerce. The Port of Portland
is one of the most active ports in the world. It is a key link for
trade between the United States and the Pacific Rim. In addition to its
key role enabling global commerce, Portland is home to U.S. owned
shipping companies, shipyards, and numerous support businesses.
As a result of tax-law changes enacted in 1975 and 1986, U.S.
shipping companies must pay tax on income earned by subsidiaries
overseas immediately rather than when such income is later brought back
to the United States. This treatment represents a sharp departure from
the generally applicable income tax principle of ``deferral'' and
places U.S.-based owners of international fleets at a distinct tax
disadvantage compared to their foreign-based competitors.
Controlled foreign corporations engaged in ocean transport are one of
the only active businesses that are not eligible for general rule of
deferral. My bill would amend the Internal Revenue Code to allow U.S.
companies that own foreign-flagged ships to treat income earned by
their controlled foreign corporations in the same manner as all other
U.S. companies. In short, it would allow American shipping companies to
defer the payment of tax on income that they derive from shipping
activities outside the United States until that income is repatriated
to the United States.
Most foreign-based carriers pay no home-country taxes on income they
earn abroad from international shipping. As a result of this
competitive imbalance, U.S. companies now hold precious little share of
the world shipping marketplace. Indeed, U.S. ownership of international
shipping trades dropped precipitously in the aftermath of the 1975 and
1986 tax-law changes. Before 1975, the U.S.-owned share of the world's
open-registry shipping fleet stood at 26 percent. By 1986, the U.S.
share had dropped to 14 percent. By 1996, the U.S. share had dropped to
5 percent.
Other security concerns also are raised by the decline in U.S.
ownership of the international shipping trade. The U.S. military, in
times of emergency, relies on the ability to requisition U.S.-owned
foreign-flagged tankers, bulk carriers, and other vessels to carry oil,
gasoline, and other materials in defense of U.S. interests overseas.
These vessels comprise the Effective United States Control, EUSC,
fleet. The sharp decline in the EUSC fleet since the 1975 and 1986 tax-
law changes, and the resulting adverse strategic consequences, have
been confirmed in a recent MIT study conducted for the Navy Department.
The study recommended that in the short term, the most practical and
cost-effective means of reversing this trend would be to ``revise
legislation to reflect tax deferment of income for some or all EUSC
vessels.''
U.S. security also depends in no small part on our ability to
maintain adequate domestic oil supplies in times of emergency. The
United States consumes approximately 19.6 million barrels of oil per
day, of which roughly 55 percent, mostly crude, is imported into the
United States. It is estimated that 95 percent of all oil imported into
the United States by sea is now imported on foreign-owned tankers. This
means that one half of every gallon of oil consumed in the United
States is carried on foreign-owned vessels. This growing dependence on
foreign parties--who may not be sympathetic to U.S. interests--to
deliver our oil in times of global crisis is cause for potential alarm.
In recent years, two of the largest American shipping companies have
been purchased by foreign companies, thereby making their shipping
operations more competitive than the remaining American companies.
The time has come for us to make changes in the tax law that will
allow our domestic companies to compete fairly in the global
marketplace. I urge my colleagues to join me to enact this needed
legislation. I ask unanimous consent that the text of the legislation
be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1361

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 ``RAFT (Restore Access to
Foreign Trade) Act of 2003''.

SEC. 2. ELIMINATION OF MOST VESSEL SHIPPING INCOME FROM
FOREIGN BASE COMPANY INCOME.

(a) Foreign Base Company Shipping Income To Include Only
Income From Aircraft and Petroleum Vessels.--Subsection (f)
of section 954 of the Internal Revenue Code of 1986 (relating
to foreign base company income) is amended--
(1) by inserting ``petroleum'' before ``vessel'' each place
it appears, and
(2) by adding at the end the following new sentence: ``For
purposes of this subsection, the term `petroleum vessel'
means any vessel engaged in the carriage of petroleum or
related products or byproducts if the controlled group (as
defined in section 267(f)(1) without regard to section
1563(b)(2)(C)) of which the taxpayer is a member is engaged
principally in the trade or business of exploring for, or
extracting, refining or marketing of, petroleum or related
products or byproducts.''.
(b) Retention of Separate Foreign Tax Credit Basket for All
Shipping Income.--Subparagraph (D) of section 904(d)(2) of
the Internal Revenue Code of 1986 is amended by striking
``(as defined in section 954(f))'' and inserting ``, as
defined in section 954(f), if references in such section to
petroleum vessels included references to all vessels''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years of foreign corporations
beginning after December 31, 2002, and to taxable years of
United States shareholders (within the meaning of section
951(b) of the Internal Revenue Code of 1986) within which or
with which such taxable years of such foreign corporations
end.
______

By Mrs. BOXER:
S. 1362. A bill to authorize the Port Passenger Accelerated Service
System (Port PASS) as a permanent program for land border inspection
under the Immigration and Nationality Act, and for other purposes; to
the Committee on the Judiciary.
Mrs. BOXER. Mr. President, today, I am introducing legislation that
will strengthen national security, promote commerce, and provide
assistance to our dedicated agents at the border.
Thousands of San Diego and Tijuana residents cross the border every
day as commuters, shoppers, or visitors. Unfortunately, our border
infrastructure has not kept pace with the increasing

