[Congressional Record Volume 149, Number 116 (Thursday, July 31, 2003)]
[Senate]
[Pages S10621-S10687]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. BUNNING (for himself, Mr. Breaux, and Mr. Bond):
S. 1506. A bill to amend the Internal Revenue Code of 1986 to allow
distilled spirits wholesalers a credit against income tax for their
cost of carrying Federal excise taxes prior to the sale of the product
bearing the tax; to the Committee on Finance.
Mr. BUNNING. Mr. President, I rise today to introduce legislation
that will resolve a longstanding inequity in the tax treatment of U.S.
distilled spirits that penalizes the wholesalers, and in some cases
suppliers, of these products.
Under current law, wholesalers of distilled spirits are not required
to pay the Federal excise tax on imported spirits until after the
product is removed from a bonded warehouse for sale to a retailer.
In contrast, the tax on domestically produced spirits is included as
part of the purchase price and passed on from the supplier to
wholesaler. After factoring in the Federal excise tax (FET)--which is
$13.50 per proof gallon--domestically produced spirits can cost
wholesalers 40 percent more to purchase than comparable imported
spirits.
In some instances, wholesalers and even suppliers can carry this tax-
paid inventory for an average of 60 days before selling it to a
retailer. Interest charges--more commonly referred to as float--
resulting from financing the Federal excise tax can be quite
considerable.
For example, at a 5 percent interest rate on the sale of 100,000
cases of domestic spirits, a wholesaler will incur finance charges of
$21,106.85 for loans related to underwriting the cost of paying the
Federal excise tax. It is important to note that it is not uncommon for
wholesalers to sell a million or more cases per year of domestic
spirits.
The costs associated with financing Federal excise taxes amount to a
tax on a tax, making the effective rate of the Federal excise tax for
domestic spirits much higher than $13.50 per proof gallon.
The Distilled Spirits Tax Equity Act would give wholesalers and
suppliers in bailment states a tax credit towards the cost of financing
the FET for domestically produced products.
I believe this legislation is fundamentally fair and will help
protect and create jobs for the wholesale tier in Kentucky and other
States. However, I wish to emphasize that I will reject any connection
between a repeal of Section 5010 within the Internal Revenue Code or an
increase in federal taxes for distilled spirits. Tax equity for one
tier should not be achieved by placing additional burden on other tiers
within the same industry.
My colleagues, Senators Bond and Breaux join me in introducing this
legislation, which the Joint Tax Committee estimates would reduce
Federal revenues by approximately $249 million over ten years.
Congressmen Collins and Neal have introduced similar legislation that
has garnered significant support in the House of Representatives. I
urge my colleagues to support this legislation when it comes before the
Senate.
______
By Mr. FEINGOLD (for himself, Mr. Bingaman, Mr. Kennedy, Ms.
Cantwell, Mr. Durbin, Mr. Wyden, Mr. Corzine, Mr. Akaka, and
Mr. Jeffords):
S. 1507. A bill to protect privacy by limiting the access of the
government to library, bookseller, and other personal records for
foreign intelligence and counterintelligence purposes; to the Committee
on the Judiciary.
Mr. FEINGOLD. Mr. President, today I introduce the Library,
Bookseller, and Personal Records Privacy Act.
This bill would amend the Patriot Act to protect the privacy of law-
abiding Americans. It would set reasonable limits on the Federal
Government's access to library, bookseller, medical, and other
sensitive, personal information under the Foreign Intelligence
Surveillance Act and related foreign intelligence authority.
I am pleased that several of my distinguished colleagues--Senators
Bingaman, Kennedy, Cantwell, Durbin, Wyden, Corzine, Akaka, and
Jeffords--have joined me as original cosponsors of this important
legislation.
I and millions of other patriotic Americans love our country and
support our military men and women in their difficult missions abroad,
but worry about the fate of our Constitution here at home.
Much of our Nation's strength comes from our constitutional liberties
and respect for the rule of law. That is what has kept us free for our
two and a quarter century history. Our constitutional freedoms, our
American values, are what make our country worth fighting for in the
fight against terrorism.
Here at home, there is no question that the FBI needs ample resources
and legal authority to prevent future acts of terrorism. But the
Patriot Act went too far when it comes to the government's access to
personal information about law-abiding Americans.
Even though in the end I opposed the Patriot Act, there were several
provisions that I did support. For example, Congress was right to
expand the category of business records that the FBI could obtain by
subpoena pursuant to the Foreign Intelligence Surveillance Act. Prior
to the Patriot Act, the FBI could seek a court order to obtain only
travel records--such as airline, hotel, and car rental records--and
records maintained by storage facilities. The Patriot Act allows any
business records to be subpoenaed. I don't quibble with that change.
But what my colleagues and I do find problematic--and an increasing
number of Americans who value their privacy and First Amendment rights
agree with us--is that the current law allows the FBI broad, almost
unfettered access to personal information about law-abiding Americans
who have no connection to terrorism or spying.
Section 215 of the Patriot Act requires the FBI to show in an
application to the court for a subpoena that the documents are ``sought
for'' an international terrorism or foreign intelligence investigation.
There is no requirement that the FBI make a showing of individualized
suspicion that the documents relate to a suspected terrorism or spy.
In other words, under current law, the FBI could serve a subpoena on
a library for all the borrowing records of its patrons or on a
bookseller for the
[[Page S10622]]
purchasing records of its customers simply by asserting that they want
the records for a terrorism investigation.
During the last year, librarians and booksellers have become
increasingly concerned by the potential for abuse of this law. I was
pleased to stand with the American Booksellers Association and the Free
Expression Network a little over a year ago when we first started to
raise these concerns.
Librarians and booksellers are concerned that under the Patriot Act,
the FBI could seize records from libraries and booksellers in order to
monitor what books Americans have purchased or borrowed, or who has
used a library's or bookstore's internet computer stations, even if
there is no evidence that the person is a terrorist or spy, or has any
connection to a terrorist or spy.
These concerns are so strong, that some librarians across the country
have taken the unusual step of destroying records of patrons' book and
computer use, as well as posting signs on computer stations warning
patrons that whatever they read or access on the internet could be
monitored by the Federal Government.
As a librarian in California said, ``We felt strongly that this had
to be done. . . . The government has never had this kind of power
before. It feels like Big Brother.''
And as the executive director of the American Library Association
said, ``This law is dangerous. . . . I read murder mysteries--does that
make me a murderer? I read spy stories--does that mean I'm a spy?
There's no clear link between a person's intellectual pursuits and
their actions.''
The American people do not know how many or what kind of requests
federal agents have made for library records under the Patriot Act. The
Justice Department refuses to release that information to the public.
But in a survey released by the University of Illinois at Urbana-
Champaign, about 550 libraries around the Nation reported having
received requests from Federal or local law enforcement during the past
year. About half of the libraries said they complied with the law
enforcement request, and another half indicated that they had not.
Americans don't know much about these incidents, because the law also
contains a provision that prohibits anyone who receives a subpoena from
disclosing that fact to anyone.
David Schwartz, president of Harry W. Schwartz Bookshops, the oldest
and largest independent bookseller in Milwaukee, summed up well the
American values at stake when he said: ``The FBI already has
significant subpoena powers to obtain records. There is no need for the
government to invade a person's privacy in this way. This is a uniquely
un-American tool, and it should be rejected. The books we read are a
very private part of our lives. People could stop buying books, and
they could be terrified into silence.''
Afraid to read books, terrified into silence. Is that the America we
want? Is that the America where we'd like to live? I don't think so.
And I hope my colleagues will agree.
It is time to reconsider those provisions of the Patriot Act that are
un-American and, frankly, un-patriotic.
Bu my concerns with the Patriot Act go beyond library and bookseller
records. Under section 215 of the Patriot Act, the FBI could seek any
records maintained by a business. These business records could contain
sensitive, personal information--for example, medical records
maintained by a doctor or hospital or credit records maintained by a
credit agency. All the FBI would have to do is simply assert that the
records are ``sought for'' its terrorism or foreign intelligence
investigation.
Section 215 of the Patriot Act goes too far. Americans rightfully
have a reasonable expectation of privacy in their library, bookstore,
medical, financial, or other records containing personal information.
Prudent safeguards are need to protect these legitimate privacy
interests.
The Library, Bookseller, and Personal Records Privacy Act is a
reasonable solution. It would restore a pre-Patriot Act requirement
that the FBI make a factual, individualized showing that the records
sought pertain to a suspected terrorist or spy.
My bill will not prevent the FBI from doing its job. My bill
recognizes that the post-September 11 world is a different world. There
are circumstances when the FBI should legitimately have access to
library, bookseller, or other personal information.
I would like to take a moment to explain how the safeguard in my bill
would be applied. Suppose the FBI is conducting an investigation of an
international terrorist organization. It has information that suspected
members of the group live in a particular neighborhood. The FBI would
like to serve a subpoena on the library in the suspects' neighborhood.
Under current law, the FBI could decide to ask the library for all
records concerning anyone who has ever borrowed a book or used a
computer, and what books were borrowed, simply by asserting that the
documents are sought for a terrorism investigation. But under my bill,
the FBI could not do so. The FBI would have to set forth specific and
articulable facts giving reason to believe that the person to whom the
records pertain is a suspected terrorist. The FBI could subpoena only
those library records--such as borrowing records or computer sign-in
logs--that pertain to the suspected terrorists. The FBI could not
obtain library records concerning individuals who are not suspected
terrorists.
So, under my bill, the FBI can still obtain documents that it
legitimately needs, but my bill would also protect the privacy of law-
abiding Americans. I might add, that if, as the Justice Department
says, the FBI is using its Patriot Act powers in a responsible manner,
does not seek the records of law-abiding Americans, and only seeks the
records of suspected terrorists or suspected spies, then there is no
reason for the Department to object to my bill.
The second part of my bill would address privacy concerns with
another Federal law enforcement power expanded by the Patriot Act--the
FBI's national security letter authority, or what is sometimes referred
to as ``administrative subpoena'' authority because the FBI does not
need court approval to use this power.
My bill would amend section 505 of the Patriot Act. Part of this
section relates to the production of records maintained by electronic
communications providers. Libraries or bookstores with internet access
for customers could be deemed ``electronic communication providers''
and therefore be subject to a request by the FBI under its
administrative subpoena authority.
As I mentioned earlier, some librarians are so concerned about the
potential for abuse by the FBI that they have taken matters into their
own hands before the FBI knocks on their door. Some librarians have
begun shredding on a daily basis sign-in logs and other documents
relating to the public's use of library computer terminals to access
the Internet.
Again, safeguards are needed to ensure that any individual who
accesses the internet at a library or bookstore does not automatically
give up all expectations of privacy. Like the section 215 I've
discussed, my bill would require an individualized showing by the FBI
of how the records of internet usage maintained by a library or
bookseller pertain to a suspected terrorist or spy.
Yes, the American people want the FBI to be focused on preventing
terrorism. And, yes, it may make sense to make some changes to the law
to allow the FBI access to the information that it needs to prevent
terrorism. But we do not need to change the values that constitute who
we are as a nation in order to protect ourselves from terrorism. We can
protect both our nation and our privacy and civil liberties.
An increasing number of Americans are beginning to understand that
the Patriot Act went too far. Three States and over 130 cities and
counties across the country have now passed resolutions expressing
opposition to the Patriot Act. And it's not just the Berkeleys and
Madisons of the Nation, but other States and communities with strong
libertarian values, such as Alaska and cities in Montana, have passed
such resolutions.
I have many concerns with the Patriot Act. I am not seeking to repeal
it, in whole or in part. My colleagues and I are only seeking to modify
two provisions that pose serious potential for abuse.
The privacy of law-abiding Americans is at stake. Congress should act
to
[[Page S10623]]
protect our privacy. And my bill is a reasonable approach to do just
that.
I urge my colleagues to join me and support the Library, Bookseller,
and Personal Records Privacy Act.
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. 1507
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 ``Library, Bookseller, and
Personal Records Privacy Act''.
SEC. 2. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO LIBRARY,
BOOKSELLER, AND OTHER PERSONAL RECORDS UNDER
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Applications for Orders.--Subsection (b) of section 501
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) shall specify that there are specific and articulable
facts giving reason to believe that the person to whom the
records pertain is a foreign power or an agent of a foreign
power.''.
(b) Orders.--Subsection (c)(1) of that section is amended
by striking ``finds'' and all that follows and inserting
``finds that--
``(A) there are specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power; and
``(B) the application meets the other requirements of this
section.''.
(c) Oversight of Requests for Production of Records.--
Section 502 of that Act (50 U.S.C. 1862) is amended--
(1) in subsection (a), by striking ``the Permanent'' and
all that follows through ``the Senate'' and inserting ``the
Permanent Select Committee on Intelligence and the Committee
on the Judiciary of the House of Representatives and the
Select Committee on Intelligence and the Committee on the
Judiciary of the Senate''; and
(2) in subsection (b), by striking ``On a semiannual
basis,'' and all that follows through ``a report setting
forth'' and inserting ``The report of the Attorney General to
the Committees on the Judiciary of the House of
Representatives and the Senate under subsection (a) shall set
forth''.
SEC. 3. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO
INFORMATION ON COMPUTER USERS AT BOOKSELLERS
AND LIBRARIES UNDER NATIONAL SECURITY
AUTHORITY.
(a) In General.--Section 2709 of title 18, United States
Code, is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following new
subsection (e):
``(e) Records of Booksellers and Libraries.--(1) When a
request under this section is made to a bookseller or
library, the certification required by subsection (b) shall
also specify that there are specific and articulable facts
giving reason to believe that the person or entity to whom
the records pertain is a foreign power or an agent of a
foreign power.
``(2) In this subsection:
``(A) The term `bookseller' means a person or entity
engaged in the sale, rental, or delivery of books, journals,
magazines, or other similar forms of communication in print
or digitally.
``(B) The term `library' means a library (as that term is
defined in section 213(2) of the Library Services and
Technology Act (20 U.S.C. 9122(2))) whose services include
access to the Internet, books, journals, magazines,
newspapers, or other similar forms of communication in print
or digitally to patrons for their use, review, examination,
or circulation.
``(C) The terms `foreign power' and `agent of a foreign
power' have the meaning given such terms in section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).''.
(b) Sunset of Certain Modifications on Access.--Section
224(a) of the USA PATRIOT ACT of 2001 (Public Law 107-56; 115
Stat. 295) is amended by inserting ``and section 505'' after
``by those sections)''.
______
By Mr. HAGEL (for himself, Mr. Sununu, and Mrs. Dole):
S. 1508. A bill to address regulation of secondary mortgage market
enterprises, and for other purposes; to the Committee on Banking,
Housing, and Urban Affairs.
Mr. HAGEL. Mr. President, I rise today to introduce, along with my
colleagues Senator Sununu and Senator Dole, the Federal Enterprise
Regulatory Reform Act of 2003. This is needed regulatory reform at a
critical time for the Federal National Mortgage Association (Fannie
Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac).
There is no doubt that our housing government sponsored enterprises
(GSEs) have been successful in carrying out their mission of creating a
secondary market for home mortgages. The housing market has remained
strong through tough economic times, and homeownership in this country
is at an all-time high.
The housing GSEs, however, are uncommon institutions with a unique
set of responsibilities and stakeholders. Fannie and Freddie are
chartered by Congress, limited in scope, and are subject to
Congressional mandates, yet they are publicly traded companies with all
the earnings pressure that Wall Street demands. Additionally, Fannie
and Freddie enjoy an implicit guarantee by the Federal Government that
has aided them in developing substantial clout on Wall Street. With
their influence in the markets, their ability to raise capital at near-
Treasury Bill rates, and their use of the most sophisticated portfolio
management tools, Fannie and Freddie today are no longer simply
secondary market facilitators for mortgages.
Freddie Mac's recent disclosure of management failures and accounting
deficiencies resulting in upwards of $4.5 billion in understated
earnings precipitated the need for Congress to exercise its oversight
of the GSEs. The Senate Banking Committee has held one hearing already
and more are planned after our August recess.
If we are to continue to provide GSEs with the framework to operate
under an implied government backing, I believe that they should be held
to a higher standard than private organizations and subject to more
scrutiny than the private sector. Furthermore, I believe it is possible
to realign oversight and operating rules for Fannie and Freddie without
jeopardizing the strong housing market that America enjoys today.
It is my view that the Office of Federal Housing Enterprise Oversight
(OFHEO) has not been given the tools needed to effectively regulate
Fannie Mae and Freddie Mac. Our legislation would create a new,
stronger regulator in the Department of the Treasury. Treasury
regulates banks and other financial institutions through the Office of
the Comptroller of the Currency (OCC) and the Office of Thrift
Supervision (OTS), and it has the experience and expertise needed to
supervise Fannie Mae and Freddie Mac. Our bill also would provide the
new regulator with enhanced regulatory flexibility and enforcement
tools like those afforded to OCC and OTS. Furthermore, the bill would:
give OFES oversight of Fannie Mae and Freddie Mac's ``mission'' as well
as safety and soundness; give OFES authority to regulate the type and
amount of non-mission related assets Fannie Mae and Freddie Mac can
hold; give OFES enhanced enforcement powers much like those of other
financial regulators; fund OFES through assessments instead of through
Congressional appropriations; require several government studies,
including one on the risk implications of GSEs purchasing their own
mortgage backed securities, one on the feasibility of merging OFES with
the Federal Housing Finance Board (FHFB), and one on the feasibility of
consolidating OFES with the Office of Thrift Supervision (OTS).
This reform is important to restoring and maintaining the confidence
that investors and the markets require. In light of the recent problems
at Freddie Mac, it is even more important. I urge my colleagues to
support this reform effort and invite them to cosponsor our bill.
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. 1508
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Federal
Enterprise Regulatory Reform Act of 2003''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title and table of contents.
[[Page S10624]]
TITLE I--REFORM OF REGULATION OF FANNIE MAE AND FREDDIE MAC
Subtitle A--Improvement of Supervision
Sec. 101. Establishment of Office of Federal Enterprise Supervision in
the Department of the Treasury.
Sec. 102. Duties and authorities of Director and HUD.
Sec. 103. Examiners and accountants.
Sec. 104. Regulations.
Sec. 105. Assessments.
Sec. 106. Independence of Director in congressional testimony and
recommendations.
Sec. 107. Limitation on nonmission-related assets.
Sec. 108. Reports.
Sec. 109. Risk-based capital test for enterprises.
Sec. 110. Minimum and critical capital levels.
Sec. 111. Definitions.
Subtitle B--Prompt Corrective Action
Sec. 131. Capital classifications.
Sec. 132. Supervisory actions applicable to undercapitalized
enterprises.
Sec. 133. Supervisory actions applicable to significantly
undercapitalized enterprises.
Subtitle C--Enforcement Actions
Sec. 151. Cease-and-desist proceedings.
Sec. 152. Temporary cease-and-desist proceedings.
Sec. 153. Removal and prohibition authority.
Sec. 154. Enforcement and jurisdiction.
Sec. 155. Civil money penalties.
Sec. 156. Criminal penalty.
Subtitle D--Reports to Congress
Sec. 161. Studies and reports.
Subtitle E--General Provisions
Sec. 171. Conforming and technical amendments.
Sec. 172. Effective date.
TITLE II--TRANSFER OF FUNCTIONS, PERSONNEL, AND PROPERTY
Sec. 201. Abolishment of OFHEO.
Sec. 202. Continuation and coordination of certain regulations.
Sec. 203. Transfer and rights of employees of OFHEO.
Sec. 204. Transfer of property and facilities.
TITLE I--REFORM OF REGULATION OF FANNIE MAE AND FREDDIE MAC
Subtitle A--Improvement of Supervision
SEC. 101. ESTABLISHMENT OF OFFICE OF FEDERAL ENTERPRISE
SUPERVISION IN THE DEPARTMENT OF THE TREASURY.
(a) In General.--Part 1 of Subtitle A of title XIII of the
Housing and Community Development Act of 1992 is amended by
striking sections 1311 and 1312 (12 U.S.C. 4511, 4512) and
inserting the following:
``SEC. 1311. ESTABLISHMENT OF OFFICE OF FEDERAL ENTERPRISE
SUPERVISION.
``(a) Establishment.--
``(1) In General.--There is established the Office of
Federal Enterprise Supervision, which shall be an office in
the Department of the Treasury.
``(2) Authority.--The Office shall succeed to the authority
of the Director of the Office of Federal Housing Enterprise
Oversight of the Department of Housing and Urban Development
and the general regulatory and any other authority of the
Secretary of Housing and Urban Development with respect to
the enterprises (except as specifically provided otherwise in
this Act, the Federal National Mortgage Association Charter
Act (12 U.S.C. 1716 et seq.), the Federal Home Loan Mortgage
Corporation Act (12 U.S.C. 1451 et seq.), and any other
provision of Federal law).
``(b) Prohibition of Merger of Office.--Notwithstanding any
other provision of this law, the Secretary of the Treasury
may not merge or consolidate the Office, or any of the
functions or responsibilities of the Office, with any
function or program administered by the Secretary.
``(c) Savings Provision.--The authority of the Director to
take actions under subtitles B and C does not in any way
limit the general supervisory and regulatory authority
granted to the Director under subsection (a).
``SEC. 1312. DIRECTOR.
``(a) Establishment of Position.--There is established the
position of the Director of the Office of Federal Enterprise
Supervision, who shall be the head of the Office.
``(b) Appointment; Term.--
``(1) Appointment.--The Director shall be appointed by the
President, by and with the advice and consent of the Senate,
from among individuals who are citizens of the United States.
``(2) Term.--The Director shall be appointed for a term of
5 years.
``(3) Vacancy.--
``(A) In general.--A vacancy in the position of Director
that occurs before the expiration of the term for which a
Director was appointed shall be filled in the manner
established under paragraph (1).
``(B) Term .--The Director appointed to fill a vacancy
under subparagraph (A) shall be appointed only for the
remainder of such term.
``(4) Service after end of term.--An individual may serve
as Director after the expiration of the term for which the
individual was appointed until a successor Director has been
appointed.
``(5) Transitional provision.--Notwithstanding paragraphs
(1) and (2), the Director of the Office of Federal Housing
Enterprise Oversight of the Department of Housing and Urban
Development on the date of enactment of the Federal
Enterprise Regulatory Reform Act of 2003, shall be the
Director until the date on which that individual's term as
Director of the Office of Federal Housing Enterprise
Oversight would have expired.
``(c) Prohibition on Financial Interests.--The Director
shall not have a direct or indirect financial interest in any
enterprise, nor hold any office, position, or employment in
any enterprise.''.
(b) Appointment of Director.--Notwithstanding the effective
date under section 172 or any other provision of law, the
President may, at any time after the date of enactment of
this Act, appoint an individual to serve as the Director in
accordance with the provisions of the amendment made by
subsection (a) of this section.
SEC. 102. DUTIES AND AUTHORITIES OF DIRECTOR AND HUD.
(a) In General.--Section 1313 of the Housing and Community
Development Act of 1992 (12 U.S.C. 4513) is amended to read
as follows:
``SEC. 1313. DUTIES AND AUTHORITIES OF DIRECTOR.
``(a) Duties.--
``(1) Principal duties.--The principal duties of the
Director shall be to ensure that the enterprises--
``(A) operate in a financially safe and sound manner;
``(B) carry out their missions in a financially safe and
sound manner and only through activities that have been
authorized under, and are consistent with the purposes of,
the provisions of Federal law that charter the enterprises;
and
``(C) remain adequately capitalized.
``(2) Other duties.--To the extent consistent with
paragraph (1), the duty of the Director shall be to exercise
general supervisory and regulatory authority over the
enterprises, in accordance with this title, the Federal
National Mortgage Association Charter Act (12 U.S.C. 1716 et
seq.), the Federal Home Loan Mortgage Corporation Act (12
U.S.C. 1451 et seq.), and any other provisions of law.
``(b) Authority Exclusive of Secretary.--Except as
specifically provided under this Act, the Federal National
Mortgage Association Charter Act, the Federal Home Loan
Mortgage Corporation Act, or any other provision of Federal
law, the authority of the Director with respect to the
enterprises shall not be subject to the review, approval, or
intervention of the Secretary of the Treasury.
``(c) Delegation of Authority.--The Director may delegate
to officers and employees of the Director any of the
functions, powers, and duties of the Director, with respect
to supervision and regulation of the enterprises, as the
Director considers appropriate.''.
(b) Prior Approval Authority for New Programs.--Part 1 of
Subtitle A of title XIII of the Housing and Community
Development Act of 1992 (12 U.S.C. 4501 et seq.) is amended
by adding at the end the following:
``SEC. 1319H. PRIOR APPROVAL AUTHORITY FOR NEW PROGRAMS.
``(a) In general.--The Director shall require each
enterprise to obtain the approval of the Director for any new
program of the enterprise before implementing the program.
``(b) Standard for approval.--The Director shall approve
any new program of an enterprise for purposes of subsection
(a) unless--
``(1) in the case of a new program of the Federal National
Mortgage Association, the Director determines that the
program is not authorized under section 304 or paragraph (2),
(3), (4), or (5) of section 302(b) of the Federal National
Mortgage Association Charter Act (12 U.S.C. 1717(b));
``(2) in the case of a new program of the Federal Home Loan
Mortgage Corporation, the Director determines that the
program is not authorized under paragraph (1), (4), or (5) of
section 305(a) of the Federal Home Loan Mortgage Corporation
Act (12 U.S.C. 1451 et seq.); or
``(3) the Director determines that the new program is not
in the public interest.
``(c) Procedure for Approval.--
``(1) Submission of request.--An enterprise shall submit to
the Director a written request for approval of a new program
under subparagraph (A) that describes the program in such
form as prescribed by order or regulation of the Director.
``(2) Response.--
``(A) In general.--Not later than 45 days after the date of
submission of a request for approval under paragraph (1), the
Director shall--
``(i) approve the request; or
``(ii) deny the request and submit a report explaining the
reasons for the denial to the Committee on Financial Services
of the House of Representatives and the Committee on Banking,
Housing and Urban Affairs of the Senate.
``(B) Extension.--The Director may extend the time period
under subparagraph (A) for a single additional 15 day period
only if the Director requests additional information from the
enterprise.
``(3) Failure to respond.--If the Director fails to approve
the request or fails to submit a report under paragraph
(2)(A)(ii) during the period provided, the request shall be
considered to have been approved by the Director.
``(4) Review of disapproval.--
``(A) Submission of new information.--If the Director
submits a report under paragraph (2)(A)(ii) denying a request
for reasons listed under paragraph (1) or (2) of subsection
[[Page S10625]]
(b), the Director shall allow the enterprise to submit new
information in support of the request for approval.
``(B) New programs not in the public interest.--If the
Director submits a report under paragraph (2)(A)(ii) denying
a request after finding that the program is not in the public
interest under subsection (b)(3), the Director shall provide
the enterprise with notice and opportunity for a hearing on
the record regarding such denial.''.
(c) Repeal of HUD Authority.--Part 2 of Subtitle A of title
XIII of the Housing and Community Development Act of 1992 (12
U.S.C.4501 et seq.) is amended by striking sections 1321 and
1322.
(d) Authority of HUD for Housing Goals.--
(1) In general.--Section 1331 of the Housing and Community
Development Act of 1992 (12 U.S.C. 4561) is amended--
(A) in the first sentence of subsection (a), by inserting
``of Housing and Urban Development'' after ``The Secretary'';
and
(B) by adding at the end the following:
``(d) Definition.--For purposes of this part, the term
`Secretary' means the Secretary of Housing and Urban
Development.''.
(2) Annual report on housing goals.--Section 1324 of the
Housing and Community Development Act of 1992 (12 U.S.C.
4544) is amended by inserting ``of Housing and Urban
Development'' after ``Secretary'' each place such term
appears.
(e) Technical and Conforming Amendments.--
(1) Fannie mae.--Section 302(b)(6) of the Federal National
Mortgage Association Charter Act (12 U.S.C. 1716(b)(6)) is
amended by striking ``Secretary under section 1322'' and
inserting ``Director under section 1319H''.
(2) Freddie mac.--Section 305(c) of the Federal Home Loan
Mortgage Corporation Act (12 U.S.C. 1454(c)) is amended by
striking ``Secretary under section 1322'' and inserting
``Director under section 1319H''.
(3) Financial Institutions Examination Council.--Section
1004(a) of the Federal Financial Institutions Examination
Council Act of 1978 (12 U.S.C. 3303(a)) is amended--
(A) in paragraph (5), by striking the period; and
(B) by adding at the end the following:
``(6) the Director of the Office of Federal Enterprise
Supervision.''.
SEC. 103. EXAMINERS AND ACCOUNTANTS.
(a) Examinations.--Section 1317 of the Housing and
Community Development Act of 1992 (12 U.S.C. 4517) is
amended--
(1) in the second sentence of subsection (c), by striking
``The'' and inserting ``During the 3-year period that begins
upon the date of enactment of the Federal Enterprise
Regulatory Reform Act of 2003, the''; and
(2) in subsection (d), by striking ``Federal Reserve
banks'' and inserting ``Director of the Office of Thrift
Supervision''.
(b) Enhanced Authority To Hire Examiners and Accountants.--
Section 1317 of the Housing and Community Development Act of
1992 (12 U.S.C. 4517) is amended by adding at the end the
following:
``(g) Appointment of Accountants, Economists, and
Examiners.--
``(1) Applicability.--This section applies with respect to
any position of examiner, accountant, and economist at the
Office, with respect to supervision and regulation of the
enterprises, that is in the competitive service.
``(2) Appointment authority.--
``(A) In general.--The Director may appoint candidates to
any position described in paragraph (1)--
``(i) in accordance with the statutes, rules, and
regulations governing appointments in the excepted service;
and
``(ii) notwithstanding any statutes, rules, and regulations
governing appointments in the competitive service.
``(B) Rule of construction.--The appointment of a candidate
to a position under this paragraph shall not be considered to
cause such position to be converted from the competitive
service to the excepted service.
``(3) Reports.--
``(A) In general.--Not later than 90 days after the end of
fiscal year 2003 (for fiscal year 2003) and 90 days after the
end of fiscal year 2005 (for fiscal years 2004 and 2005), the
Director shall submit a report with respect to its exercise
of the authority granted by paragraph (2) during such fiscal
years to the--
``(i) Committee on Government Reform and the Committee on
Financial Services of the House of Representatives; and
``(ii) Committee on Governmental Affairs and the Committee
on Banking, Housing, and Urban Affairs of the Senate.
``(B) Contents.--The reports submitted under subparagraph
(A) shall describe the changes in the hiring process
authorized by paragraph (2), including relevant information
related to--
``(i) the quality of candidates;
``(ii) the procedures used by the Director to select
candidates through the streamlined hiring process;
``(iii) the numbers, types, and grades of employees hired
under the authority;
``(iv) any benefits or shortcomings associated with the use
of the authority;
``(v) the effect of the exercise of the authority on the
hiring of veterans and other demographic groups; and
``(vi) the way in which managers were trained in the
administration of the streamlined hiring system.''.
SEC. 104. REGULATIONS.
Section 1319G of the Housing and Community Development Act
of 1992 (12 U.S.C. 4526) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Authority.--The Director shall issue any regulations
and orders necessary to carry out the duties of the Director,
with respect to supervision and regulation of the
enterprises, under this title, the Federal National Mortgage
Association Charter Act (12 U.S.C. 1716 et seq.), and the
Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1451 et
seq.), and to ensure that the purposes of this title and such
Acts are accomplished.''; and
(2) in subsection (c), by striking ``Committee on Banking,
Finance and Urban Affairs'' and inserting ``Committee on
Financial Services''.
SEC. 105. ASSESSMENTS.
Section 1316 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4516) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Annual Assessments.--The Director shall establish and
collect from the enterprises annual assessments in an amount
not exceeding the amount sufficient to provide for all
reasonable costs and expenses of the Office, including--
``(1) the expenses of any examinations under section 1317;
and
``(2) the expenses of obtaining any reviews and credit
assessments under subsection section 1319.'';
(2) in subsection (b), in paragraph (2), by moving the
margin 2 ems to the right;
(3) in subsection (c), by adding at the end the following:
``The Director may adjust the amounts of any semiannual
assessments for an assessment under subsection (a) that are
to be paid pursuant to subsection (b) by an enterprise, as
necessary in the discretion of the Director, to ensure that
the costs of enforcement activities under subtitles B and C
for an enterprise are borne only by that enterprise.'';
(4) in subsection (f), by striking ``Any assessments
collected'' and all that follows and inserting the following:
``Notwithstanding any other provision of law, any assessments
collected by the Director pursuant to this section shall be
deposited in the Fund in an account for the Director. Any
amounts in the Fund are hereby made available, without fiscal
year limitation, to the Director (to the extent of amounts in
the Director's account) for carrying out the supervisory and
regulatory responsibilities of the Director, with respect to
the enterprises, including any necessary administrative and
nonadministrative expenses of the Director in carrying out
the purposes of this title, the Federal National Mortgage
Association Charter Act (12 U.S.C. 1716 et seq.), and the
Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1451 et
seq.).''; and
(5) in subsection (g), by striking paragraphs (1) and (2)
and inserting the following:
``(1) Financial operating plans and forecasts.--Before the
beginning of each fiscal year, the Director shall submit a
copy of the financial operating plans and forecasts for the
Office to the Director of the Office of Management and
Budget.
``(2) Reports of operations.--As soon as practicable after
the end of each fiscal year and each quarter thereof, the
Director shall submit a copy of the report of the results of
the operations of the Office during such period to the
Director of the Office of Management and Budget.''.
SEC. 106. INDEPENDENCE OF DIRECTOR IN CONGRESSIONAL TESTIMONY
AND RECOMMENDATIONS.
Section 111 of Public Law 93-495 (12 U.S.C. 250) is amended
by inserting ``the Director of the Office of Federal
Enterprise Supervision of the Department of the Treasury,''
after ``the Federal Housing Finance Board,''.
SEC. 107. LIMITATION ON NONMISSION-RELATED ASSETS.
Subtitle B of title XIII of the Housing and Community
Development Act of 1992 (12 U.S.C. 4611 et seq.) is amended--
(1) by striking the subtitle designation and heading and
inserting the following:
``Subtitle B--Required Capital Levels for Enterprises, Special
Enforcement Powers, and Limitation on Nonmission-Related Assets'';
and
(2) by adding at the end the following:
``SEC. 1369E. LIMITATION ON NONMISSION-RELATED ASSETS.
``(a) In General.--The Director may, by regulation,
determine the type and amount of nonmission-related assets
that an enterprise may hold at any time. The Director shall,
in any such regulation, define the term `nonmission-related
asset' for purposes of this section.
``(b) Rule of Construction.--Subsection (a) may not be
construed to authorize an enterprise to engage in any new
program relating to any nonmission-related asset without
obtaining the prior approval of the Director in accordance
with section 1319H.''.
SEC. 108. REPORTS.
Sections 1327 and 1328 of the Housing and Community
Development Act of 1992 (12 U.S.C. 4547, 4548) are amended by
striking ``Secretary'' each place it appears and inserting
``Director''.
SEC. 109. RISK-BASED CAPITAL TEST FOR ENTERPRISES.
Section 1361 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4611) is amended--
[[Page S10626]]
(1) in subsection (a)(2)(A), by inserting ``, or change in
such other manner as the Director considers appropriate,''
after ``subparagraph (C),'';
(2) in subsection (b)(1), by adding at the end the
following: ``Notwithstanding subsection (a), the Director
may, in the sole discretion of the Director, make any
assumptions that the Director considers appropriate regarding
interest rates, home prices, and new business. Such
assessment shall ensure that enterprise risk-based capital
standards are, to the greatest extent feasible, comparable to
those imposed by the appropriate Federal banking agency (as
defined in section 3 of the Federal Deposit Insurance Act (12
U.S.C. 1813)) for comparable risk. The risk-based assessment
relating to new business under this paragraph shall ensure
that the enterprise is able to remain a viable enterprise in
full compliance with all applicable risk-based capital and
minimum capital standards, and that it can fulfill its role
of ensuring appropriate secondary market liquidity throughout
the stress test.''; and
(3) in subsection (c)(2), by inserting ``, or such other
percentage as the Director considers appropriate'' before the
period at the end.
SEC. 110. MINIMUM AND CRITICAL CAPITAL LEVELS.
(a) Minimum Capital Level.--Section 1362 of the Housing and
Community Development Act of 1992 (12 U.S.C. 4612) is
amended--
(1) by striking subsection (b);
(2) by striking ``(a) In General.--''; and
(3) in the matter preceding paragraph (1), by inserting
before ``the sum of'' the following: ``the amount established
by the Director, by regulation or order, as such amount may
be adjusted from time-to-time by the Director to achieve the
purposes of this title, that is not less than''.
(b) Critical Capital Level.--Section 1363 of the Housing
and Community Development Act of 1992 (12 U.S.C. 4613) is
amended, in the matter preceding paragraph (1), by inserting
before ``the sum of'' the following: ``the amount established
by the Director, by regulation or order, as such amount may
be adjusted from time-to-time by the Director to achieve the
purposes of this title, that is not less than''.
SEC. 111. DEFINITIONS.
Section 1303 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4502) is amended--
(1) in paragraph (5), by striking ``Federal Housing
Enterprise Oversight of the Department of Housing and Urban
Development'' and inserting ``Federal Enterprise Supervision
of the Department of the Treasury'';
(2) in paragraphs (8), (9), (10), and (19), by inserting
``of Housing and Urban Development'' after ``Secretary'' each
place such term appears;
(3) in paragraph (14), by striking ``Federal Housing
Enterprise Oversight of the Department of Housing and Urban
Development'' and inserting ``Federal Enterprise Supervision
of the Department of the Treasury'';
(4) by striking paragraph (15);
(5) by redesignating paragraphs (7) through (14) (as
amended by the preceding provisions of this Act) as
paragraphs (8) through (15), respectively; and
(6) by inserting after paragraph (6) the following:
``(7) Enterprise-affiliated party.--The term `enterprise-
affiliated party' means--
``(A) any director, officer, employee, or controlling
stockholder of, or agent for, an enterprise;
``(B) any shareholder, consultant, joint venture partner,
and any other person as determined by the Director (by
regulation or case-by-case) who participates in the conduct
of the affairs of an enterprise; and
``(C) any independent contractor (including any attorney,
appraiser, or accountant) who knowingly or recklessly
participates in--
``(i) any violation of any law or regulation;
``(ii) any breach of fiduciary duty; or
``(iii) any unsafe or unsound practice,
which caused or is likely to cause more than a minimal
financial loss to, or a significant adverse effect on, the
enterprise.''.
Subtitle B--Prompt Corrective Action
SEC. 131. CAPITAL CLASSIFICATIONS.
Section 1364 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4614) is amended--
(1) by striking subsection (b) and inserting the following:
``(b) Discretionary Classification.--
``(1) Grounds for reclassification.--The Director may
reclassify an enterprise under paragraph (2) if--
``(A) at any time, the Director determines in writing that
an enterprise is engaging in conduct that could result in a
rapid depletion of core capital or that the value of the
property subject to mortgages held or securitized by the
enterprise has decreased significantly;
``(B) after notice and an opportunity for hearing, the
Director determines that an enterprise is in an unsafe or
unsound condition; or
``(C) pursuant to section 1371(b), the Director deems an
enterprise to be engaging in an unsafe or unsound practice.
``(2) Reclassification.--In addition to any other action
authorized under this title, including the reclassification
of an enterprise for any reason not specified in this
subsection, if the Director takes any action described in
paragraph (1) the Director may classify an enterprise--
``(A) as undercapitalized, if the enterprise is otherwise
classified as adequately capitalized;
``(B) as significantly undercapitalized, if the enterprise
is otherwise classified as undercapitalized; and
``(C) as critically undercapitalized, if the enterprise is
otherwise classified as significantly undercapitalized.'';
(2) by redesignating subsection (d) as subsection (e); and
(3) by inserting after subsection (c) the following:
``(d) Restriction on Capital Distributions.--
``(1) In general.--An enterprise shall make no capital
distribution if, after making the distribution, the
enterprise would be undercapitalized.
``(2) Exception.--Notwithstanding paragraph (1), the
Director may permit an enterprise to repurchase, redeem,
retire, or otherwise acquire shares or ownership interests if
the repurchase, redemption, retirement, or other
acquisition--
``(A) is made in connection with the issuance of additional
shares or obligations of the enterprise in at least an
equivalent amount; and
``(B) will reduce the financial obligations of the
enterprise or otherwise improve the financial condition of
the enterprise.''.
SEC. 132. SUPERVISORY ACTIONS APPLICABLE TO UNDERCAPITALIZED
ENTERPRISES.
(a) Effective Date for Supervisory Actions.--Section
1365(c) of the Housing and Community Development Act of 1992
(12 U.S.C. 4615(c)) is amended by striking ``1-year'' and
inserting ``6-month''.
(b) Supervisory Actions.--Section 1365 of the Housing and
Community Development Act of 1992 (12 U.S.C. 4615) is
amended--
(1) in subsection (a)--
(A) by redesignating paragraphs (1) and (2) as paragraphs
(2) and (3), respectively;
(B) by inserting before paragraph (2) the following:
``(1) Required monitoring.--The Director shall--
``(A) closely monitor the condition of any undercapitalized
enterprise;
``(B) closely monitor compliance with the capital
restoration plan, restrictions, and requirements imposed
under this section; and
``(C) periodically review the plan, restrictions, and
requirements applicable to the undercapitalized enterprise to
determine whether the plan, restrictions, and requirements
are achieving the purpose of this section.''; and
(C) by inserting at the end the following:
``(4) Restriction of asset growth.--An undercapitalized
enterprise shall not permit its average total assets during
any calendar quarter to exceed its average total assets
during the preceding calendar quarter unless--
``(A) the Board has accepted the enterprise's capital
restoration plan;
``(B) any increase in total assets is consistent with the
plan; and
``(C) the ratio of tangible equity to assets of the
enterprise increases during the calendar quarter at a rate
sufficient to enable the enterprise to become adequately
capitalized within a reasonable time.
``(5) Prior approval of acquisitions and issuance of new
products.--An undercapitalized enterprise shall not, directly
or indirectly, acquire any interest in any entity or issue a
new product unless--
``(A) the Director has accepted the capital restoration
plan of the enterprise, the enterprise is implementing the
plan, and the Director determines that the proposed action is
consistent with and will further the achievement of the plan;
or
``(B) the Director determines that the proposed action will
further the purpose of this section.''; and
(2) in the subsection heading for subsection (b), by
striking ``From Undercapitalized to Significantly
Undercapitalized'';
(3) by redesignating subsection (c) (as amended by
subsection (a)) as subsection (d); and
(4) by inserting after subsection (b) the following:
``(c) Other Discretionary Safeguards.--The Director may
take, with respect to an undercapitalized enterprise, any of
the actions authorized to be taken under section 1366 with
respect to a significantly undercapitalized enterprise, if
the Director determines that such actions are necessary to
carry out the purpose of this subtitle.''.
SEC. 133. SUPERVISORY ACTIONS APPLICABLE TO SIGNIFICANTLY
UNDERCAPITALIZED ENTERPRISES.
Section 1366 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4616) is amended--
(1) in subsection (b)--
(A) in the subsection heading, by striking ``Discretionary
Supervisory Actions'' and inserting ``Specific Actions'';
(B) in the matter preceding paragraph (1), by striking
``may, at any time, take any'' and inserting ``shall carry
out this section by taking, at any time, 1 or more'';
(C) by redesignating paragraphs (5) and (6) as paragraphs
(6) and (7), respectively;
(D) by inserting after paragraph (4) the following:
``(5) Improvement of management.--Take one or more of the
following actions:
``(A) New election of board.--Order a new election for the
board of directors of the enterprise.
``(B) Dismissal of directors or executive officers.--
Require the enterprise to dismiss from office any director or
executive officer who had held office for more than 180 days
[[Page S10627]]
immediately before the enterprise became undercapitalized.
Dismissal under this subparagraph shall not be construed to
be a removal pursuant to the Director's enforcement powers
under section 1377.
``(C) Employ qualified executive officers.--Require the
enterprise to employ qualified executive officers (who, if
the Director so specifies, shall be subject to approval by
the Director).''; and
(E) by inserting at the end the following:
``(8) Other action.--Require the enterprise to take any
other action that the Director determines will better carry
out the purpose of this section than any of the actions
specified in this paragraph.'';
(2) by redesignating subsection (c) as subsection (d); and
(3) by inserting after subsection (b) the following:
``(c) Restriction on Compensation of Executive Officers.--
An enterprise that is classified as significantly
undercapitalized may not, without prior written approval by
the Director--
``(A) pay any bonus to any executive officer; or
``(B) provide compensation to any executive officer at a
rate exceeding that officer's average rate of compensation
(excluding bonuses, stock options, and profit sharing) during
the 12 calendar months preceding the calendar month in which
the enterprise became undercapitalized.''.
Subtitle C--Enforcement Actions
SEC. 151. CEASE-AND-DESIST PROCEEDINGS.
Section 1371 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4631) is amended--
(1) by striking subsections (a) and (b) and inserting the
following:
``(a) Issuance for Unsafe or Unsound Practices and
Violations of Rules or Laws.--
``(1) In general.--If, in the opinion of the Director, an
enterprise or any enterprise-affiliated party is engaging or
has engaged, or the Director has reasonable cause to believe
that the enterprise or any enterprise-affiliated party is
about to engage, in an unsafe or unsound practice in
conducting the business of the enterprise or is violating or
has violated, or the Director has reasonable cause to believe
that the enterprise or any enterprise-affiliated party is
about to violate, a law, rule, or regulation, or any
condition imposed in writing by the Director in connection
with the granting of any application or other request by the
enterprise or any written agreement entered into with the
Director, the Director may issue and serve upon the
enterprise or such party a notice of charges in respect
thereof.
``(2) Limitations.--The Director may not enforce compliance
with--
``(A) any housing goal established under subpart B of part
2 of subtitle A of this title;
``(B) section 1336 or 1337 of this title;
``(C) subsection (m) or (n) of section 309 of the Federal
National Mortgage Association Charter Act (12 U.S.C.
1723a(m), (n)); or
``(D) subsection (e) or (f) of section 307 of the Federal
Home Loan Mortgage Corporation Act (12 U.S.C. 1456(e), (f)).
``(b) Issuance for Unsatisfactory Rating.--If an enterprise
receives, in its most recent report of examination, a less-
than-satisfactory rating for asset quality, management,
earnings, or liquidity, the Director may (if the deficiency
is not corrected) deem the enterprise to be engaging in an
unsafe or unsound practice for purposes of this
subsection.''; and
(2) in subsection (c)(2), by striking ``or director'' and
inserting ``director, or enterprise-affiliated party''.
SEC. 152. TEMPORARY CEASE-AND-DESIST PROCEEDINGS.
Section 1372 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4632) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Grounds for Issuance.--Whenever the Director
determines that the violation or threatened violation or the
unsafe or unsound practice or practices specified in the
notice of charges served upon the enterprise or any
enterprise-affiliated party under section 1371(a), or the
continuation thereof, is likely to cause insolvency or
significant dissipation of assets or earnings of the
enterprise, or is likely to weaken the condition of the
enterprise prior to the completion of the proceedings
conducted pursuant to sections 1371 and 1373, the Director
may issue a temporary order requiring the enterprise or such
party to cease and desist from any such violation or practice
and to take affirmative action to prevent or remedy such
insolvency, dissipation, condition, or prejudice pending
completion of such proceedings. Such order may include any
requirement authorized under subsection 1371(d).'';
(2) in subsection (b), by striking ``or director'' and
inserting ``director, or enterprise-affiliated party'';
(3) in subsection (d), striking ``or director'' and
inserting ``director, or enterprise-affiliated party''; and
(4) by striking subsection (e) and in inserting the
following:
``(e) Enforcement.--In the case of violation or threatened
violation of, or failure to obey, a temporary cease-and-
desist order issued under this section, the Director may
apply to the United States District Court for the District of
Columbia or the United States district court within the
jurisdiction of which the headquarters of the enterprise is
located, for an injunction to enforce such order, and, if the
court determines that there has been such violation or
threatened violation or failure to obey, it shall be the duty
of the court to issue such injunction.''.
SEC. 153. REMOVAL AND PROHIBITION AUTHORITY.
(a) In General.--Subtitle C of title XIII of the Housing
and Community Development Act of 1992 is amended--
(1) by redesignating sections 1377 through 1379B (12 U.S.C.
4637-41) as sections 1379 through 1379D, respectively; and
(2) by inserting after section 1376 (12 U.S.C. 4636) the
following:
``SEC. 1377. REMOVAL AND PROHIBITION AUTHORITY.
``(a) Authority To Issue Order.--Whenever the Director
determines that--
``(1) any enterprise-affiliated party has, directly or
indirectly--
``(A) violated--
``(i) any law or regulation;
``(ii) any cease-and-desist order which has become final;
``(iii) any condition imposed in writing by the Director in
connection with the grant of any application or other request
by such enterprise; or
``(iv) any written agreement between such enterprise and
the Director;
``(B) engaged or participated in any unsafe or unsound
practice in connection with any enterprise; or
``(C) committed or engaged in any act, omission, or
practice which constitutes a breach of such party's fiduciary
duty;
``(2) by reason of the violation, practice, or breach
described in any subparagraph of paragraph (1)--
``(A) such enterprise has suffered or will probably suffer
financial loss or other damage; or
``(B) such party has received financial gain or other
benefit by reason of such violation, practice, or breach; and
``(3) such violation, practice, or breach--
``(A) involves personal dishonesty on the part of such
party; or
``(B) demonstrates willful or continuing disregard by such
party for the safety or soundness of such enterprise,
the Director may serve upon such party a written notice of
the Director's intention to remove such party from office or
to prohibit any further participation by such party, in any
manner, in the conduct of the affairs of any enterprise.
``(b) Suspension Order.--
``(1) Suspension or prohibition authority.--If the Director
serves written notice under subsection (a) to any enterprise-
affiliated party of the Director's intention to issue an
order under, the Director may suspend such party from office
or prohibit such party from further participation in any
manner in the conduct of the affairs of the enterprise, if
the Director--
``(A) determines that such action is necessary for the
protection of the enterprise; and
``(B) serves such party with written notice of the
suspension order.
``(2) Effective period.--Any suspension order issued under
subsection (a)--
``(A) shall become effective upon service; and
``(B) unless a court issues a stay of such order under
subsection (g) of this section, shall remain in effect and
enforceable until--
``(i) the date the Director dismisses the charges contained
in the notice served under subsection (a) with respect to
such party; or
``(ii) the effective date of an order issued by the
Director to such party under subsection (a).
``(3) Copy of order.--If the Director issues a suspension
order under subsection (a) to any enterprise-affiliated
party, the Director shall serve a copy of such order on any
enterprise with which such party is affiliated at the time
such order is issued.
``(c) Notice, Hearing, and Order.--A notice of intention to
remove an enterprise-affiliated party from office or to
prohibit such party from participating in the conduct of the
affairs of an enterprise shall contain a statement of the
facts constituting grounds for such action, and shall fix a
time and place at which a hearing will be held on such
action. Such hearing shall be fixed for a date not earlier
than 30 days nor later than 60 days after the date of service
of such notice, unless an earlier or a later date is set by
the Director at the request of (1) such party, and for good
cause shown, or (2) the Attorney General of the United
States. Unless such party shall appear at the hearing in
person or by a duly authorized representative, such party
shall be deemed to have consented to the issuance of an order
of such removal or prohibition. In the event of such consent,
or if upon the record made at any such hearing the Director
shall find that any of the grounds specified in such notice
have been established, the Director may issue such orders of
suspension or removal from office, or prohibition from
participation in the conduct of the affairs of the
enterprise, as it may deem appropriate. Any such order shall
become effective at the expiration of 30 days after service
upon such enterprise and such party (except in the case of an
order issued upon consent, which shall become effective at
the time specified therein). Such order shall remain
effective and enforceable except to such extent as it is
stayed, modified, terminated, or set aside by action of the
Director or a reviewing court.
[[Page S10628]]
``(d) Prohibition of Certain Specific Activities.--Any
person subject to an order issued under this section shall
not--
``(1) participate in any manner in the conduct of the
affairs of any enterprise;
``(2) solicit, procure, transfer, attempt to transfer,
vote, or attempt to vote any proxy, consent, or authorization
with respect to any voting rights in any enterprise;
``(3) violate any voting agreement previously approved by
the Director; or
``(4) vote for a director, or serve or act as an
enterprise-affiliated party.
``(e) Industry-Wide Prohibition.--
``(1) In general.--Except as provided in subparagraph (2),
any person who, pursuant to an order issued under subsection
(h), has been removed or suspended from office in an
enterprise or prohibited from participating in the conduct of
the affairs of an enterprise may not, while such order is in
effect, continue or commence to hold any office in, or
participate in any manner in the conduct of the affairs of
any enterprise.
``(2) Exception if director provides written consent.--If,
on or after the date an order is issued under this section
which removes or suspends from office any enterprise-
affiliated party or prohibits such party from participating
in the conduct of the affairs of an enterprise, such party
receives the written consent of the Director, the order
shall, to the extent of such consent, cease to apply to such
party with respect to the enterprise described in the written
consent. If the Director grants such a written consent, it
shall publicly disclose such consent.
``(3) Violation of paragraph (1) treated as violation of
order.--Any violation of paragraph (1) by any person who is
subject to an order described in such subsection shall be
treated as a violation of the order.
``(f) Applicability.--This section shall only apply to a
person who is an individual, unless the Director specifically
finds that it should apply to a corporation, firm, or other
business enterprise.
``(g) Stay of Suspension and Prohibition of Enterprise-
Affiliated Party.--Within 10 days after any enterprise-
affiliated party has been suspended from office or prohibited
from participation in the conduct of the affairs of an
enterprise under this section, such party may apply to the
United States District Court for the District of Columbia, or
the United States district court for the judicial district in
which the headquarters of the enterprise is located, for a
stay of such suspension or prohibition pending the completion
of the administrative proceedings pursuant to the notice
served upon such party under this section, and such court
shall have jurisdiction to stay such suspension or
prohibition.
``(h) Suspension or Removal of Enterprise-Affiliated Party
Charged With Felony.--
``(1) Suspension or prohibition.--
``(A) In general.--Whenever any enterprise-affiliated party
is charged in any information, indictment, or complaint, with
the commission of or participation in a crime involving
dishonesty or breach of trust which is punishable by
imprisonment for a term exceeding one year under State or
Federal law, the Director may, if continued service or
participation by such party may pose a threat to the
enterprise or impair public confidence in the enterprise, by
written notice served upon such party, suspend such party
from office or prohibit such party from further participation
in any manner in the conduct of the affairs of any
enterprise.