[[Page S8758]]

traffic volume, and travelers frequently encounter delays and
congestion at the border.
The tragic events of September 11 further intensified these
challenges along the border. Increased security measures severely over-
extended inspection resources and resulted in longer waiting times for
crossing the border.
The Secure Electronic Network for Travelers' Rapid Inspection,
SENTRI, program was created to help alleviate the congestion at the
border.
SENTRI is a dedicated commuter lane program. It allows pre-screened
travelers to move quickly through the inspection process at the United
States-Mexican border. After participants pass a background check, they
can move more quickly through a dedicated lane.
SENTRI accepts only travelers who pass both an extensive background
check to verify their eligibility and a thorough inspection of their
vehicle.
Delays at crossing the border were often an hour or more prior to
SENTRI But, with the program, the delays for participants are 5 to 15
minutes. Travelers in other lanes also benefit because the prescreened
SENTRI crossers move swiftly through the border, reducing the number of
motorists using general commuter lanes.
Expediting inspections through SENTRI is actually helping to improve
border security, as Customs and Border Patrol agents can focus more
attention on nonscreened drivers and passengers.
Unfortunately, SENTRI has become a victim of its own success. SENTRI
needs a greater investment of resources to keep up with the current and
future demand. Enrollment increased by more than 100 percent after
September 11. Currently, prospective applicants must wait approximately
8 months to participate in the program.
For innovative programs, such as SENTRI, to work, we must provide
them with the tools and resources they need to succeed. This is why I
am introducing the Secure and Fast Entry at the Border Act or SAFE
Border Act.
The SAFE Border Act recognizes the contribution of SENTRI to border
security and the agents who administer the program. My bill would
extend the length of a SENTRI pass from 1 to 2 years--enabling border
agents to process more new applicants and reduce the current enrollment
wait. The SAFE Border Act also recommends the appointment of dedicated
SENTRI staff to expedite application processing, and encourages the
creation of a dedicated commuter lane for prescreened, low-risk
pedestrian crossers.
In addition, to ensure security at our borders, my legislation bans a
person convicted of a felony or under active criminal investigation
from participating in the program.
Our agents at the border shoulder an enormous responsibility every
day. I believe we owe them the appropriate resources and support they
need to carry out their duties.
Our Nation's economic and overall security is heavily linked to
smooth and secure border crossings. The SAFE Border Act provides a way
for trusted travelers to cross the border securely and quickly.
______

By Mr. REID:
S. 1363. A bill to prohibit the study or implementation of any plan
to privatize, divest, or transfer any part of the mission, function, or
responsibility of the National Park Service; to the Committee on Energy
and Natural Resources.
Mr. REID. Mr. President, as thousands of families look forward to
summer vacations at our beautiful national parks, we must address an
issue that could one day ruin their experience: privatization of the
National Park Service.
The Park Service has worked hard to preserve Nevada's unique
landscapes at the Great Basin National Park, Death Valley, and Lake
Mead National Recreation Area. Instead of applauding the Park Service
for a job well done, the Administration wants to study 1,800 jobs in
the Park Service for privatization.
Many of these Park Service jobs have direct contact with visitors to
our parks. They not only collect fees and maintain parks but also give
directions, fight wildfires when necessary, and provide emergency
medical assistance to injured park visitors. They are not required to
do these things; they are driven by a love for the parks and a
commitment to public service that contractors lack.
Privatizing the Park Service would jeopardize our national parks.
Members of the Park Service have a career-long interest in maintaining
the parks and perform their jobs because they are dedicated to serving
the public. They often go beyond the call of duty to fix a problem in
the middle of the night or change a tire for an unlucky park visitor.
Can we be sure that a contractor would do the same? No.
In addition, the Park Service receives tens of thousands of hours of
volunteer work every year. At the Lake Mead National Recreation Area
alone, volunteers provided 92,000 hours of work, the equivalent of 44
full-time employees. Will a contractor find volunteers to provide it
with 92,000 hours of assistance. Not likely.
Privatization will waste taxpayer money. Privatization studies cost
about $3,000 per position studied, and privatization does not save
money.
Nevadans visiting the national parks this summer want members of the
Park Service, not profit-minded corporations, enriching their
experience by directing them to the famous sites and best kept secrets
of our parks.
I oppose privatizing the Park Service because it would hurt Nevadans,
endanger our national parks, and waste taxpayer money.
This bill will keep our dedicated Park Service members running our
national parks. It stops costly privatization studies and redirects the
funds to address the maintenance backlog that President Bush promised
to eliminate.
I am committed to protecting our parks, and I am proud to introduce
this bill that will ensure that the Park Service can preserve them for
generations to come.
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. 1363

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

SECTION 1. PARK PROFESSIONALS PROTECTION.