``(B) Provisions applicable to notice.--
``(i) Copy.--A copy of any notice under paragraph (1)(A)
shall also be served upon the enterprise.
``(ii) Effective period.--A suspension or prohibition under
subparagraph (A) shall remain in effect until the
information, indictment, or complaint referred to in such
subparagraph is finally disposed of or until terminated by
the Director.
``(2) Removal or prohibition.--
``(A) In general.--If a judgment of conviction or an
agreement to enter a pretrial diversion or other similar
program is entered against an enterprise-affiliated party in
connection with a crime described in paragraph (1)(A), at
such time as such judgment is not subject to further
appellate review, the Director may, if continued service or
participation by such party may pose a threat to the
enterprise or impair public confidence in the enterprise,
issue and serve upon such party an order removing such party
from office or prohibiting such party from further
participation in any manner in the conduct of the affairs of
the enterprise without the prior written consent of the
Director.
``(B) Provisions applicable to order.--
``(i) Copy.--A copy of any order under paragraph (2)(A)
shall also be served upon the enterprise, whereupon the
enterprise-affiliated party who is subject to the order (if a
director or an officer) shall cease to be a director or
officer of such enterprise.
``(ii) Effect of acquittal.--A finding of not guilty or
other disposition of the charge shall not preclude the
Director from instituting proceedings after such finding or
disposition to remove such party from office or to prohibit
further participation in enterprise affairs under subsection
(a), (d), or (e).
``(iii) Effective period.--Any notice of suspension or
order of removal issued under this subsection shall remain
effective and outstanding until the completion of any hearing
or appeal authorized under paragraph (4) unless terminated by
the Director.
``(3) Authority of remaining board members.--
``(A) In general.--If at any time, because of the
suspension of one or more directors pursuant to this section,
there shall be on the board of directors of an enterprise
less than a quorum of directors not so suspended, all powers
and functions vested in or exercisable by such board shall
vest in and be exercisable by the director or directors on
the board not so suspended, until such time as there shall be
a quorum of the board of directors.
``(B) Suspension of all directors.--In the event all of the
directors of an enterprise are suspended pursuant to this
section, the Director shall appoint persons to serve
temporarily as directors in their place and stead pending the
termination of such suspensions, or until such time as those
who have been suspended, cease to be directors of the
enterprise and their respective successors take office.
``(4) Hearing regarding continued participation.--Within 30
days from service of any notice of suspension or order of
removal issued pursuant to paragraph (1) or (2) of this
subsection, the enterprise-affiliated party concerned may
request in writing an opportunity to appear before the
Director to show that the continued service to or
participation in the conduct of the affairs of the enterprise
by such party does not, or is not likely to, pose a threat to
the interests of the enterprise or threaten to impair public
confidence in the enterprise. Upon receipt of any such
request, the Director shall fix a time (not more than 30 days
after receipt of such request, unless extended at the request
of such party) and place at which such party may appear,
personally or through counsel, before one or more members of
the Director or designated employees of the Director to
submit written materials (or, at the discretion of the
Director, oral testimony) and oral argument. Within 60 days
of such hearing, the Director shall notify such party whether
the suspension or prohibition from participation in any
manner in the conduct of the affairs of the enterprise will
be continued, terminated, or otherwise modified, or whether
the order removing such party from office or prohibiting such
party from further participation in any manner in the conduct
of the affairs of the enterprise will be rescinded or
otherwise modified. Such notification shall contain a
statement of the basis for the Director's decision, if
adverse to such party. The Director is authorized to
prescribe such rules as may be necessary to effectuate the
purposes of this subsection.
``(i) Hearings and Judicial Review.--
``(1) Venue and procedure.--Any hearing provided for in
this section shall be held in the District of Columbia or in
the Federal judicial district in which the headquarters of
the enterprise is located, unless the party afforded the
hearing consents to another place, and shall be conducted in
accordance with the provisions of chapter 5 of title 5,
United States Code. After such hearing, and within 90 days
after the Director has notified the parties that the case has
been submitted to the court for final decision, the court
shall render its decision (which shall include findings of
fact upon which its decision is predicated) and shall issue
and serve upon each party to the proceeding an order or
orders consistent with the provisions of this section.
Judicial review of any such order shall be exclusively as
provided in this subsection. Unless a petition for review is
timely filed in a court of appeals of the United States, as
provided in paragraph (2), and thereafter until the record in
the proceeding has been filed as so provided, the Director
may at any time, upon such notice and in such manner as it
shall deem proper, modify, terminate, or set aside any such
order. Upon such filing of the record, the Director may
modify, terminate, or set aside any such order with
permission of the court.
``(2) Review of order.--Any party to any proceeding under
paragraph (1) may obtain a review of any order served
pursuant to paragraph (1) (other than an order issued with
the consent of the enterprise or the enterprise-affiliated
party concerned, or an order issued under subsection (h) of
this section) by the filing in the United States Court of
Appeals for the District of Columbia Circuit or court of
appeals of the United States for the circuit in which the
headquarters of the enterprise is located, within 30 days
after the date of service of such order, a written petition
praying that the order of the Director be modified,
terminated, or set aside. A copy of such petition shall be
transmitted by the clerk of the court to the Director, and
thereupon the Director shall file in the court the record in
the proceeding, as provided in section 2112 of title 28,
United States Code. Upon the filing of such petition, such
court shall have jurisdiction, which upon the filing of the
record shall (except as provided in the last sentence of
paragraph (1)) be exclusive, to affirm, modify, terminate, or
set aside, in whole or in part, the order of the Director.
Review of such proceedings shall be had as provided in
chapter 7 of title 5, United States Code. The judgment and
decree of the court shall be final, except that the same
shall be subject to review by the Supreme Court upon
certiorari, as provided in section 1254 of title 28, United
States Code.
``(3) Proceedings not treated as stay.--The commencement of
proceedings for judicial review under paragraph (2) shall
not, unless specifically ordered by the court, operate as a
stay of any order issued by the Director.''.
(b) Conforming Amendments.--
(1) 1992 act.--Section 1317(f) of the Housing and Community
Development Act of 1992 (12
[[Page S10629]]
U.S.C. 4517(f)) is amended by striking ``section 1379B'' and
inserting ``section 1379D''.
(2) Fannie mae charter act.--The second sentence of
subsection (b) of section 308 of the Federal National
Mortgage Association Charter Act (12 U.S.C. 1723(b)) is
amended by striking ``The'' and inserting ``Except to the
extent that action under section 1377 of the Housing and
Community Development Act of 1992 temporarily results in a
lesser number, the''.
(3) Freddie mac act.--The second sentence of subparagraph
(A) of section 303(a)(2) of the Federal Home Loan Mortgage
Corporation Act (12 U.S.C. 1452(a)(2)(A)) is amended by
striking ``The'' and inserting ``Except to the extent action
under section 1377 of the Housing and Community Development
Act of 1992 temporarily results in a lesser number, the''.
SEC. 154. ENFORCEMENT AND JURISDICTION.
Section 1375 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4635) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Enforcement.--The Director may, in the discretion of
the Director, apply to the United States District Court for
the District of Columbia, or the United States district court
within the jurisdiction of which the headquarters of the
enterprise is located, for the enforcement of any effective
and outstanding notice or order issued under this subtitle or
subtitle B, or request that the Attorney General of the
United States bring such an action. Such court shall have
jurisdiction and power to order and require compliance with
such notice or order.''; and
(2) in subsection (b), by striking ``or 1376'' and
inserting ``1376, or 1377''.
SEC. 155. CIVIL MONEY PENALTIES.
Section 1376 of the Housing and Community Development Act
of 1992 (12 U.S.C. 4636) is amended--
(1) in subsection (a), in the matter preceding paragraph
(1), by striking ``or any executive officer or'' and
inserting ``any executive officer of an enterprise, any
enterprise-affiliated party, or any'';
(2) by striking subsection (b) and inserting the following:
``(b) Amount of Penalty.--
``(1) First tier.--Any enterprise which, or any enterprise-
affiliated party who--
``(A) violates any provision of this title, the Federal
National Mortgage Association Charter Act (12 U.S.C. 1716 et
seq.), the Federal Home Loan Mortgage Corporation Act (12
U.S.C. 1451 et seq.), or any order, condition, rule, or
regulation under any such title or Act, except that the
Director may not enforce compliance with any housing goal
established under subpart B of part 2 of subtitle A of this
title, with section 1336 or 1337 of this title, with
subsection (m) or (n) of section 309 of the Federal National
Mortgage Association Charter Act (12 U.S.C. 1723a(m), (n)),
or with subsection (e) or (f) of section 307 of the Federal
Home Loan Mortgage Corporation Act (12 U.S.C. 1456(e), (f));
``(B) violates any final or temporary order or notice
issued pursuant to this title;
``(C) violates any condition imposed in writing by the
Director in connection with the grant of any application or
other request by such enterprise;
``(D) violates any written agreement between the enterprise
and the Director; or
``(E) engages in any conduct the Director determines to be
an unsafe or unsound practice,
shall forfeit and pay a civil penalty of not more than
$10,000 for each day during which such violation continues.
``(2) Second tier.--Notwithstanding paragraph (1)--
``(A) if an enterprise, or an enterprise-affiliated party--
``(i) commits any violation described in any subparagraph
of paragraph (1);
``(ii) recklessly engages in an unsafe or unsound practice
in conducting the affairs of such enterprise; or
``(iii) breaches any fiduciary duty; and
``(B) the violation, practice, or breach--
``(i) is part of a pattern of misconduct;
``(ii) causes or is likely to cause more than a minimal
loss to such enterprise; or
``(iii) results in pecuniary gain or other benefit to such
party,
the enterprise or enterprise-affiliated party shall forfeit
and pay a civil penalty of not more than $50,000 for each day
during which such violation, practice, or breach continues.
``(3) Third tier.--Notwithstanding paragraphs (1) and (2),
any enterprise which, or any enterprise-affiliated party
who--
``(A) knowingly--
``(i) commits any violation described in any subparagraph
of paragraph (1);
``(ii) engages in any unsafe or unsound practice in
conducting the affairs of such enterprise; or
``(iii) breaches any fiduciary duty; and
``(B) knowingly or recklessly causes a substantial loss to
such enterprise or a substantial pecuniary gain or other
benefit to such party by reason of such violation, practice,
or breach,
shall forfeit and pay a civil penalty in an amount not to
exceed the applicable maximum amount determined under
paragraph (4) for each day during which such violation,
practice, or breach continues.
``(4) Maximum amounts of penalties for any violation
described in paragraph (3).--The maximum daily amount of any
civil penalty which may be assessed pursuant to paragraph (3)
for any violation, practice, or breach described in such
paragraph is--
``(A) in the case of any person other than an enterprise,
an amount not to exceed $2,000,000; and
``(B) in the case of any enterprise, $2,000,000.''; and
(3) in subsection (d)--
(A) by striking ``or director'' each place such term
appears and inserting ``director, or enterprise-affiliated
party'';
(B) by striking ``request the Attorney General of the
United States to'';
(C) by inserting ``, or the United States district court
within the jurisdiction of which the headquarters of the
enterprise is located,'' after ``District of Columbia''; and
(D) by striking ``, or may, under the direction and control
of the Attorney General, bring such an action''.
SEC. 156. CRIMINAL PENALTY.
Subtitle C of title XIII of the Housing and Community
Development Act of 1992 (12 U.S.C. 4631 et seq.) is amended
by inserting after section 1377 (as added by this Act) the
following:
``SEC. 1378. CRIMINAL PENALTY.
``Whoever, being subject to an order in effect under
section 1377, without the prior written approval of the
Director, knowingly participates, directly or indirectly, in
any manner (including by engaging in an activity specifically
prohibited in such an order) in the conduct of the affairs of
any enterprise shall, notwithstanding section 3571 of title
18, be fined not more than $1,000,000, imprisoned for not
more than 5 years, or both.''.
Subtitle D--Reports to Congress
SEC. 161. STUDIES AND REPORTS.
(a) Insured Depository Institution Holdings of Enterprise
Debt and Mortgage-Backed Securities.--Not later than 180 days
after the date of enactment of the Federal Enterprise
Regulatory Reform Act of 2003, the Secretary of the Treasury,
the Board of Governors of the Federal Reserve System, the
Board of Directors of the Federal Deposit Insurance
Corporation, and the National Credit Union Administration
Board shall jointly submit a report to Congress regarding--
(1) the extent to which obligations issued or guaranteed by
the enterprises (including mortgage-backed securities) are
held by federally insured depository institutions, including
such extent by type of institution and such extent relative
to the capital of the institution;
(2) the extent to which the unlimited holdings by federally
insured depository institutions of the obligations of the
enterprises could produce systemic risk issues, particularly
for the safety and soundness of the banking system in the
United States, in the event of default or failure by an
enterprise; and
(3) the effects on the enterprises, the banking industry,
and mortgage markets, if prudent limits on the holdings of
enterprise obligations were placed on federally insured
depository institutions.
(b) Portfolio Operations, Risk Management, and Mission.--
(1) In general.--Not later than one year after the date of
enactment of the Federal Enterprise Regulatory Reform Act of
2003, the Director shall submit a report to Congress--
(A) describing the holdings of the enterprises in retained
mortgages and repurchased mortgage-backed securities and the
use of derivatives for hedging purposes;
(B) describing the extent of such holdings relative to
other assets and the risk implications of such holdings;
(C) containing an analysis of such holdings for safety and
soundness or mission compliance purposes; and
(D) containing an assessment of whether such holdings and
other assets of the enterprises fulfill the mission purposes
of the enterprises under the Federal National Mortgage
Association Charter Act (12 U.S.C. 1716 et seq.) and the
Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1451 et
seq.).
(2) Consultation.--The Director shall consult with the
Comptroller General of the United States in preparing the
report under this subsection and in conducting any research,
analyses, and assessments for the report.
(c) Study of Merger of FHFB With OFES.--
(1) In General.--The Secretary of the Treasury, after
consultation with the Secretary of Housing and Urban
Development and the Board of Governors of the Federal Reserve
System, shall study the feasibility and advisability of
merging the Federal Housing Finance Board and the Office of
Federal Enterprise Supervision of the Department of the
Treasury.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Secretary of the Treasury shall
submit a report to Congress on the results of the study
conducted under paragraph (1).
(d) Study of Consolidation of OTS With OFES.--
(1) Study.--The Secretary of the Treasury shall study the
feasibility and efficacy of consolidating the Office of
Thrift Supervision with the Office of Federal Enterprise
Supervision of the Department of the Treasury.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Secretary of the Treasury shall
submit a report to Congress on the results of the study
conducted under paragraph (1).
(e) Recommendations.--Each report submitted pursuant to
this section shall include specific recommendations of
appropriate
[[Page S10630]]
policies, limitations, regulations, legislation, or other
actions to deal appropriately and effectively with the issues
addressed by such report.
(f) Definitions.--As used in this section, the terms
``Director'' and ``enterprise'' have the meanings given those
terms under section 1303 of the Housing and Community
Development Act of 1992 (42 U.S.C. 4502).
(g) Clerical Amendments.--Part 3 of subtitle A of title
XIII the Housing and Community Development Act of 1992 (106
Stat. 3969) is amended--
(1) by striking sections 1351, 1352, and 1353 (Public Law
102-550; 106 Stat. 3969), except that the provisions of law
amended by such sections repealed shall not be affected by
such repeal; and
(2) by striking sections 1354, 1355, and 1356 (12 U.S.C.
4601-3).
Subtitle E--General Provisions
SEC. 171. CONFORMING AND TECHNICAL AMENDMENTS.
(a) Amendments to 1992 Act.--Title XIII of the Housing and
Community Development Act of 1992 (12 U.S.C. 4501 et seq.),
as amended this Act, is further amended--
(1) in section 1315 (12 U.S.C. 4515)--
(A) in subsection (a)--
(i) in the subsection heading, by striking ``Office
Personnel'' and inserting ``In General''; and
(ii) by striking ``The'' and inserting ``Subject to title
II of the Federal Enterprise Regulatory Reform Act of 2003,
the'';
(B) in subsection (d)--
(i) in the subsection heading, by striking ``HUD'' and
inserting ``Department of the Treasury''; and
(ii) by striking ``Housing and Urban Development'' and
inserting ``the Department of the Treasury''; and
(C) by striking subsection (f);
(2) in section 1319A (12 U.S.C. 4520)--
(A) by striking ``(a) In General.--''; and
(B) by striking subsection (b);
(3) in section 1319F (12 U.S.C. 4525), by striking
paragraph (2);
(4) in the section heading for section 1328, by striking
``SECRETARY'' and inserting ``DIRECTOR'';
(5) in section 1361 (12 U.S.C. 4611)--
(A) in subsection (e)(1), by striking the first sentence
and inserting the following: ``The Director shall establish
the risk-based capital test under this section by
regulation.''; and
(B) in subsection (f), by striking ``the Secretary,'';
(6) in section 1364(c) (12 U.S.C. 4614(c)), by striking the
last sentence;
(7) in section 1367(a)(2) (12 U.S.C. 4617(a)(2)), by
striking ``with the written concurrence of the Secretary of
the Treasury,'';
(8) by striking section 1383;
(9) by striking ``Committee on Banking, Finance and Urban
Affairs'' and inserting ``Committee on Financial Services''
each place such term appears in sections 1319B, 1319G(c),
1328(a), 1336(b)(3)(C), 1337, and 1369(a)(3); and
(10) by striking ``Secretary'' and inserting ``Director''
each place such term appears in--
(A) subpart A of part 2 of subtitle A (except in sections
1322, 1324, and 1325); and
(B) subtitle B (except in section 1361(d)(1) and 1369E);
and
(b) Amendments to Fannie Mae Charter Act.--The Federal
National Mortgage Association Charter Act (12 U.S.C. 1716 et
seq.) is amended--
(1) by striking ``Director of the Office of Federal Housing
Enterprise Oversight of the Department of Housing and Urban
Development'' each place such term appears, and inserting
``Director of the Office of Federal Enterprise Supervision of
the Department of the Treasury'', in--
(A) section 303(c)(2) (12 U.S.C. 1718(c)(2));
(B) section 309(d)(3)(B) (12 U.S.C. 1723a(d)(3)(B)); and
(C) section 309(k)(1); and
(2) in section 309(n)--
(A) in paragraph (1), by inserting ``the Director of the
Office of Federal Enterprise Supervision of the Department of
the Treasury,'' after ``Senate,''; and
(B) in paragraph (3)(B), by striking ``Secretary'' and
inserting ``Director of the Office of Federal Enterprise
Supervision of the Department of the Treasury''.
(c) Amendments to Freddie Mac Act.--The Federal Home Loan
Mortgage Corporation Act (12 U.S.C. 1451 et seq.) is
amended--
(1) by striking ``Director of the Office of Federal Housing
Enterprise Oversight of the Department of Housing and Urban
Development'' each place such term appears, and inserting
``Director of the Office of Federal Enterprise Supervision of
the Department of the Treasury'', in--
(A) section 303(b)(2) (12 U.S.C. 1452(b)(2));
(B) section 303(h)(2) (12 U.S.C. 1452(h)(2)); and
(C) section 307(c)(1) (12 U.S.C. 1456(c)(1));
(2) in section 306(i) (12 U.S.C. 1455(i))--
(A) by striking ``section 1316(c)'' and inserting ``section
306(c)''; and
(B) by striking ``section 106'' and inserting ``section
1316''; and
(3) in section 307 (12 U.S.C. 1456)--
(A) in subsection (f)--
(i) in paragraph (1), by inserting ``the Director of the
Office of Federal Enterprise Supervision of the Department of
the Treasury,'' after ``Senate,''; and
(ii) in paragraph (3)(B), by striking ``Secretary'' and
inserting ``Director of the Office of Federal Enterprise
Supervision of the Department of the Treasury''.
(d) Amendment to Title 18, United States Code.--Section
1905 of title 18, United States Code, is amended by striking
``Office of Federal Housing Enterprise Oversight'' and
inserting ``Office of Federal Enterprise Supervision of the
Department of the Treasury''.
(e) Amendments to Flood Disaster Protection Act of 1973.--
Section 102(f)(3)(A) of the Flood Disaster Protection Act of
1973 (42 U.S.C. 4012a(f)(3)(A)) is amended by striking
``Director of the Office of Federal Housing Enterprise
Oversight of the Department of Housing and Urban
Development'' and inserting ``Director of the Office of
Federal Enterprise Supervision of the Department of the
Treasury''.
(f) Amendment to Department of Housing and Urban
Development Act.--Section 5 of the Department of Housing and
Urban Development Act (42 U.S.C. 3534) is amended by striking
subsection (d).
(g) Amendment to Title 5, United States Code.--Section 5315
of title 5, United States Code, is amended by striking the
item relating to the Director of the Office of Federal
Housing Enterprise Oversight, Department of Housing and Urban
Development and inserting the following new item:
``Director of the Office of Federal Enterprise Oversight,
Department of the Treasury.''.
SEC. 172. EFFECTIVE DATE.
Except as specifically provided otherwise in this title,
the amendments made by this title shall take effect on, and
shall apply beginning on, the expiration of the 1-year period
beginning on the date of enactment of this Act.
TITLE II--TRANSFER OF FUNCTIONS, PERSONNEL, AND PROPERTY
SEC. 201. ABOLISHMENT OF OFHEO.
(a) In General.--Effective at the end of the 1-year period
beginning on the date of enactment of this Act, the Office of
Federal Housing Enterprise Oversight of the Department of
Housing and Urban Development and the positions of the
Director and Deputy Director of such Office are abolished.
(b) Disposition of Affairs.--During the 1-year period
beginning on the date of enactment of this Act, the Director
of the Office of Federal Housing Enterprise Oversight shall,
solely for the purpose of winding up the affairs of the
Office of Federal Housing Enterprise Oversight--
(1) manage the employees of such Office and provide for the
payment of the compensation and benefits of any such employee
which accrue before the effective date of any transfer of
such employee pursuant to section 203; and
(2) may take any other action necessary for the purpose of
winding up the affairs of the Office.
(c) Status of Employees as Federal Agency Employees.--The
amendments made by title I and the abolishment of the Office
of Federal Housing Enterprise Oversight under subsection (a)
of this section may not be construed to affect the status of
any employee of such Office as employees of an agency of the
United States for purposes of any other provision of law
during any time such employee is so employed.
(d) Use of Property and Services.--
(1) Property.--The Director of the Office of Federal
Enterprise Supervision of the Department of the Treasury may
use the property of the Office of Federal Housing Enterprise
Oversight to perform functions that have been transferred to
the Director of the Office of Federal Enterprise Supervision
for such time as is reasonable to facilitate the orderly
transfer of functions under any other provision of this Act,
or any amendment made by this Act to any other provision of
law.
(2) Agency services.--Any agency, department, or other
instrumentality of the United States, and any successor to
any such agency, department, or instrumentality, which was
providing supporting services to the Office of Federal
Housing Enterprise Oversight before the expiration of the
period under subsection (a) in connection with functions that
are transferred to the Director of the Office of Federal
Enterprise Supervision of the Department of the Treasury
shall--
(A) continue to provide such services, on a reimbursable
basis, until the transfer of such functions is complete; and
(B) consult with any such agency to coordinate and
facilitate a prompt and reasonable transition.
(e) Savings Provisions.--
(1) Existing rights, duties, and obligations not
affected.--Subsection (a) shall not affect the validity of
any right, duty, or obligation of the United States, the
Director of the Office of Federal Housing Enterprise
Oversight, or any other person, which--
(A) arises under or pursuant to the title XIII of the
Housing and Community Development Act of 1992 (12 U.S.C. 4501
et seq.), the Federal National Mortgage Association Charter
Act (12 U.S.C. 1716 et seq.), the Federal Home Loan Mortgage
Corporation Act (12 U.S.C. 1451 et seq.), or any other
provision of law applicable with respect to such Office; and
(B) existed on the day before the abolishment under
subsection (a) of this section.
(2) Continuation of suits.--No action or other proceeding
commenced by or against the Director of the Office of Federal
Housing Enterprise Oversight shall abate by reason of the
enactment of this Act, except that the Director of the Office
of Federal Enterprise Supervision of the Department of the
Treasury shall be substituted for the Director of the Office
of Federal Housing Enterprise Oversight as a party to any
such action or proceeding.
[[Page S10631]]
SEC. 202. CONTINUATION AND COORDINATION OF CERTAIN
REGULATIONS.
All regulations, orders, determinations, and resolutions
that--
(1) were issued, made, prescribed, or allowed to become
effective by--
(A) the Office of Federal Housing Enterprise Oversight;
(B) the Secretary of Housing and Urban Development and that
relate to the Secretary's authority under--
(i) title XIII of the Housing and Community Development Act
of 1992 (12 U.S.C. 4501 et seq.);
(ii) under the Federal National Mortgage Association
Charter Act (12 U.S.C. 1716 et seq.), with respect to the
Federal National Mortgage Association; or
(iii) the Federal Home Loan Mortgage Corporation Act (12
U.S.C. 1451 et seq.); or
(C) a court of competent jurisdiction and that relate to
functions transferred by this Act; and
(2) are in effect on the date of the abolishment under
section 201(a) of this Act,
shall remain in effect according to the terms of such
regulations, orders, determinations, and resolutions, and
shall be enforceable by or against the Director of the Office
of Federal Enterprise Supervision of the Department of the
Treasury until modified, terminated, set aside, or superseded
in accordance with applicable law by such Board, any court of
competent jurisdiction, or operation of law.
SEC. 203. TRANSFER AND RIGHTS OF EMPLOYEES OF OFHEO.
(a) Authority to Transfer.--The Director of the Office of
Federal Enterprise Supervision of the Department of the
Treasury may transfer employees of the Office of Federal
Housing Enterprise Oversight to the Office of Federal
Enterprise Supervision for employment no later than the date
of the abolishment under section 201(a) of this Act, as the
Director considers appropriate. This Act and the amendments
made by this Act shall not be considered to result in the
transfer of any function from one agency to another or the
replacement of one agency by another, for purposes of section
3505 of title 5, United States Code, except to the extent
that the Director of the Office of Federal Enterprise
Supervision specifically provides so.
(b) Appointment Authority for Excepted and Senior Executive
Service Employees.--
(1) In general.--Subject to paragraph (2), in the case of
employees occupying positions in the excepted service or the
Senior Executive Service, any appointment authority
established pursuant to law or regulations of the Office of
Personnel Management for filling such positions shall be
transferred.
(2) Decline of transfer.--The Director of the Office of
Federal Enterprise Supervision of the Department of the
Treasury may decline a transfer of authority under paragraph
(1) (and the employees appointed pursuant thereto) to the
extent that such authority relates to positions excepted from
the competitive service because of their confidential,
policy-making, policy-determining, or policy-advocating
character, and noncareer positions in the Senior Executive
Service (within the meaning of section 3132(a)(7) of title 5,
United States Code).
(c) Reorganization.--If the Director of the Office of
Federal Enterprise Supervision of the Department of the
Treasury determines, after the end of the 1-year period
beginning on the date of the abolishment under section
201(a), that a reorganization of the combined work force is
required, that reorganization shall be deemed a major
reorganization for purposes of affording affected employees
retirement under section 8336(d)(2) or 8414(b)(1)(B) of title
5, United States Code.
(d) Employee Benefit Programs.--
(1) In general.--Any employee of the Office of Federal
Housing Enterprise Oversight accepting employment with the
Director of the Office of Federal Enterprise Supervision of
the Department of the Treasury as a result of a transfer
under subsection (a) may retain for 18 months after the date
such transfer occurs membership in any employee benefit
program of the Director of the Office of Federal Enterprise
Supervision of the Department of the Treasury or the Office
of Federal Housing Enterprise Oversight, as applicable,
including insurance, to which such employee belongs on the
date of the abolishment under section 201(a) if--
(A) the employee does not elect to give up the benefit or
membership in the program; and
(B) the benefit or program is continued by the Director of
the Office of Federal Enterprise Supervision.
(2) Payment of differential.--The difference in the costs
between the benefits which would have been provided by such
agency and those provided by this section shall be paid by
the Director of the Office of Federal Enterprise Supervision.
If any employee elects to give up membership in a health
insurance program or the health insurance program is not
continued by such Director, the employee shall be permitted
to select an alternate Federal health insurance program
within 30 days of such election or notice, without regard to
any other regularly scheduled open season.
SEC. 204. TRANSFER OF PROPERTY AND FACILITIES.
Upon the abolishment under section 201(a), all property of
the Office of Federal Housing Enterprise Oversight shall
transfer to the Director of the Office of Federal Enterprise
Supervision of the Department of the Treasury.
______
By Mr. COLEMAN:
S 1509. A bill to amend title 38, United States Code, to provide a
gratuity to veterans, their spouses, and children who contract HIV or
AIDS as a result of a blood transfusion relating to a service-connected
disability, and for other purposes; to the Committee on Veterans'
Affairs.
Mr. COLEMAN. Mr. President, I ask unanimous consent that the text of
the bill I introduce today, the Eric and Brian Simon Act of 2003, to
provide compensation to veterans, their spouses, and children who
contract HIV or AIDS as a result of a blood transfusion relating to a
service-connected injury, be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1509
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 ``Eric and Brian Simon Act of
2003''.
SEC. 2. GRATUITY FOR VETERANS AND DEPENDENTS WHO CONTRACT HIV
OR AIDS FROM BLOOD TRANSFUSIONS RELATING TO
SERVICE-CONNECTED DISABILITIES.
(a) In General.--Subchapter IV of chapter 11 of title 38,
United States Code, is amended by inserting after section
1137 the following new section:
``Sec. 1138. Gratuity for veterans and dependents who
contract HIV or AIDS from blood transfusions relating to
service-connected disabilities
``(a) In General.--Except as provided in subsection (c),
the Secretary shall pay a gratuity in the amount of $100,000
to each individual described in subsection (b) who has an HIV
infection or is diagnosed with AIDS.
``(b) Eligible Individuals.--An individual described in
this subsection is any individual as follows:
``(1) A veteran who--
``(A) was treated with HIV contaminated blood transfusion,
HIV contaminated blood components, HIV contaminated human
tissue, or HIV contaminated organs (other than Anti-
hemophiliac Factor) as a result of a service-connected
disability; and
``(B) can assert through medical evidence acceptable to the
Secretary reasonable certainty of transmission of HIV as a
result of such treatment.
``(2) A lawful spouse, or former lawful spouse, of a
veteran described in paragraph (1) after the time of
treatment of such veteran as described in that paragraph who
can assert through medical evidence acceptable to the
Secretary reasonable certainty of transmission of HIV from
such veteran.
``(3) Each natural child of a veteran described in
paragraph (1) conceived after the time of treatment of such
veteran as described in that paragraph who can assert through
medical evidence acceptable to the Secretary reasonable
certainty of perinatal transmission of HIV from such veteran.
``(c) Exception.--An individual described in subsection (b)
is not entitled to the payment of a gratuity under subsection
(a) if the individual has received a payment under section
102 of the Ricky Ray Hemophilia Relief Fund Act of 1998 (42
U.S.C. 300c-22 note) with respect to an HIV or AIDS
infection.
``(d) Acceptable Medical Evidence.--(1) Except as provided
in paragraph (2), medical evidence acceptable to the
Secretary under subsection (b) shall include the following,
as applicable:
``(A) Evidence of infection with HIV or AIDS.
``(B) In the case of a veteran described in subsection
(b)(1), evidence of the treatment described in subsection
(b)(1).
``(C) Evidence indicating no prior infection with HIV or
AIDS before the treatment described in subsection (b)(1) that
provided the source of infection with HIV or AIDS.
``(D) Evidence indicating that infection with HIV or AIDS
occurred after the date of the treatment described in
subsection (b)(1) that provided the source of infection with
HIV or AIDS.
``(E) In the case of an individual described in paragraph
(2) or (3) of subsection (b), evidence of transmission of HIV
from a veteran described in paragraph (1) of that subsection.
``(F) Such other evidence as the Secretary may require.
``(2) The Secretary may waive an applicable requirement for
any evidence specified in paragraph (1) if the Secretary
determines that such evidence was destroyed or is otherwise
unavailable as a result of circumstances beyond the control
of the individual concerned.
``(e) Payment for Deceased Individuals.--(1) If an
individual entitled to a gratuity under this section is
deceased at the time of payment, payment shall be made as
follows:
``(A) In the case of an individual who is survived by a
spouse living at the time of payment, to the surviving
spouse.
``(B) In the case of an individual whose surviving spouse
is not living at the time of payment, to the children of the
individual living at the time of payment in equal shares.
[[Page S10632]]
``(C) In the case of an individual not described by
paragraph (1) or (2), to the parents of the individual living
at the time of payment in equal shares.
``(2) An individual described in paragraph (2) or (3) of
subsection (b) who is entitled to a gratuity under subsection
(a) is also entitled to payment under paragraph (1) with
respect to a deceased individual.
``(3) In this subsection:
``(A) The term `spouse', with respect to an individual
described in paragraph (1), means the individual who was
lawfully married to such individual at the time of death.
``(B) The term `child' includes a recognized natural child,
a stepchild who lived with such individual in a parent-child
relationship, and an adopted child.
``(C) The term `parent' includes fathers and moths through
adoption.
``(f) Application.--(1) A person seeking payment of a
gratuity under subsection (a) shall submit to the Secretary
an application therefor in such form and containing such
information as the Secretary shall require.
``(2) If an individual described in subsection (b) dies
before submitting an application for a gratuity under
subsection (a), an individual who would be entitled to
payment under subsection (e) with respect to such deceased
individual may submit an application for the gratuity under
paragraph (1).
``(g) Treatment of Gratuity for Insurance Purposes.--(1) A
payment under this section shall not be considered as any
form of compensation or reimbursement for a loss for purposes
of imposing liability on the individual receiving the
payment, or on the basis of such receipt, to repay any
insurance carrier for insurance payments or to repay any
person on account of worker's compensation payments.
``(2) A payment under this section shall not affect any
claim against an insurance carrier with respect to insurance
or against any person with respect to worker's compensation.
``(h) Definitions.--In this section:
``(1) The term `AIDS' means acquired immune deficiency
syndrome.
``(2) The term `HIV' means human immunodeficiency virus.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 11 of that title is amended by inserting
after the item relating to section 1137 the following new
item:
``1138. Gratuity for veterans and dependents who contract HIV or AIDS
from blood transfusions relating to service-connected
disabilities.''.
______
By Mr. LEAHY (for himself, Mr. Jeffords, Mr. Feingold, Mr.
Kennedy, Mr. Kerry, and Mr. Dayton):
S. 1510. A bill to amend the Immigration and Nationality Act to
provide a mechanism for United States citizens and lawful permanent
residents to sponsor their permanent partners for resident in the
United States, and for other purposes; to the Committee on the
Judiciary.
Mr. LEAHY. Today I am introducing the Permanent Partners Immigration
Act, a Senate companion to legislation that Representative Nadler of
New York has introduced in the House for each of the last three
Congresses. This legislation would allow U.S. citizens and legal
permanent residents to petition for their foreign same-sex partners to
come to the United States under our family immigration system. I am
pleased to be joined in introducing this bill by Senators Jeffords,
Feingold, Kennedy, and Kerry.
Under current law, committed partners of Americans are unable to use
the family immigration system, which accounts for about 75 percent of
the green cards and immigrant visas granted annually by the United
States. As a result, gay Americans who are in this situation must live
apart from their partners, or leave the country if they want to live
legally and permanently with them.
This bill rectifies that situation, while retaining strong
prohibitions against fraud. To qualify as a permanent partner,
petitioners must prove that they are at least 18 and in a committed,
intimate relationship with another adult in which both parties intend a
lifelong commitment, and are financially interdependent with one's
partner. They must also prove that they are not married to, or in a
permanent partnership with, anyone other than that person, and are
unable to contract with that person a marriage cognizable under the
Immigration and Nationality Act. Proof could include sworn affidavits
from friends and family and documentation of financial interdependence.
Penalties for fraud would be the same as penalties for marriage fraud--
up to five years in prison and $250,000 in fines for the U.S. citizen
partner, and deportation for the alien partner.
There are Vermonters who are involved in permanent partnerships with
foreign nationals and who have felt abandoned by our laws in this area.
This bill would allow them--and other gay and lesbian Americans
throughout our Nation who have come to feel that our immigration laws
are discriminatory--to be a fuller part of our society.
The idea that immigration benefits should be extended to same-sex
couples has become increasingly prevalent around the world. Indeed,
fifteen nations Australia, Belgium, Canada, Denmark, Finland, France,
Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South
Africa, Sweden and the United Kingdom--recognize same-sex couples for
immigration purposes.
Our immigration laws treat gays and lesbians in committed
relationships as second-class citizens, and that needs to change. It is
the right thing to do for the people involved, it is the sensible step
to take in the interest of having a fair and consistent policy, and I
hope that the Senate will act.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1510
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; AMENDMENTS TO IMMIGRATION AND
NATIONALITY ACT.
(a) Short Title.--This Act may be cited as the ``Permanent
Partners Immigration Act of 2003''.
(b) Amendments to Immigration and Nationality Act.--Except
as otherwise specifically provided whenever in this Act an
amendment or repeal is expressed as the amendment or repeal
of a section or other provision, the reference shall be
considered to be made to that section or provision in the
Immigration and Nationality Act.
SEC. 2. DEFINITIONS.
Section 101(a) (8 U.S.C. 1101(a)) is amended--
(1) in paragraph (15)(K)(ii), by inserting ``or permanent
partnership'' after ``marriage''; and
(2) by adding at the end the following:
``(51) The term `permanent partner' means an individual 18
years of age or older who--
``(A) is in a committed, intimate relationship with another
individual 18 years of age or older in which both parties
intend a lifelong commitment;
``(B) is financially interdependent with that other
individual;
``(C) is not married to or in a permanent partnership with
anyone other than that other individual;
``(D) is unable to contract with that other individual a
marriage cognizable under this Act; and
``(E) is not a first, second, or third degree blood
relation of that other individual.
``(52) The term `permanent partnership' means the
relationship that exists between two permanent partners.''.
SEC. 3. WORLDWIDE LEVEL OF IMMIGRATION.
Section 201(b)(2)(A)(i) (8 U.S.C. 1151(b)(2)(A)(i)) is
amended--
(1) by inserting ``permanent partners,'' after
``spouses,'';
(2) by inserting ``or permanent partner'' after ``spouse''
each place such term appears; and
(3) by striking ``remarries.'' and inserting ``remarries or
enters a permanent partnership with another person.''.
SEC. 4. NUMERICAL LIMITATIONS ON INDIVIDUAL FOREIGN STATES.
(a) Per Country Levels.--Section 202(a)(4) (8 U.S.C.
1152(a)(4)) is amended--
(1) in the heading, by inserting ``, permanent partners,''
after ``spouses'';
(2) in subparagraph (A), in the heading by inserting ``,
permanent partners,'' after ``spouses''; and
(3) in subparagraph (C), in the heading by inserting
``without permanent partners'' after ``daughters''.
(b) Rules for Chargeability.--Section 202(b)(2) (8 U.S.C.
1152(b)(2)) is amended--
(1) by inserting ``or permanent partner'' after ``spouse''
each place such term appears; and
(2) by inserting ``or permanent partners'' after ``husband
and wife''.
SEC. 5. ALLOCATION OF IMMIGRANT VISAS.
(a) Preference Allocation for Family Members of Permanent
Resident Aliens.--Section 203(a)(2) (8 U.S.C. 1153(a)(2)) is
amended--
(1) in the heading--
(A) by striking ``and'' after ``Spouses'' and inserting ``,
permanent partners,''; and
(B) by inserting ``without permanent partners'' after
``sons'' and after ``daughters''; and
(2) in subparagraph (A)--
(A) by inserting ``, permanent partners,'' after
``spouses''; and
(B) by inserting ``without permanent partners'' after
``sons'' and after ``daughters''.
(b) Preference Allocation for Sons and Daughters of
Citizens.--Section 203(a)(3) (8 U.S.C. 1153(a)(3)) is
amended--
(1) in the heading, by inserting ``and daughters and sons
with permanent partners'' after ``daughters''; and
(2) by inserting ``or daughters or sons with permanent
partners'' after ``daughters''.
(c) Employment Creation.--Section 203(b)(5)(A)(ii) (8
U.S.C. 1153(b)(5)(A)(ii)) is
[[Page S10633]]
amended by inserting ``permanent partner,'' after
``spouse,''.
(d) Treatment of Family Members.--Section 203(d) (8 U.S.C.
1153(d)) is amended by inserting ``, permanent partner,''
after ``spouse'' each place such term appears.
SEC. 6. PROCEDURE FOR GRANTING IMMIGRANT STATUS.
(a) Classification Petitions.--Section 204(a)(1) (8 U.S.C.
1154(a)(1)) is amended--
(1) in subparagraph (A)(ii), by inserting ``or permanent
partner'' after ``spouse'';
(2) in subparagraph (A)(iii)--
(A) by inserting ``or permanent partner'' after ``spouse''
each place such term appears; and
(B) in subclause (I), by inserting ``or permanent
partnership'' after ``marriage'' each place such term
appears; and
(3) in subparagraph (B)--
(A) by inserting ``or permanent partner'' after ``spouse''
each place such term appears; and
(B) by inserting ``or permanent partnership'' after
``marriage'' each place such term appears.
(b) Immigration Fraud Prevention.--Section 204(c) (8 U.S.C.
1154(c)) is amended--
(1) by inserting ``or permanent partner'' after ``spouse''
each place such term appears; and
(2) by inserting ``or permanent partnership'' after
``marriage'' each place such term appears.
SEC. 7. ANNUAL ADMISSION OF REFUGEES AND ADMISSION OF
EMERGENCY SITUATION REFUGEES.
Section 207(c) (8 U.S.C. 1157(c)) is amended--
(1) in paragraph (2)--
(A) by inserting ``, permanent partner,'' after ``spouse''
each place such term appears; and
(B) by inserting ``, permanent partner's,'' after
``spouse's''; and
(2) in paragraph (4), by inserting ``, permanent partner,''
after ``spouse''.
SEC. 8. ASYLUM.
Section 208(b)(3) (8 U.S.C. 1158(b)(3)) is amended--
(1) in the heading, by inserting ``or permanent partner''
after ``spouse''; and
(2) in subparagraph (A), by inserting ``, permanent
partner,'' after ``spouse''.
SEC. 9. ADJUSTMENT OF STATUS OF REFUGEES.
Section 209(b)(3) (8 U.S.C. 1159(b)(3)) is amended by
inserting ``, permanent partner,'' after ``spouse''.
SEC. 10. INADMISSIBLE ALIENS.
(a) Classes of Aliens Ineligible for Visas or Admission.--
Section 212(a) (8 U.S.C. 1182(a)) is amended--
(1) in paragraph (3)(D)(iv), by inserting ``permanent
partner,'' after ``spouse,'' each place such term appears;
(2) in paragraph (4)(C)(i)(I), by inserting ``, permanent
partner,'' after ``spouse'';
(3) in paragraph (6)(E)(ii), by inserting ``permanent
partner,'' after ``spouse,'' each place such term appears;
and
(4) in paragraph (9)(B)(v), by inserting ``, permanent
partner,'' after ``spouse'' each place such term appears.
(b) Waivers.--Section 212(d) (8 U.S.C. 1182(d)) is
amended--
(1) in paragraph (11), by inserting ``permanent partner,''
after ``spouse,''; and
(2) in paragraph (12), by inserting ``, permanent
partner,'' after ``spouse''.
(c) Waivers of Inadmissibility on Health-Related Grounds.--
Section 212(g)(1)(A) (8 U.S.C. 1182(g)(1)(A)) is amended by
inserting ``, permanent partner,'' after ``spouse''.
(d) Waivers of Inadmissibility on Criminal and Related
Grounds.--Section 212(h)(1)(B) (8 U.S.C. 1182(h)(1)(B)) is
amended by inserting ``permanent partner,'' after ``spouse,''
each place such term appears.
(e) Waiver of Inadmissibility for Misrepresentation.--
Section 212(i)(1) (8 U.S.C. 1182(i)(1)) is amended--
(1) by inserting ``permanent partner,'' after ``spouse,'';
and
(2) by inserting ``, permanent partner,'' after ``resident
spouse''.
SEC. 11. NONIMMIGRANT STATUS FOR PERMANENT PARTNERS AWAITING
THE AVAILABILITY OF AN IMMIGRANT VISA.
Section 214 (8 U.S.C. 1184) is amended--
(1) by redesignating subsections (o) and (p) as added by
sections 1102(b) and 1103(b), respectively, of the
Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 2001, as enacted
into law by section 1(a)(2) of P.L. 106-553, as subsections
(p) and (q), respectively; and
(2) in subsection (q) (as so redesignated)--
(A) in paragraph (1), by inserting ``or permanent partner''
after ``spouse''; and
(B) in paragraph (2), by inserting ``or permanent
partnership'' after ``marriage'' each place such term
appears.
SEC. 12. CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN
ALIEN SPOUSES, PERMANENT PARTNERS, AND SONS AND
DAUGHTERS.
(a) Section Heading.--
(1) In general.--The section heading for section 216 (8
U.S.C. 1186a) is amended by inserting ``and permanent
partners'' after ``spouses''.
(2) Clerical amendment.--The table of contents is amended
by amending the item relating to section 216 to read as
follows:
``Sec. 216. Conditional permanent resident status for certain alien
spouses and permanent partners and sons and daughters.''.
(b) In General.--Section 216(a) (8 U.S.C. 1186a(a)) is
amended--
(1) in paragraph (1), by inserting ``or permanent partner''
after ``spouse'';
(2) in paragraph (2)(A), by inserting ``or permanent
partner'' after ``spouse'';
(3) in paragraph (2)(B), by inserting ``permanent
partner,'' after ``spouse,''; and
(4) in paragraph (2)(C), by inserting ``permanent
partner,'' after ``spouse,''.
(c) Termination of Status if Finding that Qualifying
Marriage Improper.--Section 216(b) (8 U.S.C. 1186a(b)) is
amended--
(1) in the heading, by inserting ``or Permanent
Partnership'' after ``Marriage'';
(2) in paragraph (1)(A), by inserting ``or permanent
partnership'' after ``marriage''; and
(3) in paragraph (1)(A)(ii)--
(A) by inserting ``or has ceased to satisfy the criteria
for being considered a permanent partnership under this
Act,'' after ``terminated,''; and
(B) by inserting ``or permanent partner'' after ``spouse''.
(d) Requirements of Timely Petition and Interview for
Removal of Condition.--Section 216(c) (8 U.S.C. 1186a(c)) is
amended--
(1) in paragraphs (1), (2)(A)(ii), (3)(A)(ii), (3)(C),
(4)(B), and (4)(C), by inserting ``or permanent partner''
after ``spouse'' each place such term appears; and
(2) in paragraph (3)(A), in the matter following clause
(ii), and in paragraphs (3)(D), (4)(B), and (4)(C), by
inserting ``or permanent partnership'' after ``marriage''
each place such term appears.
(e) Contents of Petition.--Section 216(d)(1) (8 U.S.C.
1186a(d)(1)) is amended--
(1) in subparagraph (A)--
(A) in the heading, by inserting ``or permanent
partnership'' after ``marriage'';
(B) in clause (i)--
(i) in the matter preceding subclause (I), by inserting
``or permanent partnership'' after ``marriage'';
(ii) in subclause (I), by inserting before the comma at the
end ``, or is a permanent partnership recognized under this
Act''; and
(iii) in subclause (II)--
(I) by inserting ``or has not ceased to satisfy the
criteria for being considered a permanent partnership under
this Act,'' after ``terminated,''; and
(II) by inserting ``or permanent partner'' after
``spouse''; and
(C) in clause (ii), by inserting ``or permanent partner''
after ``spouse''; and
(2) in subparagraph (B)(i)--
(A) by inserting ``or permanent partnership'' after
``marriage''; and
(B) by inserting ``or permanent partner'' after ``spouse''.
(e) Definitions.--Section 216(g) (8 U.S.C. 1186a(g)) is
amended--
(1) in paragraph (1)--
(A) by inserting ``or permanent partner'' after ``spouse''
each place such term appears; and
(B) by inserting ``or permanent partnership'' after
``marriage'' each place such term appears;
(2) in paragraph (2), by inserting ``or permanent
partnership'' after ``marriage'';
(3) in paragraph (3), by inserting ``or permanent
partnership'' after ``marriage''; and
(4) in paragraph (4)--
(A) by inserting ``or permanent partner'' after ``spouse''
each place such term appears; and
(B) by inserting ``or permanent partnership'' after
``marriage''.
SEC. 13. CONDITIONAL PERMANENT RESIDENT STATUS FOR CERTAIN
ALIEN ENTREPRENEURS, SPOUSES, PERMANENT
PARTNERS, AND CHILDREN.
(a) Section Heading.--
(1) In general.--Section 216A (8 U.S.C. 1186b) is amended
in the heading by inserting ``or permanent partners'' after
``spouses''.
(2) Clerical amendment.--The table of contents is amended
by amending the item relating to section 216A to read as
follows:
``Sec. 216. Conditional permanent resident status for certain alien
entrepreneurs, spouses or permanent partners, and
children.''.
(b) In General.--Section 216A(a) (8 U.S.C. 1186b(a)) is
amended, in paragraphs (1), (2)(A), (2)(B), and (2)(C), by
inserting ``or permanent partner'' after ``spouse'' each
place such term appears.
(c) Termination of Status if Finding That Qualifying
Entrepreneurship Improper.--Section 216A(b)(1) (8 U.S.C.
1186b(b)(1)) is amended in the matter following subparagraph
(C), by inserting ``or permanent partner'' after ``spouse''.
(d) Requirements of Timely Petition and Interview for
Removal of Condition.--Section 216A(c) (8 U.S.C. 1186b(c)) is
amended, in paragraphs (1), (2)(A)(ii), and (3)(C), by
inserting ``or permanent partner'' after ``spouse''.
(e) Definitions.--Section 216A(f)(2) (8 U.S.C. 1186b(f)(2))
is amended by inserting ``or permanent partner'' after
``spouse'' each place such term appears.
SEC. 14. DEPORTABLE ALIENS.
(a) In General.--Section 237(a) (8 U.S.C. 1227(a)) is
amended--
(1) in paragraph (1)--
(A) in subparagraph (D)(i), by inserting ``or permanent
partners'' after ``spouses'' each place such term appears;
(B) in subparagraph (E)--
(i) in clause (ii), by inserting ``or permanent partner''
after ``spouse''; and
(ii) in clause (iii), by inserting ``or permanent partner''
after ``spouse'';
(C) in subparagraph (H)(i)(I), by inserting ``or permanent
partner'' after ``spouse''; and
(D) by adding at the end the following:
[[Page S10634]]
``(I) Permanent partnership fraud.--An alien shall be
considered to be deportable as having procured a visa or
other documentation by fraud (within the meaning of section
212(a)(6)(C)(i)) and to be in the United States in violation
of this Act (within the meaning of subparagraph (B)) if--
``(i) the alien obtains any admission to the United States
with an immigrant visa or other documentation procured on the
basis of a permanent partnership entered into less than 2
years prior to such admission and which, within 2 years
subsequent to such admission, is terminated because the
criteria for permanent partnership are no longer fulfilled,
unless the alien establishes to the satisfaction of the
Secretary of Homeland Security that such permanent
partnership was not contracted for the purpose of evading any
provisions of the immigration laws; or
``(ii) it appears to the satisfaction of the Secretary of
Homeland Security that the alien has failed or refused to
fulfill the alien's permanent partnership which in the
opinion of the Secretary of Homeland Security was made for
the purpose of procuring the alien's admission as an
immigrant.'';
(2) in paragraph (2)(E)(i), by inserting ``or permanent
partner'' after ``spouse'' each place such term appears; and
(3) in paragraph (3)(C)(ii), by inserting ``or permanent
partner'' after ``spouse'' each place such term appears.
(b) Technical and Conforming Amendments.--Section 237(a) (8
U.S.C. 1227(a)) is amended by striking ``Attorney General''
each place that term appears and inserting ``Secretary of
Homeland Security''.
SEC. 15. REMOVAL PROCEEDINGS.
Section 240(e)(1) (8 U.S.C. 1229a(e)(1)) is amended by
inserting ``permanent partner,'' after ``spouse,''.
SEC. 16. CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS.
Section 240A(b) (8 U.S.C. 1229b(b)) is amended--
(1) in paragraph (1)(D), by inserting ``permanent
partner,'' after ``spouse,''; and
(2) in paragraph (2)--
(A) in the heading, by inserting ``, permanent partner,''
after ``spouse''; and
(B) in subparagraph (A), by inserting ``, permanent
partner,'' after ``spouse'' each place such term appears.
SEC. 17. ADJUSTMENT OF STATUS OF NONIMMIGRANT TO THAT OF
PERSON ADMITTED FOR PERMANENT RESIDENCE.
(a) Prohibition on Adjustment of Status.--Section 245(d) (8
U.S.C. 1255(d)) is amended by inserting ``or permanent
partnership'' after ``marriage''.
(b) Avoiding Immigration Fraud.--Section 245(e) (8 U.S.C.
1255(e)) is amended--
(1) in paragraph (1), by inserting ``or permanent
partnership'' after ``marriage''; and
(2) by adding at the end the following:
``(4) Paragraph (1) and section 204(g) shall not apply with
respect to a permanent partnership if the alien establishes
by clear and convincing evidence to the satisfaction of the
Secretary of Homeland Security that the permanent partnership
was entered into in good faith and in accordance with section
101(a)(51) and the permanent partnership was not entered into
for the purpose of procuring the alien's admission as an
immigrant and no fee or other consideration was given (other
than a fee or other consideration to an attorney for
assistance in preparation of a lawful petition) for the
filing of a petition under section 204(a) or 214(d) with
respect to the alien permanent partner. In accordance with
regulations, there shall be only one level of administrative
appellate review for each alien under the previous
sentence.''.
(c) Adjustment of Status for Certain Aliens Paying Fee.--
Section 245(i)(1)(B) (8 U.S.C. 1255(i)(1)(B)) is amended by
inserting ``, permanent partner,'' after ``spouse''.
(d) Informants.--Section 245(j) (8 U.S.C. 1255(j)) is
amended by inserting ``permanent partner,'' after ``spouse,''
each place such term appears.
(e) Technical and Conforming Amendments.--Section 245 (8
U.S.C. 1255) is amended by striking ``Attorney General'' each
place that term appears and inserting ``Secretary of Homeland
Security''.