(a) Short Title.--This Act may be cited as the ``Park
Professionals Protection Act''.
(b) Findings.--Congress finds the following:
(1) The National Park System is recognized throughout the
world as a model for the conservation and enjoyment of
natural, scenic, recreational, cultural, and historic
resources.
(2) The National Park System would never have achieved such
status, nor could the system maintain such status, without
the professionalism, dedication, and passion of the men and
women of the National Park Service.
(3) Current plans to privatize thousands of jobs within the
National Park Service ignore the unique contributions made by
the men and women of the National Park Service and threaten
to undermine the entire National Park System.
(4) Scarce park operations and maintenance resources are
being diverted to pay private consultants to study the
current privatization scheme. According to the National Park
Service, these studies cost approximately $3000 for each
position proposed to be privatized.
(5) Despite the millions of taxpayer dollars diverted to
these studies, not a single report has been published
documenting any cost savings to be generated by the
privatization of park operations.
(6) The current privatization scheme raises serious
questions regarding the ability of temporary workers,
provided by the lowest bidder, to adequately fulfill the
responsibilities of professional National Park Service
employees in the areas of conservation, interpretation,
emergency fire and rescue, and homeland security.
(7) The current privatization scheme appears to affect
minority employees disproportionately, threatening to
significantly reduce the number of minority employees within
the National Park Service.
(8) Pendency of the current privatization scheme is having
detrimental impacts on the morale of current employees and is
discouraging high quality candidates from applying for
positions within the National Park Service.
(c) Prohibition.--Notwithstanding any other provision of
law, the Secretary is prohibited from studying or
implementing any plan to privatize, divest, or transfer any
part of what is, as of the date of the enactment of this
section, the mission, function, or responsibility of the
National Park Service.
(d) Reallocation of Funds.--Notwithstanding any other
provision of law, the Secretary shall withhold any funds
currently dedicated to the activities prohibited under
subsection (c) and shall reallocate those funds to the
operations and maintenance accounts within the National Park
Service.

[[Page S8759]]

(e) No Effect on Certain Plans.--Nothing in this section
shall affect the authority, as of the date of the enactment
of this section, of a National Park Service Superintendent to
develop and implement concessions management plans and
commercial services plans covering, in whole or in part, the
area managed by that Superintendent.
(f) Secretary Defined.--The term ``Secretary'' means the
Secretary of the Interior and any person employed by the
Secretary of the Interior in any capacity.
______

By Ms. MURKOWSKI:
S. 1364. A bill to amend the Alaska National Lands Conservation Act
to authorize the payment of expenses after the death of certain Federal
employees in the State of Alaska; to the Committee on Energy and
Natural Resources.
Ms. MURKOWSKI. Mr. President, on the morning following the annual
candlelight vigil to honor fallen law enforcement officers, I came to
the floor to speak about three brave Alaskans whose names were
inscribed on the National Law Enforcement Officers' Memorial at
Judiciary Square this year. One of these brave Alaskans was a National
Park Service ranger who lost his life when the aircraft he was piloting
crashed in a remote part of Alaska. Today, I am introducing legislation
which I hope will help the surviving family members of this ranger in
their recovery from this tragic loss and provide authority for the
Federal Government to help the surviving family members of other
similarly situated Federal employees should a similar tragedy occur in
the future.
This ranger I am speaking about was assigned to the Katmai National
Park and Preserve in the Bristol Bay region of Alaska and lived in the
community of Naknek. Naknek is not connected to the rest of North
America by road. It is what we in Alaska call a ``bush'' community. But
it was home to the ranger and became the adopted home of his widow who
did not grow up in the area. The ranger about whom I am speaking was
hired under a special hiring authority in the Alaska National Interest
Lands Conservation Act, ANILCA, which authorizes the Federal land
managers to extend a hiring preference to those with special knowledge
about a Conservation System Unit. He was regarded as a ``local hire.''
Under the Federal Travel Regulation, when a federal employee dies
outside of the Continental United States, the Federal Government will
reimburse the members of his or her household for the cost of
relocating to their permanent residence. Alaska is regarded as
``outside of the Continental United States'' under this regulation.
Thus, if the National Park Service ranger who died in the line of
duty came from the Lower 48 before being assigned to the Katmai
National Park and Preserve then the Federal Government, as I read the
regulation, could reimburse the surviving family members for the cost
of relocating to Anchorage. This cost can be fairly substantial since
one cannot hire a moving van to ship the personal effects from South
Naknek to Anchorage. There are no roads which connect the bush village
of South Naknek to Anchorage. The personal effects need to be
transported by air.
However, if the deceased employee is a local hire employee, the
Federal Travel Regulation does not authorize the Federal Government to
reimburse the surviving family members for their relocation cost
because the deceased employee's hometown is deemed to be the local hire
location. This works an inequity where, as in the present case, the
deceased employee's surviving spouse does not have ties to the duty
station community, but rather to another community in Alaska. In this
instance, the surviving spouse desires to relocate to Anchorage, which
is Alaska's largest city, and continue to raise her three children
there.
The legislation that I am introducing today is intended to cure this
inequity. It would amend ANILCA, the same legislation which contains
the local hire authority, to provide that if a local hire employee dies
in the line of duty, the Federal Government will reimburse the
surviving immediate family for the cost of transporting the remains to
a location in Alaska of their choosing and will also relocate the
immediate family members to a community in the State of Alaska which is
selected by the surviving head of household. I think that this is the
least we can do for the survivors of local hire employees who go to
work everyday in the harsh climate and conditions of bush Alaska but
sadly sometimes do not return home.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 1364

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

SECTION 1. PAYMENT OF EXPENSES AFTER THE DEATH OF CERTAIN
FEDERAL EMPLOYEES IN THE STATE OF ALASKA.

Section 1308 of the Alaska National Interest Lands
Conservation Act (16 U.S.C. 3198) is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following:
``(c) Payment of Expenses After Death of an Employee.--
``(1) Definition of immediate family member.--In this
subsection, the term ``immediate family member'' means a
person related to a deceased employee that was a member of
the household of the deceased employee at the time of death.
``(2) Payments.--If an employee appointed under the program
established by subsection (a) dies in the performance of any
assigned duties on or after October 1, 2002, the Secretary
may--
``(A) pay reasonable expenses for the preparation and
transportation of the remains of the deceased employee to a
location in the State of Alaska which is selected by the
surviving head of household of the deceased employee;
``(B) pay reasonable expenses for transporting immediate
family members and the baggage and household goods of the
deceased employee and immediate family members to a community
in the State of Alaska which is selected by the surviving
head of household of the deceased employee.''.
______

By Mr. McCONNELL (for himself, Mr. Kyl, and Mr. Leahy):
S. 1365. A bill to provide increased foreign assistance for Cambodia
under certain circumstances, and for other purposes; to the Committee
on Foreign Relations.
Mr. McCONNELL. Mr. President, today, along with my colleagues
Senators Kyl and Leahy, I offer the ``Cambodia Democracy and
Accountability Act of 2003''. This Act is particularly timely, given
that national elections are scheduled in that country on July 27th.
Cambodia is on its third round of parliamentary elections since the
1991 Paris Peace Accords, with previous elections having been funded by
the United Nations in 1993 and by the Cambodian governments in 1998.
Despite the billions of dollars spent on elections in that country--
over $2 billion by the U.N. alone--there has yet to be a credible poll
that accurately reflects the will of the Cambodian people.
My colleagues will remember that the U.N.-sponsored elections
resulted in a large voter turnout--but also an unworkable power sharing
deal brokered between the winning royalist FUNCINPEC party and the hard
line Cambodian People's Party, CPP, that quickly dissolved into open
hostilities, including a bloody grenade attack against a peaceful, pro-
democracy rally and a CPP sponsored coup d'etat in 1997.
The debilitating hangover from this coup--destroyed party offices,
dead activists, and a palpable climate of fear and repression--
undermined prospects for free and fair elections in 1998 even before
the first ballots were cast.
Fatigued and frustrated, the international community found it
expedient to endorse the flawed elections, even as students and
Buddhist monks erected a ``democracy square'' in Phnom Penh to protest
the polls. A CPP crackdown left many of these peaceful protestors
killed, beaten or harassed.
It is time that Prime Minister Hun Sen--as the self-proclaimed
strongman of Cambodia--is held accountable for the murder of political
activists, Buddhist monks, civilians, and students. There is no rule of
law, if the leaders of the government are not subject to it.
A second ``coalition'' government between royalists and hard liners
was cobbled together in the aftermath of the 1998 elections. This time,
there was no pretext of power sharing, and for the past 5 years CPP has
been firmly and completely in control of the country.
Nevertheless, in the months and weeks before the upcoming July
elections, the political marriage between FUNCINPEC and CPP is fraying.
In an

[[Page S8760]]

effort to harass and intimidate his opponents, in late January Prime
Minister Hun Sen whipped up nationalistic sentiment against Thailand,
let loose the so-called Pagoda Boys, government-paid thugs, and
destroyed $50 million worth of Thai public and private interests in
Phnom Penh.
Despite frantic pleas for assistance, the Thai ambassador and other
diplomatic personnel escaped injury by scaling the embassy's walls and
scurrying to safety. In the aftermath of the riots, Hun Sen arrested
and intimidated students, independent broadcasters, and political
activists. A senior opposition figure sought--and was granted-- refuge
in the U.S. Embassy.
In February, former royalist parliamentarian Om Radsady was gunned
down in a mafia-style murder in Phnom Penh. Well liked and respected by
his colleagues from all Cambodian political parties, Radsady's
assassination sent a not so subtle message that no one is immune from
the black hand of CPP.
It is time Hun Sen is held accountable for his complicity in actions
that grossly violate international and domestic laws, and the human
rights and dignity of the people of Cambodia.
The fundamental question facing the Cambodian people today is whether
the July 27th elections will be a meaningful exercise in democracy, or
another lost opportunity to chart a new course for that beleaguered
country.
Last week, Prime Minister Hun Sen assured Secretary of State Colin
Powell that Cambodia would hold free and fair elections. Secretary
Powell should not be duped by these hollow promises. A preponderance of
evidence suggests that CPP is actively trying to steal the elections
before July 27th: political activists continue to be murdered and
intimidated, creating a chilling tone of fear and repression; the CPP
continues to directly influence and manipulate the election machinery,
with members of the National Election Commission, NEC, nominated in a
closed manner by the co-Ministers of Interior and the NEC already
failing to investigate allegations of election improprieties; and,
opposition political parties continue to lack access to media, with
several broadcast outlets in Cambodia unwilling to sell air time to
CPP's challengers.
Let me take a moment to describe what the Cambodian Democracy and
Accountability Act does--and does not--do.
The Act provides additional foreign assistance to Cambodia--an
increase by half (or $21.5 million) over the fiscal year 2004 budget
request of $43 million--if new leadership has been elected in free and
fair elections, and if Hun Sen is no longer Prime Minister. It has been
apparent to me that Hun Sen has long been part of Cambodia's problems--
and not part of the solution.
The Act does not preclude the Cambodian people from voting for the
political party of their choice. Ballot secrecy must be ensured--as
well as transparency in the process of vote counting and tabulation--in
order that the will of the Cambodian people is accurately expressed. It
is my fear that CPP pre-election chicanery may already have violated
the integrity of the election process.
If I wanted to interfere with the elections I would have offered
legislation that restricts all assistance to Cambodia unless a specific
political party or parties was elected. This Act does not do this. It
does not cut any assistance--not a single penny--to Cambodia included
in the fiscal year 2004 budget request. It simply provides that if the
major obstacle to democracy and development in the country--namely
Prime Minister Hun Sen--is out of power, additional foreign aid will be
forthcoming.