SEC. 18. MISREPRESENTATION AND CONCEALMENT OF FACTS.
Section 275(c) (8 U.S.C. 1325(c)) is amended by inserting
``or permanent partnership'' after ``marriage''.
SEC. 19. REQUIREMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER,
ATTACHMENT TO THE PRINCIPLES OF THE
CONSTITUTION.
Section 316(b) (8 U.S.C. 1427(b)) is amended, in the matter
following paragraph (2), by inserting ``or permanent
partner'' after ``spouse''.
SEC. 20. FORMER CITIZENS OF UNITED STATES REGAINING UNITED
STATES CITIZENSHIP.
Section 324(a) (8 U.S.C. 1435(a)) is amended, in the matter
following ``after September 22, 1922,'', by inserting ``or
permanent partnership'' after ``marriage'' each place such
term appears.
SEC. 21. APPLICATION OF FAMILY UNITY PROVISIONS TO PERMANENT
PARTNERS OF CERTAIN LIFE ACT BENEFICIARIES.
Section 1504 of division B of the Miscellaneous
Appropriations Act, 2001, as enacted into law by section
1(a)(4) of Public Law 106-554, is amended--
(1) in the section heading, by inserting ``, PERMANENT
PARTNERS,'' after ``SPOUSES'';
(2) in subsection (a), by inserting ``, permanent
partner,'' after ``spouse''; and
(3) in each of subsections (b) and (c)--
(A) in the subsection headings, by inserting ``, Permanent
Partners,'' after ``Spouses''; and
(B) by inserting ``, permanent partner,'' after ``spouse''
each place such term appears.
Mr. KENNEDY. Mr. President, it is a privilege to join Senator Leahy
in the introduction of the Permanent Partners Immigration Act, to
address the injustice in our immigration law on gay and lesbian
couples.
The reunification of families is one of the cornerstones of our
immigration policy. The American Dream is about opportunity and it is
about family life as well. When one member of a family comes to the
United States alone, we try to make it possible for their spouse,
children, and siblings to join them in the future.
Every year, our immigration policy reunites literally hundreds of
thousands of families. In 2002, almost 400,000 immigrants came to the
United States to join spouses who are citizens or legal permanent
residents. Thousands more siblings and children joined mothers,
fathers, brothers and sisters.
Shamefully, though, our current law left thousands of other families
permanently divided. Because of their sexual orientation, lesbian and
gay couples are kept apart, or forced to stay together illegally, with
one partner in constant fear of deportation. They are denied the half
of the American Dream that we offer to other citizens and immigrants.
Our bill will remedy this injustice. It gives the same-sex permanent
partners of citizens and permanent residents the opportunity to join
their loved ones in our country. They must meet strict standards of
eligibility, like those applied to spouses. To gain entrance, they must
prove that they are financially interdependent with their partners in
the United States and that they are in a lifelong relationship.
Most of our major allies and trading partners already grant
immigration benefits to same-sex couples. Now, by bringing family
reunification to all of our citizens and residents, our bill recognizes
the common humanity of gay and lesbian Americans. It is time for
Congress to act on this issue, and I urge my colleagues to support this
important step in making our immigration laws fairer.
______
By Mr. KYL (for himself and Mr. McCain):
S. 1511. A bill to designate the Department of Veterans Affairs
Medical Center in Prescott, Arizona, as the ``Bob Stump Department of
Veterans Affairs Medical Center''; to the Committee on Veterans'
Affairs.
Mr. KYL. Mr. President, today Senator McCain and I are introducing
legislation to rename the VA Medical Center in Prescott, AZ. to honor
our colleague Bob Stump, who died on June 20. This legislation was
introduced by Congressman Jim Kolbe and the other seven Arizona House
Members on July 21.
I had the pleasure of serving with Bob Stump in the House of
Representatives in the late 1980s and early 1900s. He was a fine man,
and a great public servant. A patriot and a hard-working legislator, he
did not seek headlines or glory, preferring to work quietly, without
fanfare, on behalf of Arizona's interests--and the Nation's.
For Bob Stump, actions were louder than words. He didn't say much,
but you always knew where he stood.
Before coming to Congress, Bob served in both houses of the Arizona
legislature from 1959 to 1976--that final year as president of the
Arizona State Senate. His congressional tenure culminated in his six
years as Chairman of the House Committee on Veterans' Affairs, a perch
from which he improved the lives of his fellow veterans in innumerable
ways. As Chairman of the House Armed Services Committee for two years,
he helped to ensure America's military readiness by advocating
tirelessly for better U.S. military technology and protecting the
important work underway at Arizona's military bases.
Bob's concern for the military, of course, was personnel. When he
entered the Navy to serve his country in time of war, he was all of 16
years old. He spent three years, 1943 to 1946, as a medic on the U.S.S.
Tulagi. He was determined to protect Arlington National Cemetery and to
see to it that a World War II memorial was approved for construction on
the Mall here in Washington.
[[Page S10635]]
Bob Stump's work to promote the welfare of current and past members
of the Armed Services is well-known to Arizona's veterans. By naming
the Prescott VA Health Center in his honor, we will ensure that his
exemplary character and contributions are remembered by all those who
pass through its doors in the future.
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. 1511
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. BOB STUMP DEPARTMENT OF VETERANS AFFAIRS MEDICAL
CENTER, PRESCOTT, ARIZONA.
(a) Designation.--The Department of Veterans Affairs
Medical Center located in Prescott, Arizona, is hereby
designated as the ``Bob Stump Department of Veterans Affairs
Medical Center''.
(b) References.--Any reference to such medical center in
any law, regulation, map, document, or other paper of the
United States shall be considered to be a reference to the
Bob Stump Department of Veterans Affairs Medical Center.
Mr. McCAIN. Mr. President, I am proud to join Senator Kyl in
introducing legislation that would rename the Veterans Administration
medical center in Prescott, AZ after Bob Stump.
In June of this year, Arizonans suffered a major loss with the
passing of Bob Stump, a native son who made his mark for our State and
our Nation. Congressman Stump had a patriot's devotion to those who
served our country in uniform. He will be deeply missed by his friends,
family and a grateful Nation.
Congressman Stump served his country and the residents of Arizona
admirably in the United States Navy, during World War II; in the
Arizona State legislature; and in the United States Congress.
Congressman Stump's service in the House of Representatives was
marked by this dedication to his constituents in Arizona. Never one for
the trappings of a political office, Bob read and responded to all of
his mail, he never had Press Secretary and often answered the office
phone personally.
One could not overlook his leadership in Defense and Veterans issues.
Serving as Chairman of the Veterans Affairs Committee, his work has so
beneficial to America's veterans that a street in Arlington National
Cemetery was named after him. Everywhere I travel, veterans remark to
me that Bob Stump put Veterans needs first.
Bob's strong leadership of the House Armed Services Committee helped
usher in many of the technological advances that characterize our
modern military.
This legislation serves as a memorial to a member of Congress who
left an indelible legacy.
______
By Mr. DODD (for himself and Mr. Lieberman):
S. 1512. A bill to amend the Internal Revenue Code of 1986 to exclude
from income and employment taxes and wage withholding property tax
rebates and other benefits provided to volunteer firefighters and
emergency medical responders; to the Committee on Finance.
Mr. DODD. Mr. President. I am pleased to rise today with my colleague
Senator Lieberman to introduce legislation that would amend the
Internal Revenue Code to exclude property tax abatements, provided by
local governments to volunteer firefighters and emergency medical
responders, from the definition of income and wages. Congressman John
Larson of Connecticut introduced identical legislation in the House.
Seventy-five percent of firefighters in our country are volunteers.
Unfortunately, statistics show that the number of volunteer
firefighters and emergency responders have been declining in past years
at an alarming rate. The number of volunteer firefighters around the
country has declined by 5 to 10 percent since 1983, while the number of
emergency calls made has sharply increased.
Many municipalities throughout the country, including the State of
Connecticut, offer stipends and property tax abatements of up to $1,000
per year to volunteer firefighters, emergency medical technicians,
paramedics, and ambulance drivers. These incentives have helped local
fire departments in their volunteer recruitment efforts throughout the
country.
Last year the IRS ruled that property tax abatements to volunteers
should be treated as wages and income. This ruling would undermine the
efforts of localities across the country to recruit more volunteer
firefighters.
The bill that Senator Lieberman and I are introducing amends the
Internal Revenue Code to exclude property tax abatements and stipends
for volunteer firefighters and emergency medical responders from the
definition of income and wages. This bill would allow local governments
around the country to continue providing these incentives to their
volunteer firefighters and emergency medical responders.
The President has recently called for Americans to volunteer in their
communities. When both heads of household hold full-time employment, it
is often too difficult for them to take time away from their families
without some form of compensation. A $1,000 property tax break is not a
large request for the great service these men and women provide to our
communities. They risk their lives for others. The least we can do is
allow States and towns to offer them modest incentives to serve.
The IRS ruling undermines the good intentions and creative efforts of
many localities. If our municipalities are willing to forgo their local
tax revenues in order to ensure they have enough volunteer firefighters
and emergency service providers to protect their communities, and if
members of the community are doing their part by volunteering, then we,
as a country should do our part and support local efforts to ensure
that all our communities have adequate protection. And that is what our
bill will ensure.
I hope that our colleagues will join us in supporting this
legislation so that we can ensure that state and local governments have
the flexibility to design and implement recruiting and retention
programs that benefit not only the volunteer firefighters and emergency
medical providers, but also the communities they protect.
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. 1512
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. EXCLUSION FROM INCOME AND EMPLOYMENT TAXES AND
WAGE WITHHOLDING FOR PROPERTY TAX REBATES AND
OTHER BENEFITS PROVIDED TO VOLUNTEER
FIREFIGHTERS AND EMERGENCY MEDICAL RESPONDERS.
(a) Exclusion From Gross Income.--
(1) In general.--Part III of subchapter B of chapter 1 of
the Internal Revenue Code of 1986 (relating to items
specifically excluded from gross income) is amended by
redesignating section 140 as section 140A and by inserting
after section 139 the following new section:
``SEC. 140. PROPERTY TAX REBATES AND OTHER BENEFITS PROVIDED
TO VOLUNTEER FIREFIGHTERS AND EMERGENCY MEDICAL
RESPONDERS.
``(a) Exclusion.--Gross income shall not include a
qualified property tax rebate or other benefit.
``(b) Qualified Property Tax Rebate or Other Benefit.--For
purposes of subsection (a)--
``(1) In general.--The term `qualified property tax rebate
or other benefit' means a rebate of real or personal property
taxes, or any other benefit, provided by a State or political
subdivision on account of services performed as a member of a
qualified volunteer emergency response organization.
``(2) Qualified volunteer emergency response
organization.--The term `qualified volunteer emergency
response organization' means any volunteer organization--
``(A) which is organized and operated to provide
firefighting or emergency medical services for persons in the
State or political subdivision, as the case may be, and
``(B) which is required (by written agreement) by the State
or political subdivision to furnish firefighting or emergency
medical services in such State or political subdivision.''.
(2) Clerical amendment.--The table of sections for such
part is amended by striking the last item and inserting the
following new items:
``Sec. 140. Property tax rebates and other benefits provided to
volunteer firefighters and emergency medical responders.
``Sec. 140A. Cross references to other Acts.''.
(b) Exclusion From Employment Taxes.--
[[Page S10636]]
(1) Social security taxes.--
(A) Section 3121(a) of the Internal Revenue Code of 1986
(relating to definition of wages) is amended by striking
``or'' at the end of paragraph (20), by striking the period
at the end of paragraph (21) and inserting ``; or'', and by
inserting after paragraph (21) the following new paragraph:
``(22) any qualified property tax rebate or other benefit
(as defined in section 140(b)).''.
(B) Section 209(a) of the Social Security Act is amended by
striking ``or'' at the end of paragraph (17), by striking the
period at the end of paragraph (18) and inserting ``; or'',
and by inserting after paragraph (18) the following new
paragraph:
``(19) Any qualified property tax rebate or other benefit
(as defined in section 140(b) of the Internal Revenue Code of
1986).''.
(2) Unemployment taxes.--Section 3306(b) of the Internal
Revenue Code of 1986 (relating to definition of wages) is
amended by striking ``or'' at the end of paragraph (16), by
striking the period at the end of paragraph (17) and
inserting ``; or'', and by inserting after paragraph (17) the
following new paragraph:
``(18) any qualified property tax rebate or other benefit
(as defined in section 140(b).''.
(3) Wage withholding.--Section 3401(a) of such Code
(defining wages) is amended by striking ``or'' at the end of
paragraph (20), by striking the period at the end of
paragraph (21) and inserting ``; or'', and by inserting after
paragraph (21) the following new paragraph:
``(22) for any qualified property tax rebate or other
benefit (as defined in section 140(b).''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after the date of the
enactment of this Act.
______
By Mrs. HUTCHISON:
S. 1514. A bill to amend the Internal Revenue code of 1986 to reform
certain excise taxes applicable to private foundations, and for other
purposes; to the Committee on Finance.
Mrs. HUTCHISON. Mr. President, I am pleased to introduce legislation
to address concerns regarding the operation of charitable foundations.
Well-publicized incidents of abuse by a few foundations have raised
legitimate concerns about whether these entities are properly focusing
resources on their philanthropic missions. In come cases, excessive
amounts have gone toward administrative costs, high executive salaries
and expensive travel.
My bill will help to ensure that more money is spent on charitable
activities and that those who abuse the system are properly punished.
One proposal I support is included in the House version of the CARE
Act, H.R. 7, the Charitable Giving Act of 1003. It would reduce the
excise tax on investment income for foundations from two percent to one
percent, allowing foundations to keep more money so they can direct it
to those in need.
However, we must ensure this money actually goes toward the
charitable activities for which it is intended. The House bill tries to
do this by preventing any administrative costs from being counted as
part of the five percent annual distribution requirement foundations
must meet. While the legislation moves in the right direction, the
language is too broad and may inadvertently punish some foundations
that are acting responsibly.
Many foundations will find it difficult to earn the returns necessary
to maintain their underlying endowments and cover the five percent
requirement in addition to all administrative costs. This could lead to
a diminished ability to fulfill their missions over time, as underlying
endowments are eroded as an unintended consequence. Some foundations
may try to meet this challenge by reducing important, legitimate
spending such as on legal compliance.
The legislation I am introducing will better address these issues.
First, I agree we should reduce the excise tax on foundations from two
percent to one percent. I also agree we should consider limiting which
administrative expenses are counted as distributions. However, I
propose doing so in a more defined manner.
My bill would exclude general overhead expenses, management salaries
and excessive travel expenses from being counted as distributions. It
will allow expenses directly attributable to administering grants and
direct charitable giving, as well as expenses related to maintaining
legal compliance, to continue to be included.
By focusing these restrictions on the expenses which tend to be the
source of abuse, we can deal with the root issues while minimizing
unintended consequences.
My bill also goes further than other proposals in penalizing
wrongdoers. It will raise the penalty for those who abuse the system by
``self-dealing'' from a five percent to a 25 percent excise tax on the
amounts involved.
My bill will lower the net investment tax, tighten the regulations
allowing administrative expenses to be counted as distributions, and
increase penalties for those abusing the system. It does so with
drastic measures that could lead to a decline in foundations in the
long-term. Together these measures will instill more discipline on the
foundation community and result in more money going to worthy causes.
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. 1514
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; ETC.
(a) Short Title.--This Act may be cited as the
``Philanthropy Expansion and Responsibility Act of 2003''.
(b) Amendment of 1986 Code.--Whenever in this Act an
amendment or repeal is expressed in terms of an amendment to,
or repel of, a section or other provision, the reference
shall be considered to be made to a section or other
provision of the Internal Revenue Code of 1986.
SEC. 2. REFORM OF CERTAIN EXCISE TAXES RELATED TO PRIVATE
FOUNDATIONS.
(a) Reduction of Tax on Net Investment Income.--Section
4940(a) (relating to tax-exempt foundations) is amended by
striking ``2 percent'' and inserting ``1 percent''.
(b) Repeal of Reduction in Tax Where Private Foundation
Meets Certain Distribution Requirements.--Section 4940
(relating to excise tax based on investment income) is
amended by striking subsection (e).
(c) Modification of Excise Tax on Self-Dealing.--The second
sentence of section 4941(a)(1) (relating to initial excise
tax imposed on self-dealer) is amended by striking ``5
percent'' and inserting ``25 percent''.
(d) Modification of Excise Tax on Failure To Distribute
Income.--
(1) Certain administrative expenses not treated as
distributions.--
(A) In general.--Section 4942(g)(1)(A) (defining qualifying
distributions) is amended by striking ``(including that
portion of reasonable and necessary administrative
expenses)'' and inserting ``(including that portion of
reasonable and necessary administrative expenses which are
directly attributable to direct charitable activities, grant
selection activities, grant monitoring and administration
activities, compliance with applicable Federal, State, or
local law, or furthering public accountability of the private
foundation, except as provided in paragraph (4))''.
(B) Limitations.--Section 4942(g) is amended by striking
paragraph (4) and inserting the following new paragraphs:
``(4) Limitation on administrative expenses treated as
distributions.--For purposes of paragraph (1)(A), the
following administrative expenses shall not be treated as
qualifying distributions:
``(A) Any compensation paid to persons who are considered
disqualified persons.
``(B) Any traveling expenses incurred for travel outside
the United States.
``(C) Any traveling expenses incurred for transportation by
air solely from one point in the United States to another
point in the United States via first-class transportation on
a commercial aircraft or via a private aircraft.
``(5) Regulations.--The Secretary shall prescribe such
regulations as may be necessary to carry out the purposes of
paragraphs (1) and (4). Such regulations shall provide that
administrative expenses which are excluded from qualifying
distributions solely by reason of the limitations in
paragraph (1) or (4) shall not subject a private foundation
to any other excise taxes imposed by this subchapter.''.
(2) Disallowance not to apply to certain private
foundations.--
(A) In general.--Section 4942(j)(3) (defining operating
foundation) is amended--
(i) by striking ``(within the meaning of paragraph (1) or
(2) of subsection (g))'' each place it appears, and
(ii) by adding at the end the following new sentence: ``For
purposes of this paragraph, the term `qualifying
distributions' means qualifying distributions within the
meaning of paragraph (1) or (2) of subsection (g) (determined
without regard to subsection (g)(4)).''.
(B) Conforming amendment.--Section 4942(f)(2)(C)(i) is
amended by inserting ``(determined without regard to
subsection (g)(4))'' after ``within the meaning of subsection
(g)(1)(A)''.
(e) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2003.
______
By Mr. GREGG:
S. 1515. A bill to establish and strengthen postsecondary programs
and courses in the subjects of traditional American history, free
institutions, and Western civilization, available to students preparing
to teach
[[Page S10637]]
these subjects, and to other students; to the Committee on Health,
Education, Labor, and Pensions.
Mr. GREGG. Mr. President, today I am proud to introduce the Higher
Education for Freedom Act. This bill will establish a competitive grant
program making funds available to institutions of higher education,
centers within such institutions, and associated nonprofit foundations
to promote programs focused on the teaching and study of traditional
American history and government, and the history and achievements of
Western Civilization, at both the graduate and undergraduate level,
including those that serve students enrolled in K-12 teacher education
programs.
Today, more than ever, it is important to preserve and defend our
common heritage of freedom and civilization, and to ensure that future
generations of Americans understand the importance of traditional
American history and the principles of free government on which this
Nation was founded. This basic knowledge is not on essential to the
full participation of our citizenry in America's civic life, but also
to the continued success of the American experiment in self-government,
binding together a diverse people into a single Nation with common
purposes.
However, college students' lack of historical literacy is quite
startling, and too few of today's colleges and universities are focused
on the task of imparting this crucial knowledge to the next generation.
One survey of students at America's top colleges reported that seniors
could not identify Valley Forge, words from the Gettysburg Address, or
even the basic principles of the U.S. Constitution. Given high-school
level American history questions, 81 percent of the seniors would have
received a D or F, the report found.
One college professor even informed me that her students did not know
which side Lee was on during the Civil War, or whether the Russians
were allies or enemies in World War II. A student of hers even asked
why anyone should care what the Founding Fathers wrote.
Thomas Jefferson once wrote, ``If a nation expects to be ignorant--
and free--in a state of civilization, it expects what never was and
never will be.'' I believe the time has come for Congress to do
something to promote the teaching of traditional American history at
the postsecondary level, and I urge my colleagues to support this
legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1515
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 ``Higher Education for
Freedom Act''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds the following:
(1) Given the increased threat to American ideals in the
trying times in which we live, it is important to preserve
and defend our common heritage of freedom and civilization
and to ensure that future generations of Americans understand
the importance of traditional American history and the
principles of free government on which this Nation was
founded in order to provide the basic knowledge that is
essential to full and informed participation in civic life
and to the larger vibrancy of the American experiment in
self-government, binding together a diverse people into a
single Nation with a common purpose.
(2) However, despite its importance, most of the Nation's
colleges and universities no longer require United States
history or systematic study of Western civilization and free
institutions as a prerequisite to graduation.
(3) In addition, too many of our Nation's elementary and
secondary school history teachers lack the training necessary
to effectively teach these subjects, due largely to the
inadequacy of their teacher preparation.
(4) Distinguished historians and intellectuals fear that
without a common civic memory and a common understanding of
the remarkable individuals, events, and ideals that have
shaped our Nation and its free institutions, the people in
the United States risk losing much of what it means to be an
American, as well as the ability to fulfill the fundamental
responsibilities of citizens in a democracy.
(b) Purposes.--The purposes of this Act are to promote and
sustain postsecondary academic centers, institutes, and
programs that offer undergraduate and graduate courses,
support research, and develop teaching materials, for the
purpose of developing and imparting a knowledge of
traditional American history, the American Founding, and the
history and nature of, and threats to, free institutions, or
of the nature, history and achievements of Western
Civilization, particularly for--
(1) undergraduate students who are enrolled in teacher
education programs, who may consider becoming school
teachers, or who wish to enhance their civic competence;
(2) elementary, middle, and secondary school teachers in
need of additional training in order to effectively teach in
these subject areas; and
(3) graduate students and postsecondary faculty who wish to
teach about these subject areas with greater knowledge and
effectiveness.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) Eligible institution.--The term ``eligible
institution'' means--
(A) an institution of higher education;
(B) a specific program within an institution of higher
education; and
(C) a non-profit history or academic organization
associated with higher education whose mission is consistent
with the purposes of this Act.
(2) Free institution.--The term ``free institution'' means
an institution that emerged out of Western Civilization, such
as democracy, individual rights, market economics, religious
freedom and tolerance, and freedom of thought and inquiry.
(3) Institution of higher education.--The term
``institution of higher education'' has the same meaning
given that term under section 101 of the Higher Education Act
of 1965 (20 U.S.C. 1001).
(4) Secretary.--The term ``Secretary'' means the Secretary
of Education.
(5) Traditional American history.--The term ``traditional
American history'' means--
(A) the significant constitutional, political,
intellectual, economic, and foreign policy trends and issues
that have shaped the course of American history; and
(B) the key episodes, turning points, and leading figures
involved in the constitutional, political, intellectual,
diplomatic, and economic history of the United States.
SEC. 4. GRANTS TO ELIGIBLE INSTITUTIONS.
(a) In General.--From amounts appropriated to carry out
this Act, the Secretary shall award grants, on a competitive
basis, to eligible institutions, which grants shall be used
for--
(1) history teacher preparation initiatives, that--
(A) stress content mastery in traditional American history
and the principals on which the American political system is
based, including the history and philosophy of free
institutions, and the study of Western civilization; and
(B) provide for grantees to carry out research, planning,
and coordination activities devoted to the purposes of this
Act; and
(2) strengthening postsecondary programs in fields related
to the American founding, free institutions, and Western
civilization, particularly through--
(A) the design and implementation of courses, lecture
series and symposia, the development and publication of
instructional materials, and the development of new, and
supporting of existing, academic centers;
(B) research supporting the development of relevant course
materials;
(C) the support of faculty teaching in undergraduate and
graduate programs; and
(D) the support of graduate and postgraduate fellowships
and courses for scholars related to such fields.
(b) Selection Criteria.--In selecting eligible institutions
for grants under this section for any fiscal year, the
Secretary shall establish criteria by regulation, which
shall, at a minimum, consider the education value and
relevance of the institution's programming to carrying out
the purposes of this Act and the expertise of key personnel
in the area of traditional American history and the
principals on which the American political system is based,
including the political and intellectual history and
philosophy of free institutions, the American Founding, and
other key events that have contributed to American freedom
and the study of Western civilization.
(c) Grant Application.--An eligible institution that
desires to receive a grant under this Act shall submit to the
Secretary an application at such time, in such manner, and
containing such information as the Secretary may prescribe by
regulation.
[[Page S10638]]
(d) Grant Review.--The Secretary shall establish procedures
for reviewing and evaluating grants made under this Act.
(e) Grant Awards.--
(1) Maximum and minimum grants.--The Secretary shall award
each grant under this Act in an amount that is not less than
$400,000 and not more than $6,000,000.
(2) Exception.--A subgrant made by an eligible institution
under this Act to another eligible institution shall not be
subject to the minimum amount specified in paragraph (1).
(f) Multiple Awards.--For the purposes of this Act, the
Secretary may award more than 1 grant to an eligible
institution.
(g) Subgrants.--An eligible institution may use grant funds
provided under this Act to award subgrants to other eligible
institutions at the discretion of, and subject to the
oversight of, the Secretary.
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
For the purpose of carrying out this Act, there are
authorized to be appropriated--
(1) $140,000,000 for fiscal year 2004; and
(2) such sums as may be necessary for each of the
succeeding 5 fiscal years.
______
By. Mr. DOMENICI (for himself and Mr. Campbell):
S. 1516. A bill to further the purposes of the Reclamation Projects
Authorization and Adjustment Act of 1992 by directing the Secretary of
the Interior, acting through the commissioner of Reclamation, to carry
out an assessment and demonstration program to assess potential
increases in water availability for Bureau of Reclamation projects and
other uses through control of salt cedar and Russian olive; to the
Committee on Energy and Natural Resources.
Mr. DOMENICI. Mr. President, I rise today to reintroduce a piece of
legislation that is of paramount importance to the State of New Mexico
and many other western States. This bill will address the mounting
pressures brought on by the growing demands throughout the west of a
diminishing water supply.
This bill that I am introducing today authorizes the Department of
Interior acting through the Bureau of Reclamation to establish a series
of research and demonstration programs to help with the eradication of
this non-native species on rivers in the Western United States. This
bill will help develop the scientific knowledge and the experience base
to build a strategy to control these invasive thieves. In addition to
projects that could benefit the Pecos and the Rio Grande, the bill
allows other states in the west such as Texas, Colorado, Utah,
California and Arizona to develop and participate in projects as well.
Allow me to explain the importance of this bill. A water crisis has
ravaged the west for four years. Drought conditions are expected to
expand into the upper mid-west this year. Last year snow packs were
abnormally low, causing severe drought conditions. Snow pack conditions
this year were also low, but marginally better in the southwest. The
rest of the west did not have promising winter snows and spring rains.
The presence of invasive species compounds the drought situation in
many states. For instance, New Mexico is home to a vast amount of Salt
Cedar. Salt Cedar is a water-thirsty non-native tree that continually
strips massive amounts of water out of New Mexico's two predominant
water supplies the Pecos and the Rio Grande rivers.
We have already had numerous catastrophic fires in our Nation's
forests including the riparian woodland--the Bosque--that runs through
the heart of New Mexico's most populous city. One of the reasons this
fire ran its course through Albuquerque was the presence of large
amounts of Salt Cedar, a plant that burns as easily as it consumes
water.
Estimates show that one mature Salt Cedar tree can consume as much as
200 gallons of water per day; over the growing season that is 7 acre
feet of water for each acre of Salt Cedar. In addition to the excessive
water consumption, Salt Cedars increase fire, increase river
channelization and flood frequency, decrease water flow, and increase
water and soil salinity along the river. Every problem that drought
causes is exacerbated by the presence of Salt Cedar.
I know that the seriousness of the water situation in New Mexico
becomes more acute every single day. This drought has affected every
New Mexican and nearly everyone in the west in some way. Wells are
running dry, farmers are being forced to sell livestock, many of our
cities are in various stages of conservation and many, many acres have
been charred by fire.
The drought and the mounting legal requirements on both the Pecos and
Rio Grande rivers are forcing us toward a severe water crisis in New
Mexico. Indeed, every river in the inter-mountain west seems to be
facing similar problems. Therefore, we must bring to bear every tool at
our disposal for dealing with the water shortages in the west.
Solving such water problems is one of my top priorities and I assure
this Congress that this bill will receive prompt attention by the
Energy and Natural Resources Committee. Controlling water thirsty
invasive species is one significant and substantial step in the right
direction for the dry lands of the west.
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. 1516
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 ``Salt Cedar Control
Demonstration Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the western United States is currently experiencing its
worst drought in modern history;
(2) it is estimated that throughout the western United
States salt cedar and Russian olive--
(A) occupy between 1,000,000 and 1,500,000 acres of land;
and
(B) are non-beneficial users of 2,000,000 to 4,500,000
acre-feet of water per year;
(3) the quantity of non-beneficial use of water by salt
cedar and Russian olive is greater than the quantity that
valuable native vegetation would use;
(4) much of the salt cedar and Russian olive infestation is
located on Bureau of Land Management land or other land of
the Department of the Interior; and
(5) as drought conditions and legal requirements relating
to water supply accelerate water shortages, innovative
approaches are needed to address the increasing demand for a
diminishing water supply.
SEC. 3. SALT CEDAR AND RUSSIAN OLIVE ASSESSMENT AND
DEMONSTRATION PROGRAM.
(a) Establishment.--In furtherance of the purposes of the
Reclamation Projects Authorization and Adjustment Act of 1992
(106 Stat. 4600), the Secretary of the Interior, acting
through the Commissioner of Reclamation (referred to in this
Act as the ``Secretary''), shall carry out a salt cedar and
Russian olive assessment and demonstration program to--
(1) assess the extent of the infestation of salt cedar and
Russian olive in the western United States; and
(2) develop strategic solutions for long-term management of
salt cedar and Russian olive.
(b) Assessment.--Not later than 1 year after the date on
which funds are made available to carry out this Act, the
Secretary shall complete an assessment of the extent of salt
cedar and Russian olive infestation in the western United
States. The assessment shall--
(1) consider past and ongoing research on tested and
innovative methods to control salt cedar and Russian olive;
(2) consider the feasibility of reducing water consumption;
(3) consider methods of and challenges associated with the
restoration of infested land;
(4) estimate the costs of destruction of salt cedar and
Russian olive, biomass removal, and restoration and
maintenance of the infested land; and
(5) identify long-term management and funding strategies
that could be implemented by Federal, State, and private land
managers.
(c) Demonstration Projects.--The Secretary shall carry out
not less than 5 projects to demonstrate and evaluate the most
effective methods of controlling salt ceder and Russian
olive. Projects carried out under this subsection shall--
(1) monitor and document any water savings from the control
of salt cedar and Russian olive;
(2) identify the quantity of, and rates at which, any water
savings under paragraph (1) return to surface water supplies;
(3) assess the best approach to and tools for implementing
available control methods;
(4) assess all costs and benefits associated with control
methods and the restoration and maintenance of land;
(5) determine conditions under which removal of biomass is
appropriate and the optimal methods for its disposal or use;
(6) define appropriate final vegetative states and optimal
revegetation methods; and
(7) identify methods for preventing the regrowth and
reintroduction of salt cedar and Russian olive.
(d) Control Methods.--The demonstration projects carried
out under subsection (c) may implement 1 or more control
method per project, but to assess the full range of control
mechanisms--
[[Page S10639]]
(1) at least 1 project shall use airborne application of
herbicides;
(2) at least 1 project shall use mechanical removal; and
(3) at least 1 project shall use biocontrol methods such as
goats or insects.
(e) Implementation.--A demonstration project shall be
carried out during a time period and to a scale designed to
meet the requirements of subsection (c).
(f) Costs.--Each demonstration project under subsection (c)
shall be carried out at a cost of not more than $7,000,000,
including costs of planning, design, implementation,
maintenance, and monitoring.
(2) Cost-sharing.--
(A) Federal share.--The Federal share of the costs of a
demonstration project shall not exceed 75 percent.
(B) Form of non-federal share.--The non-Federal share of
the costs of a demonstration project may be provided in the
form of in-kind contributions, including services provided by
a State agency.
(g) Cooperation.--In carrying out the program, the
Secretary shall--
(1) use the expertise of Federal agencies, national
laboratories, Indian tribes, institutions of higher
education, State agencies, and soil and water conservation
districts that are actively conducting research on or
implementing salt cedar and Russian olive control activities;
and
(2) cooperate with other Federal agencies and affected
States, local units of government, and Indian tribes.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out this
Act--
(1) $50,000,000 for fiscal year 2004; and
(2) such sums as are necessary for each fiscal year
thereafter.
______
By Mr. BINGAMAN (for himself and Mr. Graham of Florida):
S. 1517. A bill to revoke and Executive Order relating to procedures
for the consideration of claims of constitutionally based privilege
against disclosure of Presidential records; to the Committee on
Governmental Affairs.
Mr. BINGAMAN. Mr. President, I rise today with my colleague from
Florida, Senator Graham, to introduce a very simple piece of
legislation that would revoke President Bush's Executive Order 13233
and put back in force President Reagan's Executive Order 12667--
restoring the American people's access to Presidential papers. This
bill is the companion to H.R. 1493, which is sponsored by
Representative Doug Ose and has enjoyed bipartisan support in the
House.
Twenty-five years ago, this body passed the Presidential Records Act
and declared that a President's papers were the property of the people
of the United States of America and were to be administered by the
National Archives and Records Administration, or NARA. The Act provided
that Presidential papers would be made available twelve years after a
President left office, allowing the former or incumbent President the
right to claim executive privilege for particularly sensitive
documents. In order to fulfill that mandate, President Reagan in 1989
signed Executive Order 12667, which gave the former or incumbent
President thirty days to claim executive privilege.
However, in 2001, President Bush signed Executive Order 13233,
nullifying President Reagan's order and imposing new regulations for
obtaining Presidential documents. President Bush's new order greatly
restricts access to Presidential papers by forcing all requests for
documents, no matter how innocuous, to be approved by both the former
President and current White House. In this way the order goes against
the letter and the spirit of the Presidential Records Act by requiring
the NARA to make a presumption of non-disclosure, thus allowing the
White House to prevent the release of records simply by inaction.
The President's order also limits what types of papers are available
by expanding the scope of executive privilege into new areas--namely
communications between the President and his advisors and legal advice
given to the President. Also, former Presidents can now designate third
parties to exercise executive privilege on their behalf, meaning that
Presidential papers could remain concealed many years after a
President's death. These expansions raise some serious constitutional
questions and cause unnecessary controversy that could end up
congesting our already overburdened courts. My legislation simply seeks
to restore a legitimate, streamlined means of carrying out this body's
wishes--making Presidential records available for examination by the
public and by Congress.
The administration shouldn't fear passage of this bill. Any documents
that contain sensitive national security information would remain
inaccessible, as would any documents pertaining to law enforcement or
the deliberative process of the executive branch. Executive privilege
for both former and current Presidents would still apply to any papers
the White House designates. With these safeguards in place, there is no
reason to further hinder access to documents that are in some cases
more than twenty years old.
By not passing this bill, the Congress would greatly limit its own
ability to investigate previous administrations, not to mention limit
the ability of historians and other interested parties to research the
past. Knowledge of the past enriches and informs our understanding of
the present, and by limiting our access to these documents we do both
ourselves and future generations a great disservice. Numerous
historians, journalists, archivists and other scholars have voiced
their disapproval of Executive Order 13233 because they understand how
important access to Presidential papers can be to accurately describing
and learning from past events. We here in the Congress cannot afford to
surrender our ability to investigate previous Presidential
administrations because doing so would remove a vitally important means
of ensuring Presidential accountability.
I believe it is time for these documents to become part of the public
record. I believe in open, honest, and accountable government, and I do
not believe in keeping secrets from the American people. The
Presidential Records Act was one of this country's most vital post-
Watergate reforms and it remains vitally important today. In these
times when trust in government is slipping more and more every day, we
need to send a statement to the American people that we here in
Washington don't need to hide from public scrutiny--that instead we
welcome and encourage public scrutiny. This bill will send just such a
message.
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. 1517
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. REVOCATION OF EXECUTIVE ORDER OF NOVEMBER 1, 2001.
Executive Order number 13233, dated November 1, 2001 (66
Fed. Reg. 56025), shall have no force or effect, and
Executive Order number 12667, dated January 18, 1989 (54 Fed.
Reg. 3403), shall apply by its terms.
______
By Mr. ENZI:
S. 1518. A bill to restore reliability to the medical justice system
by fostering alternatives to current medical tort litigation, and for
other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Mr. ENZI. Mr. President, I rise today to introduce a bill that will
help bring about a more reliable system of medical justice for all
Americans.
Earlier this month, we had a robust debate on a critical issue--
medical liability reform. Though a majority of the Members of this body
wanted to begin working to pass the bill, we didn't have the 60
Senators necessary to begin the real work on the legislation.
I co-sponsored that bill, the Patients First Act, and I still support
it. Passing the Patients First Act would be an important short-term
step to controlling the excesses in our legal system that have sent
medical liability insurance premiums through the roof. Skyrocketing
premiums are forcing doctors to move their practices to States with
better legal environments and lower insurance premiums. This is
endangering the availability of critical healthcare services in many
areas of Wyoming and other states.
Throughout our debate, I heard many of my colleagues say that they
wanted to work on this issue, but that they simply could not support
the bill as it stood. We heard that the bill approaches the issue from
too narrow of a perspective. We heard that the bill's caps on non-
economic damages are unfair to patients, despite the fact that the bill
places no limits whatsoever on a patient's right to recover all
quantifiable economic damages.
While I disagree with my colleagues who oppose the Patients First
Act, I
[[Page S10640]]
respect their opposition. I also trust that they sincerely want to help
solve our Nation's medical liability and litigation crisis.
During the debate this month, I noticed something interesting. While
we argued the ``pros and cons'' of the bill, no one stood up to defend
our current system of medical litigation. Now, we heard a lot about the
caps, and the insurance industry, and we heard Senators say that ``Yes,
there is a problem, but the bill before us won't solve it.''
One thing we didn't hear was a rousing defense of our medical
litigation system. Even some of the lawyers in this body agreed that
frivolous lawsuits are a problem and that our medical litigation system
needs reform.
Why didn't we hear anyone defend the merits of our current medical
litigation system? It's because our system doesn't work. It simply
doesn't work for patients or for healthcare providers.
Compensation to patients injured by healthcare errors is neither
prompt nor fair. The randomness and delay associated with medical
litigation does not contribute to timely, reasonable compensation for
most injured patients. Some injured patients get huge jury awards,
while many others get nothing at all.
Let's look at the facts. In 1991, a group of researchers published a
study in the New England Journal of Medicine. The study, known as the
Harvard Medical Practice Study, was the basis for the Institute of
Medicine's estimate that nearly 100,000 people die every year from
healthcare errors.
As part of their study, the researchers reviewed the medical records
of a random sample of more than 31,000 patients in New York State. They
matched those records with statewide data on medical malpractice
claims. The researchers found that nearly 30 percent of injuries caused
by medical negligence resulted in temporary disability, permanent
disability or death. However, less than 2 percent of those who were
injured by medical negligence filed a claim. These figures suggest that
most people who suffer negligent injuries don't receive any
compensation.
When a patient does decide to litigate, only a few recover anything.
Only one of every ten medical malpractice cases actually goes to trial,
and of those cases, plaintiffs win less than one of every five. In
addition, patients who file suit and are ultimately successful must
wait a long time for their compensation--the average length of a
medical malpractice action filed in state court is about 30 months.
While the vast majority of malpractice cases that go to trial are
settled before the court hands down a verdict, the settlements even
then don't guarantee that patients are compensated fairly, particularly
after legal fees are subtracted. Research shows that for every dollar
paid in malpractice insurance premiums, about 40 cents in compensation
is actually paid to the plaintiff--the rest goes for legal fees, court
costs, and other administrative expenditures.
To sum up: most patients injured by negligence don't file claims or
receive compensation. Few of those that do file claims and go to court
recover anything, and those who are successful wait a long time for
their compensation. And those who settle out of court end up receiving
only 40 cents for every dollar that healthcare providers pay in
liability insurance premiums.
It's hard to say that our medical litigation system does right by
patients in light of those facts. Unfortunately, our system doesn't
work for healthcare providers either.
Earlier, I spoke about those Harvard researchers who found that fewer
than 2 percent of those who were injured by medical negligence even
filed a claim. As they reviewed the medical records for their study,
the researchers also found another interesting fact--most of the
providers against whom claims were eventually filed were not negligent
at all.
That's right--most providers who were sued had not committed a
negligent act.
In matching the records they reviewed to data on malpractice claims,
the Harvard researchers found 47 actual malpractice claims. In only 8
of the 47 claims did they find evidence that medical malpractice had
caused an injury. Even more amazingly, the physician reviewers found no
evidence of any medical injury, negligent or not, in 26 of the 47
claims. However, 40 percent of these cases where they found no evidence
of negligence nonetheless resulted in a payment by the provider.
Basically, the researchers found no positive relationship between
medical negligence and compensation.
That study was based on 1984 data. The same group of researchers
conducted another study in Colorado and Utah in 1992, and they found
the same thing. As in the 1984 study, they found that only 3 percent of
patients who suffered an injury as a result of negligence actually
sued. And again, physician reviewers could not find negligence in most
of the cases in which lawsuits were filed.
Now, I assume that the patients who sued had either an adverse
medical outcome, or at least an outcome that was less satisfactory than
the patient expected. But our medical litigation system is not supposed
to compensate patients for adverse outcomes or dissatisfaction--it's
supposed to compensate patients who are victims of negligent behavior.
It's supposed to be a deterrent to substandard medical care.
It's not fair to doctors and hospitals that they must pay to defend
against meritless lawsuits. Nor is it fair that they must face a choice
between settling for a small sum, even if they aren't at fault, so that
they avoid getting sucked into a whirlpool of our medical litigation
system.
It's not hard to understand why physicians and hospitals and their
insurers want to stay out of court. When they lose, the decisions are
increasingly resulting in mega-awards based on subjective ``non-
economic'' damages. The number of awards exceeding $1 million grew by
50 percent between the periods of 1994-1996 and 1999-2000. Today, more
than half of all jury awards exceed $1 million.
As a result, when a patient suffers a bad outcome and sues, providers
have an incentive to settle the case out of court, even if the provider
isn't at fault. But is this how our medical litigation system is
supposed to work--as a tool for shaking down our healthcare providers?
Let's face it--our medical litigation system is broken. It doesn't
work for patients or providers. Even worse, it replaces the trust in
the provider-patient relationship with distrust.
Then, when courts and juries render verdicts with huge awards that
bear no relation to the conduct of the defendants, this destabilizes
the insurance markets and sends premiums skyrocketing. This forces many
physicians to curtail, move or drop their practices, leaving patients
without access to necessary medical care. This is a particular problem
in states like Wyoming, where we traditionally struggle with recruiting
doctors and other healthcare providers.
Perhaps we could live with this flawed system if litigation served to
improve quality or safety, but it doesn't. Litigation discourages the
exchange of critical information that could be used to improve the
quality and safety of patient care. The constant threat of litigation
also drives the inefficient, costly and even dangerous practice of
``defensive medicine.''
Yes, indeed, defensive medicine is dangerous. A recent study found
that one of every 1200 children who receive a CAT scan may die later in
life from radiation-induced cancer. Knowing this puts a physician faced
with anxious parents in a difficult situation. Does the doctor use his
or her professional judgment and tell the parents of a sick child not
to worry, or does the doctor order the CAT scan and subject the child
to radiation that is probably unnecessary, just to provide some
protection against a possible lawsuit?
We have a medical litigation system in which many patients who are
hurt by negligent actions receive no compensation for their loss. Those
who do receive compensation end up with about 40 cents of every premium
dollar after legal fees and other costs are subtracted. And the
likelihood and the outcomes of lawsuits and settlements bear little
relation to whether or not a healthcare provider was at fault.
We like to say that justice is blind. With respect to our medical
litigation system, I would say that justice is absent and nowhere to be
found.
[[Page S10641]]
During our debate on the Patients First Act, I said that the current
medical liability crisis and the shortcomings of our medical litigation
system make it clear that it is time for a major change. I also said
that regardless of how we voted, we all should work toward replacing
the current medical tort liability scheme with a more reliable and
predictable system of medical justice.
Today, I am introducing a bill that would help achieve that goal.
Most of us are familiar with the report on medical errors from the
Institute of Medicine, also known as the IOM. Many of us may be less
familiar with another report that the IOM published earlier this year.
That report is called ``Fostering Rapid Advances in Healthcare:
Learning from System Demonstrations.''
Our Secretary of Health and Human Services, Tommy Thompson,
challenged the IOM to identify bold ideas that would challenge
conventional thinking about some of the most vexing problems facing our
healthcare system. In response, an IOM committee developed this report,
which identified a set of demonstration projects that committee members
felt would break new ground and yield a very high return-on-investment
in terms of dollars and health.
Medical liability was one of the areas upon which the IOM committee
focused. The IOM suggested that the federal government should support
demonstration projects in the states. These demonstrations should be
based on ``replacing tort liability with a system of patient-centered
and safety-focused non-judicial compensation.''
The bill I am introducing today is in the spirit of this IOM report.
This bill, the Reliable Medical Justice Act, would authorize funding
for States to create demonstration programs to test alternatives to
current medical tort litigation.
The funding to States under this bill would cover planning grants for
developing proposals based on the models or other innovative ideas.
Funding to States would also include the initial costs of getting the
alternatives up and running.
The Reliable Medical Justice Act would require participating states
and the Federal Government to collaborate in continuous evaluations of
the results of the alternatives as compared to traditional tort
litigation. This way, all States and the federal government can learn
from new approaches.
By funding demonstration projects, I believe Congress could enable
States to experiment with and learn from ideas that could provide long-
term solutions to the current medical liability and litigation crisis.
In introducing this bill, I wanted to provide some alternative ideas
that would contribute to the debate. As a result, the bill describes
three models to which states could look in designing their
alternatives.
For instance, a State could provide healthcare providers and
organizations with immunity from lawsuits if they make a timely offer
to compensate an injured patient for his or her actual net economic
loss, plus a payment for pain and suffering if experts deem such a
payment to be appropriate. This could give a healthcare provider who
makes an honest mistake the chance to make amends financially with a
patient, without the provider fearing that their honesty would land
them in a lawsuit.
Another idea would be for a state to set up classes of avoidable
injuries and a schedule of compensation for them, and then establish an
administrative board to resolve claims related to those injuries. A
scientifically rigorous process of identifying preventable injuries and
setting appropriate compensation would be preferable to the randomness
of the current system.
Still another option would be for a state to establish a special
healthcare court for adjudicating medical malpractice cases. For this
idea to work, the State would need to ensure that the presiding judges
have expertise in and an understanding of healthcare, and allow them to
make binding rulings on issues like causation compensation, and
standards of care.
We already have specialized courts for complicated issues like taxes
and highly charged issues like substance abuse and domestic violence.
With all the flaws in our current medical litigation system, perhaps we
should consider special courts for the complex and emotional issue of
medical malpractice.
I believe one thing in our medical liability debate is absolutely
clear--people are demanding change. Ten States have passed some
liability reform in the past year, and another 17 have debated it.
States are heeding this call for change, and Congress should support
those efforts.
My own State, Wyoming, had a lively legislative debate on medical
liability reform this year, but we have a constitutional amendment that
prohibits limits on the amounts that can be recovered through lawsuits.
The Wyoming Senate considered a bill to amend our State's constitution
to create a commission on healthcare errors. That commission would have
had the power to review claims, decide if healthcare negligence had
occurred, and determine the compensation for the death or injury
according to a schedule or formula provided by law. However, the bill
died in a tie vote on the Wyoming Senate floor.
According to one of the sponsors of the bill, Senator Charlie Scott,
one of the biggest obstacles to passage was the uncertainty surrounding
this new idea. No one had any basis for knowing what a proper schedule
or formula for compensation would be. No one knew how much the system
might cost, or how much injured patients would recover compared to what
they recover now.
Senator Scott wrote me to say that federal support for finding
answers to these questions might help the bill's sponsors sufficiently
respond to the legitimate concerns of their fellow Wyoming legislators.
We should be helping state legislators like Senator Scott develop
thoughtful and innovative ideas such as the one he has proposed. That's
one of the reasons I am offering this bill.
Clearly, the American people and their elected representatives have
identified the need to reform our current medical litigation system.
The United States Senate did not vote to proceed to the Patients First
Act this month, but no member of this body denied that there is a
medical liability crisis, or that Congress needs to act sooner rather
than later.
While we continue that debate, we ought to lend a hand to States that
are working to change their current medical litigation systems and to
develop creative alternatives that could work much better for patients
and providers. The States have been policy pioneers in many areas--
workers' compensation, welfare reform, and electricity de-regulation,
to name three. Medical litigation should be the next item on the agenda
of the laboratories of democracy that are our 50 States.
No one questions the need to restore reliability to our medical
justice system. But how do we begin the process? One way is to foster
innovation by encouraging States to develop more rational and
predictable methods for resolving healthcare injury claims. And that is
what the Reliable Medical Justice Act aims to do.
In the long run, we would all be better off with a more reliable
system of medical justice than we have today. I know that my fellow
Senators recognize this, so I hope my colleagues on both sides of the
aisle will work with me on this legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1518
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 ``Reliable Medical Justice
Act''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to restore reliability to the medical justice system by
fostering alternatives to current medical tort litigation
that promote early disclosure of health care errors and
provide prompt, fair, and reasonable compensation to patients
who are injured by health care errors; and
(2) to support and assist States in developing such
alternatives.
SEC. 3. STATE DEMONSTRATION PROGRAMS TO EVALUATE ALTERNATIVES
TO CURRENT MEDICAL TORT LITIGATION.
Part P of title III of the Public Health Service Act (42
U.S.C. 280g et seq.) is amended by adding at the end the
following:
[[Page S10642]]
``SEC. 3990. STATE DEMONSTRATION PROGRAM TO EVALUATE
ALTERNATIVES TO CURRENT MEDICAL TORT
LITIGATION.
``(a) In General.--The Secretary is authorized to award
demonstration grants to States for the development,
implementation, and evaluation of alternatives to current
tort litigation for resolving disputes over injuries
allegedly caused by health care providers or health care
organizations.
``(b) Duration.--The Secretary may award up to 7 grants
under subsection (a) and each grant awarded under such
subsection may not exceed a period of 10 years.
``(c) Conditions for Demonstration Grants.--
``(1) Requirements.--Each State desiring a grant under
subsection (a) shall--
``(A) develop an alternative to current tort litigation for
resolving disputes over injuries allegedly caused by health
care providers or health care organizations that may be 1 of
the models described in subsection (d); and
``(B) establish procedures to allow for patient safety data
related to disputes resolved under subparagraph (A) to be
collected and analyzed by organizations that engage in
voluntary efforts to improve patient safety and the quality
of health care delivery, in accordance with guidelines
established by the Secretary.
``(2) Alternative to current tort litigation.--Each State
desiring a grant under subsection (a) shall demonstrate how
the proposed alternative described in paragraph (1)(A)--
``(A) makes the medical liability system more reliable;
``(B) enhances patient safety; and
``(C) maintains access to liability insurance.
``(3) Sources of compensation.--Each State desiring a grant
under subsection (a) shall identify the sources from and
methods by which compensation would be paid for claims
resolved under the proposed alternative to current tort
litigation, which may include public or private funding
sources, or a combination of such sources. Funding methods
may provide financial incentives for activities that improve
patient safety.
``(4) Scope.--Each State desiring a grant under subsection
(a) may establish a scope of jurisdiction (such as a
designated geographic region or a designated area of health
care practice) for the proposed alternative to current tort
litigation that is sufficient to evaluate the effects of the
alternative.
``(d) Models.--
``(1) In general.--Any State desiring a grant under
subsection (a) that proposes an alternative described in
paragraph (2), (3), or (4) shall be deemed to meet the
criteria under subsection (c)(2).
``(2) Early disclosure and compensation model.--In the
early disclosure and compensation model, the State shall--
``(A) provide immunity from tort liability (except in cases
of fraud, or in cases of criminal or intentional harm) to any
health care provider or health care organization that enters
into an agreement to pay compensation to a patient for an
injury;
``(B) set a limited time period during which a health care
provider or health care organization may make an offer of
compensation benefits under subparagraph (A), with
consideration for instances where prompt recognition of an
injury is unlikely or impossible;
``(C) require that the compensation provided under
subparagraph (A) include--
``(i) payment for the net economic loss of the patient, on
a periodic basis, reduced by any payments received by the
patient under--
``(I) any health or accident insurance;
``(II) any wage or salary continuation plan; or
``(III) any disability income insurance;
``(ii) payment for the patient's pain and suffering, if
appropriate for the injury, based on a capped payment
schedule developed by the State in consultation with relevant
experts; and
``(iii) reasonable attorney's fees;
``(D) not abridge the right of an injured patient to seek
redress through the State tort system if a health care
provider does not enter into a compensation agreement with
the patient in accordance with subparagraph (A);
``(E) prohibit a patient who accepts compensation benefits
in accordance with subparagraph (A) from filing a health care
lawsuit against other health care providers or health care
organizations for the same injury; and
``(F) permit a health care provider or health care
organization that enters into an agreement to pay
compensation benefits to an individual under subparagraph (A)
to join in the payment of the compensation benefits of any
health care provider or health care organization that is
potentially liable, in whole or in part, for the injury.