It is important to recall that Hun Sen's coup resulted in severe
restrictions on assistance to Cambodia--that continue to this day. If
given an opportunity through free and fair elections, the Cambodian
people will make the right choices that will ensure a dawn for
development in that country.
Why will they make the right choice? Over the many decades he has
been in power, Hun Sen has ruled Cambodia through violence, fear and
repression. Under his watch, the country has become a haven for sexual
predators and pedophiles, the criminal underworld, and international
terrorists. Hun Sen has repeatedly abused the most basic of freedoms
protected by the Cambodian Constitution, attacked his political
opposition, and perpetuated a climate of impunity that stifles the
advancement of freedom and free markets.
And he has never--not once--been held accountable for his actions.
In addition to increasing foreign assistance under certain
conditions, the Act restricts assistance to a Khmer Rouge tribunal
unless the President determines that, among other things, the tribunal
is supported by democratic Cambodian political parties and is not under
the control or influence of the CPP. It also requires the Federal
Bureau of Investigations to resume its investigation of the March 30,
1997 grenade attack against opposition leader Sam Rainsy that killed
and injured scores of Cambodians.
I should remind my colleagues that American democracy worker Ron
Abney was injured in this act of terrorism, reportedly carried out by
the CPP. Ron--and all the victims of this attack--are still waiting for
justice.
Secretary Powell wrote in a June 24 op-ed that Zimbabwean dictator
Robert Mugabe's ``time has come and gone.'' As democracy is similarly
under siege in both Zimbabwe and Cambodia, dictator Hun Sen's time has
also come and gone.
______

By Mr. ALLARD (for himself, Mr. Feingold, and Mr. Crapo):
S. 1366. A bill to authorize the Secretary of the Interior to make
grants to State and tribal governments to assist State and tribal
efforts to manage and control the spread of chronic wasting disease in
deer and elk herds, and for other purposes; to the Committee on
Environment and Public Works.
Mr. ALLARD. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1366

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 ``Chronic Wasting Disease
Financial Assistance Act of 2003''.

SEC. 2. DEFINITION AND FINDINGS.

(a) Chronic Wasting Disease Defined.--In this Act, the term
``chronic wasting disease'' means the animal disease
afflicting deer and elk that--
(1) is a transmissible disease of the nervous system
resulting in distinctive lesions in the brain; and
(2) belongs to the group of diseases known as transmissible
spongiform encephalopathies, which group includes scrapie,
bovine spongiform encephalopathy, and Cruetzfeldt-Jakob
disease.
(b) Findings.--Congress finds the following:
(1) The States retain undisputed primacy and policy-making
authority with regard to wildlife management, and nothing in
this Act interferes with or otherwise affects the primacy of
the States in managing wildlife generally, or managing,
surveying, and monitoring the incidence of chronic wasting
disease in animal populations.
(2) Chronic wasting disease is a fundamental threat to the
health and vibrancy of deer and elk populations, and the
increased occurrence of chronic wasting disease in the United
States necessitates government action to manage and eradicate
this lethal disease.
(3) As the States and tribal government move to manage
existing incidence of chronic wasting disease and insulate
non-infected wild cervid populations from the disease, it is
appropriate for the Federal Government to support their
efforts with financial assistance.

SEC. 3. STATE CHRONIC WASTING DISEASE MANAGEMENT CAPACITY
BUILDING GRANTS.

(a) Grants Authorized.--The Secretary of the Interior shall
make grants to State wildlife management agencies to assist
States in developing and implementing long term management
strategies to address chronic wasting disease in wild
cervids.
(b) Eligibility.--A wildlife management agency of a State
whose comprehensive wildlife conservation plan include
chronic wasting disease management activities is eligible for
a grant under this section.
(c) Funding Priorities.--In determining the amount of grant
funds to be provided to eligible applicants under this
section, the Secretary shall prioritize applicants based on
the following criteria:
(1) States in which chronic wasting disease has been
detected and States located adjacent or in proximity to
States in which chronic wasting disease has been detected.
(2) States that have expended State funds for chronic
wasting disease management, monitoring, surveillance, and
research, with additional priority given to those States

[[Page S8761]]

that have shown the greatest financial commitment to
managing, monitoring, surveying, and researching chronic
wasting disease.
(3) States with comprehensive and integrated policies and
programs focused on chronic wasting disease management
between involved State wildlife and agricultural agencies and
tribal governments, with additional priority given to States
that have integrated the programs and policies of all
involved agencies related to chronic wasting disease
management.
(4) States that are seeking to develop a rapid response
capacity to address outbreaks of chronic wasting disease,
whether occurring in States in which chronic wasting disease
is already found or States with first infections, for the
purpose of containing the disease in any new area of
infection.
(d) Authorization of Appropriations.--There are authorized
to be appropriated $7,500,000 to carry out this section.

SEC. 4. GRANTS FOR STATES WITH CHRONIC WASTING DISEASE
OUTBREAKS.

(a) Grants Authorized.--The Secretary of the Interior shall
make grants to State wildlife management agencies to assist
States in responding to chronic wasting disease outbreaks in
wild cervids.
(b) Eligibility.--A wildlife management agency of a State
whose comprehensive wildlife conservation plan include
chronic wasting disease management activities is eligible for
a grant under this section.
(c) Funding Priorities.--In determining the amount of grant
funds to be provided to eligible applicants under this
section, the Secretary shall prioritize applicants based on
the following criteria:
(1) State expenditures on chronic wasting disease
management, monitoring, surveillance, and research in
response to management of an on-going outbreak.
(2) The number of chronic wasting disease cases detected in
the State.
(3) The wild cervid population of the State.
(d) Authorization of Appropriations.--There are authorized
to be appropriated $10,000,000 to carry out this section.

SEC. 5. TRIBAL CHRONIC WASTING DISEASE MANAGEMENT GRANTS.

(a) Grants Authorized.--The Secretary of the Interior shall
make grants to tribal wildlife management agencies to assist
Indian tribes in developing and implementing long term
management strategies to address chronic wasting disease in
wild cervids.
(b) Eligibility.--A wildlife management agency of an Indian
tribe whose comprehensive wildlife conservation plan include
chronic wasting disease management activities is eligible for
a grant under this section.
(c) Funding Priorities.--In determining the amount of grant
funds to be provided to eligible applicants under this
section, the Secretary shall prioritize applicants based on
the following criteria:
(1) Tribal governments managing lands on which cervids with
chronic wasting disease have been detected, or managing lands
located adjacent or in proximity to lands on which cervids
with chronic wasting disease have been detected.
(2) Tribal governments that have expended tribal funds for
chronic wasting disease management, monitoring, surveillance,
and research, with additional priority given to tribal
governments that have shown the greatest financial commitment
to managing, monitoring, and surveying chronic wasting
disease.
(3) Tribal governments with cooperative arrangements with
Federal and State wildlife and agricultural agencies and
State governments, with additional priority given to tribal
governments that are working with other involved agencies on
issues of chronic wasting disease management.
(d) Authorization of Appropriations.--There are authorized
to be appropriated $3,000,000 to carry out this section.

SEC. 6. ADMINISTRATION.

The Secretary of the Interior shall carry out this Act
acting through the Director, United States Fish and Wildlife
Service. Funds appropriated to carry out this Act shall be
administered through the Federal Assistance Program in the
United States Fish and Wildlife Service. Not more than three
percent of such funds may be expended for administrative
expenses of the United States Fish and Wildlife Service to
carry out this Act.
Mr. FEINGOLD. Mr. President, I am pleased to join with my colleague
from Colorado, Mr. Allard, as a cosponsor of the Chronic Wasting
Disease Financial Assistance Act of 2003. This legislation is similar
to legislation, S. 1036, the Chronic Wasting Disease Support Act of
2003, that we introduced earlier this year.
The House Resources Committee held a hearing on June 19, 2003 on the
issue of chronic wasting disease, or CWD. At that hearing, state agency
representatives argued strongly that Congress should create a new grant
program to provide assistance to states for the management of CWD. They
also expressed an interest in having those funds distributed using an
existing distribution mechanism. This legislation responds directly to
these comments. In total, the bill directs the U.S. Fish and Wildlife
Service to provide $20.5 million in Federal grants to State and tribal
governments for CWD management in wild deer and elk, $10.5 million more
in resources than were included in the bill Senator Allard and I
introduced earlier this year.
The bill creates three new Federal CWD grant programs. The first
program is a new nationwide CWD capacity grant, authorized at a total
of $7.5 million. This program would provide grants to States so that
they can fund CWD management programs. Preference would be given to
States with comprehensive and integrated chronic wasting disease
management programs involving all relevant state agencies.
The second grant program would provide additional $10 million in
grant assistance to states like Colorado and Wisconsin that already
have detected chronic wasting disease in their wild deer and elk. These
States need additional help. Wisconsin has undertaken significant
measures to combat CWD at significant expense, and this program
acknowledges that outbreaks are expensive to manage and require Federal
financial assistance.
Finally, the bill would create a third $3 million grant program to
provide CWD management grants directly to tribal governments. To be
eligible for these programs, States and tribes are given the ability
under the bill to use an existing mechanism, the U.S. Fish and Wildlife
Service Federal Assistance Act procedures to expedite the receipt of
grant funds.
This bill is needed because State wildlife departments and tribal
governments do not have the financial resources to adequately confront
the problem. Their resources are spread too thin as they attempt to
prevent the disease from spreading. Federal help in the form of
management funding is urgently needed. Federal funding will help States
and tribes to protect and safeguard our valued wild deer and elk from
this disease.
I look forward to working with the Senate to secure passage of this
measure. This is a good bill, and it deserves the Senate's support.
______