``(3) Administrative determination of compensation model.--
``(A) In general.--In the administrative determination of
compensation model--
``(i) the State shall--
``(I) designate an administrative entity (in this paragraph
referred to as the `Board') that shall include
representatives of--
``(aa) relevant State licensing boards;
``(bb) patient advocacy groups;
``(cc) health care providers and health care organizations;
and
``(dd) attorneys in relevant practice areas;
``(II) set up classes of avoidable injuries that will be
used by the Board to determine compensation under clause
(ii)(II) and, in setting such classes, may consider 1 or more
factors, including--
``(aa) the severity of the disability arising from the
injury;
``(bb) the cause of injury;
``(cc) the length of time the patient will be affected by
the injury;
``(dd) the degree of fault of the health care provider or
health care organization; and
``(ee) standards of care that the State may adopt and their
breach;
``(III) modify tort liability, through statute or contract,
to bar negligence claims in court against health care
providers and health care organizations for the classes of
injuries established under subclause (II), except in cases of
fraud, or in cases of criminal or intentional harm;
``(IV) outline a procedure for informing patients about the
modified liability system described in this paragraph and, in
systems where participation by the health care provider,
health care organization, or patient is voluntary, allow for
the decision by the provider, organization, or patient of
whether to participate to be made prior to the provision of,
use of, or payment for the health care service;
``(V) provide for an appeals process to allow for a review
of decisions; and
``(VI) establish procedures to coordinate settlement
payments with other sources of payment;
``(ii) the Board shall--
``(I) resolve health care liability claims for certain
classes of avoidable injuries as determined by the State and
determine compensation for such claims; and
``(II) develop a schedule of compensation to be used in
making such determinations that includes--
``(aa) payment for the net economic loss of the patient, on
a periodic basis, reduced by any payments received by the
patient under any health or accident insurance, any wage or
salary continuation plan, or any disability income insurance;
``(bb) payment for the patient's pain and suffering, if
appropriate for the injury, based on a capped payment
schedule developed by the State in consultation with relevant
experts; and
``(cc) reasonable attorney's fees; and
``(iii) the Board may--
``(I) develop guidelines relating to--
``(aa) the standard of care; and
``(bb) the credentialing and disciplining of doctors; and
``(II) develop a plan for updating the schedule under
clause (ii)(II) on a regular basis.
``(B) Appeals.--The State, in establishing the appeals
process described in subparagraph (A)(i)(V), may choose
whether to allow for de novo review, review with deference,
or some opportunity for parties to reject determinations by
the Board and elect to file a civil action after such
rejection. Any State desiring to adopt the model described in
this paragraph shall indicate how such review method meets
the criteria under subsection (c)(2).
``(C) Timeliness.--Any claim handled under the system
described in this paragraph shall provide for adjudication
that is more timely and expedited than adjudication in a
traditional tort system.
``(4) Special health care court model.--In the special
health care court model, the State shall--
``(A) establish a special court for adjudication of
disputes over injuries allegedly caused by health care
providers or health care organizations;
``(B) ensure that such court is presided over by judges
with expertise in and an understanding of health care;
``(C) provide authority to such judges to make binding
rulings on causation, compensation, standards of care, and
related issues;
``(D) provide for an appeals process to allow for a review
of decisions; and
``(E) at its option, establish an administrative entity
similar to the entity described in paragraph (3)(a)(i)(I) to
provide advice and guidance to the special court.
``(e) Application.--Each State desiring a grant under
subsection (a) shall submit to the Secretary an application,
at such time, in such manner, and containing such information
as the Secretary may require.
``(f) Report.--Each State receiving a grant under
subsection (a) shall submit to the Secretary a report
evaluating the effectiveness of activities funded with grants
awarded under such subsection at such time and in such manner
as the Secretary may require.
``(g) Technical Assistance.--The Secretary shall provide
technical assistance to the States awarded grants under
subsection (a). Such technical assistance shall include the
development, in consultation with States, of common
definitions, formats, and data collection infrastructure for
States receiving grants under this section to use in
reporting to facilitate aggregation and analysis of data both
within and between States. States not receiving grants under
this section may also use such common definitions, formats,
and data collection infrastructure.
``(h) Evaluation.--
``(1) In general.--The Secretary shall enter into a
contract with an appropriate research organization to conduct
an overall evaluation of the effectiveness of grants awarded
under subsection (a) and to annually prepare and submit a
report to the appropriate committees of Congress. Such an
evaluation shall begin not later than 18
[[Page S10643]]
months following the date of implementation of the first
program funded by a grant under subsection (a).
``(2) Contents.--The evaluation under paragraph (1) shall
include--
``(A) an analysis of the effect of the grants awarded under
subsection (a) on the number, nature, and costs of health
care liability claims;
``(B) a comparison of the claim and cost information of
each State receiving a grant under subsection (a); and
``(C) a comparison between States receiving a grant under
this section and States that did not receive such a grant,
matched to ensure similar legal and health care environments,
and to determine the effects of the grants and subsequent
reforms on--
``(i) the liability environment;
``(ii) health care quality; and
``(iii) patient safety.
``(i) Option To Provide for Initial Planning Grants.--Of
the funds appropriated pursuant to subsection (k), the
Secretary may use a portion not to exceed $500,000 per State
to provide planning grants to such States for the development
of demonstration proposals meeting the criteria described in
subsection (c). In selecting States to receive such planning
grants, the Secretary shall give preference to those States
in which current law would not prohibit the adoption of an
alternative to current tort litigation.
``(j) Definitions.--In this section:
``(1) Health care services.--The term `health care
services' means any services provided by a health care
provider, or by any individual working under the supervision
of a health care provider, that relate to--
``(A) the diagnosis, prevention, or treatment of any human
disease or impairment; or
``(B) the assessment of the health of human beings.
``(2) Health care organization.--The term `health care
organization' means any individual or entity which is
obligated to provide, pay for, or administer health benefits
under any health plan.
``(3) Health care provider.--The term `health care
provider' means any individual or entity--
``(A) licensed, registered, or certified under Federal or
State laws or regulations to provide health care services; or
``(B) required to be so licensed, registered, or certified
but that is exempted by other statute or regulation.
``(4) Net economic loss.--The term `net economic loss'
means--
``(A) reasonable expenses incurred for products, services,
and accommodations needed for health care, training, and
other remedial treatment and care of an injured individual;
``(B) reasonable and appropriate expenses for
rehabilitation treatment and occupational training;
``(C) 100 percent of the loss of income from work that an
injured individual would have performed if not injured,
reduced by any income from substitute work actually
performed; and
``(D) reasonable expenses incurred in obtaining ordinary
and necessary services to replace services an injured
individual would have performed for the benefit of the
individual or the family of such individual if the individual
had not been injured.
``(k) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section such
sums as may be necessary. Amounts appropriated pursuant to
this subsection shall remain available until expended.''.
______
By Mr. BINGAMAN (for himself, Ms. Landrieu, Mrs. Lincoln, Mr.
Kerry, Mrs. Clinton, Mrs. Murray, Mr. Lautenberg, and Ms.
Mikulski):
S. 1519. A bill to amend title XIX of the Social Security Act to
extend medicare cost-sharing for qualifying individuals through 2004;
to the Committee on Finance.
Mr. BINGAMAN. Mr. President, I am introducing today emergency
legislation with Senators Landrieu, Lincoln, Kerry, Clinton, Murray,
Lautenberg, and Mikulski that would extend a critical Federal-State
program that assists low-income Medicare beneficiaries in paying their
health premiums costs through the Medicaid program. This specific
program, for low-income senior and disabled citizens, was enacted as
part of the Balanced Budget Act of 1997 and is slated for expiration at
the end of fiscal year 2003. The program was extended and is slated for
expiration at the end of fiscal year 2003. The program was extended by
the two continuing resolutions and the final appropriations bill
through September 30, 2003. This legislation would simply further
extend it for another year--through the end of 2004.
This program, known as the Qualifying Individual Program, or QI-1,
within Medicaid is a block grant payment to states to pay the Medicare
Part B premium of $58.70 per month in 2003 for individuals with monthly
incomes between $887 and $997 for individuals and between $1,194 and
$1,344 for couples. This covers Medicare beneficiaries with income
between 120 and 135 percent of the Federal Poverty Level.
This amounts to a benefit of over $700 annually that many older and
disabled Americans depend upon to pay for a portion of their health
care costs, such as prescription drugs and supplemental coverage. Well
over 120,000 people nationwide currently rely on the QI-1 and will be
hard pressed to afford Medicare coverage without this assistance. In
short, to prevent the erosion of existing low-income protections,
Congress must extend the QI-1 program this year.
This is a bipartisan issue as well. President Bush had included QI-1
reauthorization in his fiscal year 2003 budget. Moreover, an extension
has been included in S. 1, the ``Prescription Drug and Medicare
Improvement Act of 2003,'' but the conference is certainly not going to
be completed, passed by both the House and Senate, and signed into law
by the President in time before the need for States to send out notices
to beneficiaries alerting them to their forthcoming loss of cost
sharing protections at the end of September.
As Ron Pollack, Executive Director at Families, USA notes in his
letter of support for this legislation, ``Without an extension, over
120,000 low-income Medicare beneficiaries will have to be sent notices
that the program is expiring. The result will be confusion, fear, and
uncertainty among this population. This disruption can all be avoided
by the quick and early passage of your extension bill.''
At the Federal level, the Congress and Administration are often
criticized for failure to understand what are or are not the
implications to real people. One hundred and twenty thousand low-income
beneficiaries face the prospect of their cost sharing increasing by
over $700 per year at the end of September. They cannot be assured that
an extension will be passed or done so in a timely fashion. How are
they supposed to plan and budget?
When we return in September, we will have just a few legislative days
to pass an extension in the Senate, the House, and be signed by the
President to stop the process of States having to send out
disenrollment letters. We all know this can be very difficult to get
through the Congress, as it requires unanimous consent, and may not
occur in a timely fashion. If not, States will be forced to send out
disenrollment letters to the 120,000 low-income seniors and the
disabled that rely on the cost-sharing protections provided by the QI-1
program and begin to shut down their programs.
Again, this is emergency legislation that simply provisions a one-
year extension of QI-1 program to prevent the cut-off of cost-sharing
protections for 120,000 low-income Medicare beneficiaries. We should be
engaging in improving health coverage for low-income elderly and
disabled citizens rather than leaving these vulnerable Americans facing
fear, uncertainty, disruption, and increasing costs.
I urge immediate passage of this legislation and 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:
S. 1519
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. EXTENSION OF MEDICARE COST-SHARING FOR QUALIFYING
INDIVIDUALS THROUGH FISCAL YEAR 2004.
(a) In General.--Section 1902(a)(10)(E)(iv) of the Social
Security Act (42 U.S.C. 1396a(a)(10)(E)(iv)) is amended to
read as follows:
``(iv) subject to sections 1933 and 1905(p)(4), for making
medical assistance available (but only for premiums payable
with respect to months during the period beginning with
January 1998, and ending with December 2004) for medicare
cost-sharing described in section 1905(p)(3)(A)(ii) for
individuals who would be qualified medicare beneficiaries
described in section 1905(p)(1) but for the fact that their
income exceeds the income level established by the State
under section 1905(p)(2) and is at least 120 percent, but
less than 135 percent, of the official poverty line (referred
to in such section) for a family of the size involved and who
are not otherwise eligible for medical assistance under the
State plan;''.
(b) State Allocations.--Section 1933(c) of the Social
Security Act (42 U.S.C. 1396u-3(c)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (D), by striking ``and'' at the end;
(B) in subparagraph (E)--
[[Page S10644]]
(i) by striking ``fiscal year 2002'' and inserting ``each
of fiscal years 2002 through 2004''; and
(ii) by striking the period and inserting ``; and''; and
(C) by adding at the end the following:
``(F) the first quarter of fiscal year 2005 is
$100,000,000.''; and
(2) in paragraph (2)(A), by striking ``the sum of'' and all
that follows through ``1902(a)(10)(E)(iv)(II) in the State;
to'' and inserting ``twice the total number of individuals
described in section 1902(a)(10)(E)(iv) in the State; to''.
______
By Mr. GRAHAM of Florida (for himself, Mrs. Feinstein, and Mr.
Rockefeller):
S. 1520. A bill to amend the National Security Act of 1947 to
reorganize and improve the leadership of the intelligence community of
the United States, to provide for the enhancement of the
counterterrorism activities of the United States Government, and for
other purposes; to the Select Committee on Intelligence.
Mr. ROCKEFELLER. Mr. President, I am pleased to be an original
cosponsor of the ``9-11 Memorial Intelligence Reform Act'' which
Senator Bob Graham is introducing today to implement the
recommendations of the Joint September 11 Inquiry of the Senate and
House Intelligence Committees.
I expect that this important legislation will be referred to the
Select Committee on Intelligence, on which I serve as vice chairman. I
am committed to working with the Chairman and our colleagues to ensure
that the matters addressed in the bill receive the full consideration
and action that our national security requires. I expect that other
committees, such as the Committee on the Judiciary, will have an
interest in some matters covered by the bill, and I look forward to
working with them.
The 9-11 Memorial Intelligence Reform Act covers matters ranging from
the basic structure of the U.S. intelligence community to improvements
in the sharing and analysis of intelligence information, reforms in
domestic counterterrorism, and other issues identified in the course of
the Joint Inquiry. For some matters, notably on reforming the
leadership structure of the intelligence community, the bill proposes
specific reforms. For various other matters, the bill calls for
executive branch reports that can be the basis for subsequent
congressional action.
There are two principal aspects of our work ahead.
The first is to systematically and thoroughly examine the steps that
the President, the intelligence community, and other departments and
agencies have taken to correct deficiencies in U.S. intelligence and
counterterrorism. The Joint Inquiry's recommendations were first
announced last December. In the months ahead, we should call on the
agencies of the intelligence community, and other components of the
executive branch, to report on their concrete measures, both since
September 11 and since our recommendations were made public, to correct
deficiencies. We should then assess those reports and Administration
testimony in committee hearings.
Our second task is to consider reform proposals, including those in
Senator Graham's bill. In that regard, I should make clear that the
answers proposed in the bill are not the last word on any of those
subjects. They are, instead, a beginning point for the Senate's
consideration of measures to correct the problems identified by the
Joint 9-11 Inquiry.
As we address these important tasks, it will be essential that the
Congress and the American public have the benefit of the best ideas
available. We will welcome proposals by the administration, by other
Members of Congress, from the National Commission on Terrorist Attacks
Upon the United States, and concerned citizens.
Important ideas should not be bottled up anywhere. They should be put
on the public table.
In that regard, I urge the President to release the intelligence
reform recommendations that former National Security Adviser Brent
Scowcroft has made to the administration. In public testimony before
our Joint Inquiry in September 2002, General Scowcroft testified, in
response to a question that I asked him, that in May 2001--before
September 11, the President had established a process to review the
intelligence community. General Scowcroft testified that he chaired the
external panel of that review, but that he could not get into much
detail because his report was still classified. It is time, I believe,
finally to declassify that report to the extent possible. The Congress
and the American public should have the benefit of that distinguished
public servant's insights about intelligence community reform.
______
By Mr. REID (for himself and Mr. Ensign):
S. 1521. A bill to direct the Secretary of the Interior to convey
certain land to the Edward H. McDaniel American Legion Post No. 22 in
Pahrump, Nevada, for the construction of a post building and memorial
park for use by the American Legion, other veterans' groups, and the
local community; to the Committee on Energy and Natural Resources.
Mr. REID. Mr. President, I rise today for myself and Senator Ensign
to introduce the Pahrump American Legion Post Land Conveyance Act. This
Act will transfer approximately five acres of BLM land in Pahrump, NV,
to the American Legion for the purpose of constructing a post home and
other facilities that will benefit veterans' groups and the local
community.
The American Legion and other non-profit organizations that represent
our Nation's veterans in the vicinity of Pahrump, NV, have tripled in
size over the last 10 years. The local memberships of the American
Legion, the Veterans of Foreign Wars, and the Disabled American
Veterans will soon exceed 1000 members, and will continue to expand
with the rest of the fast-growing local community.
The existing facility used by the veterans in Pahrump was built by
the Veterans of Foreign Wars in the 1960s. It is much too small and not
at all adequate for the veterans' current needs. The nearest facility
that can accommodate them is located in Las Vegas, more than 60 miles
away.
The Pahrump American Legion would like to build a post building,
veterans' garden, and memorial park. These new facilities would benefit
not only the local veterans, but would be made available--at no cost--
for community activities. The American Legion has tried for over six
years to acquire a suitable tract of land to provide a home for a new
veterans center. The Legion started a pledge campaign and raised over
$16,000 for the building fund before the parcel of land they sought to
acquire was removed from consideration by the BLM. Unfortunately, other
tracts of land that might represent alternative sites in Pahrump are
not suitable.
Mr. President, this situation is intolerable. Without a home, the
Pahrump American Legion Post can't offer the kind of services and
programs that the veterans in the area deserve. Our veterans aren't the
only ones who are suffering, either. All across the United States, the
American Legion is deservedly famous for supporting community
activities like the Boy Scouts and Girl Scouts, as well as the National
Oratorical Contest, American Legion Baseball, Girls and Boys State, and
other activities for young people. All of these worthy groups and
projects would benefit from the construction of a new post home.
Our bill simply directs the Secretary of the Interior to convey this
property from the Bureau of Land Management to American Legion ``Edward
H McDaniel'' Post No. 22 in Pahrump. Because of the great public
benefit such a facility will provide, we ask that the land be conveyed
for free, but that the American Legion cover the costs of the
transaction.
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. 1521
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 ``Edward H. McDaniel American
Legion Post No. 22 Land Conveyance Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the membership of the American Legion and other
nonprofit organizations that represent the veterans'
community in Pahrump, Nevada, has grown immensely in the last
10 years;
[[Page S10645]]
(2) the existing facility used by the veterans community in
Pahrump, which was constructed in the 1960's, is too small
and is inappropriate for the needs of the veterans community;
(3) the nearest veterans facility that can accommodate the
veterans community in Pahrump is located more than 60 miles
away in the city of Las Vegas;
(4) the tracts of land that are available for consideration
as potential sites for the location of a new veterans
facility are not suitable for the facility;
(5) conveyance of a suitable parcel of land for the
facility, which consists of an odd, triangular tract of land
bounded on 2 sides by private land and cut off from other
public land by a major highway, conforms with the objective
of the Bureau of Land Management, Las Vegas District 1998
Resource Management Plan by simplifying the land management
responsibilities of the Bureau of Land Management; and
(6) because the intent of the American Legion is to make
the facility available to other veterans organizations and
the public for community activities and events at no cost, it
would be in the best interests of the United States to convey
the land to the Edward H. McDaniel American Legion Post No.
22.
SEC. 3. DEFINITIONS.
In this Act:
(1) Post no. 22.--The term ``Post No. 22'' means the Edward
H. McDaniel American Legion Post No. 22 in Pahrump, Nevada.
(2) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Director of the Bureau of
Land Management.
SEC. 4. CONVEYANCE OF LAND TO EDWARD H. MCDANIEL AMERICAN
LEGION POST NO. 22.
(a) Conveyance on Condition Subsequent.--Not later than 120
days after the date of enactment of this Act, subject to
valid existing rights and the condition stated in subsection
(c) and in accordance with the Act of June 14, 1926 (commonly
known as the ``Recreation and Public Purposes Act'') (43
U.S.C. 869 et seq.), the Secretary shall convey to Post No.
22, for no consideration, all right, title, and interest of
the United States in and to the parcel of land described in
subsection (b).
(b) Description of Land.--The parcel of land referred to in
subsection (b) is the parcel of Bureau of Land Management
land that--
(1) is bounded by Route 160, Bride Street, and Dandelion
Road in Nye County, Nevada;
(2) consists of approximately 4.5 acres of land; and
(3) is more particularly described as a portion of the S
\1/4\ of section 29, T. 20 S., R. 54 E., Mount Diablo and
Base Meridian.
(c) Condition on Use of Land.--
(1) In general.--Post No. 22 and any successors of Post No.
22 shall use the parcel of land described in section (b) for
the construction and operation of a post building and
memorial park for use by Post No. 22, other veterans groups,
and the local community for events and activities.
(2) Reversion.--Except as provided in paragraph (3), if the
Secretary, after notice to Post No. 22 and an opportunity for
a hearing, makes a finding that Post No. 22 has used or
permitted the use of the parcel for any purpose other than
the purpose specified in paragraph (1) and Post No. 22 fails
to discontinue that use, title to the parcel shall revert to
the United States, to be administered by the Secretary.
(3) Waiver.--The Secretary may waive the requirements of
paragraph (2) if the Secretary determines that a waiver would
be in the best interests of the United States.
______
By Mr. SMITH (for himself, Mr. Jeffords, and Mr. Conrad):
S. 1523. A bill to amend part A of title IV of the Social Security
Act to allow a State to treat an individual with a disability,
including a substance abuse problem, who is participating in
rehabilitation services and who is increasing participation in core
work activities as being engaged in work for purposes of the temporary
assistance for needy families program, and to allow a State to court as
a work activity under that program care provided to a child with a
physical or mental impairment or an adult dependent for care with a
physical or mental impairment; to the Committee on Finance.
Mr. SMITH. Mr. President, I rise today to introduce the Pathways to
Independence Act of 2003, along with Senators Conrad and Jeffords. This
bill includes two important provisions that we will work to include in
the TANF reauthorization. These provisions will help both TANF
recipients with disabilities, and the States as they work with people
with disabilities in their respective programs.
In July 2002, the General Accounting Office reported that as many as
44 percent of TANF families have a parent or a child with a physical or
mental impairment. This is almost three times as high as among the non-
TANF population in the United States. In eight percent of TANF
families, there is both a parent and a child with a disability; among
non-TANF families, this figure is one percent. The GAO's work confirmed
the findings of earlier studies, including work by the Urban Institute
and the HHS Inspector General.
These figures mean that we need to make sure that TANF
reauthorization legislation give States the ability and incentives to
help families meet their current needs, while also helping them to move
from welfare to work. This is the lesson that Oregon and many other
States have already learned as they developed and refined their TANF
programs.
The first provision of my bill provides a pragmatic approach to
helping parents with disabilities and substance abuse problems receive
the treatment and other rehabilitative services they will need to
succeed in a work setting. It is designed so that, over time, States
can gradually increase the work activity requirements, while continuing
to provide them with rehabilitative services. Under this proposal, much
like in other proposals under consideration, a person participating in
rehabilitation can be counted as engaged in work activity for three
months. After the first three months, if a person continues to need
rehabilitative services, the State can continue to count participation
in those activities for another three months, so long as that person is
engaged in some number of work hours, to be determined by the State.
The next step of my proposal builds on the concept of partial credit
that is being considered in the Senate Finance Committee. If, after six
months, a State determines that a person has a continuing need for
rehabilitative services, the State may create a package that combines
work activity with these services. The State will receive credit for
the individual's efforts so long as at least one-half of the hours in
which the individual participates are in core work activities. For
example, if a State receives full credit for a person who works 30
hours per week, and the State has determined that an individual needs
rehabilitative services beyond six months, that individual would need
to be engaged in core work activities for at least 15 hours per week to
get full credit, with the remaining 15 hours spent in rehabilitative
services. Similarly, if partial credit is available for a person who
works 24 hours per week, then a State could receive that same partial
credit if the person was engaged in core work activities for at least
12 hours per week, with the remaining 12 hours spent in rehabilitative
services.
This approach is appealing for many reasons. First, it allows States
to design a system in which a person can move progressively over time
from rehabilitation toward work. Second, it gives States credit for the
time and effort they will need to invest to help people move
successfully from welfare to work by allowing States to use a range of
strategies to help these families. Third, it creates a more realistic
structure for individuals with disabilities and addictions who may
otherwise fall out of the system either through sanction or
discouragement, despite their need for financial support. Finally, this
approach is appealing because it is designed to work within the
structure of the final TANF reauthorization bill.
The second provision in the bill would allow States the option of
counting as work activity the time that an adult in a TANF family
spends caring for a child with a disability or an adult relative who is
in need of care. The studies reflect that these people often cannot
find care for their relative so they can work. They are often forced
into the impossible choice of caring for their child with a disability,
or leaving that child to go to work in order to continue receiving
their TANF grant. This is not a choice a parent should ever have to
make.
In order to be able to count the care provided by the TANF recipient
as work activity, the State would first be required to determine that
the child or adult with a disability is, in fact, truly disabled, and
that the person needs substantial ongoing care. Then, the State must
decide that the TANF recipient is the most appropriate means for
providing the needed care. The State would also have to conduct regular
periodic evaluations to determine that the child or adult with a
disability continues to need the care provided by the TANF recipient.
Nothing in the provision prevents a State from determining that the
TANF recipient can
[[Page S10646]]
work outside the home or engage in other work-related training or other
activities that will help the person eventually move to work on a full-
or part-time basis.
I would like to submit for the record a letter from close to forty
national organizations that are members of the Consortium for Citizens
with Disabilities supporting this legislation, as well as a letter of
support from my home State of Oregon. I look forward to working with my
co-sponsors, Senators Conrad and Jeffords, and with the Chairman of the
Finance Committee on these important provisions in the upcoming months,
and I urge my colleagues to join us in support of this legislation.
I ask unanimous consent that the text of the bill and letters of
support be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows.
S. 1523
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 ``Pathways to Independence Act
of 2003''.
SEC. 2. STATE OPTION TO COUNT REHABILITATION SERVICES FOR
CERTAIN INDIVIDUALS AS WORK FOR PURPOSES OF THE
TEMPORARY ASSISTANCE FOR NEEDY FAMILIES
PROGRAM.
(a) In General.--Section 407(c)(2) of the Social Security
Act (42 U.S.C. 607(c)(2)) is amended by adding at the end the
following:
``(E) State option to treat an individual with a
disability, including a substance abuse problem, who is
participating in rehabilitation services as being engaged in
work.--
``(i) Initial 3-month period.--Subject to clauses (ii) and
(iii), for purposes of determining monthly participation
rates under paragraphs (1)(B)(i) and (2)(B) of subsection
(b), a State may deem an individual described in clause (iv)
as being engaged in work for not more than 3 months in any
24-month period.
``(ii) Additional 3-month period.--A State may extend the
3-month period under clause (i) for an additional 3 months
only if, during such additional 3-month period, the
individual engages in a work activity described in subsection
(d) for such number of hours per month as the State
determines appropriate.
``(iii) Succeeding months.--
``(I) Credit for individuals participating in work
activities and rehabilitation services.--If a State has
deemed an individual described in clause (iv) as being
engaged in work for 6 months in accordance with clauses (i)
and (ii), and the State determines that the individual is
unable to satisfy the work requirement under the State
program funded under this part that applies to the individual
without regard to this subparagraph because of the
individual's disability, including a substance abuse problem,
the State shall receive the credit determined under subclause
(II) toward the monthly participation rate for the State.
``(II) Determination of credit.--For purposes of subclause
(I), the credit the State shall receive under that subclause
is, with respect to a month, the lesser of--
``(aa) the sum of the number of hours the individual
participates in an activity described in paragraph (1), (2),
(3), (4), (5), (6), (7), (8), or (12) of subsection (d) for
the month and the number of hours that the individual
participates in rehabilitation services under this
subparagraph for the month; or
``(bb) twice the number of hours the individual
participates in an activity described in paragraph (1), (2),
(3), (4), (5), (6), (7), (8), or (12) of subsection (d) for
the month.
``(iv) Individual described.--For purposes of this
subparagraph, an individual described in this clause is an
individual who the State has determined has a disability,
including a substance abuse problem, and would benefit from
participating in rehabilitative services.
``(v) Definition of disability.--In this subparagraph, the
term `disability' means--
``(I) a physical or mental impairment that constitutes or
results in a substantial impediment to employment; or
``(II) a physical or mental impairment that substantially
limits 1 or more major life activities.''.
(b) Effective Date.--The amendment made by subsection (a)
takes effect on October 1, 2003.
SEC. 3. STATE OPTION TO COUNT CARING FOR A CHILD OR ADULT
DEPENDENT FOR CARE WITH A PHYSICAL OR MENTAL
IMPAIRMENT AS MEETING ALL OR PART OF THE WORK
REQUIREMENT.
(a) In General.--Section 407(c)(2) of the Social Security
Act (42 U.S.C. 607(c)(2)), as amended by section 2, is
amended by adding at the end the following:
``(F) Recipient caring for a child or adult dependent for
care with a physical or mental impairment deemed to be
meeting all or part of a family's work participation
requirements for a month.--
``(i) In general.--Subject to clause (ii), for purposes of
determining monthly participation rates under paragraphs
(1)(B)(i) and (2)(B) of subsection (b), a State may count the
number of hours per week that a recipient engages in
providing substantial ongoing care for a child or adult
dependent for care with a physical or mental impairment if
the State determines that--
``(I) the child or adult dependent for care has been
verified through a medically acceptable clinical or
laboratory diagnostic technique as having a significant
physical or mental impairment or combination of impairments
and as a result of that impairment, it is necessary that the
child or adult dependent for care have substantial ongoing
care;
``(II) the recipient providing such care is the most
appropriate means, as determined by the State, by which the
care can be provided to the child or adult dependent for
care;
``(III) for each month in which this subparagraph applies
to the recipient, the recipient is in compliance with the
requirements of the recipient's self-sufficiency plan; and
``(IV) the recipient is unable to participate fully in work
activities, after consideration of whether there are supports
accessible and available to the family for the care of the
child or adult dependent for care.
``(ii) Total number of hours limited to being counted as 1
family.--In no event may a family that includes a recipient
to which clause (i) applies be counted as more than 1 family
for purposes of determining monthly participation rates under
paragraphs (1)(B)(i) and (2)(B) of subsection (b).
``(iii) State requirements.--In the case of a recipient to
which clause (i) applies, the State shall--
``(I) conduct regular, periodic evaluations of the
recipient's family; and
``(II) include as part of the recipient's self-sufficiency
plan, regular updates on what special needs of the child or
the adult dependent for care, including substantial ongoing
care, could be accommodated either by individuals other than
the recipient or outside of the home.
``(iv) 2-parent families.--
``(I) In general.--If a parent in a 2-parent family is
caring for a child or adult dependent for care with a
physical or mental impairment--
``(aa) the State may treat the family as a 1-parent family
for purposes of determining monthly participation rates under
paragraphs (1)(B)(i) and (2)(B) of subsection (b); and
``(bb) the State may not count any hours of care for the
child or adult dependent for care for purposes of determining
such rates.
``(II) Special rule.--If the adult dependent for care in a
2-parent family is 1 of the parents and the State has
complied with the requirements of clause (iii), the State may
count the number of hours per week that a recipient engages
in providing substantial ongoing care for that adult
dependent for care.
``(v) Rule of construction.--Nothing in this subparagraph
shall be construed as prohibiting a State from including in a
recipient's self-sufficiency plan a requirement to engage in
work activities described in subsection (d).''.
(b) Effective Date.--The amendment made by subsection (a)
takes effect on October 1, 2003.
Consortium for Citizens
With Disabilities,
July 31, 2003.
Hon. Gordon Smith,
U.S. Senate,
Washington, DC.
Hon. James M. Jeffords,
U.S. Senate,
Washington, DC.
Hon. Kent Conrad,
U.S. Senate,
Washington, DC.
Dear Senators Smith, Conrad and Jeffords: We are writing to
thank you for introducing legislation that addresses two key
problems facing TANF families with a parent or child with a
disability. We believe that these provisions, if included in
a larger TANF reauthorization bill, will significantly
improve the ability of states to help families successfully
move from welfare toward work while also ensuring that the
needs of family members with disabilities are met. We
enthusiastically support this legislation.
The Consortium for Citizens with Disabilities (CCD) is a
coalition of national consumer, advocacy, provider and
professional organizations headquartered in Washington, DC.
We work together to advocate for national public policy that
ensures the self determination, independence, empowerment,
integration and inclusion of children and adults with
disabilities in all aspects of society. The CCD TANF Task
Force seeks to ensure that families that include persons with
disabilities are afforded equal opportunities and appropriate
accommodations under the Temporary Assistance for Needy
Families (TANF) block grant.
The research is clear that many TANF families include a
parent or a child with a disability, and in some families,
there is both a child and a parent with a disability. The
numbers are high--GAO has found that as many as 44 percent of
TANF families have a child or a parent with a disability--and
need to be addressed in the policy choices that Congress
makes in TANF reauthorization. We believe that, by designing
policies that take into account the needs of families with a
member with a disability, Congress can help the states move
greater numbers of these families off of welfare and toward
greater independence. Without reasonable
[[Page S10647]]
supports, however, and through no fault of their own, these
families sometimes fail at work activity and are often
subject to inappropriate sanctioning and the crises that flow
from abrupt--and often prolonged--loss of income.
Your bill could provide low-income families with members
with disabilities real opportunities to achieve self-
sufficiency in two significant ways, if included in larger
TANF reauthorization legislation:
Allow states to count individuals participating in
rehabilitative services beyond three months, while the
individual progressively engages in work activity.
Under current law, states have the flexibility--either
through a waiver such as Oregon has or as a result of the
caseload reduction credit--to ensure that a parent with a
disability, including a substance abuse problem, receives the
rehabilitative services she needs in order to move towards
work. In recent years, increasing numbers of states have used
this flexibility as they realized that some parents would
need more specialized help if they were going to successfully
leave TANF. Some of the current reauthorization proposals,
however,--including the House-passed bill, H.R. 4--limit
states to counting three months of rehabilitative services as
work activity. An arbitrary limit of three months of
rehabilitation services would be inadequate to help many
families with members with disabilities find and sustain
employment, and, in light of proposed increases in state
participation rates, would discourage states from designing
programs and requirements that work for people with the most
severe barriers.
Your bill will allow states to count rehabilitative
services as work activity beyond three months as long as the
rehabilitative services are mixed with work activity. We
believe this mix of activities and supports will help an
individual with severe barriers move toward greater
independence. First, the provision would extend the period of
time during which rehabilitative services, including
substance abuse treatment, can count toward the work
participation requirements from three months to six months.
However, during the second three months, the state would
require a small amount of work activity in addition to
rehabilitative services. Further, the provision would allow
states to count individuals participating in rehabilitative
services after this six month period as long as at least one-
half of the hours in which the individual participates are in
core work activities. This will allow states to create a
progression of work activity hours combined with
rehabilitative services over time that will assist in moving
the family from welfare to work at a pace that is designed to
lead to success for that family.
CCD is not asking Congress to exempt individuals, or family
members, with disabilities from participation in the TANF
program. On the contrary, we are looking for the essential
assistance and supports that will help families move off of
welfare toward greater independence. Your bill does not
create any exemptions from participation requirements, and in
fact, provides the necessary assistance and supports that can
come with participation in the TANF program. Under the bill,
states would have to engage the same number of recipients in
welfare-to-work activities as under the standard set in a new
reauthorization law. The provision simply allows states to
utilize a broader range of activities to help recipients with
barriers move to work. In short, this is a way to make the
TANF program work for parents with disabilities and substance
abuse problems. The provision would give states credit when
recipients with barriers are engaged in activities and, thus,
will encourage states to assist families with barriers to
progress toward work in a manner and at a pace that is more
tailored to their needs and disabilities.
Allow states to count as work activity the time that the
adult in the TANF family spends caring for a child with a
disability or an adult relative with a disability.
It is very difficult to find safe, accessible, and
appropriate child care for a child with a disability. This is
often the case regardless of the family's income. In
addition, the nature of some children's disabilities and
health conditions means that parents are called from work
regularly to assist a school with the child or to take the
child to medical appointments. At the same time, many parents
would like to work as much as possible or receive the
training they will need to secure a good job when they are no
longer needed in the home to care for their children with
disabilities.
Your bill will allow states to receive work credit for the
time that a parent spends caring for a child with a
disability, if the state has determined that this is the best
way to secure the child's care. The provision also would
apply to providing care for an adult relative with a
disability. This would help to address the bind that some
TANF recipients face when they are told they must work away
from home, but leave an elderly parent or other relative with
a disability without the care they need to continue to live
in the community. Nothing in the provision would prevent a
state from designing a plan with the parent that combines
some amount of in-home care as work activity with other
activities that will help the parent prepare to enter the
workforce at a time that is appropriate in meeting the needs
of the child or adult relative with a disability.
Thank you again for introducing this legislation and your
leadership on these very important issues. We look forward to
working with you and your staffs to ensure that these
provisions become law.
Sincerely,
American Association of People with Disabilities, American
Association on Mental Retardation, American Congress of
Community Supports and Employment Services, American
Counseling Association, American Music Therapy Association,
American Network of Community Options And Resources,
Association of Maternal and Child Health Programs,
Association of University Centers on Disability, Bazelon
Center for Mental Health Law, Community Legal Services,
Council for Exceptional Children, Council for Learning
Disabilities, Council of State Administrators of Vocational
Rehabilitation, Disability Service Providers of America,
Division for Early Childhood of the Council for Exceptional
Children, Easter Seals, Epilepsy Foundation, Goodwill
Industries International,
Helen Keller National Center, Learning Disabilities
Association, National Alliance to End Homelessness, National
Association of County Behavioral Health Directors, National
Association of Protection and Advocacy Systems, National
Association of Social Workers, National Association of State
Directors of Special Education, National Association of State
Mental Health Program Directors, National Coalition of Parent
Center, National Coalition on Deaf-Blindness, National
Council for Community Behavioral Healthcare, National Mental
Health Association, National Rehabilitation Association,
National Organization of Social Security Claimants'
Representatives, PACER Center, Spina Bifida Association of
America, TASH, The Arc of the United States, United Cerebral
Palsy.
____
Oregon Law Center,
Portland, OR, July 31, 2003.
Hon. Gordon Smith,
U.S. Senate, Washington, DC.
Hon. James M. Jeffords,
U.S. Senate, Washington, DC.
Hon. Kent Conrad,
U.S. Senate, Washington, DC.
Dear Senators Smith, Conrad and Jeffords: I am writing on
behalf of the clients of the Oregon Law Center to express our
enthusiastic support for the Work and Treatment Act of 2003
which you are sponsoring. The Oregon Law Center is a
nonprofit law firm with offices throughout Oregon, that
advocates on behalf of low income families on a variety of
issues including the Temporary Assistance to Needy Families
program. The Work and Treatment Act addresses a critical
shortcoming in the current TANF law: that is, the failure to
address the needs of recipients with disabilities.
Oregon's TANF waiver, which expired on July 1, 2003,
allowed the state to address the treatment needs of adults
and children with disabilities in the family's self-
sufficiency plan. Oregon found, as has substantial national
research, that the TANF population contains a high percentage
of families who are unemployed or underemployed due to the
disability of the head of the household, or due to the need
to provide care to household dependents with disabilities.
This bill would allow Oregon to continue its work with these
families to help them achieve their highest levels of self-
sufficiency.
Thanks to all of you and particularly to Senator Smith who
has demonstrated great leadership in the TANF debates and
great understanding of the desperate needs of low income
families in Oregon.
Respectfully submitted,
Lorey H. Freeman,
Attorney at Law.
Mr. JEFFORDS. Mr. President, it is a pleasure for me to introduce
today, along with my colleagues Senator Smith of Oregon and Senator
Conrad of North Dakota, the Pathways to Independence Act of 2003.
Let me begin by describing why this legislation is necessary.
Currently, States have to meet a certain level of work participation in
order to avoid penalties against their welfare funding. This level of
work participation can be lowered through the ``caseload reduction
credit.'' This means that States receive credit for moving people off
of their welfare caseload. The caseload reduction credit has proven to
be very successful since welfare reform was enacted in 1996. In fact,
most States have received so much credit for moving people off of their
caseloads, that their effective work participation rate is 0 percent.
While this approach has been widely regarded as very successful, it
has one major flaw. States are rewarded only for removing people from
welfare, there is no consideration given to where those people end up.
States get the same credit for training someone to be a nurse,
electrician, or carpenter as they do for sending that person to live on
the streets.
This perverse incentive has been particularly difficult for the many
welfare recipients who suffer from a disability or struggle with a
substance abuse problem. In many States it is easier to write these
people off than to give
[[Page S10648]]
them the support necessary to become truly independent.
In Vermont, approximately 15 percent of the welfare caseload is
diagnosed with a disability and receives services through the
Department of Vocational Rehabilitation. However, that treatment is not
included in the ``core activities'' allowed under welfare reform. So
the State receives no credit for moving these individuals to
independence. This is wrong.
If we truly want welfare to be an initiative that helps people to
become independent and self-sufficient, then we must be willing to take
the steps necessary to get them there. This legislation would give
States the tools necessary to assist them in that effort.
Here is how it would work. The bill will allow States to count people
with disabilities or substance abuse problems as working, provided that
they are meeting certain criteria. First, a State can count someone as
working for three months if they are involved in a treatment program.
At the end of this three month period, the State can re-evaluate the
status of the individual and decide to continue treatment for another 3
months. Now, the individual must be engaged in work or work-preparation
activities in addition to their continuing treatment program. At the
end of 6 months, the State can continue treatment with the individual
as long as the individual is meeting half of the regular work
requirement and following their treatment program for the remaining
hours.
This is a common sense proposal. It is consistent with what we know
about providing effective support programs to people with disabilities
and effective treatment programs for people struggling with substance
abuse. Allowing States to count these people in the ``working''
category provides the States with the necessary incentives to engage
their welfare recipients in meaningful interventions. It will allow the
States to truly place people with disabilities and substance abuse
problems on a pathway to independence.
In addition, this bill includes a provision first put forward by
Senator Conrad that will allow States to exempt people who need to care
for a child or family member with a disability. This is a proposal that
was part of last year's Senate Finance Committee Work, Opportunity and
Responsibility for Kids (WORK) bill, and I applaud Senator Conrad for
his consistent support of that proposal.
It is unclear when a full reauthorization of welfare will occur. It
is clear however, that The Pathways to Independence Act of 2003 should
be a part of any welfare reform package. I would like to thank the
Consortium for Citizens with Disabilities for their help in developing
this legislation and their strong letter in support. I especially want
to thank my colleague from Oregon, Senator Smith, and my colleague from
North Dakota, Senator Conrad and their staff for all of the hard work
that has gone into producing this proposal.
______
By Mr. SANTORUM (for himself, Mr. Allen, Mr. Bunning, Mrs. Dole,
and Mr. Kyl):
S. 1524. A bill to amend the Internal Revenue Code of 1986 to allow a
7-year applicable recovery period for depreciation of motorsports
entertainment complexes; to the Committee on Finance.
Mr. SANTORUM. Mr. President, today I am introducing the Motorsports
Facilities Fairness Act. This bill would clarify the tax treatment of a
large and growing industry that contributes to the economies of
communities across the country.
The Motorsports Facilities Fairness Act would provide certainty to
track and speedway operators regarding the depreciation of their
properties. The Internal Revenue Service has just recently raised
questions regarding the depreciation treatment used by facility owners.
For decades, motorsports facilities were classified as ``theme and
amusement facilities'' for depreciation. This long-standing treatment
was widely applied and accepted, until now. Over the years, relying on
this understanding of the tax law, facility owners and operators
invested hundreds of millions of dollars in building and upgrading
these properties.
Pennsylvania is home to many of these facilities, including Pocono
Raceway, Nazareth Speedway, Lake Erie Speedway, Jennertown Speedway,
Big Diamond Raceway and Motordrome Speedway. These tracks and others
boost their local economies. Larger races can draw tens of thousands of
fans, some from hundreds of miles away. These facilities are an
important part of the fabric of our national economy. As motorsports
continues to grow as a national pastime, we must ensure that Federal
policy does not unnecessarily impede its contribution to the economy.
To that end I have introduced the Motorsports Facilities Fairness
Act. This legislation would simply codify the well-understood, long-
standing and widely-accepted treatment of motorsports facilities for
depreciation purposes. While modest in scope, it will provide needed
clarity to the hundreds of tracks throughout the United States.
I urge my colleagues to join me in supporting the Motorsports
Facilities Fairness Act.
______
By Mr. CAMPBELL (for himself and Mr. Inouye):
S. 1526. A bill to amend the Internal Revenue Code of 1986 to provide
for the treatment of Indian tribal governments as State governments for
purposes of issuing tax-exempt governmental bonds, and for other
purposes; to the Committee on Finance.
Mr. CAMPBELL. Mr. President, I am pleased to be join by Senator
Inouye in introducing the Tribal Government Tax Exempt Bond Fairness
Act of 2003.
This bill will assist Indian tribes raise capital in the private
markets for purposes of job creation and economic development. The bill
complements the other economic development initiative I am introducing
today to discipline Federal programs aimed to help tribes strengthen
their economies.
While making modest adjustments in current law, this bill will have
far-reaching and positive effects for tribal governments and their
members around the Nation.
The fact is that like State governments, tribal governments are
responsible for a host of services not only to their members but to
non-members who live on or hear their lands. These services include
fire, police and ambulance service, road and bridge maintenance, and a
host of social services.
Unlike State governments, however, tribal governments face severe
restrictions in their ability to finance development through debt
instruments.
The law forbids tribes from issuing tax-exempt bonds for any project
unless it can meet the so-called ``essential government function''
test.
That is, in order for the holder of a tribal bond issue to receive
income from that bond exempt from Federal tax, it must be issued for
activities that are ``governmental'' in nature.
Examples of the kinds of projects that have been ruled by the
Internal Revenue Service as falling outside this test are tribal
convention centers, hotels, and golf courses.
State governments are not limited by the ``essential government
function'' test when they issue tax-exempt debt. The bill I am
introducing today will eliminate the disparate treatment tribes now
receive.
Armed with this bonding authority, tribal governments will strengthen
their economies, provide for their members and others, and lessen their
reliance on Federal programs and services.
These are all worthy goals and I urge my colleagues to join me in
supporting this bill.
I ask unanimous consent that a copy 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. 1526
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 maybe cited as the ``Tribal Government Tax-Exempt
Bond Fairness Act of 2003''.
SEC. 2. DECLARATIONS AND AFFIRMATIONS.
Congress declares and affirms that--
(1) The United States Constitution, United States Federal
court decisions, and United States statutes recognize that
Indian tribes are governments, retaining sovereign authority
over their lands.
(2) Through treaties, statutes, and Executive orders, the
United States set aside Indian reservations to be used as
``permanent homelands'' for Indian tribes.
(3) As governments, Indian tribes have the responsibility
and authority to provide governmental services, develop
tribal economies, and build community infrastructure to
[[Page S10649]]
ensure that Indian reservation lands serve as livable
``permanent homelands''.
(4) Congress is vested with the authority to regulate
commerce with Indian tribes, and hereby exercises that
authority and affirms the United States government-to-
government relationship with Indian tribes.
SEC. 3. MODIFICATIONS OF AUTHORITY OF INDIAN TRIBAL
GOVERNMENTS TO ISSUE TAX-EXEMPT BONDS.
(a) In General.--Subsection (c) of section 7871 of the
Internal Revenue Code of 1986 (relating to Indian tribal
governments treated as States for certain purposes) is
amended to read as follows:
``(c) Additional Requirements for Tax-Exempt Bonds.--
``(1) In general.--Subsection (a) of section 103 shall
apply to any obligation issued by an Indian tribal government
(or subdivision thereof) only if--
``(A) such obligation is part of an issue 95 percent or
more of the net proceeds of which are to be used to finance
any facility located on an Indian reservation, or
``(B) such obligation is part of an issue substantially all
of the proceeds of which are to be used in the exercise of
any essential governmental function.
``(2) Exclusion of gaming.--An obligation described in
subparagraph (A) or (B) of paragraph (1) may not be used to
finance any portion of a building in which class II or III
gaming (as defined in section 4 of the Indian Gaming
Regulatory Act (25 U.S.C. 2702)) is conducted or housed.
``(3) Definitions.--For purposes of this subsection--
``(A) Indian tribe.--The term `Indian tribe' means any
Indian tribe, band, nation, pueblo, or other organized group
or community, including any Alaska Native village, or
regional or village corporation, as defined in or established
pursuant to the Alaska Native Claims Settlement Act (43
U.S.C. 1601 et seq.), which is recognized as eligible for the
special programs and services provided by the United States
to Indians because of their status as Indians.
``(B) Indian reservation.--The term `Indian reservation'
means--
``(i) a reservation, as defined in section 4(10) of the
Indian Child Welfare Act of 1978 (25 U.S.C. 1903(10)), and
``(ii) lands held under the provisions of the Alaska Native
Claims Settlement Act (43 U.S.C. 1601 et seq.) by a Native
corporation as defined in section 3(m) of such Act (43 U.S.C.
1602(m)).''.
SEC. 4. EXEMPTION FROM REGISTRATION REQUIREMENTS.
The first sentence of section 3(a)(2) of the Securities Act
of 1933 (15 U.S.C. 77c(a)(2)) is amended by inserting ``or by
any Indian tribal government or subdivision thereof (within
the meaning of section 7871 of the Internal Revenue Code of
1986),'' after ``or Territories,''.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall apply to obligations
issued after the date of the enactment of this Act.
______
By Mr. SANTORUM (for himself, Mr. Dodd, Mr. Chafee, Ms. Collins,
Mr. Kerry, Mr. Schumer, Mr. Reed, and Mr. Lieberman):
S. 1527. A bill to establish a Tick-Borne Disorders Advisory
Committee, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. SANTORUM. Mr. President, I am proud to join my colleague, Senator
Chris Dodd of Connecticut, in reintroducing bipartisan legislation to
address the ruinous effects of America's most common tick-borne
illness, Lyme disease.
I thank the senior Senator from Connecticut for his long involvement
and leadership on this very important public health issue. With
thousands of Americans contracting Lyme disease each year, it is
essential that we work aggressively to wage a comprehensive fight
against Lyme and other tick-borne disorders, which cost our country
dearly in the way of medical expenditures and human suffering. The
current lack of physician knowledge about Lyme and the inadequacies of
existing detection methods stand out as deficiencies in our efforts to
combat Lyme, and only serve to compound this growing public health
hazard.
We have it within our capacity to finally deliver on promises made to
Lyme patients and their families to better focus the federal
government's efforts to detect and research a cure for Lyme. Toward the
end of the last session of Congress, the Senate passed this
legislation, but unfortunately the House of Representatives did not
have the opportunity to consider it.
This legislation represents years of work with the Lyme advocacy
community to reach consensus how we can best move forward on this
issue. The goal of our bill is for the federal government to develop
more accurate and more reliable diagnostic tools, and to provide access
to more effective treatment and ultimately a cure.
Between 1991 and 1999, the annual number of reported cases of Lyme
disease increased by an astonishing 72 percent. Even as this dramatic
increase took place, poor coordination and the lack of proper funding
have left too many questions unanswered.
This legislation will seek to set a new course for our public health
strategies toward Lyme by ensuring that the proper collaboration is
taking place between the Federal government and the people it serves.
With this consensus legislation we are calling for the formation of a
Department of Health and Human Services Advisory Committee that will
bring Federal agencies, such as the CDC and the NIH, to the table with
patient organizations, clinicians, and members of the scientific
community. This Committee will report its recommendations to the
Secretary of HHS. It will ensure that all scientific viewpoints are
given consideration at NIH and the CDC, and will give a voice to the
patient community which has often been left out of the dialogue.
Our legislation will also provide an additional $10 million each year
over the next five years for public health agencies to work with
researchers around the country to develop better diagnostic tests and
to increase their efforts to educate the public about Lyme disease.
I sincerely hope that our colleagues will join Senator Dodd and
myself in this most worthy cause and cosponsor this important bill.
Lyme disease patients and their families have waited too long for a
responsive plan of action to address their suffering and needs.
The tremendous efforts of the Lyme patient and advocacy community
have been very helpful in raising awareness and mobilizing support for
this issue, and for this both Senator Dodd and I thank them. I look
forward to working with them, Senator Dodd, and our colleagues to enact
into law strong legislation to help correct the mistakes of the past,
and to give greater hope for the future by ensuring patients that the
federal government is doing everything in its power to provide better
treatments and ultimately a cure.
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. 1527
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. FINDINGS.
Congress makes the following findings:
(1) Lyme disease is a common but frequently misunderstood
illness that, if not caught early and treated properly, can
cause serious health problems.
(2) Lyme disease is a bacterial infection that is
transmitted by a tick bite. Early signs of infection may
include a rash and flu-like symptoms such as fever, muscle
aches, headaches, and fatigue.
(3) Although Lyme disease can be treated with antibiotics
if caught early, the disease often goes undetected because it
mimics other illnesses or may be misdiagnosed. Untreated,
Lyme disease can lead to severe heart, neurological, eye, and
joint problems because the bacteria can affect many different
organs and organ systems.
(4) If an individual with Lyme disease does not receive
treatment, such individual can develop severe heart,
neurological, eye, and joint problems.
(5) Although Lyme disease accounts for 90 percent of all
vector-borne infections in the United States, the ticks that
spread Lyme disease also spread other disorders, such as
ehrlichiosis, babesiosis, and other strains of Borrelia. All
of these diseases in 1 patient makes diagnosis and treatment
more difficult.
(6) Although tick-borne disease cases have been reported in
49 States and the District of Columbia, about 90 percent of
the 15,000 cases have been reported in the following 10
States: Connecticut, Pennsylvania, New York, New Jersey,
Rhode Island, Maryland, Massachusetts, Minnesota, Delaware,
and Wisconsin. Studies have shown that the actual number of
tick-borne disease cases are approximately 10 times the
amount reported due to poor surveillance of the disease.
(7) Persistence of symptomatology in many patients without
reliable testing makes treatment of patients more difficult.
SEC. 2. ESTABLISHMENT OF A TICK-BORNE DISORDERS ADVISORY
COMMITTEE.
(a) Establishment of Committee.--Not later than 180 days
after the date of enactment of this Act, there shall be
established an advisory committee to be known as the Tick-
Borne Disorders Advisory Committee (referred to in this Act
as the ``Committee'') organized in the Office of the
Secretary.
(b) Duties.--The Committee shall advise the Secretary and
Assistant Secretary of Health regarding how to--
[[Page S10650]]
(1) assure interagency coordination and communication and
minimize overlap regarding efforts to address tick-borne
disorders;
(2) identify opportunities to coordinate efforts with other
Federal agencies and private organizations addressing tick-
borne disorders; and
(3) develop informed responses to constituency groups
regarding the Department of Health and Human Services'
efforts and progress.
(c) Membership.--
(1) Appointed members.--
(A) In general.--The Secretary of Health and Human Services
shall appoint voting members to the Committee from among the
following member groups:
(i) Scientific community members.
(ii) Representatives of tick-borne disorder voluntary
organizations.
(iii) Health care providers.
(iv) Patient representatives who are individuals who have
been diagnosed with tick-borne illnesses or who have had an
immediate family member diagnosed with such illness.
(v) Representatives of State and local health departments
and national organizations who represent State and local
health professionals.
(B) Requirement.--The Secretary shall ensure that an equal
number of individuals are appointed to the Committee from
each of the member groups described in clauses (i) through
(v) of subparagraph (A).
(2) Ex officio members.--The Committee shall have nonvoting
ex officio members determined appropriate by the Secretary.
(d) Co-Chairpersons.--The Assistant Secretary of Health
shall serve as the co-chairperson of the Committee with a
public co-chairperson chosen by the members described under
subsection (c). The public co-chairperson shall serve a 2-
year term and retain all voting rights.
(e) Term of Appointment.--All members shall be appointed to
serve on the Committee for 4 year terms.
(f) Vacancy.--If there is a vacancy on the Committee, such
position shall be filled in the same manner as the original
appointment. Any member appointed to fill a vacancy for an
unexpired term shall be appointed for the remainder of that
term. Members may serve after the expiration of their terms
until their successors have taken office.
(g) Meetings.--The Committee shall hold public meetings,
except as otherwise determined by the Secretary, giving
notice to the public of such, and meet at least twice a year
with additional meetings subject to the call of the co-
chairpersons. Agenda items can be added at the request of the
Committee members, as well as the co-chairpersons. Meetings
shall be conducted, and records of the proceedings kept as
required by applicable laws and Departmental regulations.
(h) Reports.--
(1) In general.--Not later than 24 months after the date of
enactment of this Act, and annually thereafter, the Secretary
shall submit to Congress a report on the activities carried
out under this Act.
(2) Content.--Such reports shall describe--
(A) progress in the development of accurate diagnostic
tools that are more useful in the clinical setting; and
(B) the promotion of public awareness and physician
education initiatives to improve the knowledge of health care
providers and the public regarding clinical and surveillance
practices for Lyme disease and other tick-borne disorders.
(i) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this Act, $250,000 for each
of fiscal years 2004 and 2005. Amounts appropriated under
this subsection shall be used for the expenses and per diem
costs incurred by the Committee under this section in
accordance with the Federal Advisory Committee Act (5 U.S.C.
App.), except that no voting member of the Committee shall be
a permanent salaried employee.
SEC. 3. AUTHORIZATION FOR RESEARCH FUNDING.
There are authorized to be appropriated $10,000,000 for
each of fiscal years 2004 through 2008 to provide for
research and educational activities concerning Lyme disease
and other tick-borne disorders, and to carry out efforts to
prevent Lyme disease and other tick-borne disorders.
SEC. 4. GOALS.
It is the sense of the Senate that, in carrying out this
Act, the Secretary of Health and Human Services (referred to
in this section as the ``Secretary''), acting as appropriate
in consultation with the Director of the Centers for Disease
Control and Prevention, the Director of the National
Institutes of Health, the Committee, and other agencies,
should consider carrying out the following:
(1) Five-year plan.--It is the sense of the Senate that the
Secretary should consider the establishment of a plan that,
for the five fiscal years following the date of the enactment
of this Act, provides for the activities to be carried out
during such fiscal years toward achieving the goals under
paragraphs (2) through (4). The plan should, as appropriate
to such goals, provide for the coordination of programs and
activities regarding Lyme disease and other tick-borne
disorders that are conducted or supported by the Federal
Government.
(2) First goal: diagnostic test.--The goal described in
this paragraph is to develop a diagnostic test for Lyme
disease and other tick-borne disorders for use in clinical
testing.
(3) Second goal: surveillance and reporting of lyme disease
and other tick-borne disorders.--The goal described in this
paragraph is to accurately determine the prevalence of Lyme
disease and other tick-borne disorders in the United States.
(4) Third goal: prevention of lyme disease and other tick-
borne disorders.--The goal described in this paragraph is to
develop the capabilities at the Department of Health and
Human Services to design and implement improved strategies
for the prevention and control of Lyme disease and other
tick-borne diseases. Such diseases may include Masters'
disease, ehrlichiosis, babesiosis, other bacterial, viral and
rickettsial diseases such as tularemia, tick-borne
encephalitis, Rocky Mountain Spotted Fever, and bartonella,
respectively.
Mr. DODD. Mr. President, it is with great pleasure that I rise today
to introduce legislation for the research, prevention, and treatment of
Lyme disease. This bipartisan legislation works toward the goal of
eradicating Lyme disease--a devastating disease that has particularly
impacted those of us from Connecticut and the Northeast. The Senate
showed its strong support for this legislation when it passed it in the
last Congress by Unanimous Consent. It is my hope that the Senate will
show this same support again to ensure the goals of this legislation
are achieved.
Lyme disease can be devastating to those it affects. The disease
first achieved prominence in the 1980s in the state of Connecticut and
got its name from the town of Lyme, CT. Today, Connecticut residents
have the unfortunate distinction of being 10 times more likely to
contract Lyme disease than the rest of the nation. However, the
incidence of Lyme disease nationwide is on the rise. In fact, cases of
Lyme disease have been reported by 49 states and the District of
Columbia. Since 1982, the number of Lyme disease cases reported to
health officials has exceeded 200,000. Even more disconcerting are
reports indicating that the actual incidence of Lyme disease may be
significantly greater than what is reported.
Those infected with Lyme disease may experience a number of health
problems including facial paralysis, joint swelling, loss of
coordination, irregular heartbeat, liver malfunction, depression, and
memory loss. Unfortunately, this devastating disease can often be
misdiagnosed, due to the fact that the symptoms presented by Lyme
disease often look similar to other conditions. The misdiagnosis of
this often debilitating illness can result in prolonged pain and
suffering, unnecessary tests, expensive treatments, as well as severe
emotional consequences for victims and their families.
The legislation we introduce today will build on earlier efforts to
tackle the problem of Lyme disease and other tick-borne disorders.
Through an amendment that I offered to the Fiscal Year 1999 Department
of Defense (DoD) appropriations bill, an additional $3 million was
directed toward DoD's research in this area. This was an important
first step in the fight to increase our understanding of this disease,
but much more remains to be done. This legislation will provide what is
necessary to continue the effort to research, prevent and treat Lyme
disease and other tick-borne disorders.
A critical component of this legislation is the creation of a federal
advisory committee on Lyme disease and other tick-borne disorders. This
advisory committee, the first of its kind, will include members of the
scientific community, health care providers, and most directly impacted
by the disease, Lyme patients and their families. Among its activities,
the committee will identify opportunities for coordination and
communication between Federal agencies and private organizations in
their efforts to combat Lyme disease.
This legislation also includes other key elements designed to conquer
Lyme disease and other tick-borne disorders. It provides a framework
for the government to establish clear goals in the areas of research,
treatment, and prevention of Lyme disease. Crucial to activities in
each of these areas, is the fact that this legislation authorizes $10
million in annual funding for federal activities related to the
elimination of Lyme disease.
I would like to thank my colleague from Pennsylvania, Senator Rick
Santorum, the legislation's chief Republican cosponsor, for his
dedicated
[[Page S10651]]
support of this important initiative. I look forward to continuing to
work with Senator Santorum, my other colleagues, and the Lyme disease
community to strengthen our efforts to eradicate Lyme disease. This
legislation provides an important step toward reaching this laudable
goal.
______
By Mr. CAMPBELL (for himself and Mr. Inouye):
S. 1528. A bill to establish a procedure to authorize the integration
and coordination of Federal funding dedicated to the community,
business, and economic development of Native American communities; to
the Committee on Indian Affairs.
Mr. CAMPBELL. Mr. President, I am pleased to be joined by Senator
Inouye in introducing a bill to assist Indian tribes in their efforts
to strengthen their economies.
Despite recent success some Indian tribes have had with gaming,
tourism and natural resource development, the fact is that most tribes
still suffer high unemployment, intense poverty and a lack of physical
infrastructure.
Most tribal economies continue to perform poorly despite the
expenditure of hundreds of millions--even billions--of Federal dollars
over the years by the Departments of Agriculture, Commerce, Defense,
Interior, Labor, and others.
The core problem is not the amount of dollars, but rather how they
are being spent.
Numerous hearings by the Committee on Indian Affairs and several
General Accounting Office (GAO) reports show that most Federal efforts
are poorly timed and coordinated and lack the kind of tribal decision-
making to make the efforts succeed.
The bill we are introducing today will go a long way in fixing these
problems.
The principles that guide the bill are not new. In 1970 President
Nixon issued his ``Special Message to Congress on Indian Affairs'' that
called for significant changes in Federal Indian policy.
Nixon saw that Indians were not in command of the Federal programs
and services meant for their benefit and he launched a quiet revolution
in Federal Indian policy.
The Indian Self-Determination and Education Assistance Act of 1975
authorizes Indian tribes and tribal consortia to ``step into the
shoes'' of the Federal government to administer programs and services
historically provided by the United States.
Currently, one-half of the programs and services of the Bureau of
Indian Affairs and the Indian Health Service are now contracted by
Indian tribes and consortia. Tribal decisionmaking is paramount,
service quality has improved, and tribal capacity has been enhanced
significantly.
This bill will expand the principles of Indian self-determination to
have the tribes--not the Federal bureaucracy--determine which programs
and services should be brought to bear in an integrated and coordinated
way to bring hope, jobs, and strengthened economies to their
communities.
I ask unanimous consent that a copy 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. 1528
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TITLE.
The Act may be cited as the ``Indian Tribal Development
Consolidated Funding Act of 2003''.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--Congress finds that--
(1) a unique legal and political relationship exists
between the United States and Indian tribes that is reflected
in article I, section 8, clause 3 of the Constitution,
various treaties, Federal statutes, Supreme Court decisions,
executive agreements, and course of dealing;
(2) despite the infusion of a substantial amount of Federal
funds into Native American communities over several decades,
the majority of Native Americans remain mired in poverty,
unemployment, and despair;
(3) the efforts of the United States to foster community,
economic, and business development in Native American
communities have been hampered by fragmentation of authority,
responsibility, and performance, and lack of timeliness and
coordination in resources and decisionmaking; and
(4) the effectiveness of Federal and tribal efforts in
generating employment opportunities and bringing value-added
activities and economic growth to Native American communities
depends on cooperative arrangements among the various Federal
agencies and Indian tribes.
(b) Purposes.--The purposes of this Act are--
(1) to enable Indian tribes and tribal organizations to use
available Federal assistance more effectively and
efficiently;
(2) to adapt and target such assistance more readily to
particular needs through wider use of projects that are
supported by more than 1 agency, assistance program, or
appropriation of the Federal Government;
(3) to encourage Federal-tribal arrangements under which
Indian tribes and tribal organizations may more effectively
and efficiently combine Federal and tribal resources to
support economic development projects;
(4) to promote the coordination of Native American economic
programs to maximize the benefits of those programs to
encourage a more consolidated, national policy for economic
development; and
(5) to establish a procedure to aid Indian tribes in
obtaining Federal resources and in more efficiently
administering those resources for the furtherance of tribal
self-governance and self-determination.
SEC. 3. DEFINITIONS.
In this Act:
(1) Applicant.--The term ``applicant'' means an Indian
tribe or tribal organization, or a consortium of Indian
tribes or tribal organizations, that submits an application
under this Act for assistance in carrying out a project.
(2) Assistance.--The term ``assistance'' means the transfer
of anything of value for a public purpose, support, or
stimulation that is--
(A) authorized by a law of the United States;
(B) provided by the Federal Government through grant or
contractual arrangements (including technical assistance
programs providing assistance by loan, loan guarantee, or
insurance); and
(C) authorized to include an Indian tribe or tribal
organization, or a consortium of Indian tribes or tribal
organizations, as eligible for receipt of funds under a
statutory or administrative formula for the purposes of
community, economic, or business development.
(3) Assistance program.--The term ``assistance program''
means any program of the Federal Government that provides
assistance for which Indian tribes or tribal organizations
are eligible.
(4) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(5) Project.--
(A) In general.--The term ``project'' means a community,
economic, or business development undertaking that includes
components that contribute materially to carrying out a
purpose or closely-related purposes that are proposed or
approved for assistance under more than 1 Federal Government
program.
(B) Inclusion.--The term ``project'' includes a project
designed to improve the environment, a housing facility, a
community facility, a business or industrial facility, or
transportation, a road, or a highway, with respect to an
Indian tribe, tribal organization, or consortium.
(6) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(7) Tribal organization.--The term ``tribal organization''
has the meaning given the term in section 4 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450b).
SEC. 4. LEAD AGENCY.
The Department of the Interior shall be the lead agency for
purposes of carrying out this Act.
SEC. 5. SELECTION OF PARTICIPATING TRIBES.
(a) Participants.--
(1) In general.--The Secretary may select from the
applicant pool described in subsection (b) Indian tribes or
tribal organizations, not to exceed 24 in each fiscal year,
to submit an application to carry out a project under this
Act.
(2) Consortia.--Two or more Indian tribes or tribal
organizations that are otherwise eligible to participate in a
program or activity to which this Act applies may form a
consortium to participate as an applicant under paragraph
(1).
(b) Applicant Pool.--The applicant pool described in this
subsection shall consist of each Indian tribe or tribal
organization that--
(1) successfully completes the planning phase described in
subsection (c);
(2) requests participation in a project under this Act
through a resolution or other official action of the tribal
governing body; and
(3) demonstrates, for the 3 fiscal years immediately
preceding the fiscal year for which participation is
requested, financial stability and financial management
capability as demonstrated by a showing by the Indian tribe
or tribal organization that there were no material audit
exceptions in the required annual audit of the self-
determination contracts of the Indian tribe or tribal
organization.
(c) Planning Phase.--Each applicant--
(1) shall complete a planning phase that includes--
(A) legal and budgetary research; and
(B) internal tribal government and organizational
preparation; and
[[Page S10652]]
(2) on completion of the planning phase, shall be eligible
for joint assistance with respect to a project.
SEC. 6. APPLICATION REQUIREMENTS, REVIEW, AND APPROVAL.
(a) Requirements.--An applicant shall submit to the head of
the Federal agency responsible for administering the primary
Federal program to be affected by the project an application
that--
(1) identifies the programs to be integrated;
(2) proposes programs that are consistent with the purposes
described in section 2(b);
(3) describes--
(A) a comprehensive strategy that identifies the manner in
which Federal funds are to be integrated and delivered under
the project; and
(B) the results expected from the project;
(4) identifies the projected expenditures under the project
in a single budget;
(5) identifies the agency or agencies of the tribal
government that are to be involved in the project;
(6) identifies any Federal statutory provisions,
regulations, policies, or procedures that the applicant
requests be waived in order to implement the project; and
(7) is approved by the governing body of the applicant,
including, in the case of an applicant that is a consortium
or tribes or tribal organizations, the governing body of each
affected member tribe or tribal organization.
(b) Review.--On receipt of an application that meets the
requirements of subsection (a), the head of the Federal
agency receiving the application shall--
(1) consult with the applicant and with the head of each
Federal agency that is proposed to provide funds to implement
the project; and
(2) consult and coordinate with the Department of the
Interior as the lead agency under this Act for the purposes
of processing the application.
(c) Approval.--
(1) Waivers.--
(A) In general.--Subject to subparagraph (B),
notwithstanding any other provision of law, the head of the
Federal agency responsible for administering any statutory
provision, regulation, policy, or procedure that is
identified in an application in accordance with subsection
(a)(6) or as a result of the consultation required under
subsection (b), and that is requested by the applicant to be
waived, shall waive the statutory provision, regulation,
policy, or procedure.
(B) Limitation.--A statutory provision, regulation, policy,
or procedure identified for waiver under subparagraph (A) may
not be waived by an agency head if the agency head determines
that a waiver would be inconsistent with--
(i) the purposes described in section 2(b); or
(ii) any provision of the statute governing the program
involved that is specifically applicable to Indian programs.
(2) Project.--
(A) In general.--Not later than 90 days after the date of
receipt of an application that meets the requirements of
subsection (a), the head of the Federal agency receiving the
application shall inform the applicant, in writing, of the
approval or disapproval of the application, including the
approval or disapproval of any waiver sought under paragraph
(1).
(B) Disapproval.--If an application or waiver is
disapproved--
(i) the written notice shall identify the reasons for the
disapproval; and
(ii) the applicant shall be provided an opportunity to
amend the application or to petition the agency head to
reconsider the disapproval.
SEC. 7. AUTHORITY OF HEADS OF FEDERAL AGENCIES.
(a) In General.--The President, acting through the heads of
the appropriate Federal agencies, shall promulgate
regulations necessary--
(1) to carry out this Act; and
(2) to ensure that this Act is applied and implemented by
all Federal agencies.
(b) Scope of Coverage.--The Federal agencies that are
included within the scope of this Act shall include--
(1) the Department of Agriculture;
(2) the Department of Commerce;
(3) the Department of Defense;
(4) the Department of Education;
(5) the Department of Energy;
(6) the Department of Health and Human Services;
(7) the Department of Homeland Security;
(8) the Department of Housing and Urban Development;
(9) the Department of the Interior;
(10) the Department of Justice;
(11) the Department of Labor;
(12) the Department of Transportation;
(13) the Department of the Treasury;
(14) the Department of Veterans Affairs;
(15) the Environmental Protection Agency;
(16) the Small Business Administration; and
(17) such other agencies as the President determines to be
appropriate.
(c) Activities.--Notwithstanding any other provision of
law, the head of each Federal agency, acting alone or jointly
through an agreement with another Federal agency, may--
(1) identify related Federal programs that are suitable for
providing joint financing of specific kinds of projects with
respect to Indian tribes or tribal organizations;
(2) assist in planning and developing such projects to be
financed through different Federal programs;
(3) with respect to Federal programs or projects that are
identified or developed under paragraphs (1) or (2), develop
and prescribe--
(A) guidelines;
(B) model or illustrative projects;
(C) joint or common application forms; and
(D) other materials or guidance;
(4) review administrative program requirements to identify
requirements that may impede the joint financing of such
projects and modify the requirements appropriately;
(5) establish common technical and administrative
regulations for related Federal programs to assist in
providing joint financing to support a specific project or
class of projects; and
(6) establish joint or common application processing and
project supervision procedures, including procedures for
designating--
(A) an agency responsible for processing applications; and
(B) a lead agency responsible for project supervision.
(d) Requirements.--In carrying out this Act, the head of
each Federal agency shall--
(1) take all appropriate actions to carry out this Act when
administering an assistance program;
(2) consult and cooperate with the heads of other Federal
agencies; and
(3) assist in the administration of assistance programs of
other Federal agencies that may be used to jointly finance
projects undertaken by Indian tribes or tribal organizations.
SEC. 8. PROCEDURES FOR PROCESSING REQUESTS FOR JOINT
FINANCING.
In processing an application for assistance for a project
to be financed in accordance with this Act by at least 2
assistance programs, the head of a Federal agency shall take
all appropriate actions to ensure that--
(1) required reviews and approvals are handled
expeditiously;
(2) complete account is taken of special considerations of
timing that are made known to the head of the Federal agency
by the applicant that would affect the feasibility of a
jointly financed project;
(3) an applicant is required to deal with a minimum number
of representatives of the Federal Government;
(4) an applicant is promptly informed of a decision or
problem that could affect the feasibility of providing joint
assistance under the application; and
(5) an applicant is not required to get information or
assurances from 1 Federal agency for a requesting Federal
agency in a case in which the requesting agency makes the
information or assurances directly.
SEC. 9. UNIFORM ADMINISTRATIVE PROCEDURES.
(a) In General.--To make participation in a project simpler
than would otherwise be practicable because of the
application of inconsistent or conflicting technical or
administrative regulations or procedures that are not
specifically required by the statute that governs the Federal
program under which the project is funded, the head of a
Federal agency may promulgate uniform regulations concerning
inconsistent or conflicting requirements with respect to--
(1) the financial administration of the project, including
with respect to accounting, reporting, and auditing, and
maintaining a separate bank account, to the extent consistent
with this Act;
(2) the timing of payments by the Federal Government for
the project in a case in which 1 payment schedule or a
combined payment schedule is to be established for the
project;
(3) the provision of assistance by grant rather than
procurement contract; and
(4) the accountability for, or the disposition of, records,
property, or structures acquired or constructed with
assistance from the Federal Government under the project.
(b) Review.--To make the processing of applications for
assistance under a project simpler under this Act, the head
of a Federal agency may provide for review of proposals for a
project by a single panel, board, or committee in any case in
which reviews by separate panels, boards, or committees are
not specifically required by the statute that authorizes the
Federal program under which the project is funded.
SEC. 10. DELEGATION OF SUPERVISION OF ASSISTANCE.
(a) In General.--In accordance with regulations promulgated
under section 7(a), the head of a Federal agency may delegate
or otherwise enter into an arrangement to have another
Federal agency carry out or supervise a project or class of
projects jointly financed in accordance with this Act.
(b) Conditions.--A delegation or other arrangement under
subsection (a)--
(1) shall be made under conditions ensuring that the duties
and powers delegated are exercised consistent with Federal
law; and
(2) may not be made in a manner that relieves the head of a
Federal agency of responsibility for the proper and efficient
management of a project for which the agency provides
assistance.
SEC. 11. JOINT ASSISTANCE FUNDS AND PROJECT FACILITATION.
(a) Joint Assistance Fund.--In providing support for a
project in accordance with this Act, the head of a Federal
agency may provide for the establishment in the Treasury by
an applicant of a joint assistance fund to ensure that
amounts received by the applicant from more than 1 assistance
program or appropriation are effectively administered.
[[Page S10653]]
(b) Agreement.--
(1) In general.--A joint assistance fund may be established
under subsection (a) only in accordance with an agreement by
the Federal agencies involved concerning the responsibilities
of each such agency.
(2) Requirements of agreement.--An agreement under
paragraph (1) shall--
(A) ensure the availability of necessary information to
Federal agencies and Congress; and
(B) provide that the agency providing for the establishment
of the fund under subsection (a) is responsible and
accountable by program and appropriation for the amounts
provided for the purposes of each fund..
(c) Use of Excess Funds.--In any project conducted under
this Act for which a joint assistance fund has been
established under subsection (a) and the actual costs of the
project are less than the estimated costs, use of the excess
funds shall be determined by the head of the Federal agency
administering the joint assistance fund, after consultation
with the applicant.
SEC. 12. FINANCIAL MANAGEMENT, ACCOUNTABILITY, AND AUDITS.
(a) Single Audit Act.--Recipients of funding provided in
accordance with this Act shall be subject to chapter 75 of
title 31, United States Code.
(b) Records.--
(1) In general.--With respect to each project financed
through an account in a joint assistance fund established
under section 11, the recipient of amounts from the fund
shall maintain records as required by the head of the Federal
agency responsible for administering the fund.
(2) Requirements.--Records described in paragraph (1) shall
disclose--
(A) the amount and disposition by the recipient of
assistance received under each Federal assistance program and
appropriation;
(B) the total cost of the project for which such assistance
was given or used;
(C) the part of the cost of the project provided from other
sources; and
(D) such other information as the head of the Federal
agency responsible for administering the fund determines will
facilitate the conduct of an audit of the project.
(c) Availability.--Records of a recipient related to an
amount received from a joint assistance fund under this Act
shall be made available, for inspection and audit, to--
(1) the head of the Federal agency responsible for
administering the fund; and
(2) the Comptroller General of the United States.
SEC. 13. TECHNICAL ASSISTANCE AND PERSONNEL TRAINING.
Amounts available for technical assistance and personnel
training under any Federal assistance program shall be
available for technical assistance and training under a
project approved for joint financing under this Act if the
use of the funds involves the Federal assistance program and
the project approved for joint financing.
SEC. 14. JOINT STATE FINANCING FOR FEDERAL-TRIBAL ASSISTED
PROJECTS.
(a) In General.--Under regulations promulgated under
section 7(a), the head of a Federal agency may enter into an
agreement with a State to extend the benefits of this Act to
a project that involves assistance from--
(1) at least 1 Federal agency;
(2) a State; and
(3) at least 1 tribal agency or instrumentality.
(b) Joint Action.--An agreement under subsection (a) may
include arrangements to process requests or administer
assistance on a joint basis.
SEC. 15. REPORT TO CONGRESS.
Not later than 1 year after the date of enactment of this
Act, the President shall submit to Congress a report that
includes--
(1) a description of actions taken under this Act;
(2) a detailed evaluation of the implementation of this
Act, including information on the benefits and costs of
jointly financed projects that accrue to participating Indian
tribes and tribal organizations; and
(3) recommendations (including legislative recommendations)
of the President with respect to improvement of this Act.
______
By Mr. CAMPBELL (for himself and Mr. Inouye):
S. 1529. A bill to amend the Indian Gaming Regulatory Act to include
provisions relating to the payment and administration of gaming fees,
and for other purposes; to the Committee on Indian Affairs.
Mr. CAMPBELL. Mr. President, today I am pleased to be joined by
Senator Inouye in introducing the Indian Gaming Regulatory Act
Amendments of 2003 to amend and update the act.
In amending the Indian Gaming Regulatory Act of 1988 (IGRA) it is
important to keep in mind the twin aims of the act: to ensure that
gaming continues to be a tool for Indian economic development; and to
ensure that the games conducted are kept free from corrupting forces to
maintain the integrity of the industry.
This bill will update the IGRA by clarifying how vacancies in the
National Indian Gaming Commission (NIGC) are filled; revising the NIGC
statutory rates of pay to correspond with other current Federal rates
of pay; and expanding the NIGC's reporting requirements to Congress.
The bill also clarifies the act by making the Johnson Act
inapplicable to class II technological aids to bring it in line with
the original intent of Congress in 1988.
The bill also requires background checks on class III management
contractors, management employees, and gaming commissioners.
When the IGRA was enacted in 1988, Indian gaming was mainly high
stakes bingo operations, known as ``class II gaming'' under the act.
Virtually no one thought Indian gaming would become the $14.5 billion
dollar industry that it is today, providing tribes with resources for
development and employment opportunities where none previously existed.
In response to this success, questions have been raised--some
legitimate, some not--about the efficacy of regulation within the
industry. This bill requires that the NIGC and the gaming tribes
develop and implement a system of minimum internal control, background
investigation and licensing standards for all tribes that operate class
II and class III gaming.
The bill would also ensure that the NIGC has the resources it needs
to fulfill its regulatory duties by increasing the fee cap 50 percent
over the next six years. With that budgetary increase, and prior to
levying any fees, the NIGC would be required to determine and take into
account the nature and level of any tribal or joint tribal-state
regulatory activities and to reduce the fees assessed accordingly.
The bill will enable the NIGC to provide technical assistance and
training to Indian tribes. The NIGC would be authorized to expend the
civil fines it recoups for violations of the IGRA for these purposes.
The last substantive reform in the bill goes to the very heart of the
act--economic development for Indian tribes. Because of gaming, some
tribes have been very successful, employing thousands of people, both
Indian and non-Indian, and reducing poverty and the welfare rolls in
their areas.
This success has attracted the attention of other governments, cash-
strapped and hungry for new revenues. Many States are looking to gaming
tribes to help eliminate their deficits, and some States are reportedly
refusing to enter or renew compacts required under IGRA until tribes
agree to revenue sharing provisions.
Congress never envisioned that kind of pressure would be applied to
tribes and, keeping these facts and the goals of IGRA in mind, the bill
includes provisions to ensure that tribal gaming revenues are first
used to meet the needs of tribal governments and their members. Only
after satisfying those needs, would States and tribes be able to
negotiate a revenue-sharing agreement.
To encourage States and tribes to negotiate, the bill requires the
Secretary to perform her existing responsibilities under the act within
90 days and, at the back end, when existing compacts are up for
renewal, the bill provides a 180 day grace period beyond the expiration
date of compacts to encourage tribal-State agreements.
I ask unanimous consent that a copy 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. 1529
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 ``Indian Gaming Regulatory Act
Amendments of 2003''.
SEC. 2. PAYMENT AND ADMINISTRATION OF GAMING FEES.
(a) Definitions.--Section 4(7) of the Indian Gaming
Regulatory Act (25 U.S.C. 2703(7)) is amended by adding at
the end the following:
``(G) Technological aids.--Notwithstanding any other
provision of law, sections 1 through 7 of the Act of January
2, 1951 (commonly known as the `Gambling Devices
Transportation Act') (15 U.S.C. 1171 through 1177) shall not
apply to any gaming described in subparagraph (A)(i) for
which an electronic aid, computer, or other technological aid
is used in connection with the gaming.''.
(b) National Indian Gaming Commission.--Section 5 of the
Indian Gaming Regulatory Act (25 U.S.C. 2704) is amended--
(1) by striking subsection (c) and inserting the following:
``(c) Vacancies.--
[[Page S10654]]
``(1) In general.--A vacancy on the Commission shall be
filled in the same manner as the original appointment.
``(2) Successors.--Unless a member of the Commission is
removed for cause under subsection (b)(6), the member may--
``(A) be reappointed; and
``(B) serve after the expiration of the term of the member
until a successor is appointed.''; and
(2) in subsection (e), in the last sentence, by inserting
``or disability'' after ``in the absence''.
(c) Powers of Chairman.--Section 6 of the Indian Gaming
Regulatory Act (25 U.S.C. 2705) is amended by adding at the
end the following:
``(c) Delegation.--The Chairman may delegate to an
individual Commissioner any of the authorities described in
subsection (a).
``(d) Applicable Authority.--In carrying out any function
under this section, a Commissioner serving in the capacity of
the Chairman shall be governed by--
``(1) such general policies as are formally adopted by the
Commission; and
``(2) such regulatory decisions, findings, and
determinations as are made by the Commission.''.
(d) Powers of Commission.--Section 7 of the Indian Gaming
Regulatory Act (25 U.S.C. 2706) is amended--
(1) in paragraphs (1), (2), and (4) of subsection (b), by
striking ``class II gaming'' each place it appears and
inserting ``class II gaming and class III gaming'';
(2) by redesignating subsection (c) as subsection (d);
(3) by inserting after subsection (b) the following:
``(c) Strategic Plan.--
``(1) In general.--The Commission shall develop a strategic
plan for use in carrying out activities of the Commission.
``(2) Requirements.--The strategic plan shall include--
``(A) a comprehensive mission statement describing the
major functions and operations of the Commission;
``(B) a description of the goals and objectives of the
Commission;
``(C) a description of the means by which those goals and
objectives are to be achieved, including a description of the
operational processes, skills and technology, and the human,
capital, information, and other resources required to achieve
those goals and objectives;
``(D) a performance plan for achievement of those goals and
objectives that is consistent with--
``(i) other components of the strategic plan; and
``(ii) section 1115 of title 31, United States Code;
``(E) an identification of the key factors that are
external to, or beyond the control of, the Commission that
could significantly affect the achievement of those goals and
objectives; and
``(F) a description of the program evaluations used in
establishing or revising those goals and objectives,
including a schedule for future program evaluations.
``(3) Biennial plan.--
``(A) Period covered.--The strategic plan shall cover a
period of not less than 5 fiscal years beginning with the
fiscal year in which the plan is submitted.
``(B) Updates and revisions.--The strategic plan shall be
updated and revised biennially.''; and
(4) in subsection (d) (as redesignated by paragraph (2))--
(A) in paragraph (3), by striking ``and'' at the end;
(B) by redesignating paragraph (4) as paragraph (5); and
(C) by inserting after paragraph (3) the following:
``(4) the strategic plan for activities of the Commission
described in subsection (c); and''.
(e) Commission Staffing.--Section 8 of the Indian Gaming
Regulatory Act (25 U.S.C. 2707) is amended--
(1) in subsection (a), by striking ``GS-18 of the General
Schedule under section 5332'' and inserting ``level IV of the
Executive Schedule under section 5318'';
(2) in subsection (b)--
(A) by striking ``(b) The Chairman'' and inserting the
following:
``(b) Staff.--
``(1) In general.--The Chairman''; and
(B) by striking the last sentence and inserting the
following:
``(2) Compensation.--
``(A) In general.--Staff appointed under paragraph (1)
shall be paid without regard to the provision of chapter 51
and subchapter III of chapter 53, of title 5, United States
Code, relating to General Schedule pay rates.
``(B) Maximum rate of pay.--The rate of pay for an
individual appointed under paragraph (1) shall not exceed the
rate payable for level IV of the Executive Schedule under
section 5315 of title 5, United States Code.''; and
(3) by striking subsection (c) and inserting the following:
``(c) Temporary Services.--
``(1) In general.--The Chairman may procure temporary and
intermittent services under section 3109 of title 5, United
States Code.
``(2) Maximum rate of pay.--The rate of pay for an
individual for service described in paragraph (1) shall not
exceed the daily equivalent of the maximum rate payable for
level IV of the Executive Schedule under section 5318 of
title 5, United States Code.
(f) Tribal Gaming Ordinances.--Section 11 of the Indian
Gaming Regulatory Act (25 U.S.C. 2710) is amended--
(1) in subsection (b)(2)(F), by striking clause (i) and
inserting the following:
``(i) ensures that--
``(I) background investigations are conducted on the tribal
gaming commissioners, key tribal gaming commission employees,
and primary management officials and key employees of the
gaming enterprise; and
``(II) oversight of primary management officials and key
employees is conducted on an ongoing basis; and''; and
(2) in subsection (d)--
(A) in paragraph (4)--
(i) by striking ``(4) Except'' and inserting the following:
``(4) Revenue sharing.--
``(A) In general.--Except for any assessments that may be
agreed to under paragraph (3)(C)(iii), nothing in this
section confers on a State or political subdivision of a
State authority to impose any tax, fee, charge, or other
assessment on any Indian tribe or any other person or entity
authorized by an Indian tribe to engage in a class III
activity. No State may refuse to enter into the negotiations
described in paragraph (3)(A) based on the lack of authority
in the State or a political subdivision of the State to
impose such a tax, fee, charge, or other assessment.
``(B) Apportionment of revenues.--The Secretary may not
approve any Tribal-State compact or other agreement that
includes an apportionment of net revenues with a State, local
government, or other Indian tribes unless--
``(i) in the case of apportionment with other Indian
tribes, the net revenues are not distributable by the other
Indian tribes to members of the Indian tribes on a per capita
basis;
``(ii) in the case of apportionment with local governments,
the total amount of net revenues exceeds the amounts
necessary to meet the requirements of clauses (i) and (ii) of
subsection (b)(2)(B), but only to the extent that the excess
revenues reflect the actual costs incurred by affected local
governments as a result of the operation of gaming
activities; or
``(iii) in the case of apportionment with a State--
``(I) the total amount of net revenues--
``(aa) exceeds the amounts necessary to meet the
requirements of clauses (i) and (ii) of subsection (b)(2)(B)
and clause (ii) of this subparagraph, if applicable; and
``(bb) is in accordance with regulations promulgated by the
Secretary under subparagraph (C); and
``(II) a substantial economic benefit is rendered by the
State to the Indian tribe.
``(C) Regulations.--Not later than 90 days after the date
of enactment of this paragraph, the Secretary shall
promulgate regulations to provide guidance to Indian tribes
and States on the scope of allowable assessments negotiated
under paragraph (3)(C)(iii) and the apportionment of revenues
negotiated in accordance with subparagraph (B).'';
(B) in paragraph (7)(B)(vii), by inserting ``not later than
90 days after notification is made'' after ``the Secretary
shall prescribe''; and
(C) by adding at the end the following:
``(10) Extension of term of tribal-state compact.--Any
Tribal-State compact approved by the Secretary in accordance
with paragraph (8) shall remain in effect for up to 180 days
after expiration of the Tribal-State compact if--
``(A) the Indian tribe certifies to the Secretary that the
Indian tribe requested a new compact not later than 90 days
before expiration of the compact; and
``(B) a new compact has not been agreed on.''.
(g) Management Contracts.--Section 12 of the Indian Gaming
Regulatory Act (25 U.S.C. 2711) is amended--
(1) by striking the section heading and all that follows
through ``Subject'' in subsection (a)(1) and inserting the
following:
``SEC. 12. MANAGEMENT CONTRACTS.
``(a) Class II Gaming and Class III Gaming Activities;
Information on Operators.--
``(1) Gaming activities.--Subject''; and
(2) in subsection (a)(1), by striking ``class II gaming
activity that the Indian tribe may engage in under section
11(b)(1) of this Act,'' and inserting ``class II gaming
activity in which the Indian tribe may engage under section
11(b)(1), or a class III gaming activity in which the Indian
tribe may engage under section 11(d),''.
(h) Commission Funding.--Section 18 of the Indian Gaming
Regulatory Act (25 U.S.C. 2717) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (1) through (3) and inserting
the following:
``(1) Schedule of fees.--
``(A) In general.--Except as provided in this section, the
Commission shall establish a schedule of fees to be paid
annually to the Commission, on a quarterly basis, by each
gaming operation that conducts a class II gaming or class III
gaming activity that is regulated, in whole or in part, by
this Act.
``(B) Rates.--The rate of fees under the schedule
established under subparagraph (A) that are imposed on the
gross revenues from each operation that conducts a class II
gaming or class III gaming activity described in that
paragraph shall be (as determined by the Commission)--
``(i) a progressive rate structure levied on the gross
revenues in excess of $1,500,000 from
[[Page S10655]]
each operation that conducts a class II gaming or class III
gaming activity; or
``(ii) a flat fee levied on the gross revenues from each
operation that conducts a class II gaming or class III gaming
activity.
``(C) Total amount.--The total amount of all fees imposed
during any fiscal year under the schedule established under
subparagraph (A) shall not exceed--
``(i) $10,000,000 for each of fiscal years 2004 and 2005;
``(ii) $11,000,000 for each of fiscal years 2006 and 2007;
and
``(iii) $12,000,000 for each of fiscal years 2008 and
2009.''; and
(B) by redesignating paragraphs (4) through (6) as
paragraphs (2) through (4), respectively;
(2) by redesignating subsection (b) as subsection (d);
(3) in paragraph (2) of subsection (d) (as redesignated by
paragraph (2)), by striking ``section 19 of this Act'' and
inserting ``section 28''; and
(4) by inserting after subsection (a) the following:
``(b) Fee Procedures.--
``(1) In general.--By a vote of not less than 2 members of
the Commission, the Commission shall adopt the schedule of
fees provided for under this section.
``(2) Fees assessed.--In assessing and collecting fees
under this section, the Commission shall take into account
the duties of, and services provided by, the Commission under
this Act.
``(3) Regulations.--The Commission shall promulgate such
regulations as are necessary to carry out this subsection.
``(c) Fee Reduction Program.--
``(1) In general.--In making a determination of the amount
of fees to be assessed for any class II gaming or class III
gaming activity under the schedule of fees under this
section, the Commission may provide for a reduction in the
amount of fees that otherwise would be collected on the basis
of--
``(A) the extent and quality of regulation of the gaming
activity provided by a State or Indian tribe, or both, in
accordance with an approved State-Tribal compact;
``(B) the extent and quality of self-regulating activities
covered by this Act that are conducted by an Indian tribe;
and
``(C) other factors determined by the Commission,
including--
``(i) the unique nature of tribal gaming as compared with
commercial gaming, other governmental gaming, and charitable
gaming;
``(ii) the broad variations in the nature, scale, and size
of tribal gaming activity;
``(iii) the inherent sovereign rights of Indian tribes with
respect to regulating the affairs of Indian tribes;
``(iv) the findings and purposes under sections 2 and 3;
``(v) the amount of interest or investment income derived
from the Indian gaming regulation accounts; and
``(vi) any other matter that is consistent with the
purposes under section 3.
``(2) Rulemaking.--The Commission shall promulgate such
regulations as are necessary to carry out this subsection.''.
(i) Additional Amendments.--The Indian Gaming Regulatory
Act is amended--
(1) by striking section 19 (25 U.S.C. 2718);
(2) by redesignating sections 20 through 24 (25 U.S.C. 2719
through 2723) as sections 23 through 27, respectively;
(3) by inserting after section 18 (25 U.S.C. 2717) the
following:
``SEC. 19. INDIAN GAMING REGULATION ACCOUNTS.
``(a) In General.--All fees and civil forfeitures collected
by the Commission in accordance with this Act shall--
``(1) be maintained in separate, segregated accounts; and
``(2) be expended only for purposes described in this Act.
``(b) Investments.--
``(1) In general.--The Commission shall invest such portion
of the accounts maintained under subsection (a) as are not,
in the judgment of the Commission, required to meet immediate
expenses.
``(2) Types of investments.--Investments may be made only
in interest-bearing obligations of the United States
guaranteed as to both principal and interest by the United
States.
``(c) Sale of Obligations.--Any obligation acquired with
funds in an account maintained under subsection (a)(1)
(except special obligations issued exclusively to those
accounts, which may be redeemed at par plus accrued interest)
may be sold by the Commission at the market price.
``(d) Credits to Indian Gaming Regulatory Accounts.--The
interest on, and proceeds from, the sale or redemption of any
obligation held in an account maintained under subsection
(a)(1) shall be credited to and form a part of the account.
``SEC. 20. MINIMUM STANDARDS.
``(a) Class I Gaming.--Notwithstanding any other provision
of law, class I gaming on Indian land--
``(1) shall remain within the exclusive jurisdiction of the
Indian tribe having jurisdiction over the Indian land; and
``(2) shall not be subject to this Act.
``(b) Class II Gaming.--
``(1) In general.--Subject to paragraph (2), an Indian
tribe shall retain primary jurisdiction over regulation of
class II gaming activities conducted by the Indian tribe.
``(2) Conduct of class ii gaming.--Any class II gaming
activity shall be conducted in accordance with--
``(A) section 11; and
``(B) regulations promulgated under subsection (d).
``(c) Class III Gaming.--
``(1) In general.--Subject to paragraph (2), an Indian
tribe shall retain primary jurisdiction over regulation of
class III gaming activities conducted by the Indian tribe.
``(2) Conduct of class iii gaming.--Any class III gaming
operated by an Indian tribe under this Act shall be conducted
in accordance with--
``(A) section 11; and
``(B) regulations promulgated under subsection (d).
``(d) Rulemaking.--
``(1) In general.--
``(A) Promulgation.--Not later than 180 days after the date
of enactment of the Indian Gaming Regulatory Act Amendments
of 2003, the Commission shall develop procedures under
subchapter III of chapter 5 of title 5, United States Code,
to negotiate and promulgate regulations relating to--
``(i) the monitoring and regulation of tribal gaming;
``(ii) the establishment and regulation of internal control
systems; and
``(iii) the conduct of background investigation.
``(B) Publication of proposed regulations.--Not later than
1 year after the date of enactment of the Indian Gaming
Regulatory Act Amendments of 2003, the Commission shall
publish in the Federal Register proposed regulations
developed by a negotiated rulemaking committee in accordance
with this section.
``(2) Committee.--A negotiated rulemaking committee
established in accordance with section 565 of title 5, United
States Code, to carry out this subsection shall be composed
only of Federal and Indian tribal government representatives,
a majority of whom shall be nominated by and be
representative of Indian tribes that conduct gaming in
accordance with this Act.
``(e) Elimination of Existing Regulations.--
``(1) In general.--Except as provided in paragraph (2), as
of the date that is 1 year after the date of enactment of the
Indian Gaming Regulatory Act Amendments of 2003, regulations
establishing minimum internal control standards promulgated
by the Commission that are in effect as of the date of
enactment of the Indian Gaming Regulatory Act Amendments of
2003 shall have no force or effect.
``(2) Exception for affirmation of existing regulations.--
Notwithstanding paragraph (1), if, before the date of
enactment of the Indian Gaming Regulatory Act Amendments of
2003, the Commission certifies to the Secretary of the
Interior that the Commission has promulgated regulations that
establish minimum internal control standards that meet the
requirements of subsection (d)(1)(A) and were developed in
consultation with affected Indian tribes, the regulations
shall--
``(A) be considered to satisfy the requirements of
paragraph (1); and
``(B) remain in full force and effect.
``SEC. 21. USE OF NATIONAL INDIAN GAMING COMMISSION CIVIL
FINES.
``(a) Account.--Amounts collected by the Commission under
section 14 shall--
``(1) be deposited in a separate Indian gaming regulation
account established under section 19(d)(1)(A); and
``(2) be available to the Commission, as provided for in
advance in Acts of appropriation, for use in carrying out
this Act.
``(b) Use of Funds.--
``(1) In general.--The Commission may provide grants and
technical assistance to Indian tribes using funds secured by
the Commission under section 14.
``(2) Uses.--A grant or financial assistance provided under
paragraph (1) may be used only--
``(A) to provide technical training and other assistance to
an Indian tribe to strengthen the regulatory integrity of
Indian gaming;
``(B) to provide assistance to an Indian tribe to assess
the feasibility of conducting nongaming economic development
activities on Indian land;
``(C) to provide assistance to an Indian tribe to devise
and implement programs and treatment services for individuals
diagnosed as problem gamblers; or
``(D) to provide to an Indian tribe 1 or more other forms
of assistance that are not inconsistent with this Act.
``(c) Source of Funds.--Amounts used to carry out
subsection (b) may be derived only from funds--
``(1) collected by the Commission under section 14; and
``(2) authorized for use in advance by an Act of
appropriation.
``(d) Regulations.--The Commission may promulgate such
regulations as are necessary to carry out this section.
``SEC. 22. TRIBAL CONSULTATION.
``In carrying out this Act, the Secretary of the Interior,
Secretary of the Treasury, and Chairman of the Commission
shall involve and consult with Indian tribes to the maximum
extent practicable, as appropriate, in a manner that is
consistent with the Federal trust and the government-to-
government relationship that exists between Indian tribes and
the Federal Government.''; and
(4) by inserting after section 27 (as redesignated by
paragraph (2)) the following:
[[Page S10656]]
``SEC. 28. AUTHORIZATION OF APPROPRIATIONS.
``(a) In General.--Subject to section 18, there is
authorized to be appropriated to carry out this Act, for
fiscal year 1998 and each fiscal year thereafter, an amount
equal to the amount of funds derived from the assessments
authorized by section 18(a).
``(b) Additional Amounts.--Notwithstanding section 18, in
addition to amounts authorized to be appropriated by
subsection (a), there are authorized to be appropriated
$2,000,000 to fund the operation of the Commission for fiscal
year 1998 and each fiscal year thereafter.''.
______
By Mr. DASCHLE:
S. 1530. A bill to provide compensation to the Lower Brule and Crow
Creek Sioux Tribes of South Dakota for damage to tribal land caused by
Pick-Sloan projects along the Missouri River; to the Committee on
Indian Affairs.
Mr. DASCHLE. Mr. President, I am pleased to introduce the Lower Brule
and Crow Creek Sioux Tribal Parity Act of 2003.
This legislation is intended to provide additional and final
compensation to the Lower Brule Sioux and Crow Creek Sioux Tribes for
losses from the Pick-Sloan Missouri River Basin Program, commonly known
as the ``Flood Control Act of 1944''.
The Pick-Sloan Program inundated the fertile bottom land of the Lower
Brule and Crow Creek Sioux Tribes, which greatly damaged the economy
and cultural resources of the Tribe. Congress has provided compensation
to several South Dakota Indian tribes, including Lower Brule and Crow
Creek, that border the Missouri River. The compensation provided,
however, has not been consistent in terms of either criteria, or
methodology.
Based on the methodology determined appropriate by the General
Accounting Office and used by Congress to determine the compensation
for the Cheyenne River Sioux Tribe, new calculations have determined
that Lower Brule is entitled to additional final compensation of
$137,065,558 from the United States. The Crow Creek Sioux Tribe is
entitled to additional compensation of $100,244,040. The legislation I
am introducing will provide parity for the Lower Brule Sioux and Crow
Creek Sioux Tribes.
These two tribes are entitled to a final parity payment based upon
this GAO-approved methodology. I look forward to moving ahead with this
legislation for the benefit of the people of Lower Brule and Crow
Creek.
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. 1530
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 ``Tribal Parity Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Pick-Sloan Missouri River Basin Program (authorized
by section 9 of the Act of December 22, 1944 (commonly known
as the ``Flood Control Act of 1944'') (58 Stat. 891)), was
approved to promote the general economic development of the
United States;
(2) the Fort Randall and Big Bend dam and reservoir
projects in South Dakota--
(A) are major components of the Pick-Sloan Missouri River
Basin Program; and
(B) contribute to the national economy;
(3) the Fort Randall and Big Bend projects inundated the
fertile bottom land of the Lower Brule and Crow Creek Sioux
Tribes, which greatly damaged the economy and cultural
resources of the Tribes;
(4) Congress has provided compensation to several Indian
tribes, including the Lower Brule and Crow Creek Sioux
Tribes, that border the Missouri River and suffered injury as
a result of 1 or more Pick-Sloan Projects;
(5) the compensation provided to those Indian tribes has
not been consistent;
(6) Missouri River Indian tribes that suffered injury as a
result of 1 or more Pick-Sloan Projects should be adequately
compensated for those injuries, and that compensation should
be consistent among the Tribes;
(7) the Lower Brule Sioux Tribe and the Crow Creek Sioux
Tribe, based on methodology determined appropriate by the
General Accounting Office, are entitled to receive additional
compensation for injuries described in paragraph (6), so as
to provide parity among compensation received by all Missouri
River Indian tribes.
SEC. 3. LOWER BRULE SIOUX TRIBE.
Section 4(b) of the Lower Brule Sioux Tribe Infrastructure
Development Trust Fund Act (Public Law 105-132; 111 Stat.
2565) is amended by striking ``$39,300,000'' and inserting
``$176,398,012''.
SEC. 4. CROW CREEK SIOUX TRIBE.
Section 4(b) of the Crow Creek Sioux Tribe Infrastructure
Development Trust Fund Act of 1996 (Public Law 104-223; 110
Stat. 3027) is amended by striking ``$27,500,000'' and
inserting ``$100,244,040''.
______
By Mr. HATCH (for himself, Mr. Leahy, Mr. Warner, Mr. Bingaman,
Mr. Allen, Mr. Nelson of Nebraska, Mr. Cochran, Mr. Lautenberg,
Mr. Bond, Mr. Harkin, Mr. Domenici, Mr. Jeffords, Mr.
Chambliss, Mr. Rockefeller, Mrs. Dole, and Mr. Breaux):
S. 1531. A bill to require the Secretary of the Treasury to mint
coins in commemoration of Chief Justice John Marshall; to the Committee
on Banking, Housing, and Urban Affairs.
Mr. HATCH. Mr. President, I rise today in support of S. 1531, the
John Marshall Commemorative Coin Act. This bill authorizes the Treasury
Department to mint and issue coins bearing the likeness of Chief
Justice John Marshall for the purpose of supporting the Supreme Court
Historical Society. Sales of the coin would, in addition to raising
funds for the Society, also cover all of the costs of minting and
issuing these coins, so that the American taxpayer would not bear any
cost whatsoever if this legislation were enacted.
Justice Oliver Wendell Holmes once called John Marshall ``the great
Chief Justice.'' After 34 years on the bench, from 1801-1835, Marshall
earned that title by establishing many of the constitutional doctrines
we revere today. Writing over 500 opinions, he truly made the third
branch of government co-equal with the legislative and executive
branches.
Marshall's greatness lay in his ability to figure out how to put in
practice the concept of checks and balances. In powerfully written
decisions, the Marshall Court established several constitutional
doctrines, forming the bedrock of contemporary jurisprudence including:
establishing judicial review, prohibiting State taxation of the Federal
Government, making the federal supreme court final arbiter of decisions
issued by State supreme courts, and expounding the limits of the
contracts and commerce clauses. Indeed, he solidified early Federalist
ideas by defining the relationships between the Federal Government and
the States; a position that was forgotten and is only very recently re-
emerging in our jurisprudence.
Born in 1755, Marshall was a key player in the founding generation
who established our constitutional government. He was an early and
active member in the revolutionary cause, joining with the
revolutionary army and fighting as one of George Washington's Officers
in at least four major battles and enduring the winter at Valley Forge.
Marshall later served as a member of Congress and as Secretary of State
before his ascension to the Supreme Court.
There is a no more fitting likeness for a coin that would support the
efforts of the Supreme Court Historical Society. The Society is a non-
profit organization whose purpose is to preserve and disseminate the
history of the Supreme Court of the United States. Founded by Chief
Justice Warren Burger, the Society's mission is to provide information
and historical research on our Nations highest court. The Society
accomplishes this mission by conducting programs, publishing books,
supporting historical research and collecting antiques and artifacts
related to the Court's history.
Recent research includes efforts to capture the history of the Court
during the Franklin D. Roosevelt period, the Civil War, and the
evolution of the Chief Justice's role on the court. Lectures and
programs are open to the public as well as Society members.
Additionally, the Society seeks to acquire the private papers, period
furnishings, and art work relating to court history.
For all of these reasons, I urge my colleagues to join with me in
this effort to memorialize the Great Chief Justice John Marshall and
assist a worthwhile organization like the Supreme Court Historical
Society.
Thank you, Mr. President, I yield the floor.
Mr. LEAHY. Mr. President, I join my Judiciary Committee colleague
Senator Hatch and others in introducing a bill to authorize the minting
of a commemorative coin in honor of United
[[Page S10657]]
States Supreme Court Chief Justice John Marshall, commonly known as
``the Great Chief Justice.''
Marshall's contributions to our country have been noted by members of
the executive and judicial branches. President John Quincy Adams
described his father's appointment of Marshall to the Supreme Court as
``one of the most important services rendered by [his father] to his
country.'' Fellow Supreme Court Justice Joseph Story described Marshall
in the following terms: ``Patience, moderation, candor, urbanity,
quickness of perception, dignity of deportment, gentleness of manners,
genius which commands respect, and learning which justifies
confidence.'' Congress' passage of the ``John Marshall Commemorative
Coin Act'' in honor of the upcoming 250th anniversary of his birth
would be a fitting complement to these, and other, recognitions of
``the Great Chief Justice's'' extraordinary accomplishments.
Marshall presided over the Supreme Court during the formative years
of 1801-1835. Before that time, the Supreme Court played a
comparatively minor role in our Federal government. Under Marshall's
leadership, the Court evolved into a powerful institution and assumed
its role as guardian of the Constitution, and as the arbiter of
disputes between the Federal government and the States. As one legal
scholar commented: ``It is not inconceivable that the Supreme Court
would have remained a minor appendage of our government, and our
constitutional development taken a distinctly different course, but for
the fact that John Marshall occupied the Chief Justice's chair during
the first three decades of the nineteenth century.''
Marshall is considered the founding father of American Constitutional
law. To name just a few of Marshall's groundbreaking opinions, Marbury
v. Madison the first instance in which the Supreme Court pronounced an
act of Congress unconstitutional is the leading precedent for the
Court's power to judge the constitutionality of legislative and
executive acts. In McCulloch v. Maryland, Marshall asserted the right
of the Supreme Court to decide questions involving the conflicting
powers of the Federal and State governments, affirmed Congress'
authority to act in furtherance of its enumerated powers, and
established the standard for determining when the exercise of a Federal
power limits the otherwise sovereign power of a State. In Cohens v.
Virginia, Marshall established the authority of the Federal judiciary
to review decisions of the highest State courts. As a final
illustration of Marshall's many important judicial opinions, in Gibbons
v. Ogden, he set forth Congress' power to regulate commerce among the
States and with foreign nations.