By Mr. McCONNELL (for himself, Mr. Bayh, and Mr. Fitzgerald):
S. 1367. A bill to amend the Richard B. Russell National School Act
to establish programs to promote increased consumption of milk in
schools and to improve the nutrition and health of children; to the
Committee on Agriculture, Nutrition, and Forestry.
Mr. McCONNELL. Mr. President, I rise today to introduce a very
important piece of legislation that could provide great benefits for
the health of our young people while simultaneously strengthening the
future viability of dairy producers throughout the United States.
My bill, the Child Nutrition Improvement Act of 2003, would provide
incentives for schools to encourage the consumption of milk as part of
the school lunch program and supply needed flexibility for schools to
offer a wide variety of milk products and flavors.
There is no doubt that the eating habits we develop when we are young
affect our habits and nutritional choices for the rest of our lives.
The school lunch program has provided a key tool in promoting healthy
eating habits among young people, which have both health and
educational benefits.
Milk has been a critical component of the school lunch program
because it is the principal source of calcium and a leading source of
several other important nutrients in our diet. That was true when the
federal program began in 1946 and it is still true today.
With 9 out of 10 teenage girls and 7 out of 10 teenage boys currently
not getting enough calcium, milk's important is perhaps greater today
than ever before. Serving milk with the school lunch is a critical step
in addressing the calcium crisis. Federal child health experts who are
on the frontlines fighting the calcium crisis recognize milk's central
role in addressing the problem. Study after study, emphasize the need
for growing children and teens to consume more milk for healthy bones,
and the American Academy of Pediatrics has urged its members to
recommend their patients get enough milk, cheese, yogurt and other
calcium rich foods to help build bone mass.
As a result of these recommendations, we have seen a push for more
milk in more places in school, like vending machines and school stores.
There's a real concern about nutritious choices for school children,
and many

[[Page S8762]]

local school districts and state legislatures are pushing to add more
healthful beverage choices like milk.
A large school vending test in 2001 demonstrated that kids will
eagerly buy milk from vending machines in schools when it is offered.
The test was heralded by school nutritionists and helped stimulate
nationwide interest in getting milk vending machines into more schools.
A pilot test conducted in 146 schools with 100,000 students showed
dramatic increases in milk consumption--15 percent in elementary
schools and 22 percent in secondary schools--when simple improvements
were made in the way milk was packaged and presented to students. The
milk was served colder and kids loved the addition of a third flavor,
it was usually strawberry. No only did kids drink more milk, more kids
ate in the cafeteria. That meant they not only got milk, they also got
improved nutrition through greater intake of vegetables, fruits and
other nutritionally important foods.
Milk has an unsurpassed nutrient package for young children and
teens. Milk has nine essential vitamins and minerals, including
calcium, vitamins A, D and B12, protein, potassium, riboflavin, niacin
and phosphorus. These nutrients are critical to good health and the
prevention of chronic disease. In addition, it is the primary way that
growing children get the calcium they need. In fact, according to the
U.S. Department of Agriculture about 75 percent of the calcium in our
food supply comes from milk and foods made with milk. By about age 20,
the average young person has acquired about 98 percent of his or her
skeletal mass. Building strong bones during childhood and adolescence
is one of the best defenses against developing osteoporosis later in
life.
In addition to the bone-building benefits of milk, research indicates
that a diet rich in low-fat milk may help reduce the risk of high blood
pressure and heart disease and help prevent breast cancer, colon cancer
and even help in the fight against obesity.
Milk's role in a nutritious diet has long been noted by the nutrition
and science community, including the American Academy of Pediatrics,
the American Dietetic Association, the National Institute of Child
Health and Human Development, the National Osteoporosis Foundation, the
U.S. Department of Agriculture, and many other reputable health
organizations.
As I have already mentioned, government statistics indicate that we
have a calcium crisis among our children and youth. Nearly 90 percent
of teenage girls and almost 70 percent of teenage boys fail to get
enough calcium in their diets. During the teen years nearly half of all
bone is formed and about 15 percent of your adult height is added. As a
national health priority, for proper growth and development, we need to
be doing all we can to encourage our children and youth to drink milk,
and that is the goal of the legislation I am introducing today.
I ask my colleagues for your support of this important piece of
legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1367

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 Nutrition Improvement
Act of 2003''.