Aside from the specific constitutional principles Marshall
established while on the Court, he made many other important
contributions to American constitutional law. For example, Marshall
advocated that judges, as ultimate guardians of the Constitution,
should be above politics and that the role of the Nation's courts was
to mitigate the effects of factional politics. Moreover, Marshall
adopted an approach to constitutional interpretation termed ``fair
construction'' which struck a middle ground between an overly
restrictive, and an overly broad, reading of the Constitution because
he feared that strict construction would ultimately weaken the
Constitution and, in due course, the Nation.
In closing, it is difficult to overstate Chief Justice Marshall's
contributions to our Nation. Many years ago, when I read Marshall's
opinions in my first year of law school, I admired the Chief Justice.
Now, having served in Congress and worked within the principles
Marshall established, I find him all the more admirable. A
commemorative coin in his honor would be a fitting tribute to ``the
Great Chief Justice.''
I ask unanimous consent that the text of bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1531
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 ``Chief Justice John Marshall
Commemorative Coin Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) John Marshall served as the Chief Justice of the
Supreme Court of the United States from 1801 to 1835, the
longest tenure of any Chief Justice in the Nation's history;
(2) Under Marshall's leadership, the Supreme Court
expounded the fundamental principles of constitutional
interpretation, including judicial review, and affirmed
national supremacy, both of which served to secure the newly
founded United States against dissolution; and
(3) John Marshall's service to the nascent United States,
not only as Chief Justice, but also as a soldier in the
Revolutionary War, as a member of the Virginia Congress and
the United States Congress, and as Secretary of State, makes
him one of the most important figures in our Nation's
history.
SEC. 3. COIN SPECIFICATIONS.
(a) Denomination.--In commemoration of the 250th
anniversary of the birth of Chief Justice John Marshall, the
Secretary of the Treasury (in this Act referred to as the
``Secretary'') shall mint and issue not more than 400,000 $1
coins, each of which shall--
(1) weigh 26.73 grams;
(2) have a diameter of 1.500 inches; and
(3) contain 90 percent silver and 10 percent copper.
(b) Legal Tender.--The coins minted under this Act shall be
legal tender, as provided in section 5103 of title 31, United
States Code.
(c) Numismatic Items.--For purposes of sections 5134 and
5136 of title 31, United States Code, all coins minted under
this Act shall be considered to be numismatic items.
SEC. 4. DESIGN OF COINS.
(a) Design Requirements.--
(1) In general.--The design of the coins minted under this
Act shall be emblematic of Chief Justice John Marshall and
his contributions to the United States.
(2) Designation and inscriptions.--On each coin minted
under this Act, there shall be--
(A) a designation of the value of the coin;
(B) an inscription of the year ``2005''; and
(C) inscriptions of the words ``Liberty'', ``In God We
Trust'', ``United States of America'', and ``E Pluribus
Unum''.
(b) Selection.--The design for the coins minted under this
Act shall be--
(1) selected by the Secretary, after consultation with the
Commission of Fine Arts, and the Supreme Court Historical
Society; and
(2) reviewed by the Citizens Coinage Advisory Committee.
SEC. 5. ISSUANCE OF COINS.
(a) Quality of Coins.--Coins minted under this Act shall be
issued in uncirculated and proof qualities.
(b) Mint Facility.--Only one facility of the United States
Mint may be used to strike any particular quality of the
coins minted under this Act.
(c) Commencement of Issuance.--The Secretary may issue
coins minted under this Act beginning on January 1, 2005.
(d) Termination of Minting Authority.--No coins may be
minted under this Act after December 31, 2005.
SEC. 6. SALE OF COINS.
(a) Sale Price.--The coins minted under this Act shall be
sold by the Secretary at a price equal to the sum of--
(1) the face value of the coins;
(2) the surcharge provided in section 7 with respect to
such coins; and
(3) the cost of designing and issuing the coins (including
labor, materials, dies, use of machinery, overhead expenses,
marketing, and shipping).
(b) Bulk Sales.--The Secretary shall make bulk sales of the
coins minted under this Act at a reasonable discount.
(c) Prepaid Orders.--
(1) In general.--The Secretary shall accept prepaid orders
for the coins minted under this Act before the issuance of
such coins.
(2) Discount.--Sale prices with respect to pre-paid orders
under paragraph (1) shall be at a reasonable discount.
SEC. 7. SURCHARGES.
(a) In General.--All sales of coins minted under this Act
shall include a surcharge of $10 per coin.
(b) Distribution.--Subject to section 5134(f) of title 31,
United States Code, all surcharges received by the Secretary
from the sale of coins issued under this Act shall be
promptly paid by the Secretary to the Supreme Court
Historical Society for the purposes of--
(1) historical research about the Supreme Court and the
Constitution of the United States and related topics;
(2) supporting fellowship programs, internships, and
docents at the Supreme Court; and
(3) collecting and preserving antiques, artifacts, and
other historical items related to the Supreme Court and the
Constitution of the United States and related topics.
(c) Audits.--The Supreme Court Historical Society shall be
subject to the audit requirements of section 5134(f)(2) of
title 31, United States Code, with regard to the amounts
received by the Society under subsection (b).
SEC. 8. FINANCIAL ASSURANCES.
(a) No Net Cost to the Government.--The Secretary shall
take such actions as may be necessary to ensure that the
minting and issuance of the coins referred to in section 3(a)
shall result in no net cost to the Federal Government.
(b) Payment for the Coins.--The Secretary may not sell a
coin referred to in section 3(a) unless the Secretary has
received--
[[Page S10658]]
(1) full payment for the coin;
(2) security satisfactory to the Secretary to indemnify the
Federal Government for full payment; or
(3) a guarantee of full payment satisfactory to the
Secretary from a depository institution, the deposits of
which are insured by the Federal Deposit Insurance
Corporation, the Federal Savings and Loan Insurance
Corporation, or the National Credit Union Administration
Board.
______
By Ms. STABENOW (for herself, Mr. Enzi, Mr. Johnson, Mr. Hagel,
Mr. Schumer, Mr. Bayh, Mr. Carper, and Mr. Corzine):
S. 1532. A bill to establish the Financial Literacy Commission, and
for other purposes; to the Committee on Banking, Housing, and Urban
Affairs.
Ms. STABENOW. Mr. President, I rise today to introduce the Financial
Literacy Community Outreach Act of 2003. This bill, which I am proud to
introduce with my colleague and friend, Mr. Enzi, is the product of
several months of work. We have reached out to financial literacy
advocates, financial institutions, Federal agencies, and other
interested parties to craft a comprehensive bill to streamline,
augment, and improve our government's approach to financial literacy.
The need for this legislation is clear. Studies show alarming
shortcomings in the state of financial literacy in America. For
example, in a survey of consumers 18 years and older conducted by the
American Association of Retired Persons in late 1998, only 11 percent
of respondents correctly answered 4 basic financial questions. A study
by the Jump$tart Coalition for Personal Financial Literacy found that,
in 2002, on average, high school seniors could correctly answer only
about 50 percent of a set of financial answers put to them a failing
grade.
In addition, from 1990 to 2000, the outstanding credit card debt
among households more than tripled from $200 billion to $600 billion.
And, a 2002 study by John Hancock found that, in a study it did, 50
percent of respondents said they spend half an hour or less per month
managing their retirement funds.
These are all very disturbing statistics and, just a few examples of
why I feel the need to act to improve our government's approach to this
problem. We need a clear and effective strategy to address these
problems.
The Federal Government understands that financial literacy is
essential to a healthy economy and the protection of consumers. That is
why many Federal departments and agencies have employed their resources
and expertise to educate the public about how to accomplish such goals
as realizing the dreams of homeownership, saving for a child's college
education, and planning for a secure retirement. These agencies do this
through grant programs, through special training, and by developing
financial literacy materials.
Unfortunately, what Mr. Enzi and I, as well as others active on this
issue, have come to realize is that these programs are uncoordinated
and, in some places, duplicative. There is no mechanism for these
agencies to interact and assess the good work they are doing. That is
why, in our legislation, we set up a Federal Financial Literacy
Commission.
Made up of Federal decision makers with jurisdiction over one or more
financial literacy programs, including the Federal Reserve, the FDIC,
the Treasury Department, the Department of Housing and Urban
Development, the Securities and Exchange Commission, and the Small
Business Administration, our Commission, and its constituent members,
will take all necessary steps to coordinate, streamline and improve
existing programs. The Commission will also make recommendations to
Congress on legislation that may be needed to improve financial
education.
I am pleased to say that this new Commission will operate as a nexus
for all Federal financial literacy materials, grants, and information;
spearhead efforts to reach out to the public with financial literacy
messages; manage a toll free hotline; operate a website promoting
financial literacy and highlighting Federal grants, materials, and
programs; and, it may feature private and non-profit resources
available to the public.
Improving the state of financial literacy is a common sense thing to
do. It is something that we can do through cooperation and strategic
thinking about our Federal resources. And, it can be done with the
input of all concerned interests. Many people in the Senate have worked
diligently on the subject of financial literacy, including Mr.
Sarbanes, the Ranking Member of the Banking, Housing, and Urban Affairs
Committee who has done important work on this subject.
I am pleased that Mr. Enzi is the lead Republican sponsor of this
legislation; he is a true leader and cares passionately about this
issue. And, I appreciate the leadership of the bipartisan group of
Senators who have agreed to cosponsor our bill: Mr. Hagel, Mr. Johnson,
Mr. Schumer, Mr. Bayh, Mr. Carper, and Mr. Corzine. I look forward to
working with them and all of my other colleagues in the Senate to
ensure that we have an effective, coordinated, and comprehensive
Federal approach to improving financial literacy in our country.
I ask unanimous consent that the text of this legislation be printed
in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1532
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 ``Financial Literacy Community
Outreach Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) although the evolution of our financial system has
offered families in the United States many new opportunities
to build wealth and security, the ready availability of
credit, an overwhelming array of investment and savings
options, and the shifting of responsibility for retirement
savings from employer to employee has made the understanding
of personal finance ever more important;
(2) many young adults within the United States have
demonstrated difficulty understanding basic financial
concepts;
(3) in surveys of high school seniors conducted by the
JumpStart Coalition for Personal Financial Literacy--
(A) in 1997 participants, on average, failed, and answered
only 57 percent of the questions correctly;
(B) in 2000, the average score fell to 51 percent; and
(C) in 2002, disturbingly, on average, only 50 percent of
the questions were answered correctly;
(4) in a survey of consumers 18 years and older conducted
by the American Association of Retired Persons in late 1998,
only 11 percent of respondents correctly answered 4 basic
financial questions;
(5) a similar survey of 800 defined benefit contribution
plan participants conducted by John Hancock in 2002 found
that 50 percent of respondents said they spend half an hour
or less per month managing their retirement funds;
(6) households in the United States are not reaching their
full potential in financial management, and as a result--
(A) the personal savings rate fell to only 1.6 percent of
disposable income in 2001;
(B) from 1990 to 2000, outstanding credit card debt among
households more than tripled from $200,000,000,000 to
$600,000,000,000;
(C) in 2001, the total household debt exceeded total
household disposable income by nearly 10 percent;
(D) less than half of all households hold stock in any
form, including mutual funds and 401(k)-style pension plans;
and
(E) almost half of all workers have accumulated less than
$50,000 for their retirement, and \1/3\ have saved less than
$10,000;
(7) many Government agencies recognize that the people of
the United States lack expertise in financial literacy and
are working to help them, including efforts by--
(A) the Department of Labor and the Federal Deposit
Insurance Corporation, which have joined together to create
``Money Smart'', a training program to help adults enhance
their money-management skills;
(B) the Department of the Treasury, which has formed the
``Financial Services Education Council'', and has published a
guide called ``Helping People in Your Community Understand
Basic Financial Services'';
(C) the Department of the Treasury in promoting a middle
school curriculum called ``Money Math: Lessons for Life'';
(D) the Federal Trade Commission, which publishes
information about credit, including ``Credit Matters: How to
qualify for credit, keep a good credit history, and protect
your credit'';
(E) the Department of Agriculture, which runs the ``Family
Economics Program'' to assist educators who deliver basic
consumer education and teach personal financial management
skills to young people;
(F) the Securities and Exchange Commission, which has an
Office of Investor Education and Assistance;
(G) the Board of Governors of the Federal Reserve System,
which has developed materials explaining how to use credit
responsibly, obtain a mortgage, build wealth, and lease a
car;
[[Page S10659]]
(H) the Department of Housing and Urban Development in
funding housing counseling agencies nationwide that provide
advice on how to save for and buy a home; and
(I) the Government Services Administration in hosting the
Federal Consumer Information Center, which has an electronic
catalogue of information about Federal financial literacy
programs;
(8) there is very little coordination among Federal
programs, resulting in duplication of effort and a confusing
array of information spread among many agencies;
(9) there is a serious problem with financial illiteracy
among many low-income consumers, who often--
(A) do not have a relationship with a mainstream financial
services provider;
(B) lack experience and information about personal finance;
and
(C) are ill-prepared to make informed financial decisions;
(10) many people in the United States--
(A) are in a precarious financial position because they
lack an understanding of economic and financial fundamentals
and of financial planning;
(B) are forgoing opportunities to build wealth by failing
to target their investments to higher yielding, yet secure
savings vehicles; and
(C) are failing to adequately plan and save for retirement;
and
(11) financial literacy is the foundation that supports--
(A) economic independence for the citizens of the United
States; and
(B) the functioning of our free market economy.
SEC. 3. DEFINITIONS.
As used in this Act--
(1) the term ``Commission'' means the Financial Literacy
Commission established under section 101; and
(2) the term ``financial literacy'' means basic personal
income and household money management and planning skills,
including--
(A) saving and investing;
(B) building wealth;
(C) managing spending, credit, and debt effectively;
(D) tax and estate planning;
(E) the ability to ascertain fair and favorable credit
terms and avoid abusive, predatory, or deceptive credit
offers;
(F) the ability to understand, evaluate, and compare
financial products, services, and opportunities; and
(G) all other related skills.
TITLE I--FINANCIAL LITERACY COMMISSION
SEC. 101. ESTABLISHMENT OF FINANCIAL LITERACY COMMISSION.
(a) In General.--There is established a commission to be
known as the Financial Literacy Commission.
(b) Purpose.--The Commission shall serve to improve the
financial literacy of persons in the United States by
overseeing, implementing, and reporting upon the effects of
the performance of the duties of the Commission set forth in
section 102.
(c) Membership.--
(1) Composition.--The Commission shall be composed of not
more than 19 members, including--
(A) the Comptroller of the Currency;
(B) the Secretary of Agriculture of the Department of
Agriculture;
(C) the Secretary of Education of the Department of
Education;
(D) the Secretary of Housing and Urban Development of the
Department of Housing and Urban Development;
(E) the Secretary of Labor of the Department of Labor;
(F) the Secretary of the Treasury;
(G) the Chairman of the Federal Deposit Insurance
Corporation;
(H) the Chairman of the Board of Governors of the Federal
Reserve System;
(I) the Chairman of the Federal Trade Commission;
(J) the Administrator of General Services of the General
Services Administration;
(K) the Commissioner of the Internal Revenue Service;
(L) the Chairman of the National Credit Union
Administration Board;
(M) the Director of the Office of Thrift Supervision;
(N) the Chairman of the Securities and Exchange Commission;
(O) the Administrator of the Small Business Administration;
(P) the Commissioner of the Social Security Administration;
and
(Q) at the discretion of the President, not more than 3
individuals appointed by the President from among the
administrative heads of any other Federal agency, department,
or other Government entity, whom the President believes would
be helpful in implementing the purpose of the Commission.
(2) Designees.--The individuals referred to in paragraph
(1) may appoint a designee from within the department or
agency of that individual to serve as a member of the
Commission.
(d) Federal Employee Requirement.--Each member of the
Commission shall be an officer or employee of the United
States.
(e) Chairperson.--The Commission shall select a Chairperson
from among its members. The Secretary of the Treasury, or the
designee thereof under subsection (c)(2), shall chair the
initial meeting of the Commission.
(f) Vice Chairperson.--The Commission shall select a Vice
Chairperson from among its members.
(g) Vacancies.--Any vacancy in the Commission shall be
filled in the same manner as the original appointment or
designation, as provided under subsection (c).
(h) Initial Meeting.--The Commission shall hold its first
meeting not later than 60 days after the date of enactment of
this Act.
(i) Meetings.--
(1) Semiannual meetings.--The Commission shall hold, at the
call of the Chairperson, 1 meeting every 6 months to conduct
necessary business. All such meetings shall be open to the
public.
(2) Discretionary meetings.--The Commission may hold, at
the call of the Chairperson, such other meetings as the
Chairperson sees fit to carry out this Act.
(j) Quorum.--A majority of the members of the Commission
shall constitute a quorum, but a lesser number of members may
hold hearings.
(k) Executive Committee.--
(1) In general.--The Commission shall establish an
Executive Committee comprised of--
(A) the Chairperson;
(B) the Vice Chairperson; and
(C) 3 at-large members selected by the Commission from
among members appointed under subsection (c).
(2) Term.--Members of the Executive Committee selected
under paragraph (1)(C) shall serve for such time as
determined by the Commission.
(3) Meetings.--The Executive Committee shall hold, at the
call of the Chairperson, 1 meeting every 2 months to conduct
necessary administrative business.
(4) Quorum.--A majority of the members of the Executive
Committee shall constitute a quorum.
SEC. 102. DUTIES OF THE COMMISSION.
(a) In General.--The Commission, through the authority of
the members referred to in section 101(c), shall take such
actions as it deems necessary to streamline, improve, or
augment the financial literacy programs, materials, and
grants of the Federal Government.
(b) Website.--
(1) In general.--The Commission shall establish and
maintain a website, and attempt to register the domain name
``FinancialLiteracy.gov'', or, if such domain name is not
available, a similar domain name.
(2) Purposes.--The website established under paragraph (1)
shall--
(A) serve as a clearinghouse of information about Federal
financial literacy programs;
(B) provide a coordinated entry point for accessing
information about all Federal publications, grants, and
materials promoting enhanced financial literacy;
(C) offer information on all Federal grants to promote
financial literacy, and offer information to the public on
how to target, apply for, and receive a grant that is most
appropriate under the circumstances;
(D) as the Commission considers appropriate, feature
website links to private sector efforts, such as the
JumpStart Coalition for Personal Financial Literacy, and
feature information about private sector financial literacy
programs, materials, or campaigns;
(E) highlight information about best practices for teaching
and promoting financial literacy; and
(F) offer such other information as the Commission finds
appropriate to share with the public in the fulfillment of
its purpose.
(c) Toll Free Hotline.--The Commission shall establish a
toll-free telephone number that shall be made available to
members of the public seeking information about issues
pertaining to financial literacy.
(d) Development and Dissemination of Materials.--The
Commission shall--
(1) develop materials to promote financial literacy; and
(2) disseminate such materials to the general public.
(e) Administration of Grant Programs.--
(1) Authority.--The Commission shall be authorized to
establish and implement grant programs to promote financial
literacy.
(2) Eligibility.--Grants awarded under paragraph (1) may be
awarded to schools, non-profit organizations, units of
general local government, faith-based organizations, and such
other entities as determined eligible by the Commission.
(3) Preferences.--In awarding grants under paragraph (1),
the Commission shall--
(A) give preference to entities that have a demonstrated
record of serving communities with people who have
historically had either limited or no access to financial
literacy education; and
(B) to the extent practicable, award grants to as many
entities eligible under paragraph (2) as possible.
(f) Initial and Annual Reports.--
(1) Initial report.--
(A) In general.--Not later than 18 months after the date of
the first meeting of the Commission, the Commission shall
issue an initial report to the Committee on Banking, Housing,
and Urban Affairs of the Senate and the Committee on
Financial Services of the House of Representatives on the
progress of the Commission in carrying out this Act.
(B) Contents.--The report required under subparagraph (A)
shall--
(i) identify all Federal programs, materials, and grants
which seek to improve financial literacy, and assess the
effectiveness of such programs; and
(ii) identify all actions that the Commission has taken to
streamline, improve, or augment the financial literacy
programs,
[[Page S10660]]
materials, and grants of the Federal Government.
(2) Annual report.--
(A) In general.--Not later than November 30 of each year,
the Commission shall submit to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee on
Financial Services of the House of Representatives a report
detailing the activities of the Commission during the
preceding fiscal year, and making recommendations on ways to
enhance financial literacy in the United States.
(B) Contents.--The report required under subparagraph (A)
shall include--
(i) information concerning the content and public use of
the website established under subsection (b);
(ii) information concerning the usage of the toll-free
telephone number established under subsection (c);
(iii) summaries of the financial literacy materials
developed under subsection (d), and data regarding the
dissemination of such materials;
(iv) information about the activities of the Commission
planned for the next fiscal year;
(v) a summary of all Federal efforts to reach out to
communities that have historically lacked access to financial
literacy materials and education; and
(vi) such other materials relating to the duties of the
Commission as the Commission deems appropriate.
(g) Periodic Studies.--The Commission may conduct periodic
studies regarding the state of financial literacy in the
United States, as the Commission determines appropriate.
SEC. 103. POWERS OF THE COMMISSION.
(a) Hearings.--The Commission may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable
to carry out this Act.
(b) Advisory Committees.--The Commission shall establish
not fewer than 1 advisory committee, consisting of
representatives of lending institutions, financial literacy
nonprofit organizations, consumer advocates, State and local
governments, and such other individuals that the Commission
believes could contribute to the work of the Commission.
(c) Information from Federal Agencies.--The Commission may
secure directly from any Federal department or agency such
information as the Commission considers necessary to carry
out this Act. Upon the request of the Chairman, the head of
such department or agency shall furnish such information to
the Commission.
(d) Gifts.--The Commission may accept, use, and dispose of
gifts or donations of services or property.
SEC. 104. COMMISSION PERSONNEL MATTERS.
(a) Compensation of Members.--Each member of the Commission
shall serve without compensation in addition to that received
for their service as an officer or employee of the United
States.
(b) Travel Expenses.--The members of the Commission shall
be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(c) Staff.--
(1) In general.--The Chairperson of the Commission may,
without regard to civil service laws and regulations, appoint
and terminate an executive director and such other additional
personnel as may be necessary to enable the Commission to
perform its duties. The employment of an executive director
shall be subject to confirmation by members of the
Commission.
(2) Compensation.--The Chairperson of the Commission may
fix the compensation of the executive director and other
personnel without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of title 5, United States Code,
relating to classification of positions and General Schedule
pay rates, except that the rate of pay for the executive
director and other personnel may not exceed the rate payable
for level V of the Executive Schedule under section 5316 of
title 5, United States Code.
(3) Detail of government employees.--Any Federal Government
employee may be detailed to the Commission without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
(4) Temporary and intermittent services.--The Chairperson
of the Commission may procure temporary and intermittent
services under section 3109(b) of title 5, United States
Code, at rates for individuals which do not exceed the daily
equivalent of the annual rate of basic pay prescribed for
level V of the Executive Schedule under section 5316 of title
5, United States Code.
SEC. 105. TERMINATION.
The Commission shall terminate on September 30, 2013.
SEC. 106. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Commission
such sums as may be necessary to carry out this Act,
including administrative expenses of the Commission.
Mr ENZI. Mr. President, the U.S. economy is still the greatest
economy in the world and our credit markets have helped to make that
happen. During the past decade, our credit markets have taken advantage
of technology and innovation in order to provide more consumers with
more timely credit approvals and with more financing options. Nowhere
is there a better example of this than our housing market.
Today, the time it takes to review a mortgage application and approve
it has been cut drastically by our financial institutions. Consumers
find that they have a wide array of financing options they can choose
from to secure the purchase of a home--from fixed-rated loans to
variable-rate loans, or even adjustable rate loans. While the wide
variety of choices has helped more families to purchase homes in the
past decade, even more families could buy homes if they understood how
the credit market works.
Although there are many pluses to the expansion of the availability
of credit there is also a downside. Individuals may get in over their
heads when too much credit is made available to them. In addition,
identity theft is a bigger problem than it has been before. Consumers
need to educate themselves about the potential problems they might face
and how to avoid them. Increasing consumer financial literacy is not
just about providing information, however, it is about giving families
the proper informational tools so that they can put their financial
affairs in order.
Today, my friend and colleague, Senator Stabenow and I are
introducing the ``Financial Literacy Community Outreach Act'' to help
to bring together all of the federal government's financial literacy
programs under one roof.
The Department of Treasury, the Federal Deposit Insurance
Corporation, the Federal Trade Commission, the Securities and Exchange
Commission, the Department of Housing and Urban Development, and the
Department of Labor are just a few of the many federal agencies that
have established excellent financial literacy programs and initiatives.
These programs cover a wide variety of topics ranging from how to save,
spend, and invest to programs that provide guidance on how to prepare
for retirement, select a pension plan, or purchase a home. Still others
help individuals avoid the threat of identity theft.
Unfortunately, consumers attempting to find financial literacy
information from the federal government may find that information
scattered throughout the government. Our bill would provide a one-stop-
shop where consumers could find the appropriate financial literacy
programs for their needs. A single web site and a toll-free number will
go a long way toward bringing this vital information to the individuals
and families who need it.
In addition, the bill establishes the Financial Literacy Commission,
a body comprised of the heads of the federal agencies with financial
literacy programs. The Commission will ensure that the federal
government has a cohesive and coordinated federal policy on financial
literacy as it provides Congress with vital information on what can be
improved in our government's financial literacy outreach efforts. In
addition to the web site and the toll-free number, the Commission will
highlight successful public/private partnerships already existing
around the country.
One such partnership is thriving in my home state of Wyoming. The
Wyoming Partners in HomeBuyer Education, led by the Wyoming Community
Development Authority, includes local banks, real estate agents, the
University of Wyoming, the U.S. Department of Agriculture, the U.S.
Department of Housing and Urban Development, and Fannie Mae, in the
effort to provide distance learning to potential home-buyers through
the use of compressed video technology. This training program is
perfect for a state like Wyoming in that home-buyers in rural
communities have access to all of the essential elements of the home
buying experience just like their urban community counterparts.
To date, more than 3,000 individuals have completed the training
program and it has led to making the home-buying process easier and
more understandable for rural and urban families alike.
I strongly believe that this bill will help millions of families find
the appropriate financial literacy materials they need to make better
credit and investment decisions.
[[Page S10661]]
It is my pleasure to be cosponsoring this bill with Senator Stabenow
because of our shared concern about making financial literacy available
to more families across the country. In addition, I would like to
recognize Senator Sarbanes' tremendous effort to focus our attention on
financial literacy, both when he was Chairman of the Committee on
Banking, Housing and Urban Affairs last year and as Ranking Member of
the Committee this year. He has been an extraordinary advocate for this
important issue. Chairman Shelby of the Committee has also recognized
the importance of this issue, as just this week, it was the subject of
a hearing by the Committee. I look forward to working with my
colleagues on the Committee and in the full Senate to ensure that we
expand and build upon the government's present financial literacy
efforts to help individuals and families increase their knowledge of
and access to our credit and investment markets.
______
By Ms. CANTWELL (for herself and Mr. Enzi):
S. 1533. A bill to prevent the crime of identity theft, mitigate the
harm to individuals throughout the Nation who have been victimized by
identity theft, and for other purposes; to the Committee on the
Judiciary.
Ms. CANTWELL. Mr. President, I rise today to re-introduce legislation
critical to helping victims of identity theft. This legislation, the
Identity Theft Victims Assistance Act, passed the Senate by unanimous
consent in the 107th Congress, and I look forward to its passage again
this Congress. Last year, the legislation had strong bipartisan
support, as evidenced by the fact that Senator Mike Enzi is
cosponsoring it again. The bill has broad support from law enforcement,
consumers' groups, and privacy advocates. Last year, the National
Center for the Victims of Crime, the Fraternal Order of Police,
Consumers Union, Identity Theft Resource Center, U.S. Public Interest
Group, Police Executive Forum, Privacy Rights Clearinghouse, and
Amazon.com supported the bill. Twenty-two state Attorneys General
signed a letter supporting the legislation.
Identity theft is the fastest-growing crime in the country. The
Federal Trade Commission found that complaints of identity theft
increased 87 percent between 2001 and 2002, and over 161,000 complaints
were received by the agency last year. A July 2003 study by Gartner
Inc. found that there was a 79 percent increase in identity theft in
the past year alone. Identity theft now accounts for 43 percent of
consumer fraud complaints and leads the list of consumer frauds. It is
an insidious crime because it often occurs without the victim's
knowledge, yet leaves scars on their credit records and reputations
that can last for years, and cost thousands of dollars to repair.
The Secret Service has estimated that consumers lose $745 million to
the problem each year, and this number is clearly growing as the number
of identity thefts increases. When a victim realizes that his or her
identity was stolen it's just the beginning of their troubles. The FTC
estimates that it costs the average victim $1,000 in long-distance
phone calls, notary charges, mailing costs and lost wages to get his or
her financial life back in order after an identity thief strikes. The
Identity Theft Resources Center estimates that average identity theft
victims spend 175 hours to clear their records.
But the costs are not confined to consumers--identity theft hits
businesses and the economy, too. Identity theft-related losses suffered
by MasterCard and Visa jumped from $79.9 million in 1996 to $144.3
million in 2000. One study estimates that by 2006 identity theft will
cost the financial institution sector alone $8 billion per year.
To take just one of many examples from my state, Jenni D'Avis of Mill
Creek, Washington, had her Social Security number stolen when a thief
took her mail and found the number listed on a letter from her
community college. The criminal used the number to obtain a state
identification card, and in turn used that to get credit. In just 23
days, the thief ran up $100,000 in bad debt--all in Jenni's name. Once
she became aware of the problem, she had to become a ``Nancy Drew,''
and track down information. Businesses were reluctant to give her the
information she needed to determine the extent of the problem and clear
her name and credit record. She is still repairing the damage.
Sadly, Jenni's story is not unique. Victims of identity theft have
difficulty restoring their credit and regaining control of their
identity, in part, because they have no simple means to show creditors
and credit reporting agencies that they are who they say they are. In
order to prove fraud, a victim often needs copies of creditors records,
such as applications and information, and records from the companies
the identity thief did business with. Ironically, victims have
difficulty obtaining these business records because the victim's
personal identifying information does not match the information on file
with the business.
This bill fixes that problem. The Identity Theft Victims Assistance
Act creates a standardized national process for a person to establish
he or she is a victim of identity theft for purposes of tracing
fraudulent credit transactions and obtaining the evidence to repair
them. It requires the Federal Trade Commission to make available a
simple certificate that, when notarized, provides certainty to
businesses and financial institutions that the person is who they claim
to be, is a victim of identity theft, and has filed claims with both
local law enforcement and the FTC. With this document in hand, the
victim can then obtain from businesses the records they need.
The need for a national system is readily apparent, as identity theft
is increasingly a crime that crosses state lines. One of the greatest
challenges identity theft presents to law enforcement is that a stolen
identity is used to create false identities in many different
localities in different states. Although identity theft is a federal
crime, most often, state and local law enforcement agencies are
responsible for investigating and prosecuting the crimes. Yet law
enforcement has yet to fully recognize the serious nature of the
problem or to develop a coordinated investigative strategy. For
example, in the case of Michael Calip of Centralia, Washington,
identity thieves not only ran up $60,000 in debts, they also committed
crimes using his name--trashing his credit record and creating a
criminal record. Michael tracked the thieves to Wyoming, but had
difficulty convincing local authorities there to pursue his case.
My bill for the first time also permits a victim to designate the
investigating agency, either local or state law enforcement or federal
investigators, to act as their agents in obtaining evidence of identity
theft. This both eases the burden on the victim and aids police in
investigating suspected identity theft rings. In addition it requires
the existing Identity Theft Coordinating Committee to consult with
state and local law enforcement agencies.
Acquiring the evidence of the fraudulent use of identity currently
can be an enormous and time-consuming problem for victims. The Identity
Theft Victims Assistance Act makes this job easier by establishing that
any business presented with the FTC certificate identifying the person
as a victim of identity theft, together with a police report and a
government issued photo ID must deliver copies of all the financial
records that document the fraud to the victim within 20 days. This is a
critically important change from current law because it guarantees that
victims will be able to obtain the evidence they need while also
providing businesses more certainty that they are not violating
someone's privacy or providing sensitive information to the wrong
parties. It also provides new liability protections for businesses that
make a good faith effort to assist victims of identity theft.
Of course, the greatest harm to consumers victimized by theft of
their identity is often a bad credit rating or a poor credit score that
results from fraudulent use of the consumer's identity. According to
the FTC, it often takes about a year for people to discover someone is
using personal information for fraudulent purposes, allowing
significant damage to otherwise stellar credit records. Even after a
consumer reports to a credit reporting agency that they have been
victimized by identity theft, the consumer often can not get the
reporting agencies to block reporting of activities that resulted from
the identity theft.
[[Page S10662]]
My bill again requires that presentation of the FTC certificate,
police report and photo identification establish that the person is in
fact a victim of identity theft and requires credit-reporting agencies
to block information that appears on a victim's credit report as a
result of the identity theft. It also changes current law that requires
individuals to bring suit against a credit reporting agency within two
years from the time the agency commits a violation of laws on fair
reporting of credit. This makes little sense, since it may be years
before a misrepresentation comes to the attention of a victim of
identity theft. The bill requires that the statute of limitations begin
ticking from the time when a consumer discovers or has reason to know
that a misrepresentation by a credit reporting agency has occurred.
The bill leaves in place state laws that are more stringent and
provides that either federal prosecutors or State Attorneys General may
enforce this law.
Jenni and Michael's stories illustrate the unique problems victims of
identity theft face. Although penalties exist for identity thieves, no
remedies are available for their victims. The scope of the problem is
made worse because it's too easy for a criminal to steal someone's
identity and cause serious harm before the theft is even discovered.
And when these criminals cross state lines, it can be even harder for
victims to trace the problem and repair the damage. For these reasons,
it's imperative that we pass federal legislation for the victims of
identity theft.
The government, creditors and credit reporting agencies have a shared
responsibility to assist identity theft victims mitigate the harm that
results from frauds perpetrated in the victim's name. We need to build
up the law enforcement network, already started by the Federal Trade
Commission and other federal agencies under the Identity Theft and
Assumption Deterrence Act of 1998. We need to further improve law
enforcement coordination, particularly between the various local and
state jurisdictions combating identity theft and the associated crimes.
We also need to provide better and timelier information to businesses
so they can head off fraud before it happens. That is why my bill also
expands the jurisdiction of the interagency coordinating committee
established under the Internet False Identification Act of 2000.
Currently, the coordination committee has the mandate to study and
report to Congress on federal investigation and enforcement of identity
theft crimes. The Identity Theft Victims Assistance Act broadens the
mandate for the coordinating committee to consider state and local
enforcement of identity theft law and specifically requires the
committee to examine and recommend what assistance the federal
government can provide state and local law enforcement agencies to
better coordinate in the battle against identity theft.
Mr. President, there is no doubt about the scope of the problem:
identity theft is already a major problem, and it's getting worse. We
must provide victims with the tools they need to regain control of
their lives. The Identity Theft Victims Assistance of 2003 will help
victims of identity theft recover their identity and restore their good
credit. I look forward to working with my colleagues to promptly enact
this bill into law.
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. 1533
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 ``Identity Theft Victims
Assistance Act of 2003''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The crime of identity theft is the fastest growing
crime in the United States. According to a recent estimate,
7,000,000 Americans were victims of identity theft in the
past year, a 79 percent increase over previous estimates.
(2) Stolen identities are often used to perpetuate crimes
in many cities and States, making it more difficult for
consumers to restore their respective identities.
(3) Identity theft cost consumers more than $745,000,000 in
1998 and has increased dramatically in the last few years.
The credit card industry alone lost an estimated $144.3
million in 2000.
(4) Identity theft is ruinous to the good name and credit
of consumers whose identities are misappropriated, and
consumers may be denied otherwise deserved credit and may
have to spend enormous time, effort, and money to restore
their respective identities.
(5) Victims are often required to contact numerous Federal,
State, and local law enforcement agencies and creditors over
many years as each event of fraud arises.
(6) As of the date of enactment of this Act, a national
mechanism does not exist to assist identity theft victims to
obtain evidence of identity theft, restore their credit, and
regain control of their respective identities.
(7) Victims of identity theft need a nationally
standardized means of--
(A) establishing their true identities and claims of
identity theft to all business entities, credit reporting
agencies, and Federal and State law enforcement agencies;
(B) obtaining information documenting fraudulent
transactions from business entities;
(C) reporting identity theft to consumer credit reporting
agencies.
(8) One of the greatest law enforcement challenges posed by
identity theft is that stolen identities are often used to
perpetrate crimes in many different localities in different
States, and although identity theft is a Federal crime, most
often, State and local law enforcement agencies are
responsible for investigating and prosecuting the crimes.
(9) Law enforcement, business entities, credit reporting
agencies, and government agencies have a shared
responsibility to assist victims of identity theft to
mitigate the harm caused by any fraud perpetrated in the name
of the victims.
SEC. 3. TREATMENT OF IDENTITY THEFT MITIGATION.
(a) In General.--Chapter 47 of title 18, United States
Code, is amended by adding after section 1028 the following:
``Sec. 1028A. Treatment of identity theft mitigation
``(a) Definitions.--As used in this section--
``(1) the term `business entity' means any corporation,
trust, partnership, sole proprietorship, or unincorporated
association, including any financial service provider,
financial information repository, creditor (as that term is
defined in section 103 of the Truth in Lending Act (15 U.S.C.
1602)), telecommunications, utilities, or other service
provider;
``(2) the term `consumer' means an individual;
``(3) the term `financial information' means information
identifiable as relating to an individual consumer that
concerns the amount and conditions of the assets,
liabilities, or credit of the consumer, including--
``(A) account numbers and balances;
``(B) nonpublic personal information, as that term is
defined in section 509 of the Gramm-Leach-Bliley Act (15
U.S.C. 6809); and
``(C) codes, passwords, social security numbers, tax
identification numbers, State identifier numbers issued by a
State department of licensing, and other information used for
the purpose of account access or transaction initiation;
``(4) the term `financial information repository' means a
person engaged in the business of providing services to
consumers who have a credit, deposit, trust, stock, or other
financial services account or relationship with that person;
``(5) the term `identity theft' means a violation of
section 1028 or any other similar provision of applicable
Federal or State law;
``(6) the term `means of identification' has the same
meaning given the term in section 1028;
``(7) the term `victim' means a consumer whose means of
identification or financial information has been used or
transferred (or has been alleged to have been used or
transferred) without the authority of that consumer with the
intent to commit, or with the intent to aid or abet, an
identity theft; and
``(8) the terms not defined in this section or otherwise
defined in section 3(s) of the Federal Deposit Insurance Act
(12 U.S.C. 1813(s)) shall have the meaning given to them in
section 1(b) of the International Banking Act of 1978 (12
U.S.C. 3101).
``(b) Information Available to Victims.--
``(1) In general.--A business entity that possesses
information relating to an alleged identity theft, or that
has entered into a transaction, provided credit, provided,
for consideration, products, goods, or services, accepted
payment, otherwise entered into a commercial transaction for
consideration with a person that has made unauthorized use of
the means of identification of the victim, or possesses
information relating to such transaction, shall, not later
than 20 days after the receipt of a written request by the
victim, meeting the requirements of subsection (c), provide,
without charge, a copy of all application and business
transaction information related to the transaction being
alleged as an identity theft to--
``(A) the victim;
``(B) any Federal, State, or local governing law
enforcement agency or officer specified by the victim in such
a request; or
``(C) any law enforcement agency investigating the identity
theft and authorized by the victim to take receipt of records
provided under this section.
``(2) Rule of construction.--
[[Page S10663]]
``(A) In general.--No provision of Federal or State law
prohibiting the disclosure of financial information by a
business entity to third parties shall be used to deny
disclosure of information to the victim under this section.
``(B) Limitation.--Except as provided in subparagraph (A),
nothing in this section permits a business entity to disclose
information that the business entity is otherwise prohibited
from disclosing under any other applicable provision of
Federal or State law.
``(c) Verification of Identity and Claim.--Unless a
business entity, at its discretion, is otherwise able to
verify the identity of a victim making a request under
subsection (b)(1), the victim shall provide to the business
entity--
``(1) as proof of positive identification, at the election
of the business entity--
``(A) the presentation of a government-issued
identification card;
``(B) if providing proof by mail, a copy of a government-
issued identification card; or
``(C) upon the request of the person seeking business
records, the business entity may inform the requesting person
of the categories of identifying information that the
unauthorized person provided the business entity as
personally identifying information, and may require the
requesting person to provide identifying information in those
categories; and
``(2) as proof of a claim of identity theft, at the
election of the business entity--
``(A) a copy of a police report evidencing the claim of the
victim of identity theft;
``(B) a properly completed copy of a standardized affidavit
of identity theft developed and made available by the Federal
Trade Commission; or
``(C) any properly completed affidavit of fact that is
acceptable to the business entity for that purpose.
``(d) Limitation on Liability.--No business entity may be
held liable for a disclosure, made in good faith and
reasonable judgment, to provide information under this
section with respect to an individual in connection with an
identity theft to other business entities, law enforcement
authorities, victims, or any person alleging to be a victim,
if--
``(1) the business entity complies with subsection (c); and
``(2) such disclosure was made--
``(A) for the purpose of detection, investigation, or
prosecution of identity theft; or
``(B) to assist a victim in recovery of fines, restitution,
rehabilitation of the credit of the victim, or such other
relief as may be appropriate.
``(e) Authority To Decline To Provide Information.--A
business entity may decline to provide information under
subsection (b) if, in the exercise of good faith and
reasonable judgment, the business entity determines that--
``(1) this section does not require disclosure of the
information;
``(2) the request for the information is based on a
misrepresentation of fact by the victim relevant to the
request for information; or
``(3) the information requested is Internet navigational
data or similar information about a person's visit to a
website or online service.
``(f) No New Recordkeeping Obligation.--Nothing in this
section creates an obligation on the part of a business
entity to obtain, retain, or maintain information or records
that are not otherwise required to be obtained, retained, or
maintained in the ordinary course of its business or under
other applicable law.
``(g) Affirmative Defense.--In any civil action brought to
enforce this section, it is an affirmative defense (which the
defendant must establish by a preponderance of the evidence)
for a business entity to file an affidavit or answer stating
that--
``(1) the business entity has made a reasonable diligent
search of its available business records; and
``(2) the records requested under this section do not exist
or are not available.
``(h) No Private Right of Action.--Nothing in this section
shall be construed to provide a private right of action or
claim for relief.
``(i) Enforcement.--
``(1) Injunctive actions by the attorney general.--
``(A) In general.--Whenever it appears that a business
entity to which this section applies has engaged, is engaged,
or is about to engage, in any act or practice constituting a
violation of this section, the Attorney General of the United
States may bring a civil action in an appropriate district
court of the United States to--
``(i) enjoin such act or practice;
``(ii) enforce compliance with this section; and
``(iii) obtain such other equitable relief as the court
determines to be appropriate.
``(B) Other injunctive relief.--Upon a proper showing in
the action under subparagraph (A), the court shall grant a
permanent injunction or a temporary restraining order without
bond.
``(2) Administrative enforcement.--
``(A) Federal trade commission.--
``(i) In general.--Except to the extent that administrative
enforcement is specifically committed to another agency under
subparagraph (B), a violation of this section shall be deemed
an unfair or deceptive act or practice in violation of the
Federal Trade Commission Act (15 U.S.C. 41 et seq.), for
purposes of the exercise by the Federal Trade Commission of
its functions and powers under that Act.
``(ii) Available functions and powers.--All of the
functions and powers of the Federal Trade Commission under
the Federal Trade Commission Act are available to the
Commission to enforce compliance by any person with this
section.
``(B) Other federal agencies.--Compliance with any
requirements under this section may be enforced--
``(i) under section 8 of the Federal Deposit Insurance Act
(12 U.S.C. 1818)--
``(I) by the Office of the Comptroller of the Currency,
with respect to national banks, and Federal branches and
Federal agencies of foreign banks (except brokers, dealers,
persons providing insurance, investment companies, and
investment advisers);
``(II) by the Board of Governors of the Federal Reserve
System, with respect to member banks of the Federal Reserve
System (other than national banks), branches and agencies of
foreign banks (other than Federal branches, Federal agencies,
and insured State branches of foreign banks), commercial
lending companies owned or controlled by foreign banks, and
organizations operating under section 25 or 25A of the
Federal Reserve Act (12 U.S.C. 601 et seq. and 611 et seq.);
``(III) by the Board of Directors of the Federal Deposit
Insurance Corporation, with respect to banks insured by the
Federal Deposit Insurance Corporation (other than members of
the Federal Reserve System), insured State branches of
foreign banks, and any subsidiaries of such entities (except
brokers, dealers, persons providing insurance, investment
companies, and investment advisers); and
``(IV) by the Director of the Office of Thrift Supervision,
with respect to savings associations, the deposits of which
are insured by the Federal Deposit Insurance Corporation, and
any subsidiaries of such savings associations (except
brokers, dealers, persons providing insurance, investment
companies, and investment advisers);
``(ii) by the Board of the National Credit Union
Administration, under the Federal Credit Union Act (12 U.S.C.
1751 et seq.), with respect to any federally insured credit
union, and any subsidiaries of such credit union;
``(iii) by the Securities and Exchange Commission, under
the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.),
with respect to any broker or dealer;
``(iv) by the Securities and Exchange Commission, under the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.),
with respect to investment companies;
``(v) by the Securities and Exchange Commission, under the
Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.),
with respect to investment advisers registered with the
Commission under such Act;
``(vi) by the Secretary of Transportation, under subtitle
IV of title 49, with respect to all carriers subject to the
jurisdiction of the Surface Transportation Board;
``(vii) by the Secretary of Transportation, under part A of
subtitle VII of title 49, with respect to any air carrier or
any foreign air carrier subject to that part; and
``(viii) by the Secretary of Agriculture, under the Packers
and Stockyards Act, 1921 (7 U.S.C. 181 et seq.), except as
provided in section 406 of that Act (7 U.S.C. 226, 2271),
with respect to any activities subject to that Act.
``(C) Agency powers.--
``(i) In general.--A violation of any requirement imposed
under this section shall be deemed to be a violation of a
requirement imposed under any Act referred to under
subparagraph (B), for the purpose of the exercise by any
agency referred to under subparagraph (B) of its powers under
any such Act.
``(ii) Rule of construction.--Nothing in this section shall
be construed to prevent a Federal agency from exercising the
powers conferred upon such agency by Federal law to--
``(I) conduct investigations;
``(II) administer oaths or affirmations; or
``(III) compel the attendance of witnesses or the
production of documentary or other evidence.
``(3) Parens patriae authority.--
``(A) 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 to be,
adversely affected by a violation of this section by any
business entity, 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--
``(i) enjoin that practice;
``(ii) enforce compliance with this section;
``(iii) obtain damages--
``(I) in the sum of actual damages, restitution, and other
compensation on behalf of the affected residents of the
State; and
``(II) punitive damages, if the violation is willful or
intentional; and
``(iv) obtain such other equitable relief as the court may
consider to be appropriate.
``(B) Notice.--Before filing an action under subparagraph
(A), the attorney general of the State involved shall, if
practicable, provide to the Attorney General of the United
States, and where applicable, to the appropriate Federal
agency with the authority to enforce this section under
paragraph (2)--
``(i) a written notice of the action; and
``(ii) a copy of the complaint for the action.
``(4) Intervention.--
``(A) In general.--On receiving notice of an action under
paragraph (3), the Attorney
[[Page S10664]]
General of the United States, and any Federal agency with
authority to enforce this section under paragraph (2), shall
have the right to intervene in that action.
``(B) Effect of intervention.--Any person or agency under
subparagraph (A) that intervenes in an action under paragraph
(2) shall have the right to be heard on all relevant matters
arising therein.
``(C) Service of process.--Upon the request of the Attorney
General of the United States or any Federal agency with the
authority to enforce this section under paragraph (2), the
attorney general of a State that has filed an action under
this section shall, pursuant to rule 4(d)(4) of the Federal
Rules of Civil Procedure, serve the Attorney General of the
United States or the head of such Federal agency, with a copy
of the complaint.
``(5) Construction.--For purposes of bringing any civil
action under this subsection, nothing in this section 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--
``(A) conduct investigations;
``(B) administer oaths or affirmations; or
``(C) compel the attendance of witnesses or the production
of documentary and other evidence.
``(6) Limitation on state action while federal action is
pending.--In any case in which an action is instituted by or
on behalf of the Attorney General of the United States, or
appropriate Federal regulator authorized under paragraph (2),
for a violation of this section, no State may, during the
pendency of that action, institute an action under this
section against any defendant named in the complaint in that
action for such violation.
``(7) Venue; service of process.--
``(A) Venue.--Any action brought under this subsection may
be brought in the district court of the United States--
``(i) where the defendant resides;
``(ii) where the defendant is doing business; or
``(iii) that meets applicable requirements relating to
venue under section 1391 of title 28.
``(B) Service of process.--In an action brought under this
subsection, process may be served in any district in which
the defendant--
``(i) resides;
``(ii) is doing business; or
``(iii) may be found.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 47 of title 18, United States Code, is
amended by inserting after the item relating to section 1028
the following new item:
``1028A. Treatment of identity theft mitigation.''.
SEC. 4. AMENDMENTS TO THE FAIR CREDIT REPORTING ACT.
(a) Consumer Reporting Agency Blocking of Information
Resulting From Identity Theft.--Section 611 of the Fair
Credit Reporting Act (15 U.S.C. 1681i) is amended by adding
at the end the following:
``(e) Block of Information Resulting From Identity Theft.--
``(1) Block.--Except as provided in paragraphs (4) and (5)
and not later than 30 days after the date of receipt of--
``(A) proof of the identity of a consumer; and
``(B) an official copy of a police report evidencing the
claim of the consumer of identity theft,
a consumer reporting agency shall block the reporting of any
information identified by the consumer in the file of the
consumer resulting from the identity theft, so that the
information cannot be reported.
``(2) Reinvestigation.--A consumer reporting agency shall
reinvestigate any information that a consumer has requested
to be blocked under paragraph (1) in accordance with the
requirements of subsections (a) through (d).
``(3) Notification.--A consumer reporting agency shall,
within the time period specified in subsection (a)(2)(A)--
``(A) provide the furnisher of the information identified
by the consumer under paragraph (1) with the information
described in subsection (a)(2); and
``(B) notify the furnisher--
``(i) that the information may be a result of identity
theft;
``(ii) that a police report has been filed;
``(iii) that a block has been requested under this
subsection; and
``(iv) of the effective date of the block.
``(4) Authority to decline or rescind.--
``(A) In general.--A consumer reporting agency may at any
time decline to block, or may rescind any block, of consumer
information under this subsection if--
``(i) in the exercise of good faith and reasonable
judgment, the consumer reporting agency finds that--
``(I) the block was issued, or the request for a block was
made, based on a misrepresentation of fact by the consumer
relevant to the request to block; or
``(II) the consumer knowingly obtained possession of goods,
services, or money as a result of a transaction for which a
block has been requested, or the consumer should have known
that the consumer obtained possession of goods, services, or
money as a result of a transaction for which a block has been
requested; or
``(ii) the consumer agrees that the blocked information or
portions of the blocked information were blocked in error.
``(B) Notification to consumer.--If the block of
information is declined or rescinded under this paragraph,
the affected consumer shall be notified, in the same manner
and within the same time period as consumers are notified of
the reinsertion of information under subsection (a)(5)(B).
``(C) Significance of block.--For purposes of this
paragraph, if a consumer reporting agency rescinds a block,
the presence of information in the file of a consumer prior
to the blocking of such information is not evidence of
whether the consumer knew or should have known that the
consumer obtained possession of any goods, services, or
monies as a result of the transaction that was blocked.
``(5) Exception.--A consumer reporting agency shall not be
required to comply with this subsection when such agency is
issuing information for authorizations, for the purpose of
approving or processing negotiable instruments, electronic
funds transfers, or similar methods of payment, based solely
on negative information, including--
``(A) dishonored checks;
``(B) accounts closed for cause;
``(C) substantial overdrafts;
``(D) abuse of automated teller machines; or
``(E) other information which indicates a risk of fraud
occurring.''.
(b) False Claims.--Section 1028 of title 18, United States
Code, is amended by adding at the end the following:
``(j) Any person who knowingly falsely claims to be a
victim of identity theft for the purpose of obtaining the
blocking of information by a consumer reporting agency under
section 611(e)(1) of the Fair Credit Reporting Act (15 U.S.C.
1681i(e)(1)) shall be fined under this title, imprisoned not
more than 3 years, or both.''.
(c) Statute of Limitations.--
(1) In general.--Section 618 of the Fair Credit Reporting
Act (15 U.S.C. 1681p) is amended to read as follows:
``SEC. 618. JURISDICTION OF COURTS; LIMITATION ON ACTIONS.
``(a) In General.--Except as provided in subsections (b)
and (c), an action to enforce any liability created under
this title may be brought in any appropriate United States
district court without regard to the amount in controversy,
or in any other court of competent jurisdiction, not later
than 2 years from the date of the defendant's violation of
any requirement under this title.
``(b) Willful Misrepresentation.--In any case in which the
defendant has materially and willfully misrepresented any
information required to be disclosed to an individual under
this title, and the information misrepresented is material to
the establishment of the liability of the defendant to that
individual under this title, an action to enforce a liability
created under this title may be brought at any time within 2
years after the date of discovery by the individual of the
misrepresentation.
``(c) Identity Theft.--An action to enforce a liability
created under this title may be brought not later than 5
years from the date of the defendant's violation if--
``(1) the plaintiff is the victim of an identity theft; or
``(2) the plaintiff--
``(A) has reasonable grounds to believe that the plaintiff
is the victim of an identity theft; and
``(B) has not materially and willfully misrepresented such
a claim.''.
(2) Effective date.--The amendments made by this subsection
shall take effect 2 years from the date of enactment of this
Act.
SEC. 5. COORDINATING COMMITTEE STUDY OF COORDINATION BETWEEN
FEDERAL, STATE, AND LOCAL AUTHORITIES IN
ENFORCING IDENTITY THEFT LAWS.
(a) Membership; Term.--Section 2 of the Internet False
Identification Prevention Act of 2000 (18 U.S.C. 1028 note)
is amended--
(1) in subsection (b), by striking ``and the Commissioner
of Immigration and Naturalization'' and inserting ``the
Commissioner of Immigration and Naturalization, the Chairman
of the Federal Trade Commission, the Postmaster General, and
the Commissioner of the United States Customs Service,''; and
(2) in subsection (c), by striking ``2 years after the
effective date of this Act.'' and inserting ``on December 28,
2005.''.
(b) Consultation.--Section 2 of the Internet False
Identification Prevention Act of 2000 (18 U.S.C. 1028 note)
is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following:
``(d) Consultation.--In discharging its duties, the
coordinating committee shall consult with interested parties,
including State and local law enforcement agencies, State
attorneys general, representatives of business entities (as
that term is defined in section 4 of the Identity Theft
Victims Assistance Act of 2003), including telecommunications
and utility companies, and organizations representing
consumers.''.
(c) Report Distribution and Contents.--Section 2(e) of the
Internet False Identification Prevention Act of 2000 (18
U.S.C. 1028 note) (as redesignated by subsection (b)) is
amended--
(1) by striking paragraph (1) and inserting the following:
``(1) In general.--The Attorney General and the Secretary
of the Treasury, at the end of each year of the existence of
the coordinating committee, shall report on the activities of
the coordinating committee to--
[[Page S10665]]
``(A) the Committee on the Judiciary of the Senate;
``(B) the Committee on the Judiciary of the House of
Representatives;
``(C) the Committee on Banking, Housing, and Urban Affairs
of the Senate; and
``(D) the Committee on Financial Services of the House of
Representatives.'';
(2) in subparagraph (E), by striking ``and'' at the end;
and
(3) by striking subparagraph (F) and inserting the
following:
``(F) a comprehensive description of Federal assistance
provided to State and local law enforcement agencies to
address identity theft;
``(G) a comprehensive description of coordination
activities between Federal, State, and local law enforcement
agencies that address identity theft; and
``(H) recommendations in the discretion of the President,
if any, for legislative or administrative changes that
would--
``(i) facilitate more effective investigation and
prosecution of cases involving--
``(I) identity theft; and
``(II) the creation and distribution of false
identification documents;
``(ii) improve the effectiveness of Federal assistance to
State and local law enforcement agencies and coordination
between Federal, State, and local law enforcement agencies;
and
``(iii) simplify efforts by a person necessary to rectify
the harm that results from the theft of the identity of such
person.''.
Mr. ENZI. Mr. President, every morning, from the time we wake up to
the time we turn out the lights and go to sleep, we all spend a good
portion of our day in cyberspace. Probably without thinking, each time
we head out to the internet, we broadcast some very specific
information about our lives as we use our computers for email. Each
time we use our cell phones we rely on a sense of privacy about the
information we convey, which may not be present. And, when we use hand
held devices to send quick messages back and forth to friends,
coworkers and family we assume no one else is listening or receiving
our information, which often includes social security numbers, family
names and even credit card and pin numbers.
Cyberspace is a high tech criminal's dream and it has helped
contribute to the fastest growing crime in America--identity theft.
Simply put, identity theft is the ability to impersonate someone else
and steal their credit, their money and even their identity for their
own use.
Although the use of high-tech devices has certainly contributed to
the proliferation of identity theft, many individuals have been
victimized by simple criminals who have carefully picked through trash
cans and mailboxes to find old receipts and social security numbers.
Regardless of the medium through which the information is collected,
identity theft is the result of criminals who have learned how to
manipulate a growing network of information--some public, some
private--and then use that data to their own advantage.
The problem with identity theft is that it is not confined to one
state. It affects Americans from every walk of life from coast to
coast. Some Americans may discover that someone else has been using
their social security number to obtain fraudulent employment, while
others learn that people have been using fraudulent identification
cards to obtain lines of credit and then leaving innocent victims to
deal with the bills they left behind.
People from small States like Wyoming are not immune to this new
crime wave. Although there are only 493,000 people in Wyoming, we have
the same rate of identity theft per capita as is present anywhere else
in the United States. That is why we have to approach this issue from
every angle, taking a systemic approach that includes prevention,
enforcement and assistance to victims of identity theft.
Today, we will take the first step with victim's assistance for this
crime. I believe we have to provide some real options for our
constituents who are trying to recover from the trauma that identity
theft has caused in their lives. That is why my colleague from
Washington and I are introducing legislation that will make it easier
for victims to get the information they need to begin reversing the
damage and lasting effects of this crime. Our bill, the Identity Theft
Victim's Assistance Act of 2003, is very similar to a bill we offered
last year that passed the Senate unanimously in November. I expect and
hope for the same result this year since this is a growing problem and
the need for action on this issue grows more urgent with each passing
day.
Our bill includes key provisions that would allow victims to work
with businesses to obtain information related to cases of identity
theft and then contact credit reporting agencies to block false
information on credit reports. In drafting this legislation we worked
with all of the stakeholders to ensure a balance between the needs of
consumers and the needs of small businesses, banks and other credit
agencies.
The reintroduction of this bill is timely given the recent hearings
in the Senate Banking and Commerce Committees and recent action by both
the House and Administration.
Earlier this month, the House Financial Services Subcommittee
reported a bill called the Fair and Accurate Credit Transactions Act.
Also known as the FACT Act, the bill includes a provision nearly
identical to Section 4 of our bill. Section 4 of our bill requires
consumer credit reporting agencies to block information that appears on
a victim's credit report as a result of identity theft, provided the
victim did not knowingly obtain goods, services or money as a result of
the blocked transaction.
Our provision, which amends the Fair Credit Reporting Act, was also
addressed in a recent hearing before the Senate Banking Committee. On
July 10, the Chairman of the Federal Trade Commission testified that
``blocking would mitigate the harm to consumers' credit record that can
result from identity theft'' and recommended that this practice be
codified.
I am also encouraged by similar recommendations from the Treasury
Department that would require credit reporting agencies to cease
reporting allegedly fraudulent account information on consumer reports
when the consumer submits a police report or similar document, unless
there is a reason to believe the report is false.
Providing consumers with the tools necessary to recover from identity
theft is the first step in providing real relief to the hundreds of
thousands of individuals whose lives have already been turned upside
down by identity theft. I urge my colleagues to work with me as we move
forward on this important issue and make progress on the
reauthorization of critical legislation like the Fair Credit Reporting
Act. We must take action this year before the crime of identity theft
hurts the hundreds of thousands of working people and families who are
expected to become victims this year.
______
By Mr. REID:
S. 1534. A bill to limit the closing and consolidation of certain
post offices in rural communities, and for other purposes; to the
Committee on Governmental Affairs.
Mr. REID. Mr. President, I am pleased today to introduce the Rural
Post Office and Community Preservation Act of 2003.
My legislation would prohibit the Postal Service from closing post
offices in our Nation's small rural communities. Where the Postal
Service has closed a rural post office, my legislation directs the
Postal Service to provide a plan for the rehabilitation and economic
development of such closed offices in consultation with the local
community affected. It also authorizes $10 million in grants to local
communities to assist in such rehabilitation. Finally, it provides that
the Postal Service shall transfer the closed post office in Ely, NV, to
White Pine County for such rehabilitation.
All across the Nation, the Postal Service is closing, consolidating,
and moving post offices in our rural communities. Oftentimes, the
Postal Service sells off centrally located and in many cases historic
post offices in favor of moving the office to cheaper land on the
outskirts of town. While this may result in a short-term economic gain
to the Postal Service, there is both an immediate and long-term
negative impact on the community.
A 1993 study by the National Trust for Historic Preservation tells us
what we intuitively already know. That is, in rural communities, the
post office is often the economic and social anchor of the town. When
post offices are closed in our rural communities, nearby businesses
suffer and the small-town character of the community is diminished.
Nevada knows the harm caused by closing rural post offices first
hand.
[[Page S10666]]
Take the small town of Ely, NV, where roughly 3,700 Nevadans make
their home. Located in northeastern Nevada, Ely is a charming small
town surrounded by beautiful mountains and the cleanest air in America.
Decades ago, Ely was a main stopover for public officials and movie
stars alike as they traveled through the West, and was briefly the
hometown of Pat Ryan who later became Pat Nixon, the First Lady of the
United States, At the time, Ely's six-story Hotel Nevada was the
tallest structure in the whole State of Nevada. Near the Hotel Nevada,
Ely had a quaint post office that helped form the center of town. Today
if you go to Ely, you will still find the Hotel Nevada. The mountains
are just as beautiful. But you won't find the Ely Post Office in the
center of town. Last year, over my objection and the objection of the
people of Ely, the Postal Service closed the office.
My legislation introduced today would help prevent future rural post
office closings like the one in Ely. It would also give the closed post
office in Ely to the local community.
My legislation is not intended to be a criticism of the Postal
Service. Many fine men and women work there. In fact, my bill is really
a testament to the importance of our post offices and the Postal
Service. It recognizes that over the history of our Nation, post
offices have come to symbolize and offer more than just the practical
service of keeping people in touch with friends and families in distant
locales. Increasingly, the local post office has become the heart of
the community, a place where people within small rural communities keep
in touch with one and other.
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. 1534
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 ``Rural Post Office and
Community Preservation Act of 2003''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) a 1993 study by the National Trust for Historic
Preservation found that approximately 80 percent of people in
small communities plan their trips around a visit to a post
office;
(2) the Postal Service is increasingly closing small, rural
post offices in the center of town and replacing such
services with more distant post offices on the outskirts of
such communities; and
(3) closing post offices in the centers of small, rural
communities removes the hub of such communities and has a
deleterious effect on the economies and quality of life in
such communities.
(b) Purpose.--It is the purpose of this Act to limit the
closure of centrally located rural post offices, and to
enhance the economic health and quality of life of rural
communities.
SEC. 3. MAINTAINING CENTRALLY LOCATED RURAL POST OFFICES.
Section 404(b) of title 39, United States Code, is amended
by adding at the end the following:
``(3)(A) In this paragraph, the term `rural community'
means a city, town, or unincorporated area with a population
of not more than 20,000 people.
``(B) The Postal Service may not make a determination to
close or consolidate a post office in a rural community,
unless the Postal Service makes a determination that such
closing or consolidation will have a positive economic impact
on that community and enhance the quality of life in that
community.
``(C) In making a determination under subparagraph (B), the
Postal Service shall presume that the relocation of a
centrally located post office in a rural community to the
boundaries of that community will have a negative economic
impact on that community and will not enhance the quality of
life in that community.
``(D) If the Postal Service makes a determination to close
or consolidate a post office in a rural community, the Postal
Service shall develop a plan, in consultation with people in
the rural community, to provide for the rehabilitation and
use of the post office for purposes favored by the people of
that community. Such plan shall be developed before the
closing or consolidation takes effect.''.
SEC. 4. GRANTS FOR REHABILITATION OF POST OFFICES IN RURAL
COMMUNITIES.
(a) Definition.--In this section, the term `rural
community' means a city, town, or unincorporated area with a
population of not more than 20,000 people.
(b) Grants.--The Postal Service may award grants to State
and local governments, private organizations, or individuals
to provide for the rehabilitation of any closed post office
in a rural community.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $10,000,000 for each of fiscal years 2003
through 2007 to carry out this section.
SEC. 5. TRANSFER OF CLOSED POST OFFICE IN ELY, NEVADA.
The Postal Service shall transfer the real property
(including all buildings and improvements) located at 415 5th
Street in Ely, Nevada, and occupied by the closed post
office, to the local county government of Ely County, Nevada.
______
By Mr. LEVIN (for himself and Ms. Collins):
S. 1535. A bill to amend title 23, United States Code, to establish
programs to facilitate international and interstate trade; to the
Committee on Environment and Public Works.
Mr. LEVIN. Mr. President, I am introducing today, with Senator
Collins, the National Highway Borders and Trade Act. As a resident of
the State of Michigan, the primary gateway for U.S.-Canadian trade, I
am familiar with the pressures being placed on our Nation's highways,
especially the major trade corridors. Six years ago Congress recognized
the need for highway programs dedicated to interregional and
international trade corridors. Since then the funds provided under the
Borders and Corridors programs have helped make improvements to
thousands of highway miles.
Although much progress has been made in improving transportation
efficiencies, the Nation's freight infrastructure needs additional
improvements. Increased international trade has put strains on the
highway system that carries 70 percent of the total goods shipped in
the United States and the total freight traffic is expected to more
than double by the year 2020. When the Federal Highway Administration
studied border crossing times for trucks in 2001 it found that some
trucks experienced delays of over 83 minutes. These delays pose
significant obstacles to industries dependent on just-in-time
deliveries.
The National Highway Borders and Trade Act of 2003 will help reduce
border crossing times and improve the highway corridors important for
international and interstate commerce. Although there are only fifteen
land border States, the goods that arrive via those States eventually
travel to every one of the contiguous U.S. States plus Alaska. So our
bill will benefit all 50 States.
The National Highway Borders and Trade Act reflects the growth in
international trade and highway traffic being experienced by many
States. It would increase funding for these programs and authorize $400
million a year for 6 years for the combined programs. To ensure more
stability and predictability for states' border region projects, it
would make the existing borders program half formula based and half
discretionary.
The National Highway Borders and Trade Act also clarifies which other
roads are eligible for funding to help State transportation departments
plan for and manage highway commercial traffic in borders regions.
Using he definition of ``borders region'' adopted by international law,
roads that go through any border region would be eligible for funding.
Eligibility for funding under the Borders program will also be
broadened to include certain projects in Canada or Mexico, something
that many State departments of transportation have been urging for some
time. By placing inspection stations and other facilities in our
neighboring countries, we can more efficiently manage border traffic
and check for dangerous materials before vehicles enter our country.
This will also help facilitate establishing reverse customs inspection
at certain border crossings.
Our bill will also help to relieve congestion and delays at the
border. According to the Federal Highway Administration, congestion at
border crossings can lead to long delays. The lost productivity from
this congestion has a negative impact on the Nation's economy. It also
causes environmental problems in the border regions. We need to get
people and commerce across the borders more quickly and with greater
safety.
The bill would also focus the corridors program on roads connecting
to a land border and expand it to allow for funding for road connectors
to water ports that accept international trade.
[[Page S10667]]
These changes will increase the number of eligible roads but also
preserve the purpose of the program as facilitating international
trade. Water ports play a very important role in international trade.
For many sectors of the economy the vast majority of their supplies
travels through these ports. The growth in truck traffic at the
intermodal ports is taking a toll on the connecting highways. Many of
these intermodal road connectors are in a state of severe
deterioration.
Through TEA-21, 41 States have received funding from the corridors
program. Because goods imported from Canada and Mexico end up in
virtually every place in the U.S., improving the Borders and Corridors
program will benefit every State and the nation's economy as a whole.
Our bill will grant eligibility to roads in all 50 States.
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:
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 ``National Highway Borders and
Trade Act of 2003''.
SEC. 2. COORDINATED BORDER INFRASTRUCTURE PROGRAM.
Subchapter I of chapter 1 of title 23, United States Code,
is amended by adding at the end the following:
``Sec. 165. Coordinated border infrastructure program
``(a) Definitions.--In this section:
``(1) Border region.--The term `border region' means the
portion of a border State that is located within 100
kilometers of a land border crossing with Canada or Mexico.
``(2) Border state.--The term `border State' means any
State that has a boundary in common with Canada or Mexico.
``(3) Commercial vehicle.--The term `commercial vehicle'
means a vehicle that is used for the primary purpose of
transporting cargo in international or interstate commercial
trade.
``(4) Passenger vehicle.--The term `passenger vehicle'
means a vehicle that is used for the primary purpose of
transporting individuals.
``(b) Program.--The Secretary shall establish and implement
a coordinated border infrastructure program under which the
Secretary shall make allocations to border States for
projects within a border region to improve the safe movement
of people and goods at or across the border between the
United States and Canada and the border between the United
States and Mexico.
``(c) Eligible Uses.--Allocations to States under this
section may only be used in a border region for--
``(1) improvements to transportation and supporting
infrastructure that facilitate cross-border vehicle and cargo
movements;
``(2) construction of highways and related safety and
safety enforcement facilities that will facilitate vehicle
and cargo movements relating to international trade;
``(3) operational improvements, including improvements
relating to electronic data interchange and use of
telecommunications, to expedite cross-border vehicle and
cargo movement;
``(4) international coordination of planning, programming,
and border operation with Canada and Mexico relating to
expediting cross-border vehicle and cargo movements;
``(5) projects in Canada or Mexico proposed by 1 or more
border States that directly and predominantly facilitate
cross-border vehicle and commercial cargo movements at the
international gateways or ports of entry into a border
region; and
``(6) planning and environmental studies.
``(d) Mandatory and Discretionary Programs.--
``(1) Mandatory program.--
``(A) In general.--For each fiscal year, the Secretary
shall allocate among border States, in accordance with the
formula described in subparagraph (B), funds to be used in
accordance with subsection (c).
``(B) Formula.--Subject to subparagraph (C), the amount
allocated to a border State under this paragraph shall be
determined by the Secretary, as follows:
``(i) 25 percent in the ratio that--
``(I) the average annual weight of all cargo entering the
border State by commercial vehicle across the international
border with Canada or Mexico, as the case may be; bears to
``(II) the average annual weight of all cargo entering all
border States by commercial vehicle across the international
borders with Canada and Mexico.
``(ii) 25 percent in the ratio that--
``(I) the average trade value of all cargo imported into
the border State and all cargo exported from the border State
by commercial vehicle across the international border with
Canada or Mexico, as the case may be; bears to
``(II) the average trade value of all cargo imported into
all border States and all cargo exported from all border
States by commercial vehicle across the international borders
with Canada and Mexico.
``(iii) 25 percent in the ratio that--
``(I) the number of commercial vehicles annually entering
the border State across the international border with Canada
or Mexico, as the case may be; bears to
``(II) the number of all commercial vehicles annually
entering all border States across the international borders
with Canada and Mexico.
``(iv) 25 percent in the ratio that--
``(I) the number of passenger vehicles annually entering
the border State across the international border with Canada
or Mexico, as the case may be; bears to
``(II) the number of all commercial vehicles annually
entering all border States across the international borders
with Canada and Mexico.
``(C) Data source.--
``(i) In general.--The data used by the Secretary in making
allocations under paragraph (1) shall be based on the Bureau
of Transportation Statistics Transborder Surface Freight
Dataset (or other similar database).
``(ii) Basis of calculation.--All formula calculations
shall be made using the average values for the most recent 5-
year period for which data are available.
``(D) Minimum allocation.--Notwithstanding subparagraph
(B), for each fiscal year, each border State shall receive at
least \1/2\ of 1 percent of the funds made available for
allocation under this paragraph for the fiscal year.
``(2) Other factors.--
``(A) In general.--In addition to funds provided under
paragraph (1), the Secretary shall select and make
allocations to border States under this paragraph based on
the factors described in subparagraph (B).
``(B) Factors.--The factors referred to in subparagraph (A)
are, with respect to a project to be carried out under this
section in a border State--
``(i) any expected reduction in, or improvement in the
reliability of, commercial and other motor vehicle travel
time through an international border crossing as a result of
the project;
``(ii) strategies to increase the use of underused border
crossing facilities and approaches;
``(iii) leveraging of Federal funds provided under this
section, including--
``(I) the use of innovative financing;
``(II) the combination of those funds with funding provided
for other provisions of this title; and
``(III) the combination of those funds with funds from
other Federal, State, local, or private sources;
``(iv)(I) the degree of multinational involvement in the
project; and
``(II) demonstrated coordination with other Federal
agencies responsible for the inspection of vehicles, cargo,
and persons crossing international borders and their
counterpart agencies in Canada and Mexico;
``(v) the degree of demonstrated coordination with Federal
inspection agencies;
``(vi) the extent to which the innovative and problem-
solving techniques of the proposed project would be
applicable to other border stations or ports of entry;
``(vii) demonstrated local commitment to implement and
sustain continuing comprehensive border or affected port of
entry planning processes and improvement programs; and
``(viii) such other factors as the Secretary determines to
be appropriate to promote border transportation efficiency
and safety.
``(e) Cost Sharing.--The Federal share of the cost of a
project carried out using funds allocated under this section
shall not exceed 80 percent.
``(f) Transfer of Funds to the Administrator of General
Services.--
``(1) In general.--At the request of a State, funds
allocated to the State under this section shall be
transferred to the Administrator of General Services for the
purpose of funding a project under the administrative
jurisdiction of the Administrator in a border State if the
Secretary determines, after consultation with the State
transportation department, as appropriate, that--
``(A) the Administrator should carry out the project; and
``(B) the Administrator agrees to use the funds to carry
out the project.
``(2) No augmentation of appropriations.--Funds transferred
under paragraph (1) shall not be deemed to be an augmentation
of the amount of appropriations made to the General Services
Administration.
``(3) Administration.--Funds transferred under paragraph
(1) shall be administered in accordance with the procedures
applicable to the General Services Administration, except
that the funds shall be available for obligation in the same
manner as other funds apportioned under this chapter.
``(4) Transfer of obligation authority.--Obligation
authority shall be transferred to the Administrator of
General Services in the same manner and amount as funds are
transferred for a project under paragraph (1).
``(g) Funding.--
``(1) Authorization of appropriations.--There is authorized
to be appropriated from the Highway Trust Fund (other than
the Mass Transit Account) to carry out this section
$200,000,000 for each of fiscal years 2004 through 2009, of
which--
``(A) $100,000,000 shall be used to carry out subsection
(d)(1); and
``(B) $100,000,000 shall be used to carry out subsection
(d)(2).
[[Page S10668]]
``(2) Obligation authority.--Funds made available to carry
out this section shall be available for obligation as if the
funds were apportioned in accordance with section 104.
``(3) Exclusion from calculation of minimum guarantee.--The
Secretary shall calculate the amounts to be allocated among
the States under section 105 without regard to amounts made
available to the States under this subsection.''.
SEC. 3. NATIONAL TRADE CORRIDOR PROGRAM.
Subchapter I of chapter 1 of title 23, United States Code
(as amended by section 2), is amended by adding at the end
the following:
``Sec. 166. National trade corridor program
``(a) Definition of Intermodal Road Connector.--In this
section, the term `intermodal road connector' means a
connector highway that provides motor vehicle access between
a route on the National Highway System and 1 or more major
intermodal water port facilities at least 1 of which accepts
at least 50,000 20-foot equivalent units of container traffic
(or 200,000 tons of container or noncontainer traffic) per
year of international trade or trade between Alaska or Hawaii
and the 48 contiguous States.
``(b) Program.--
``(1) In general.--The Secretary shall carry out a program
to allocate funds to States to be used for coordinated
planning, design, and construction of corridors of national
significance.
``(2) Applications.--A State that seeks to receive an
allocation under this section shall submit to the Secretary
an application in such form, and containing such information,
as the Secretary may request.
``(c) Eligibility of Corridors.--The Secretary may make
allocations under this section with respect to--
``(1) a high priority corridor in a State--
``(A) that is identified in section 1105(c) of the
Intermodal Surface Transportation Efficiency Act of 1991 (105
Stat. 2031); and
``(B) any part of which is located in a border region (as
defined in section 165(a)); and
``(2) an intermodal road connector.
``(d) Eligible Uses of Funds.--A State may use an
allocation under this section to carry out, for an eligible
corridor described in subsection (c)--
``(1) a feasibility study;
``(2) a comprehensive corridor planning and design
activity;
``(3) a location and routing study;
``(4) multistate and intrastate coordination for each
corridor;
``(5) environmental review; and
``(6) construction.
``(e) Allocation Formula.--
``(1) In general.--Subject to paragraph (2), the Secretary
shall allocate funds among States under this section in
accordance with a formula determined by the Secretary after
taking into consideration, with respect to the applicable
corridor in the State--
``(A) the average annual weight of freight transported on
the corridor;
``(B) the percentage by which freight traffic increased,
during the most recent 5-year period for which data are
available, on the corridor; and
``(C) the annual average number of tractor-trailer trucks
that use the corridor to access other States.
``(2) Maximum allocation.--Not more than 10 percent of the
funds made available for a fiscal year for allocation under
this section may be allocated to any State for the fiscal
year.
``(f) Coordination of Planning.--Planning with respect to a
corridor for which an allocation is made under this section
shall be coordinated with--
``(1) transportation planning being carried out by the
States and metropolitan planning organizations along the
corridor; and
``(2) to the extent appropriate, transportation planning
being carried out by--
``(A) Federal land management agencies;
``(B) tribal governments; and
``(C) government agencies in Mexico or Canada.
``(g) Cost Sharing.--The Federal share of the cost of a
project carried out using funds allocated under this section
shall not exceed 80 percent.
``(h) Funding.--
``(1) Authorization of appropriations.--There is authorized
to be appropriated from the Highway Trust Fund (other than
the Mass Transit Account) to carry out this section
$200,000,000 for each of fiscal years 2004 through 2009.
``(2) Obligation authority.--Funds made available to carry
out this section shall be available for obligation as if the
funds were apportioned in accordance with section 104.''.
SEC. 4. CONFORMING AMENDMENTS.
(a) Section 1101(a) of the Transportation Equity Act for
the 21st Century (112 Stat. 111) is amended by striking
paragraph (9) and inserting the following:
``(9) Coordinated border infrastructure program and
national trade corridor program.--For the coordinated border
infrastructure program and national trade corridor program
under sections 165 and 166, respectively, of title 23, United
States Code, $400,000,000 for each of fiscal years 2004
through 2009.''.
(b) Sections 1118 and 1119 of the Transportation Equity Act
for the 21st Century (112 Stat. 161) are repealed.
(c) The analysis for subchapter I of chapter 1 of title 23,
United States Code, is amended by inserting after the item
relating to section 164 the following:
``165. Coordinated border infrastructure program.
``166. National trade corridor program.''.
______
By Mr. EDWARDS (for himself and Mr. Jeffords):
S. 1536. A bill to provide for compassionate payments with regard to
individuals who contracted human immunodeficiency virus due to the
provision of a contaminated blood transfusion, and for other purposes;
to the Committee on Health, Education, Labor, and Pensions.
Mr. EDWARDS. I ask unanimous consent that a letter from Sandra
Grissom be printed in the Record at the end of my bill, the Steve
Grissom Relief Fund Act of 2003.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Cary, NC,
July 31, 2003.
Dear Senator: The Ricky Ray Hemophilia Relief Fund Act of
1998 compensated individuals with hemophilia who had received
contaminated blood products. Unfortunately, it excluded
people like my husband, Steven Grissom, who received
contaminated blood transfusions while undergoing treatment
for leukemia (AML). He died July 31, he was 52. Steven was a
veteran, an avid pilot, a loving father, a loyal and
honorable husband and a proud American. This year marked our
29th year of marriage, seventeen of which my husband was ill
with AIDS. Since his death, I have experienced the deepest
sadness I have ever known. He represented the best of
mankind. He was everything to me.
For my husband, there were too many trips to the hospital
to recall, too many nights when our children and I sat by his
bedside, crying, not knowing whether he would open his eyes
again, too many pills at incredible cost, too many HMO
battles, disabilities, wheelchairs, oxygen . . .
There are many other victims who, like Steven, became
infected with HIV from contaminated blood transfusions. They
are children, mothers, fathers, husbands, and wives who
relied on the federal government to protect the blood supply.
Yet a report issued by the Institute of Medicine found that
in the 1980's the government failed to do just that. The IOM
found that despite warnings from the Centers for Disease
Control, the Food and Drug Administration failed to require
blood banks to perform screening tests on donated blood and
neglected to require proper screening of blood donors. The
FDA failed to require the recall of contaminated products,
nor did it require that recipients of contaminated blood
products be promptly notified so they could prevent passing
the virus to their loved ones.
People like us deserve the same consideration given to
those in the hemophilia community who suffered the same fate.
Congress passed legislation in 1998, to help patients with
hemophilia who contracted HIV-tainted blood. Those like
Steven who received contaminated blood through transfusions
were left out.
My husband may be gone, but I hope that the Steven Grissom
Relief Fund Act will be his legacy to the community of
Americans with transfusion AIDS, an expression of compassion
to a community nearly forgotten.
Sincerely,
Sandra Grissom.
______
By Mrs. LINCOLN:
S. 1537. A bill to direct the Secretary of Agriculture to convey to
the New Hope Cemetery Association certain land in the State of Arkansas
for use as a cemetery; to the Committee on Agriculture, Nutrition, and
Forestry.
Mrs. LINCOLN. 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. 1537
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. CONVEYANCE OF PROPERTY IN POPE COUNTY, ARKANSAS.
(a) Conveyance on Condition Subsequent.--Not later than 90
days after the date of enactment of this Act, subject to
valid existing rights and the condition stated in subsection
(c), the Secretary of Agriculture, acting through the Chief
of the Forest Service (referred to in this section as the
``Secretary''), shall convey to the New Hope Cemetery
Association (referred to in this section as the
``association''), for no consideration, all right, title, and
interest of the United States in and to the parcel of land
described in subsection (b).
(b) Description of Land.--The parcel of land referred to in
subsection (a) is the parcel of National Forest System land
(including any improvements on the land) that--
(1) is known as ``New Hope Cemetery Tract 6686c'';
(2) consists of approximately 1.1 acres; and
(3) is more particularly described as a portion of the SE
\1/4\ of the NW \1/4\ of section 30, T. 11, R. 17W, Pope
County, Arkansas.
(c) Condition on Use of Land.--
(1) In general.--The association shall use the parcel
conveyed under subsection (a) as a cemetery.
(2) Reversion.--If the Secretary, after notice to the
association and an opportunity
[[Page S10669]]
for a hearing, makes a finding that the association has used
or permitted the use of the parcel for any purpose other than
the purpose specified in paragraph (1), and the association
fails to discontinue that use, title to the parcel shall, at
the option of the Secretary, revert to the United States, to
be administered by the Secretary.
______
By Mr. REED (for himself, Mr. Voinovich, Mr. Sarbanes, Ms. Snowe,
Mr. Jeffords, Mr. Levin, and Mr. Harkin):
S. 1539. A bill to amend the Federal Water Pollution Control Act to
establish a National Clean and Sage Water Fund and to authorize the
Administrator of the Environmental Protection Agency to use amounts in
the Fund to carry out projects to promote the recovery of waters of the
United States from damage resulting from violations of that Act and the
Safe Drinking Water Act, and for other purposes; to the Committee on
Environment and Public Works.
Mr. REED. Mr. President, we often don't think about how important
water is to our everyday lives, for our health and for our economy. As
Americans, we take for granted that when we turn on the tap that clean
and safe water will flow from the faucet.
Over the last three decades, the United States has made substantial
progress in reducing the pollution flowing into our waters and
safeguarding drinking water supplies for our communities. Despite our
progress, we still face many challenges.
Population growth is increasing demand for water, and pollution from
point and nonpoint sources threaten the quality and quantity of water
available to us. According to EPA, the overwhelming majority of the
population of the United States--218 million people--live within 10
miles of a polluted river, lake, or coastal water. Nearly 40 percent of
these waters are not safe for fishing, swimming, boating, drinking
water, or other needs. And while overall water pollution levels
decreased dramatically over the last 30 years, recent data may be
revealing a disturbing trend. Indeed, EPA's most recent National Water
Quality Inventory found that the number of polluted rivers and
estuaries increased between 1998 and 2000. Water pollution represents a
real and daily threat to public health and to the wildlife that depend
on clean water.
This year, we are celebrating the Year of Clean Water. To honor our
national commitment to reduce the pollution flowing into our waters and
provide safe drinking water for our communities, I am introducing the
National Clean and Safe Water Fund Act of 2003. The legislation,
cosponsored by Senators Voinovich, Sarbanes, Snowe, Jeffords, Levin and
Harkin will create a fund to carry out projects to promote water
quality and protect watersheds and aquifers. It would establish a fund
whose sole purpose is to advance the restoration of U.S. waters,
particularly in the watersheds where these violations occurred. The
bill is supported by a wide variety of organizations, including: the
Narragansett Bay Commission, the Association of Metropolitan Water
Agencies, American Rivers, Environmental Integrity Project, Friends of
the Earth, National Audubon Society, Natural Resources Defense Council,
The Ocean Conservancy and the U.S. Public Interest Research Group. I
asked unanimous consent that the bill and letters of support be
included in the record following my statement.
Last year, the Federal Government collected $52 million in civil and
criminal penalties from violations of the Clean Water Act and Safe
Drinking Water Acts. The money was deposited in the Treasury with no
guarantee that the fines collected would be used to correct the water
pollution for which the penalties were levied. Our legislation would
make these funds available to local communities, tribes, States and
non-profit organizations to protect and preserve watersheds and
aquifers and to improve water quality.
This legislation would target this money to worthy projects, such as
wetland protection and stream buffers to help filter out pathogens and
pollutants that contaminate drinking water; land acquisition and
conservation easements to protect watershed and aquifers; best
management practices to prevent pollution in the first place; and,
treatment works to control combined sewer or sanitary sewer overflows.
Our legislation will continue progress to reduce the number of impaired
waterways in our Nation, and to reduce, or better yet, prevent
contamination of groundwater and drinking water sources.
It is imperative that we increase Federal investment in clean water
and drinking water infrastructure and devote greater resources and
attention to protecting and improving our watersheds and aquifers.
The Congressional Budget Office released a report that estimated the
spending gap for clean water needs could reach as high as $388 billion
and the spending gap for drinking water needs could reach $362 billion
over 20 years. The CBO concluded the current funding from all levels of
government and current revenue generated from ratepayers will not be
sufficient to meet the Nation's future demand for water infrastructure.
Yet, despite these grim statistics, the Federal Government is investing
only $1.35 billion in Clean Water infrastructure each year and $850
million in Drinking Water infrastructure. And unfortunately, the
President's budget proposes to cut this funding by $500 million this
year.
Given the tremendous need in our communities, and the importance of
water infrastructure to our economy, it is vital that the Federal
Government maintain a strong partnership with States and local
governments to avert this massive funding gap. We need to find new
funding sources for watershed and aquifer protection. Clean, safe and
abundant drinking water can no longer be taken for granted.
The costs of building new reservoirs and treatment facilities
threaten to overrun our ability to pay, especially during the current
fiscal crisis. Technology also has limitations in its ability to treat
polluted water. Many water agencies are focusing on protecting
watersheds and aquifers and conserving valuable clean water resources.
In my State, the Providence Water Supply Board collects 1 cent per 100
gallons in a water usage tax to fund watershed acquisition. This may be
our best and cheapest way to guarantee water quality and quantity.
Congress needs to increase support for efforts to protect our water
resources. Polluted runoff from urban and agricultural land is now the
most significant source of water pollution in the nation and the
greatest threat to our drinking water. Our greatest future gains in
pollution control will, therefore, come from reducing non-point source
pollution.
There are cost-effective and environmentally sound projects that
could help reduce this pollution, but currently, many non-point source
projects cannot participate in the State revolving loan programs since
they often do not have a guaranteed source of revenue. Also, without
making new Federal resources available it is unlikely we will be able
support increased investment in green infrastructure projects such as
wetland conservation and stream buffers. The legislation that we are
introducing today will make greater funding available for water quality
projects.
I hope that my colleagues will join Senators Voinovich, Sarbanes,
Snowe, Jeffords, Levin, Harkin and me in supporting this legislation.
Creating this fund will help further the Nation's goals of providing
safe and clean water for our communities and restoring water quality
for wildlife.
Mr. President, I ask unanimous consent that the text of bill and
letters of support be printed in the Record.
There being no objection, the material ordered to be printed in the
Record, as follows:
S. 1539
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 ``National Clean and Safe
Water Fund Act of 2003''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Administrator of the Environmental Protection
Agency has determined that more than 40 percent of the
assessed water of the United States does not meet applicable
water quality standards established by States, territories,
and Indian tribes;
(2) the water described in paragraph (1) includes
approximately 300,000 miles of rivers and shorelines, and
approximately 5,000,000 acres of lakes, that are polluted by
sediments, excess nutrients, and harmful microorganisms;
[[Page S10670]]
(3) Congress enacted--
(A) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.) to maintain the chemical, physical, and biological
integrity of water of the United States; and
(B) the Safe Drinking Water Act (42 U.S.C. 300f et seq.) to
protect public health by regulating the public drinking water
supply of the United States;
(4) because criminal, civil, and administrative penalties
assessed under the Acts referred to in paragraph (3) are
returned to the Treasury, those amounts are not available to
protect, preserve, or enhance the quality of water in
watersheds in which violations of those Acts occur; and
(5) the establishment of a national clean and safe water
fund would help States in achieving the goals described in
paragraph (1) by providing funding to protect and improve
watersheds and aquifers.
SEC. 3. NATIONAL CLEAN AND SAFE WATER FUND.
Section 309 of the Federal Water Pollution Control Act (33
U.S.C. 1319) is amended by adding at the end the following:
``(h) National Clean and Safe Water Fund.--
``(1) Establishment.--There is established in the Treasury
a fund to be known as the `National Clean and Safe Water
Fund' (referred to in this subsection as the `Fund')
consisting of amounts transferred to the Fund under paragraph
(2) and amounts credited to the Fund under paragraph (3).
``(2) Transfer of amounts.--Notwithstanding any other
provision of law, for fiscal year 2003 and each fiscal year
thereafter, the Secretary of the Treasury shall transfer to
the Fund an amount determined by the Secretary to be equal to
the total amount deposited in the general fund of the
Treasury in the preceding fiscal year from fines, penalties,
and other funds collected as a result of enforcement actions
brought under this section, section 505(a)(1), or the Safe
Drinking Water Act (42 U.S.C. 300f et seq.), excluding any
amounts ordered to be used to carry out projects in
accordance with subsection (d).
``(3) Investment of amounts.--
``(A) In general.--The Secretary of the Treasury shall
invest in interest-bearing obligations of the United States
such portion of the Fund as is not, in the judgment of the
Secretary, required to meet current withdrawals.
``(B) Administration.--The obligations shall be acquired
and sold and interest on, and the proceeds from the sale or
redemption of, the obligations shall be credited to the Fund
in accordance with section 9602 of the Internal Revenue Code
of 1986.
``(4) Use of amounts for water quality projects.--
``(A) In general.--Amounts in the Fund shall be available
to the Administrator, subject to appropriation, to carry out
projects the primary purpose of which is water quality
maintenance or improvement, including--
``(i) water conservation projects;
``(ii) wetland protection and restoration projects;
``(iii) contaminated sediment projects;
``(iv) drinking water source protection projects;
``(v) projects consisting of best management practices that
reduce pollutant loads in an impaired or threatened body of
water;
``(vi) decentralized stormwater or wastewater treatment
projects, including low-impact development practices;
``(vii) projects consisting of conservation easements or
land acquisition for water quality protection;
``(viii) projects consisting of construction or maintenance
of stream buffers;
``(ix) projects for planning, design, and construction of
treatment works to remediate or control combined or sanitary
sewer overflows; and
``(x) such other similar projects as the Administrator
determines to be appropriate.
``(B) Limitations on use of funds.--Amounts in the Fund--
``(i)(I) shall be used only to carry out projects described
in subparagraph (A); and
``(II) shall not be used by the Administrator to pay the
cost of any legal or administrative expense incurred by the
Administrator (except a legal or administrative expense
relating to administration of the Fund); and
``(ii) shall be in addition to any amount made available to
carry out projects described in subparagraph (A) under any
other provision of law.
``(5) Selection of projects.--
``(A) Priority.--In selecting among projects eligible for
assistance under this subsection, the Administrator shall
give priority to a project described in paragraph (4) that is
located in a watershed in a State in which there has occurred
a violation under this Act or the Safe Drinking Water Act (42
U.S.C. 300f et seq.) for which an enforcement action was
brought that resulted in the payment of an amount into the
general fund of the Treasury.
``(B) Selection criteria.--The Administrator, in
consultation with the United States Geological Survey and
other appropriate agencies, shall establish criteria that
maximize water quality improvement in watersheds and aquifers
for use in selecting projects to carry out under this
subsection.
``(C) Coordination with states.--In selecting a project to
carry out under this subsection, the Administrator shall
coordinate with the State in which the Administrator is
considering carrying out the project.
``(6) Implementation.--
``(A) In general.--Subject to subparagraph (B), the
Administrator may carry out a project under this subsection
making grants to--
``(i) another Federal agency;
``(ii) a State agency;
``(iii) a political subdivision of a State;
``(iv) a publicly-owned treatment works;
``(v) a nonprofit entity;
``(vi) a public water system (as defined in section 1401 of
the Safe Drinking Water Act (42 U.S.C. 300f));
``(vii) a Federal interstate water compact commission;
``(viii) an Indian tribe (as defined in section 4 of the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450b)); or
``(ix) a Native Hawaiian (as defined in section 12 of the
Native Hawaiian Health Care Improvement Act (42 U.S.C.
11710)).
``(B) Exclusion.--Under subparagraph (A), the Administrator
may not make any grant to or enter into any contract with any
private entity that is subject to regulation under--
``(i) this Act; or
``(ii) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.).
``(7) Report to congress.--Not later than 1 year after the
date of enactment of this subsection and biennially
thereafter, the Administrator shall submit to Congress a
report that--
``(A) identifies the projects selected for funding under
this subsection during the period covered by the report;
``(B) details the selection criteria established under
paragraph (5)(B) that were used to select those projects;
``(C) describes the ways in which the Administrator
coordinated with States under paragraph (5)(C) in selecting
those projects; and
``(D) describes the priorities for use of funds from the
Fund in future years in order to achieve water quality goals
in bodies of impaired or threatened water.
``(8) No effect on obligation to comply.--Nothing in this
subsection affects the obligation of any person subject to
this Act or the Safe Drinking Water Act (42 U.S.C. 300f et
seq.) to comply with either of those Acts.''.
SEC. 4. USE OF CIVIL PENALTIES FOR REMEDIAL PROJECTS.
(a) In General.--Section 309(d) of the Federal Water
Pollution Control Act (33 U.S.C. 1319(d)) is amended by
inserting after the second sentence the following: ``The
court may order that a civil penalty assessed under this Act
or the Safe Drinking Water Act (42 U.S.C. 300f et seq.)
(other than a civil penalty that would otherwise be deposited
in the Oil Spill Liability Trust Fund under section 9509 of
the Internal Revenue Code of 1986) be used to carry out 1 or
more projects in accordance with clauses (i) through (iv) of
subsection (h)(4)(A).''.
(b) Conforming Amendment.--Section 505(a) of the Federal
Water Pollution Control Act (33 U.S.C. 1365(a)) is amended in
the last sentence by inserting before the period at the end
the following: ``, including ordering the use of a civil
penalty for carrying out projects in accordance with section
309(d)''.
____
Association of Metropolitan
Water Agencies,
Washington, DC, July 31, 2003.
Hon. Jack Reed,
U.S. Senate,
Washington, DC.
Dear Senator Reed: I write today to express the support of
the Association of Metropolitan Water Agencies (AMWA) for
your National Clean and Safe Water Fund Act of 2003.
AMWA is an association of the nation's largest publicly
owned drinking water systems. AMWA members serve safe
drinking water to more than 110 million Americans.
Funded with fines collected due to violations of the Clean
Water Act and the Safe Drinking Water Act, the National Clean
and Safe Water Fund could provide much-needed resources to
improve the rivers and lakes that serve as sources of
drinking water for millions of Americans.
Agricultural run-off remains the largest contributor of
nonpoint source pollution in our nation's waters. According
to the Environmental Protection Agency and the U.S.
Geological Survey, agricultural pollution--such as siltation,
animal waste, pesticides and fertilizers--contributes to 59
percent of reported water quality problems in impaired rivers
and streams.
These and other water quality problems in our nation's
sources of drinking water could be reduced with the
assistance of land acquisition, reduced pollutant loading,
wetlands restoration, wastewater treatment works and other
projects eligible for funding in the National Clean and Safe
Water Fund Act of 2003.
Sincerely,
Diane VanDe Hei,
Executive Director.
____
The Narragansett Bay Commission,
Providence, RI, July 29, 2003.
Hon. Jack Reed,
U.S. Senator, Senate Hart Office Building, Washington, DC.
Dear Senator Reed: On behalf of the Narragansett Bay
Commission, I am writing to express support for the Clean and
Safe Water Fund Legislation, as proposed by you and Senators
Voinovich and Sarbanes.
According to the EPA, the Congressional Budget Office, and
the Water Infrastructure Network, the nation faces a funding
gap as
[[Page S10671]]
high as $46 billion per year for necessary and mandated water
and wastewater infrastructure projects. The burden of paying
for these mandated projects currently falls almost
exclusively on municipalities. This legislation will be an
important first step in moving toward a national trust fund
for water and wastewater infrastructure.
We applaud you and your fellow Senator for your recognition
of the importance of a dedicated funding source for water and
wastewater infrastructure and we are pleased to support this
bill.
Sincerely,
Paul Pinault, P.E.,
Executive Director.
____
American Rivers Environmental Integrity Project, Friends
of the Earth, National Audubon Society, Natural
Resources Defense Council, The Ocean Conservancy, U.S.
Public Interest Research Group,
July 2003.
Dear Senator Reed: On behalf of our organizations and the
millions of members we represent, we are writing to express
our support for your new legislation, the National Clean and
Safe Water Fund Act of 2003. Currently, funds from violators
of the Clean Water Act and Safe Drinking Water Act go into
the general Treasury, and are not specifically earmarked for
the protection and enhancement of water quality. This
legislation would establish a fund whose sole purpose is to
advance the restoration of U.S. waters, particularly in the
areas in which violations of those acts occur.
This year marks the 30th anniversary of the Clean Water
Act, but unfortunately we remain far behind the goals of the
authors of the Act. The Environmental Protection Agency
acknowledges that over 40 percent of our nation's waters
remain unfit for fishing and swimming. We need to do a better
job of enforcing the laws that are already on the books, as
well as adopting new strategies to ensure that penalties from
violations of clean water laws are used to restore the
impacted watersheds. The National Clean and Safe Water Fund
Act of 2003 outlines many projects for which penalties
collected from violators of the Clean Water Act and Safe
Drinking Water Act would go towards, including drinking water
source protection, wetland protection and restoration, and
stormwater and wastewater treatment projects.
We appreciate your leadership in introducing this
legislation, and look forward to working with you to see it
passed into law.
Ellen Athas,
Director, Clean Oceans Programs, The Ocean Conservancy.
Richard Caplan,
Environmental Advocate, U.S. Public Interest Research
Group.
Michele M. Merkel,
Senior Counsel, Environmental Integrity Project.
Betsy Otto,
Senior Director, Watersheds Program, American Rivers.
Perry Plumart,
Director of Government Relations, National Audubon Society.
Nancy Stoner,
Director, Clean Water Project, Natural Resources Defense
Council.
Sara Zdeb,
Legislative Director, Friends of the Earth.
______
By Mr. DASCHLE:
S. 1540. A bill to provide for the payment of amounts owed to Indian
Tribes and individual Indian money account holders; to the Committee on
Indian Affairs.
Mr. DASCHLE. Mr. President, the legislation I am introducing today
should be important to all Americans--Indians and non-Indians alike.
The primary goal of the ``Indian Trust Payment Equity Act of 2003'' is
to start a process for repaying the debt owed by the United States of
America to Indian tribes and individual American Indians.
For over one hundred years, the Department of Interior has managed a
trust fund containing the proceeds of leasing of oil, gas, land and
mineral rights on Indian land for the benefit of Indian people. Today,
far from enjoying a sense of security about the investment of these
assets, tribal and individual Indian account holders cannot even be
assured of the accuracy of the balances that the Department of Interior
claims are in their accounts. It is estimated that the trust fund may
owe anywhere from $10 billion to over $100 billion to Indian tribes and
Indian people. This is money that everyone agrees is rightfully theirs
and desperately needed to address a host of human needs.
There is little disagreement that the Interior Department's
stewardship of the trust fund, through administrations of both
political parties, has been a colossal failure. Rather than just
continue the debate over how best to reorganize the Department of
Interior, this legislation is intended to jumpstart the process of
repayment by establishing an Equity Payment Trust Fund.
The Indian Trust Payment Equity Act calls for appropriating $10
billion to the Trust Fund over five years, as $10 billion is an
undeniably low estimate of what is owed by the United States. If an
account holder accepts the results of a certified audit of their
account, then the Equity Payment Trust Fund would provide for a partial
payment until a full accounting is satisfied. Indian tribes would be
able to voluntarily contract with the Secretary to assist in the audit
process.
This bill provides a means for tribes to assist individual allottees
to obtain an accounting and a more prompt settlement than any proposal
put forward to date.
Treaties entered into by the United States constitute a significant
element of the law of the land. Unfortunately, the Untied States has
abridged its treaty obligations by grossly mismanaging the trust fund
it holds as trustee for Indian tribes and people. It is a particularly
sad story given the high level of human need that exists on Indian
reservations throughout South Dakota and across the country.
Last Friday, Senators McCain, Johnson and I introduced S. 1459, ``the
American Indian Trust Fund Management Reform Act Amendments Act of
2003.'' We were joined in this effort by Representatives Mark Udall and
Nick Rahall who introduced the House companion measure, H.R. 2981, that
same day. The Indian Trust Payment Equity Act of 2003 is intended to
complement S. 1459 and create a multifaceted solution to the underlying
problem of trust fund mismanagement.
Restoring accountability and efficiency to trust management, and
paying account holders what they are owed, is a matter of fundamental
justice. And nowhere do the principles of self-determination and tribal
sovereignty come more into play than in the management and distribution
of trust funds and assets clearly owed to Indian tribes and Indian
people.
It is time to expedite the historical accounting of what is owed and
deal with the trust management issue once and for all. This legislation
makes a strong statement about the importance of completing the
historical accounting and making payments to the tribes and individual
Indian allottees who are waiting for what is rightfully theirs. They
have waited long enough.
I look forward to comments, suggestions and feedback from those
interested in this issue and hope this bill can serve as a basis for
serious discussion. I do believe this issue should be of interest and
of importance to all Americans and, therefore, all members of Congress,
as it addresses a debt and responsibility of the United States. I hope
I can count on the support of my Senate colleagues for this effort to
address the challenging and complex Indian trust reform issue.
______
By Mrs. CLINTON (for herself, Mr. Ensign, and Mr. Bingaman):
S. 1543. A bill to amend and improve provisions relating to the
workforce investment and adult education systems of the Nation; to the
Committee on Health, Education, Labor, and Pensions.
Mrs. CLINTON. Mr. President, I rise to announce that today I am
introducing The Access to Employment and English Acquisition Act with
Senator Ensign and Senator Bingaman. I am grateful to both Senators for
working with me to develop this legislation. I consider them partners
in the important effort to expand opportunities for job training for
Limited English Proficient individuals. I also want to thank the
dedicated individuals at the New York Immigration Coalition, the
National Immigration Law Center, the National Council at La Raza and
the Immigration Forum for their significant contributions to this
proposal.
It is vitally important that our workforce investment system be
responsive to the needs of those who do not speak English. Immigrants
and Limited English Proficient individuals play a crucial role in the
New York State and
[[Page S10672]]
U.S. economy. Immigrants account for nearly half of the growth in the
civilian labor force between 1990 and 2000 and immigrants are projected
to account for all of the growth in the prime-age labor force between
2000 and 2020.
Immigrants fill critical jobs, are the backbone of many industries,
and are net contributors to the Nation's tax base. Without current and
future immigrants in the workforce, our aging society will be short of
workers; short of savings and investment to support national economic
growth; and short of tax revenues to finance government services and
Social Security outlays.
The Health, Education, Labor and Pensions Committee on which I serve,
is in the process of reauthorizing the Workforce Investment (WIA). WIA
reauthorization provides a valuable opportunity for Congress to improve
our Nation's workforce development system to effectively serve
immigrants and persons who are Limited English proficient. And I look
forward to working with my colleagues on the HELP Committee to
incorporate this legislation into the reauthorization bill.
The Access to Employment and English Acquisition Act will reduce
barriers to job training for English language learners by creating
incentives for training providers to serve these individuals. It will
also make programs that integrate job training and language acquisition
more accessible. Employees have found that integrated programs offer a
significant return on their investment because they improve
productivity, reduce attendance problems, increase job retention rates,
and promote overall quality control. Limited English Proficient persons
also benefit from integrated training through improved job security,
increased job advancement, and a greater ability to participate in
society.
There is no question that English proficiency is critical to economic
advancement and improved quality of life for LEP workers and their
families. Workers who are fluent in oral and written English earn about
24 percent more than those who lack fluency, regardless of their
qualifications. These individuals are better able to participate in the
civic life of their community, which so many LEP individuals in New
York tell me they want to do.
I look forward to continuing the work with Senator Ensign and Senator
Bingaman to improve job training services for immigrants and LEP
individuals.
______
By Mr. FEINGOLD:
S. 1544. A bill to provide for data-mining reports to Congress; to
the Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, I am pleased today to offer the Data-
Mining Reporting Act of 2003. The untested and controversial
intelligence procedure known as data-mining is capable of maintaining
extensive files containing both public and private records on each and
every American. Almost weekly, we learn about a new data-mining program
under development like the newly named Terrorism Information Awareness
program. Congress should not be learning the details about these
programs after millions of dollars are spent testing and using data-
mining against unsuspecting Americans.
Coupled with the expanded domestic surveillance already undertaken by
this Administration, the unchecked development of data-mining is a
dangerous step that threatens one of the most important values that we
are fighting for in the war against terrorism--freedom. My bill would
require all Federal agencies to report to Congress within 90 days and
every year thereafter on data-mining programs used to find a pattern
indicating terrorist or other criminal activity and how these programs
implicate the civil liberties and privacy of all Americans. If it was
necessary, information in the various reports would even be classified.
The bill does not end funding for any program, determine the rules
for use of the technology or threaten any on-going investigation that
uses data-mining technology. But, with complete information about the
current data-mining plans and practices of the Federal Government,
Congress will be able to conduct a thorough review of the costs and
benefits of the practice of data-mining on a program by program basis
and make considered judgments about which programs should go forward
and which should not.
My bill would provide Congress with information about the nature of
the technology and the data that will be used. The Data-Mining
Reporting Act would require all government agencies to assess the
efficacy of the data-mining technology and whether the technology can
deliver on the promises of each program. In addition, my bill would
make sure that the federal agencies using data-mining technology have
considered and developed policies to protect the privacy and due
process rights of individuals and ensure that only accurate information
is collected and used.
Without Congressional review and oversight, government agencies like
the Department of Homeland Security, the Department of Justice and the
Department of Defense will be able to collect and analyze a combination
of intelligence data and personal information like individuals' traffic
violations, credit card purchases, travel records, medical records,
communications records, and virtually any information contained in
commercial or public databases. Through comprehensive data-mining,
everything from people's video rentals or drugstore purchases made with
a credit card to their most private health records could be fed into a
computer and monitored and reviewed by the Federal Government.