SEC. 2. CONSUMPTION OF MILK IN SCHOOLS.

(a) Fluid Milk.--
(1) In general.--Section 9(a) of the Richard B. Russell
National School Lunch Act (42 U.S.C. 1758(a)) is amended by
striking paragraph (2) and inserting the following:
``(2) Fluid milk.--
``(A) In general.--Lunches served by schools participating
in the school lunch program under this Act--
``(i) shall offer students fluid milk; and
``(ii) shall offer students a variety of flavored and
unflavored milk, as determined by the school.
``(B) Fluid milk products.--A school or institution that
participates in the school lunch program under this Act--
``(i) may offer a la carte fluid milk products to be sold
in addition to and, at the option of the school, adjacent to
fluid milk offered as part of a reimbursable meal; and
``(ii) shall not directly or indirectly restrict the sale
or marketing of fluid milk products by the school (or by a
person approved by the school) at any time or any place--

``(I) on the school premises; or
``(II) at any school-sponsored event.''.

(2) Application.--The amendment made by paragraph (1)
applies to an agreement or contract entered into on or after
the date of enactment of this Act.
(b) Increased Consumption of Milk in Schools.--Section 12
of the Richard B. Russell National School Lunch Act (42
U.S.C. 1760) is amended by adding at the end the following:
``(q) Increased Consumption of Milk in Schools.--
``(1) In general.--To encourage healthier nutritional
environments in schools and institutions receiving funds
under this Act and the Child Nutrition Act of 1966 (42 U.S.C.
1771 et seq.) (other than section 17 of that Act (42 U.S.C.
1786)), the Secretary shall establish a program under which
any such school or institution may (in accordance with
paragraph (3)) receive an increase in the reimbursement rate
for free and reduced price meals otherwise payable under this
Act and the Child Nutrition Act of 1966, if the school or
institution implements a plan for improving the nutritional
value of meals consumed in the school or institution by
increasing the consumption of fluid milk in the school, as
approved by the Secretary in accordance with criteria
established by the Secretary.
``(2) Plans.--
``(A) In general.--For purposes of the program established
under paragraph (1), the Secretary shall establish criteria
for the approval of plans of schools and institutions for
increasing consumption of fluid milk.
``(B) Criteria.--An approved plan may--
``(i) establish targeted goals for increasing fluid milk
consumption throughout the school or institution or at school
or institution activities;
``(ii) improve the accessibility, presentation,
positioning, or promotion of fluid milk throughout the school
or institution or at school or institution activities;
``(iii) improve the ability of a school or institution to
tailor the plan to the customs and demographic
characteristics of--

``(I) the population of the school or institution; and
``(II) the area in which the school or institution is
located; and

``(iv) provide--

``(I) packaging, flavor variety, merchandising,
refrigeration, and handling requirements that promote the
consumption of fluid milk; and
``(II) increased standard serving sizes for fluid milk
consumed in middle and high schools.

``(C) Administration.--In establishing criteria for plans
under this subsection, the Secretary shall--
``(i) take into account relevant research; and
``(ii) consult with school food service professionals,
nutrition professionals, food processors, agricultural
producers, and other groups, as appropriate.
``(3) Reimbursement rates and incentives.--
``(A) In general.--For purposes of administering the
program established under paragraph (1), the Secretary shall
annually provide reimbursement rates and incentives for free
and reduced price meals otherwise payable under this Act and
the Child Nutrition Act of 1966 of not less than 2 cents and
not more than 10 cents per meal, to reflect the additional
costs incurred by schools and institutions in increasing the
consumption of fluid milk under the program.
``(B) Criteria.--The Secretary may vary the increase in
reimbursement rates and incentives for free and reduced price
meals based on the degree to which the school or institution
adopts the criteria established by the Secretary under
paragraph (2).''.

SEC. 4. IMPROVED NUTRITION AND PHYSICAL ACTIVITY LEVEL OF
CHILDREN.

Section 12 of the Richard B. Russell National School Lunch
Act (42 U.S.C. 1760) (as amended by section 2(b)) is amended
by adding at the end the following:
``(r) Improved Nutrition and Physical Activity Level of
Children.--
``(1) Definition of healthy school environment program.--In
this subsection, the term `healthy school environment
program' means a program that--
``(A) is designed to improve the environment of a school
with respect to the nutrition and physical activity level of
children enrolled in the school; and
``(B) includes steps to improve and make available healthy
food choices (including fruits, vegetables, and dairy
products).
``(2) Program.--The Secretary shall carry out a program to
provide grants to schools that implement healthy school
environment programs.
``(3) Administration.--In carrying out the program, the
Secretary may enter into cooperative agreements with--
``(A) nonprofit organizations;
``(B) educational and scientific institutions;
``(C) Federal, State, and local agencies; and
``(D) other entities that contribute funds or in-kind
services for the program.
``(4) Acceptance of funds.--Notwithstanding any other
provision of law, the Secretary may accept funds from an
entity referred to in paragraph (3) solely for use in
carrying out the program under this subsection.''.

____________________