Using massive data mining, the government hopes to be able to detect
potential terrorists. There is no evidence, however, that data-mining
will, in fact, prevent terrorism. Data-mining programs under
development are being used to look into the future before being tested
to determine if they would have even been able to anticipate past
events, like September 11 or the Oklahoma City bombing. Before we
develop the ability to feed personal information about every man, woman
and child into a giant computer, we should learn what data-mining can
and can't do and what limits and protections are needed.
One must also consider the potential for errors in data-mining for
example, credit agencies that have data about John R. Smith on John D.
Smith's credit report make the prospect of ensnaring many innocents is
real.
Most Americans believe that their private lives should remain
private. Data-mining programs run the risk of intruding into the lives
of individuals who have nothing to do with terrorism but who trust that
their credit reports, shopping habits and doctor visits would not
become a part of a gigantic computerized search engine, operating
without any controls or oversight.
The Administration should be required to report to Congress about the
impact of the various data-mining programs now underway or being
studied, and the impact those programs may have on our privacy and
civil liberties so that Congress can determine whether the proposed
benefits of this practice come at too high a price to our privacy and
personal liberties.
I urge my colleagues to support this bill. All it asks for is
information to which Congress and the American people are entitled.
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. 1544
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 ``Data-Mining Reporting Act of
2003''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Data-mining.--The term ``data-mining'' means a query or
search or other analysis of 1 or more electronic databases,
where--
(A) at least 1 of the databases was obtained from or
remains under the control of a non-Federal entity, or the
information was acquired initially by another department or
agency of the Federal Government for purposes other than
intelligence or law enforcement;
(B) the search does not use a specific individual's
personal identifiers to acquire information concerning that
individual; and
(C) a department or agency of the Federal Government is
conducting the query or search or other analysis to find a
pattern indicating terrorist or other criminal activity.
(2) Database.--The term ``database'' does not include
telephone directories, information publicly available via the
Internet or available by any other means to any member
[[Page S10673]]
of the public without payment of a fee, or databases of
judicial and administrative opinions.
SEC. 3. REPORTS ON DATA-MINING ACTIVITIES.
(a) Requirement for Report.--The head of each department or
agency of the Federal Government that is engaged in any
activity to use or develop data-mining technology shall each
submit a public report to Congress on all such activities of
the department or agency under the jurisdiction of that
official.
(b) Content of Report.--A report submitted under subsection
(a) shall include, for each activity to use or develop data-
mining technology that is required to be covered by the
report, the following information:
(1) A thorough description of the data-mining technology
and the data that will be used.
(2) A thorough discussion of the plans for the use of such
technology and the target dates for the deployment of the
data-mining technology.
(3) An assessment of the likely efficacy of the data-mining
technology in providing accurate and valuable information
consistent with the stated plans for the use of the
technology.
(4) An assessment of the likely impact of the
implementation of the data-mining technology on privacy and
civil liberties.
(5) A list and analysis of the laws and regulations that
govern the information to be collected, reviewed, gathered,
and analyzed with the data-mining technology and a
description of any modifications of such laws that will be
required to use the information in the manner proposed under
such program.
(6) A thorough discussion of the policies, procedures, and
guidelines that are to be developed and applied in the use of
such technology for data-mining in order to--
(A) protect the privacy and due process rights of
individuals; and
(B) ensure that only accurate information is collected and
used.
(7) A thorough discussion of the procedures allowing
individuals whose personal information will be used in the
data-mining technology to be informed of the use of their
personal information and what procedures are in place to
allow for individuals to opt out of the technology. If no
such procedures are in place, a thorough explanation as to
why not.
(8) Any necessary classified information in an annex that
shall be available to the Committee on Governmental Affairs,
the Committee on the Judiciary, and the Committee on
Appropriations of the Senate and the Committee on Homeland
Security, the Committee on the Judiciary, and the Committee
on Appropriations of the House of Representatives.
(c) Time for Report.--Each report required under subsection
(a) shall be--
(1) submitted not later than 90 days after the date of the
enactment of this Act; and
(2) updated once a year and include any new data-mining
technologies.
______
By Mr. HATCH (for himself, Mr. Durbin, Mr. Lugar, Mr. Leahy, Mr.
Craig, Mr. Feingold, Mr. Crapo, and Mr. Grassley):
S. 1545. A bill to amend the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 to permit States to determine State
residency for higher education purposes and to authorize the
cancellation of removal and adjustment of status of certain alien
students who are long-term United States residents; to the Committee on
the Judiciary.
Mr. HATCH. Mr. President, I rise today to introduce legislation that
will help make the American dream a reality for many young people.
``The Development, Relief and Education for Alien Minors Act,'' or
``The DREAM Act,'' resolves immigration status problems that plague
undocumented immigrants who came to our country as youths. It also
removes barriers to education so that they are better equipped to
succeed in our society.
Each year, about fifty thousand young undocumented immigrants
graduate from high school in the United States. Most of them came to
this country with their parents as small children and have been raised
here just like their U.S. citizen classmates. They view themselves as
Americans, and are loyal to our country. Some may not even realize that
they are here in violation of our immigration laws. They grow up to
become honest and hardworking adolescents and young adults, and strive
for academic as well as professional excellence.
Many of these youngsters find themselves caught in a catch-22
situation. As illegal immigrants, they cannot work legally. Moreover,
they are effectively barred from developing academically beyond high
school because of the high cost of pursuing higher education. Private
colleges and universities are very expensive, and under current federal
law, state institutions cannot grant in-state tuition to illegal
immigrants, regardless of how long they have resided in that state. To
make matters worse, as illegal immigrants, these young people are
ineligible for federal tuition assistance. Moreover, these young people
have no independent way of becoming legal residents of the United
States.
In short, though these children have built their lives here, they
have no possibility of achieving and living the American dream. What a
tremendous loss to our society.
One young man who is in this predicament lives in my home State of
Utah. His name is Danny Cairo. Danny came to the United States at the
age of six with his mother who abandoned him eights years later. Danny
had to drop out of school in order to support himself. Fortunately, he
met Kevin King, who adopted Danny in 2001. With the help of Mr. King,
Danny is presently attending the University of Utah.
This story, however, does not necessarily have a happy ending.
Because of the date of the adoption, Danny is unable to derive
immigration status from Mr. King. He, therefore, lives in legal limbo
and faces the threat of deportation daily. In addition, he may never be
able to legally work in the United States.
As Mr. King wrote to me, ``Danny is exactly what our country needs
more of. He is a natural born leader with charisma and intelligence and
a drive that will take him wherever he wants to go. But this will not
be possible if Danny is unable to obtain permanent residency.''
Our laws should not discourage those with bright young minds from
seeking higher education. We should instead assist and encourage the
many ``Dannys'' who are in the United States and who have the
dedication and drive to achieve their worthy goals. I am proud that the
DREAM Act provides illegal alien children with options for higher
education, as well as the opportunity to earn legal residence in the
United States.
First, the DREAM Act repeals the provision of Federal law that
prevents States from granting in-State tuition to undocumented aliens,
leaving this issue at the discretion of the States. My own State of
Utah passed a law that will allow in-State tuition for aliens who have
been residents in Utah for at least three years. My States have either
passed or are considering the passage of similar legislation.
But the fact of the matter is that cheaper tuition at State schools,
no matter how beneficial for these young people, will not solve the
larger problem: their illegal immigration status. While I do not
advocate granting unchecked amnesty to illegal immigrants, I am,
however, in favor of providing children--children who did not make the
decision to enter the United States illegally--the opportunity to earn
the privilege of remaining here legally. The DREAM Act will do just
that. It provides young men and women who immigrated to the United
States prior to the age of sixteen, who have lived in this country at
least five years, and who are of good moral character a chance to earn
their conditional resident status upon acceptance by an institution of
higher learning or upon graduation from high school. The DREAM Act
allows these special young people to pursue their worthy goals and
aspirations.
The bill I am introducing today will extend DREAM Act benefits to a
group of people who were excluded from a similar bill negotiated during
the 107th Congress. Today's bill removes the age ceiling so that no one
will be arbitrarily cut-off from benefits. Moreover, while the version
from the last Congress requires high school graduation as a provision
for obtaining legal status, the bill I am introducing today contains a
provision that allows high school students who have been accepted into
an institution of higher learning, but who have not yet graduated from
high school, to obtain conditional resident status. This provision
enables these high school students to get an earlier start on procuring
the necessary funds for financing their education.
Of course, we have to be mindful that the opportunity provided by the
DREAM Act is a privilege and not an entitlement. We must make sure that
those who reap the benefits of the Act are, in fact, worthy of such
benefits. For this reason, the bill I am introducing today tightens
certain requirements and eliminates waivers for those
[[Page S10674]]
who have serious criminal records that would qualify them for
deportation.
In addition, while I always want to encourage educational
advancement, I recognize that not everyone's circumstances allow for
full-time attendance at a four-year college. For this reason, the DREAM
Act provides for certain alternatives like attending community college,
trade school, serving in our armed forces, or performing community
service.
The purpose of the DREAM Act is to create incentives for out-of-
status youngsters to achieve as much as they can in life and to
contribute to the greatness of the United States. I recognize that if
the bill's requirements are so high that they simply operate as
barriers to legalizing status, the bill defeats its own stated purpose.
That is why I am committed to ensuring that the requirements imposed by
this bill are reasonable and can be met by youngsters who are willing
to work hard. The DREAM Act will enable youngsters who have ambition
and motivation to obtain permanent legal status.
During the 107th Congress, I introduced a version of the DREAM Act,
S. 1291. Since then, it has been replaced in favor of the Durbin/Hatch/
Kennedy/Brownback substitute. The substitute was put on the Senate
calendar but did not receive a vote. The House Judiciary Committee
debated identical legislation during the last Congress but it was
defeated. The House Judiciary Committee has not yet moved similar
legislation this Congress. I want to make sure that the DREAM Act we
introduce in the 108th Congress will not die in the hopper as it did in
the House last year.
By introducing this bill, I know I am subjecting myself to criticism
from both sides of the aisle on my immigration policy. Some proponents
of strict immigration enforcement argue that the DREAM Act will
encourage illegal entry into the United States. However, the DREAM Act
was carefully drafted to avoid this precise problem. The Act
specifically limits eligibility to those who entered the United States
five years or more prior to the bill's enactment. It applies to a
limited number of people who already reside in the United States and
who have demonstrated favorable equities in and significant ties to the
United States. Anyone who entered the United States less than five
years prior to the enactment of this bill or who plans to illegally
enter the United States in the future will not be covered by the DREAM
Act.
On the other hand, proponents for providing general amnesty contend
that there shouldn't be any requirements after high school graduation.
I agree that for some of these children, graduation from high school is
a grand enough accomplishment in itself. My bill recognizes this
achievement by providing these graduates with the reward of conditional
resident status so that they may work toward permanent status without
fear of deportation.
Nonetheless, some critics argue that most immigrant children cannot
go to college, nor can they meet the standards set by the current
version of the DREAM Act. They cite statistics showing that only a
small percentage of illegal immigrant children ever attend college and
they argue that this DREAM bill will benefit very few. What these
critics overlook, however, is that without the DREAM Act, illegal
immigrant children simply do not have the means nor the incentive to
obtain a higher education. Since the DREAM Act will remove substantial
obstacles to higher education, I am confident that many of the children
who are currently illegal U.S. residents will seek higher education.
Some critics also contained that these immigrant children do not have
the aptitude to attend community college or trade school and that even
joining the military or performing a few hours a week of community
service is out of reach for them. To this criticism I stress that this
is not only wholly inaccurate, but it is also an elitist attitude to
which I cannot subscribe. Immigrant children, whether legal or
otherwise, are no less capable than other children. They just need the
opportunity to reach their potential.
I also want to point out that everyone who was eligible for benefits
under last year's bill will be eligible again this year. In fact, as I
explained earlier, those who were left out of last year's bill are
included in this year's bill. The only difference is that now, the
applicant has to contribute more to American society before
transitioning from conditional resident status to permanent resident
status.
I believe the DREAM Act will live up to its name. It will allow these
illegal immigrant children the opportunity to not only dream of the
infinite possibilities that their futures may hold in the United
States, but it will also afford them the opportunity to realize their
dreams. With the passage of the DREAM Act, the United States stands to
benefit enormously. Once these children become legal residents of this
Nation, they will prove to be motivated, hard-working, and educated
contributors to our society. I am pleased and proud once again to work
with Senator Durbin on this important legislation.
Mr. DURBIN. Mr. President, today, my colleague Senator Hatch and I
are again introducing legislation that would provide immigration relief
to undocumented students of good moral character who want to pursue a
better life for themselves and their families. It would benefit the
American economy by unleashing the potential of these students, who
have grown up in the U.S. and graduated from high school or obtained an
equivalent degree. The DREAM Act is a bipartisan bill which has broad
support in the Hispanic, religious and immigrant communities.
Each year, approximately 50-60,000 undocumented children, including
honors students and valedictorians, graduate from our nation's high
schools or receive an equivalent degree. Many of these students were
brought to the U.S. by their parents at an age when they were too young
to appreciate the legal consequences of their actions. Despite long-
term residency in the U.S. and a demonstrated commitment to obtaining
an education, these students have no avenue for adjusting their
immigration status and it is very difficult for them to attend college
or work. Instead, they face possible deportation.
Although these young people are entitled to a free public education
at the primary and secondary level, Federal law strongly discourages
states from extending in-state college tuition rates to them.
Additionally, they cannot legally work, are ineligible for federal
tuition assistance, and have great difficulty obtaining private loans.
These roadblocks to higher education hurt our society because we are
deprived of future leaders, and the increased tax revenues and economic
growth they would produce. Young people with great potential and
ambitions are limited to the employment options available to those
without a college degree. In fact, many of these students do not even
finish high school, further limiting their options and ability to
contribute to our economy, because they drop out of school once they
realize that they will be unable to attend college.
The DREAM Act would provide meaningful relief to many of these
students. It would repeal a provision of federal law that makes it
prohibitively expensive for states to grant post-secondary benefits,
such as in-state tuition rates, to undocumented children. The bill
would also provide an earned adjustment mechanism by which young people
who are long-term U.S. residents may become lawful permanent residents.
Approving this bill would give accomplished young people the
opportunity to pursue the American dream. I urge my colleagues to
support it.
______
By Mr. McCONNELL (for himself and Mr. Lieberman):
S. 1546. A bill to provide small businesses certain protection from
litigation excesses and to limit the product liability of non-
manufacturer product sellers; to the Committee on the Judiciary.
Mr. McCONNELL. Mr. President, today Senator Lieberman and I
introduced the ``Small Business Liability Reform Act of 2003,'' which
aims to restore common sense to the way our civil litigation system
treats small businesses. Small businesses form the backbone of
America's economy. But in our legal system, small businesses are often
forced to defend themselves in court for actions they did not commit
and pay damages for harms they did not cause. These businesses also
frequently find themselves faced with extraordinarily high punitive
damages awards. These unfortunate realities
[[Page S10675]]
threaten the very existence of many small businesses, and when American
small businesses go under, our economy is harmed as new products are
not developed, produced, or sold, and employers cannot retain employees
or hire new ones.
Small businesses--those with 25 or fewer full-time employees--employ
almost 60 percent of the American workforce. Because the majority of
small business owners earn less than $50,000 a year, they often lack
the resources to fight unfair lawsuits which could put them out of
business. When faced with such a lawsuit, many of these entrepreneurs
must either risk a lengthy battle in court, in which they may be
subjected to large damage awards, or settle the dispute out of court
for a significant amount. Either way, our current system jeopardizes
the livelihood and futures of small business owners and their
employees.
The Small Business Liability Reform Act of 2003 would remedy these
ills with three common-sense solutions, all of which protect our
nation's entrepreneurs from unfair lawsuits and excessive damage
awards. First, it would allow a punitive damages award against a small
business only upon clear and convincing evidence, rather than upon a
simple preponderance of the evidence, and it would set reasonable
limits on the size of punitive damages awards--the lesser of $250,000
or three times compensatory damages.
Second, our bill would restore basic fairness to the law by
eliminating joint and several liability for small businesses for non-
economic damages, such as pain and suffering, so a small defendant is
not forced to pay for harms it did not cause. Under the current joint
and several liability rules, if a small business is found liable with
other defendants, the small business may be forced to pay a
disproportionate amount of the damages if it has ``deep pockets''
relative to the other responsible parties. For example, a small
business that was found responsible for only 10 percent of the harm in
a case may have to pay half, two-thirds or even all of the damages.
This legislation would prevent this unfair situation, but it would not
change a small business's joint and several liability for economic
damages, such as medical expenses and lost wages; because a small
business could still be responsible for all economic damages,
regardless of its degree of fault, plaintiffs will still be able to
recover all of their out of pocket costs. By protecting small
businesses from having to pay non-economic damages for which they are
not responsible, though, the Small Business Liability Reform Act of
2003 partially relieves a potentially unfair situation.
Third, our bill addresses some of the iniquities facing non-
manufacturing product sellers. Currently, a person who has nothing to
do with a defective and harmful product other than simply selling it
can be sued with the manufacturer. Under the reforms in the Small
Business Liability Reform Act of 2003, however, a product seller can
only be held liable for harms caused by his own negligence, intentional
wrongdoing, or breach of his own warranty.
This bill would provide much needed protection and relief to small
business owners, workers, and consumers. By making our legal system
reasonable and fair to small businesses, we will remove one of the
greatest barriers to starting and maintaining a small business: the
threat of crippling, excessive, and unfair lawsuits. That means
increased competition, better and more affordable goods, and more jobs
at a time when America could use them all. The Small Business Liability
Reform Act of 2003 is a win for all Americans, and it is my hope that
the Senate will pass this bipartisan bill. Finally, I would ask
unanimous consent that letters in support of this legislation from the
National Federation of Independent Business, the National Association
of Wholesale-Distributors, the Motorcycle Industry Council, and the
Small Business Legal Reform Coalition be printed in the Record.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
July 31, 2003.
Hon. Mitch McConnell,
U.S. Senate, Washington, DC.
Dear Senator McConnell: On behalf of the Small Business
Legal Reform Coalition, we are writing to thank you for
sponsoring the Small Business Liability Reform Act of 2003,
and to express our strong support for its passage. We commend
you for your efforts to restore common sense to our civil
justice system--one that takes a particularly heavy toll on
the smallest of America's businesses.
The frequency and high cost of litigation is a matter of
growing concern to small businesses across the country.
Today's civil justice system presents a significant
disincentive to business start-ups and continued operations.
If sued, business owners know they have to choose between a
long and costly trial or an expensive settlement. Business
owners across the nation risk losing their livelihood, their
employees and their future every time they are confronted
with an unnecessary lawsuit.
The Small Business Liability Reform Act of 2003 would make
two reforms that have topped the small business community's
agenda for years: cap punitive damages and abolish joint
liability for non-economic damages for those with fewer than
25 employees. These reforms have been among the
recommendations of the White House Conference on Small
Business since the early 1980s--and the time has come to
protect the smallest of small businesses from excessive
damage awards and frivolous suits.
This legislation would also hold non-manufacturing product
sellers liable in product liability cases when their own
wrongful conduct is responsible for the harm and thus reduce
the exposure of innocent product sellers, lessors and renters
to lawsuits when they are simply present in a product's chain
of distribution or solely due to product ownership. Should
the manufacturer be judgment-proof, the product seller would
be responsible for any damage award, ensuring that deserving
claimants recover fully for their injuries.
In the end, we believe that enactment of the Small Business
Liability Reform Act of 2003 will inject more fairness into
the legal system and reduce unnecessary litigation and legal
costs. We also believe that it protects the rights of those
with legitimate claims. We thank you again for your support
of these common sense reforms and look forward to working
with you to ensure the success of this important legislation.
Sincerely,
American Automotive Leasing Association.
American Council of Engineering Companies.
American Insurance Association.
American Machine Tool Distributors Association.
American Rental Association.
Associated Builders and Contractors.
Associated Equipment Distributors.
Automotive Parts and Service Alliance.
Citizens for Civil Justice Reform.
Coalition for Uniform Product Liability Law.
Equipment Leasing Association.
Independent Insurance Agents and Brokers of America.
International Housewares Association.
International Mass Retail Association.
Motorcycle Industry Council.
National Association of Convenience Stores.
National Association of Manufacturers.
National Association of Wholesaler-Distributors.
National Federation of Independent Business.
National Grocers Association.
National Restaurant Association.
National Retail Federation.
National Small Business United.
NPES--Association for Suppliers of Printing, Publishing &
Converting Technologies.
Plumbing-Heating-Cooling Contractors--National Association.
Small Business Legislative Council.
Society of Independent Gasoline Marketers of America.
Specialty Equipment Market Association.
Tire Industry Association.
Truck Renting and Leasing Association.
U.S. Chamber of Commerce.
____
Motorcycle Industry Council,
Arlington, VA, July 30, 2003.
Hon. Mitch McConnell,
U.S. Senate, Washington, DC.
Dear Senator McConnell: On behalf of the over 300 members
of the Motorcycle Industry Council (MIC), I want to express
our strong support for the ``Small Business Liability Reform
Act of 2003'' and extend sincere thanks for your sponsorship
of this important legislation. MIC is a nonprofit national
trade association that represents manufacturers and
distributors of motorcycles, motorcycle parts and
accessories, and members of allied trades. A large number of
our member companies are small businesses.
This Act, which would cap punitive damages and abolish
joint liability for non-economic damages for businesses with
fewer than 25 employees, is a common sense approach to
sustaining the health of America's small businesses. It would
hold non-manufacturing product sellers liable in product
liability cases when they own wrongful conduct is responsible
for the harm and thus reduce the exposure of innocent product
sellers to lawsuits when they are simply present in a
product's chain of distribution. Should the manufacturer be
judgment-proof, the product seller would be responsible for
any damage award, ensuring that deserving claimants recover
fully for their injuries.
[[Page S10676]]
The frequency and high cost of litigation is a matter of
great concern to the business community. Few companies have
been left unmarked by the steep increases in product
liability insurance costs or the crises in the availability
of product liability insurance. The impact on small
businesses is especially burdensome. the current civil
justice system puts small business owners across the country
in jeopardy of losing their livelihood, their employees and
their futures when faced with involvement in lawsuits through
no fault of their own. This Act would serve to help protect
these businesses from excessive damage awards and the costs
of defending against frivolous suits.
Sensible reform brings predictability to the product
liability process, stabilizes product liability insurance
rates and reduces the overall costs related to product
liability litigation imposed on manufacturers, sellers, and
ultimately, consumers. This legislation is an important step
in alleviating the devastating effects that the current
system can have on small businesses and their millions of
employees, which continuing to ensure that businesses remain
accountable for negligence and intentional wrongdoing and
that consumers have full access to the court system for
redress.
Again, thank you for your sponsorship of this legislation
which is so important to our small business member companies.
Sincerely,
Kathy R. Van Kleeck,
Vice President, Government Relations.
____
National Association
of Wholesaler-Distributors,
Washington, DC, July 30, 2003.
Hon. Mitch McConnell,
Hon. Joe Lieberman,
U.S. Senate, Washington, DC.
Dear Senators McConnell and Lieberman: I write on behalf of
the National Association of Wholesaler-Distributors (NAW) to
express our strong support for the ``Small Business Liability
Reform Act of 2003.''
For nearly two decades, NAW has vigorously advocated
Federal civil justice reform legislation to curb unnecessary
lawsuits and the wasteful legal costs they generate. Title I
of the bill (Small Business Lawsuit Abuse Protection), which
proposes modest restraints in the application of joint
liability and punitive damages with regard to small business
defendants, takes a major step in that direction.
So, too, does the product seller liability standard
proposed in Title II (Product Seller Fair Treatment).
Currently in a majority of states, non-manufacturing product
sellers such as wholesaler-distributors and retailers may be
sued for product-related injuries on the same basis as the
product manufacturer. Consequently, product sellers are
routinely joined in product liability lawsuits regardless of
fault. Despite the fact that product sellers are rarely
ultimately responsible for the damages awarded to successful
claimants, they do have to mount their defense and pay the
legal costs attendant to it. This unnecessary litigation
drives up costs that must be passed along and absorbed by
consumers in the form of higher prices, and serves the
interests of no one.
By providing that non-manufacturing product sellers will be
liable for product-related injuries that are caused by their
own negligence, intentional misconduct, beeches of their own
express warranties, and when the liable manufacturer is
unreachable by judicial process, Title II of the bill
corrects this serious flaw in our product liability system.
This standard of liability is balanced and fair. It
appropriately reflects the different roles of manufacturers,
wholesaler-distributors and other non-manufacturing product
sellers in the chain of production and distribution, promotes
product safety by laying responsibility for harm at the
doorstep of the culpable party, and ensures that those who
are harmed through no fault of their own by defective,
unreasonably dangerous products are fully compensated for
their injuries.
Thank you for your leadership in sponsoring this important
legislation. I look forward to working with you toward its
prompt enactment.
Sincerely,
James A. Anderson, Jr.,
Vice President--Government Relations.
____
National Federation
of Independent Business,
Washington DC, July 30, 2003.
Hon. Mitch McConnell,
U.S. Senate, Washington, DC.
Dear Senator McConnell: On behalf of the 600,000 members of
the National Federation of Independent Business (NFIB), I
would like to express our strong support for the Small
business Liability Reform Act of 2003. NFIB strongly supports
this legislation which would restore common sense to our
civil justice system--one that takes a particularly heavy
toll on the smallest of America's businesses.
The frequency and high cost of litigation is a matter of
growing concern to small businesses across the country.
Today's civil justice system presents a significant
disincentive to business start-ups and continued operations.
If sued, business owners know they have to choose between a
long and costly trial or an expensive settlement. Business
owners across the nation risk losing their livelihood, their
employees and their future every time they are confronted
with an unnecessary lawsuit.
This legislation would make two reforms that have topped
the small business community's agenda for years: cap punitive
damages and abolish joint liability for non-economic damages
for those with fewer than 25 employees. These reforms have
been among the recommendations of the White House Conference
on Small Business since the early 1980s--and the time has
come to protect the smallest of small businesses from
excessive damage awards and frivolous suits.
This bill would also hold non-manufacturing product sellers
liable in product liability cases when their own wrongful
conduct is responsible for the harm and thus reduce the
exposure of innocent product sellers, lessors and renters to
lawsuits when they are simply present in a product's chain of
distribution or solely due to product ownership. Should the
manufacturer be judgment-proof, the product seller would be
responsible for any damage award, ensuring that deserving
claimants recover fully for their injuries.
In the end, we believe that enactment of the Small Business
Liability Reform Act will inject more fairness into the legal
system and reduce unnecessary litigation and legal costs. We
also believe that it protects the rights of those with
legitimate claims. We thank you for your consideration of
these common sense reforms and look forward to working with
you to ensure the success of this important legislation.
Sincerely,
Dan Danner,
Senior Vice President,
Public Policy.
____
S. 1546
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Small
Business Liability Reform Act of 2003''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--SMALL BUSINESS LAWSUIT ABUSE PROTECTION
Sec. 101. Findings.
Sec. 102. Definitions.
Sec. 103. Limitation on punitive damages for small businesses.
Sec. 104. Limitation on joint and several liability for noneconomic
loss for small businesses.
Sec. 105. Exceptions to limitations on liability.
Sec. 106. Preemption and election of State nonapplicability.
TITLE II--PRODUCT SELLER FAIR TREATMENT
Sec. 201. Findings; purposes.
Sec. 202. Definitions.
Sec. 203. Applicability; preemption.
Sec. 204. Liability rules applicable to product sellers, renters, and
lessors.
Sec. 205. Federal cause of action precluded.
TITLE III--EFFECTIVE DATE
Sec. 301. Effective date.
TITLE I--SMALL BUSINESS LAWSUIT ABUSE PROTECTION
SEC. 101. FINDINGS.
Congress finds that--
(1) the United States civil justice system is inefficient,
unpredictable, unfair, costly, and impedes competitiveness in
the marketplace for goods, services, business, and employees;
(2) the defects in the United States civil justice system
have a direct and undesirable effect on interstate commerce
by decreasing the availability of goods and services in
commerce;
(3) there is a need to restore rationality, certainty, and
fairness to the legal system;
(4) the spiralling costs of litigation and the magnitude
and unpredictability of punitive damage awards and
noneconomic damage awards have continued unabated for at
least the past 30 years;
(5) the Supreme Court of the United States has recognized
that a punitive damage award can be unconstitutional if the
award is grossly excessive in relation to the legitimate
interest of the government in the punishment and deterrence
of unlawful conduct;
(6) just as punitive damage awards can be grossly
excessive, so can it be grossly excessive in some
circumstances for a party to be held responsible under the
doctrine of joint and several liability for damages that
party did not cause;
(7) as a result of joint and several liability, entities
including small businesses are often brought into litigation
despite the fact that their conduct may have little or
nothing to do with the accident or transaction giving rise to
the lawsuit, and may therefore face increased and unjust
costs due to the possibility or result of unfair and
disproportionate damage awards;
(8) the costs imposed by the civil justice system on small
businesses are particularly acute, since small businesses
often lack the resources to bear those costs and to challenge
unwarranted lawsuits;
(9) due to high liability costs and unwarranted litigation
costs, small businesses face higher costs in purchasing
insurance through interstate insurance markets to cover their
activities;
(10) liability reform for small businesses will promote the
free flow of goods and services, lessen burdens on interstate
commerce, and decrease litigiousness; and
[[Page S10677]]
(11) legislation to address these concerns is an
appropriate exercise of the powers of Congress under clauses
3, 9, and 18 of section 8 of article I of the Constitution of
the United States, and the 14th amendment to the Constitution
of the United States.
SEC. 102. DEFINITIONS.
In this title:
(1) Crime of violence.--The term ``crime of violence'' has
the same meaning as in section 16 of title 18, United States
Code.
(2) Drug.--The term ``drug'' means any controlled substance
(as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)) that was not legally prescribed for use by
the defendant or that was taken by the defendant other than
in accordance with the terms of a lawfully issued
prescription.
(3) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including the loss of
earnings or other benefits related to employment, medical
expense loss, replacement services loss, loss due to death,
burial costs, and loss of business or employment
opportunities) to the extent recovery for such loss is
allowed under applicable State law.
(4) Harm.--The term ``harm'' means any physical injury,
illness, disease, or death or damage to property.
(5) Hate crime.--The term ``hate crime'' means a crime
described under section 1(b) of the Hate Crime Statistics Act
(28 U.S.C. 534 note).
(6) International terrorism.--The term ``international
terrorism'' has the same meaning as in section 2331 of title
18, United States Code.
(7) Noneconomic loss.--The term ``noneconomic loss'' means
loss for physical or emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of
domestic service), injury to reputation, or any other
nonpecuniary loss of any kind or nature.
(8) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership,
society, joint stock company, or any other entity
(including any governmental entity).
(9) Punitive damages.--The term ``punitive damages'' means
damages awarded against any person or entity to punish or
deter such person, entity, or others from engaging in similar
behavior in the future. Such term does not include any civil
penalties, fines, or treble damages that are assessed or
enforced by an agency of State or Federal government pursuant
to a State or Federal statute.
(10) Small business.--
(A) In general.--The term ``small business'' means any
unincorporated business, or any partnership, corporation,
association, unit of local government, or organization that
has fewer than 25 full-time employees as determined on the
date the civil action involving the small business is filed.
(B) Calculation of number of employees.--For purposes of
subparagraph (A), the number of employees of a subsidiary of
a wholly owned corporation includes the employees of--
(i) a parent corporation; and
(ii) any other subsidiary corporation of that parent
corporation.
(11) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, commonwealth, territory, or possession.
SEC. 103. LIMITATION ON PUNITIVE DAMAGES FOR SMALL
BUSINESSES.
(a) General Rule.--Except as provided in section 105, in
any civil action against a small business, punitive damages
may, to the extent permitted by applicable Federal or State
law, be awarded against the small business only if the
claimant establishes by clear and convincing evidence that
conduct carried out by that defendant with a conscious,
flagrant indifference to the rights or safety of others was
the proximate cause of the harm that is the subject of the
action.
(b) Limitation on Amount.--In any civil action against a
small business, punitive damages awarded against a small
business shall not exceed the lesser of--
(1) three times the total amount awarded to the claimant
for economic and noneconomic losses; or
(2) $250,000,
except that the court may make this subsection inapplicable
if the court finds that the plaintiff established by clear
and convincing evidence that the defendant acted with
specific intent to cause the type of harm for which the
action was brought.
(c) Application by the Court.--The limitation prescribed by
this section shall be applied by the court and shall not be
disclosed to the jury.
SEC. 104. LIMITATION ON JOINT AND SEVERAL LIABILITY FOR
NONECONOMIC LOSS FOR SMALL BUSINESSES.
(a) General Rule.--Except as provided in section 105, in
any civil action against a small business, the liability of
each defendant that is a small business, or the agent of a
small business, for noneconomic loss shall be determined in
accordance with subsection (b).
(b) Amount of Liability.--
(1) In general.--In any civil action described in
subsection (a)--
(A) each defendant described in that subsection shall be
liable only for the amount of noneconomic loss allocated to
that defendant in direct proportion to the percentage of
responsibility of that defendant (determined in accordance
with paragraph (2)) for the harm to the claimant with respect
to which that defendant is liable; and
(B) the court shall render a separate judgment against each
defendant described in that subsection in an amount
determined under subparagraph (A).
(2) Percentage of responsibility.--For purposes of
determining the amount of noneconomic loss allocated to a
defendant under this section, the trier of fact shall
determine the percentage of responsibility of each person
responsible for the harm to the claimant, regardless of
whether or not the person is a party to the action.
SEC. 105. EXCEPTIONS TO LIMITATIONS ON LIABILITY.
The limitations on liability under sections 103 and 104 do
not apply--
(1) to any defendant whose misconduct--
(A) constitutes--
(i) a crime of violence;
(ii) an act of international terrorism; or
(iii) a hate crime;
(B) results in liability for damages relating to the injury
to, destruction of, loss of, or loss of use of, natural
resources described in--
(i) section 1002(b)(2)(A) of the Oil Pollution Act of 1990
(33 U.S.C. 2702(b)(2)(A)); or
(ii) section 107(a)(4)(C) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9607(a)(4)(C));
(C) involves--
(i) a sexual offense, as defined by applicable State law;
or
(ii) a violation of a Federal or State civil rights law; or
(D) occurred at the time the defendant was under the
influence (as determined under applicable State law) of
intoxicating alcohol or a drug, and the fact that the
defendant was under the influence was the cause of any harm
alleged by the plaintiff in the subject action; or
(2) to any cause of action which is brought under the
provisions of title 31, United States Code, relating to false
claims (31 U.S.C. 3729 through 3733) or to any other cause of
action brought by the United States relating to fraud or
false statements.
SEC. 106. PREEMPTION AND ELECTION OF STATE NONAPPLICABILITY.
(a) Preemption.--Subject to subsection (b), this title
preempts the laws of any State to the extent that State laws
are inconsistent with this title.
(b) Election of State Regarding Nonapplicability.--This
title does not apply to any action in a State court against a
small business in which all parties are citizens of the
State, if the State enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this title
does not apply as of a date certain to such actions in the
State; and
(3) containing no other provision.
TITLE II--PRODUCT SELLER FAIR TREATMENT
SEC. 201. FINDINGS; PURPOSES.
(a) Findings.--Congress finds that--
(1) although damage awards in product liability actions may
encourage the production of safer products, they may also
have a direct effect on interstate commerce and consumers of
the United States by increasing the cost of, and decreasing
the availability of, products;
(2) some of the rules of law governing product liability
actions are inconsistent within and among the States,
resulting in differences in State laws that may be
inequitable with respect to plaintiffs and defendants and may
impose burdens on interstate commerce;
(3) product liability awards may jeopardize the financial
well-being of individuals and industries, particularly the
small businesses of the United States;
(4) because the product liability laws of a State may have
adverse effects on consumers and businesses in many other
States, it is appropriate for the Federal Government to enact
national, uniform product liability laws that preempt State
laws; and
(5) under clause 3 of section 8 of article I of the United
States Constitution, it is the constitutional role of the
Federal Government to remove barriers to interstate commerce.
(b) Purposes.--The purposes of this title, based on the
powers of the United States under clause 3 of section 8 of
article I of the United States Constitution, are to promote
the free flow of goods and services and lessen the burdens on
interstate commerce, by--
(1) establishing certain uniform legal principles of
product liability that provide a fair balance among the
interests of all parties in the chain of production,
distribution, and use of products; and
(2) reducing the unacceptable costs and delays in product
liability actions caused by excessive litigation that harms
both plaintiffs and defendants.
SEC. 202. DEFINITIONS.
In this title:
(1) Alcohol product.--The term ``alcohol product'' includes
any product that contains not less than \1/2\ of 1 percent of
alcohol by volume and is intended for human consumption.
(2) Claimant.--The term ``claimant'' means any person who
brings an action covered by this title and any person on
whose behalf such an action is brought. If such an
[[Page S10678]]
action is brought through or on behalf of an estate, the term
includes the claimant's decedent. If such an action is
brought through or on behalf of a minor or incompetent, the
term includes the claimant's legal guardian.
(3) Commercial loss.--The term ``commercial loss'' means--
(A) any loss or damage solely to a product itself;
(B) loss relating to a dispute over the value of a product;
or
(C) consequential economic loss, the recovery of which is
governed by applicable State commercial or contract laws that
are similar to the Uniform Commercial Code.
(4) Compensatory damages.--The term ``compensatory
damages'' means damages awarded for economic and noneconomic
losses.
(5) Dram-shop.--The term ``dram-shop'' means a drinking
establishment where alcoholic beverages are sold to be
consumed on the premises.
(6) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including the loss of
earnings or other benefits related to employment, medical
expense loss, replacement services loss, loss due to death,
burial costs, and loss of business or employment
opportunities) to the extent recovery for that loss is
allowed under applicable State law.
(7) Harm.--The term ``harm'' means any physical injury,
illness, disease, or death or damage to property caused by a
product. The term does not include commercial loss.
(8) Manufacturer.--The term ``manufacturer'' means--
(A) any person who--
(i) is engaged in a business to produce, create, make, or
construct any product (or component part of a product); and
(ii)(I) designs or formulates the product (or component
part of the product); or
(II) has engaged another person to design or formulate the
product (or component part of the product);
(B) a product seller, but only with respect to those
aspects of a product (or component part of a product) that
are created or affected when, before placing the product in
the stream of commerce, the product seller--
(i) produces, creates, makes, constructs and designs, or
formulates an aspect of the product (or component part of the
product) made by another person; or
(ii) has engaged another person to design or formulate an
aspect of the product (or component part of the product) made
by another person; or
(C) any product seller not described in subparagraph (B)
that holds itself out as a manufacturer to the user of the
product.
(9) Noneconomic loss.--The term ``noneconomic loss'' means
loss for physical or emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of
domestic service), injury to reputation, or any other
nonpecuniary loss of any kind or nature.
(10) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership,
society, joint stock company, or any other entity (including
any governmental entity).
(11) Product.--
(A) In general.--The term ``product'' means any object,
substance, mixture, or raw material in a gaseous, liquid, or
solid state that--
(i) is capable of delivery itself or as an assembled whole,
in a mixed or combined state, or as a component part or
ingredient;
(ii) is produced for introduction into trade or commerce;
(iii) has intrinsic economic value; and
(iv) is intended for sale or lease to persons for
commercial or personal use.
(B) Exclusion.--The term ``product'' does not include--
(i) tissue, organs, blood, and blood products used for
therapeutic or medical purposes, except to the extent that
such tissue, organs, blood, and blood products (or the
provision thereof) are subject, under applicable State law,
to a standard of liability other than negligence; or
(ii) electricity, water delivered by a utility, natural
gas, or steam.
(12) Product liability action.--
(A) General rule.--Except as provided in subparagraph (B),
the term ``product liability action'' means a civil action
brought on any theory for a claim for any physical injury,
illness, disease, death, or damage to property that is caused
by a product.
(B) The following claims are not included in the term
``product liability action'':
(i) Negligent entrustment.--A claim for negligent
entrustment.
(ii) Negligence per se.--A claim brought under a theory of
negligence per se.
(iii) Dram-shop.--A claim brought under a theory of dram-
shop or third-party liability arising out of the sale or
providing of an alcoholic product to an intoxicated person or
minor.
(13) Product seller.--
(A) In general.--The term ``product seller'' means a person
who in the course of a business conducted for that purpose--
(i) sells, distributes, rents, leases, prepares, blends,
packages, labels, or otherwise is involved in placing a
product in the stream of commerce; or
(ii) installs, repairs, refurbishes, reconditions, or
maintains the harm-causing aspect of the product.
(B) Exclusion.--The term ``product seller'' does not
include--
(i) a seller or lessor of real property;
(ii) a provider of professional services in any case in
which the sale or use of a product is incidental to the
transaction and the essence of the transaction is the
furnishing of judgment, skill, or services; or
(iii) any person who--
(I) acts in only a financial capacity with respect to the
sale of a product; or
(II) leases a product under a lease arrangement in which
the lessor does not initially select the leased product and
does not during the lease term ordinarily control the daily
operations and maintenance of the product.
(14) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, commonwealth, territory, or possession.
SEC. 203. APPLICABILITY; PREEMPTION.
(a) Applicability.--
(1) In general.--Except as provided in paragraph (2), this
title governs any product liability action brought in any
Federal or State court.
(2) Actions for commercial loss.--A civil action brought
for commercial loss shall be governed only by applicable
State commercial or contract laws that are similar to the
Uniform Commercial Code.
(b) Relationship to State Law.--This title supersedes a
State law only to the extent that the State law applies to an
issue covered by this title. Any issue that is not governed
by this title, including any standard of liability applicable
to a manufacturer, shall be governed by any applicable
Federal or State law.
(c) Effect on Other Law.--Nothing in this title shall be
construed to--
(1) waive or affect any defense of sovereign immunity
asserted by any State under any State law;
(2) supersede or alter any Federal law;
(3) waive or affect any defense of sovereign immunity
asserted by the United States;
(4) affect the applicability of any provision of chapter 97
of title 28, United States Code;
(5) preempt State choice-of-law rules with respect to
claims brought by a foreign nation or a citizen of a foreign
nation;
(6) affect the right of any court to transfer venue or to
apply the law of a foreign nation or to dismiss a claim of a
foreign nation or of a citizen of a foreign nation on the
ground of inconvenient forum; or
(7) supersede or modify any statutory or common law,
including any law providing for an action to abate a
nuisance, that authorizes a person to institute an action for
civil damages or civil penalties, cleanup costs, injunctions,
restitution, cost recovery, punitive damages, or any other
form of relief, for remediation of the environment (as
defined in section 101(8) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601(8))).
SEC. 204. LIABILITY RULES APPLICABLE TO PRODUCT SELLERS,
RENTERS, AND LESSORS.
(a) General Rule.--
(1) In general.--In any product liability action covered
under this title, a product seller other than a manufacturer
shall be liable to a claimant only if the claimant
establishes that--
(A)(i) the product that allegedly caused the harm that is
the subject of the complaint was sold, rented, or leased by
the product seller;
(ii) the product seller failed to exercise reasonable care
with respect to the product; and
(iii) the failure to exercise reasonable care was a
proximate cause of the harm to the claimant;
(B)(i) the product seller made an express warranty
applicable to the product that allegedly caused the harm that
is the subject of the complaint, independent of any express
warranty made by a manufacturer as to the same product;
(ii) the product failed to conform to the warranty; and
(iii) the failure of the product to conform to the warranty
caused the harm to the claimant; or
(C)(i) the product seller engaged in intentional
wrongdoing, as determined under applicable State law; and
(ii) the intentional wrongdoing caused the harm that is the
subject of the complaint.
(2) Reasonable opportunity for inspection.--For purposes of
paragraph (1)(A)(ii), a product seller shall not be
considered to have failed to exercise reasonable care with
respect to a product based upon an alleged failure to inspect
the product, if--
(A) the failure occurred because there was no reasonable
opportunity to inspect the product; or
(B) the inspection, in the exercise of reasonable care,
would not have revealed the aspect of the product that
allegedly caused the claimant's harm.
(b) Special Rule.--
(1) In general.--A product seller shall be deemed to be
liable as a manufacturer of a product for harm caused by the
product, if--
(A) the manufacturer is not subject to service of process
under the laws of any State in which the action may be
brought; or
(B) the court determines that the claimant is or would be
unable to enforce a judgment against the manufacturer.
(2) Statute of limitations.--For purposes of this
subsection only, the statute of limitations applicable to
claims asserting liability
[[Page S10679]]
of a product seller as a manufacturer shall be tolled from
the date of the filing of a complaint against the
manufacturer to the date that judgment is entered against the
manufacturer.
(c) Rented or Leased Products.--
(1) Definition.--For purposes of paragraph (2), and for
determining the applicability of this title to any person
subject to that paragraph, the term ``product liability
action'' means a civil action brought on any theory for harm
caused by a product or product use.
(2) Liability.--Notwithstanding any other provision of law,
any person engaged in the business of renting or leasing a
product (other than a person excluded from the definition of
product seller under section 202(13)(B)) shall be subject to
liability in a product liability action under subsection (a),
but any person engaged in the business of renting or leasing
a product shall not be liable to a claimant for the tortious
act of another solely by reason of ownership of that product.
SEC. 205. FEDERAL CAUSE OF ACTION PRECLUDED.
The district courts of the United States shall not have
jurisdiction under this title based on section 1331 or 1337
of title 28, United States Code.
TITLE III--EFFECTIVE DATE
SEC. 301. EFFECTIVE DATE.
This Act shall take effect with respect to any civil action
commenced after the date of the enactment of this Act without
regard to whether the harm that is the subject of the action
occurred before such date.
______
By Mr. BINGAMAN (for himself and Mr. Domenici):
S. 1547. A bill to amend title XXI of the Social Security Act to make
a technical correction with respect to the definition of qualifying
State; considered and passed.
Mr. BINGAMAN. Mr. President, last evening, I introduced two bills
with Senator Domenici and yet another one today to address a technical,
but very important problem that the State of New Mexico and a number of
other States, including that of the Majority Leader, have faced with
respect to the Children's Health Insurance Program, or CHIP. When CHIP
was established by President Clinton and the Congress in 1997, an
inequity was built into the program whereby certain states that had
been more progressive and had expanded coverage to children through
Medicaid prior to the enactment of the bill were penalized.
In the last Congress and again this year, I introduced the
``Children's Health Equity Act of 2003'' to address this problem for a
number of States, including New Mexico, Vermont, Washington, and
Tennessee. Our states have been unable to fully access Federal CHIP
funds because the previous expansion of Medicaid to children was not
recognized or ``grandfathered,'' while certain other States such as New
York, Florida, and Pennsylvania were explicitly ``grandfathered'' in
and their State expansions to children were allowed to be covered with
CHIP dollars.
The National Governors' Association has long recognized this inequity
and has, in fact, a policy that read, ``The Governors believe that it
is critical that innovative states not be penalized for having expanded
coverage to children before the enactment of S-CHIP, which provides
enhanced funding to meet these goals. To this end, the Governors
support providing additional funding flexibility to states that had
already significantly expanded coverage to the majority of uninsured
children in their states.''
S. 621, the ``Children's Health Equity Act,'' did precisely that and
the critical language from our legislation was included in S. 312 by
Senators Rockefeller and Chafee, which addressed both expired and
expiring CHIP funds and the problem addressed by S. 621. We appreciated
their recognition of that issue and supported the passage of that
legislation after an extensive set of negotiations and compromises on
the language.
For New Mexico, an important issue is that our State expanded
coverage up to 185 percent of poverty prior to the enactment of CHIP.
Because of this, the children in our State between 100 percent and 185
percent of poverty are ineligible for CHIP. Thus, New Mexico has been
allocated $266 million from CHIP between fiscal years 1998 and 2002,
and yet has only been able to spend slightly over $26 million as of the
end of the last fiscal year. In other words, New Mexico has been
allowed to spend less than 10 percent of its Federal CHIP allocations.
This, despite the fact our State ranks 2nd in the Nation in the
percentage of children who are uninsured.
It is a travesty that money set-aside for New Mexico to address our
children's coverage problem is not available to be spent and is thereby
redistributed to other States who have far lower uninsured rates and
whose children between 100 and 185 percent of poverty are eligible for
Federal CHIP dollars. The children in those States are certainly no
more worthy of health insurance coverage than the children of New
Mexico.
The consequences for the children of New Mexico are enormous.
According to the Census Bureau, New Mexico has an estimated 114,000
uninsured children. Put another way, almost 21 percent of all the
children in New Mexico are uninsured, despite the fact New Mexico has
expanded coverage all the way to 235 percent of poverty. Again, this is
the 2nd highest rate of uninsured children in the country.
This is a result of the fact that an estimated 80 percent of the
uninsured children in New Mexico are below 200 percent of poverty.
These children are often eligible for either Medicaid or CHIP but
currently unenrolled. With the exception of those few children between
185 and 200 percent of poverty who are eligible for the enhanced
federal CHIP dollars, all of the remaining children below 185 percent
of poverty in New Mexico are denied CHIP funding despite their need.
For New Mexico, the Senate language that was in S. 621 and included
in S. 312 would have allowed New Mexico to spend up to 20 percent of
its Federal CHIP allotments on children enrolled between 150 and 185
percent of poverty. Unfortunately, the House of Representatives chose
to modify the Senate language in such a manner through the introduction
and passage of H.r. 2854 that New Mexico may no longer be eligible.
The House of Representatives, which did not include language
addressing New Mexico's problem in the first place, chose to edit the
Senate language that ``grandfathered'' States that had previous
expanded coverage ``up to'' 185 percent of poverty and above and
replaced it with language that the State had to have expanded coverage
to ``at least'' 185 percent of poverty.
This sounds rather technical, but this slight difference may
ironically allow all the other states our bill intended to help, who
expanded coverage beyond 185 percent of poverty, such as Vermont and
Washington, to be ``grandfathered'' but not New Mexico. It is my
contention, after reviewing the materials from our State that our State
expanded coverage to 185 percent of poverty and operates a full
Medicaid benefit at 185 percent of poverty and therefore should qualify
as a State to be ``grandfathered.'' Unfortunately, the language change
has left the Centers for Medicare and Medicaid Services, or CMS,
uncertain of our State's eligibility, as some believe the State has
only some up to 185 percent of poverty, or just short of that level,
and therefore does not meet the test of ``at least'' 185 percent of
poverty.
For six long years, the States of Washington, New Mexico, Vermont,
and others have sought to fix the inequity in CHIP. Senator Slade
Gorton of Washington had the original legislation to fix this problem
and I picked up, modified, and reintroduced that legislation in the
last two sessions of Congress. After six long years, to now find that
New Mexico may be the only State excluded by the House change and
0.0001 percentage points, is both outrageous and unacceptable.
I contend that the Centers for Medicare and Medicaid Services, or
CMS, can still make a determination that New Mexico meets this revised
standard under H.R. 2854 and urge them to do so as soon possible.
However, in the meantime, since New Mexico's status is now in
question. I introduced two bills last night and another one today with
Senator Domenici that all clarify that New Mexico qualifies. The first
includes New Mexico as a ``qualified state'' explicitly. This would
leave no question at all. The second bill clarifies that a State found
to be a partial percentage point below 185 percent of poverty would
round up to the nearest number, that being 185 percent of poverty, and
be eligible. That would also undoubtedly ensure New Mexico's
eligibility. In order to release our hold, I have asked that the bill I
introduced changing the percentage that a qualified state must be
changed from 185 to
[[Page S10680]]
184 percent of poverty be approved by the State in conjunction with
H.R. 2854. Unfortunately, our bill will then have to be taken up and
passed by the House of Representatives and signed into law by the
President.
I have received a letter from Chairman Tauzin, and Ranking Member
Dingell of the House Energy and Commerce Committee ensuring the intent
of H.R. 2854 is to include New Mexico and provides their commitment
that they will ensure any technical problem our State has with the
language will be fixed immediately upon return from the August recess.
I thank them for their commitment to New Mexico.
Once again, many States are accessing their CHIP allotments to cover
kids at poverty levels far below New Mexico's current or past
eligibility levels. The children in those states are certainly no more
worthy and the children of New Mexico deserve better than they are
getting from the Federal Government. I accept the commitment made by
the leadership of the Senate Finance Committee and the House Energy and
Commerce Committee to fix this problem and therefore urge the passage
of both H.R. 2854 and the original legislation that I introduced today.
I ask unanimous consent that the letter I referred to be printed in
the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
July 31, 2003.
Senator Jeff Bingaman,
Senator Pete Domenici,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senators Bingaman and Domenici:
We are writing to provide our commitment to pass a
technical corrections bill in September that will provide the
proper technical fix that will allow New Mexico to use 20% of
their SCHIP allotments to pay for certain Medicaid eligible
children.
Prior to House passage of H.R. 2854, CMS had provided
technical assistance that indicated that New Mexico would be
covered under the language in the bill. The authors of the
bill intended that New Mexico would be covered, and drafted
the language accordingly, based on the information provided
by CMS.
We have subsequently learned that New Mexico may not be
able to use the 20% because of potential flaws in the
language contained in H.R. 2854. This was not our intent, and
we are committing to passing a technical corrections bill in
September that will allow New Mexico to use these funds.
Sincerely,
Congressman Billy Tauzin,
Chairman of the House Committee on Energy & Commerce.
Congressman John D. Dingell,
Ranking Member of the House Committee on Energy & Commerce.
______
By Mr. GRASSLEY (for himself, Mr. Baucus, Mr. Frist, Mr. Daschle,
Mr. Domenici, Mr. Bingaman, Mr. Inhofe, Mr. Jeffords, Mr.
Thomas, Mr. Voinovich, Mr. Conrad, Mrs. Lincoln, Mr. Coleman,
Mr. Dorgan, Mr. Bond, Mr. Harkin, Mr. Dayton, Mr. Durbin, Mr.
Talent, Mr. Nelson of Nebraska, and Mr. Brownback):
S. 1548. A bill to amend the Internal Revenue Code of 1986 to provide
incentives for the production of renewable fuels and to simplify the
administration of the Highway Trust Fund fuel excise taxes, and for
other purposes; to the Committee on Finance.
Mr. GRASSLEY. Mr. President, as Members of the this Senate are well
aware, I have worked for many years on the development of renewable
fuels in the marketplace. Twenty-five years ago we created an alcohol
fuels tax incentive to promote the use of ethanol. Today, I am
introducing legislation that will simplify the excise tax collection
system for all transportation and renewable fuels.
This legislation reforms the alcohol fuels tax credit and creates a
new ``Volumetric Ethanol Excise Tax Credit'' (VEETC). In addition to
streamlining the alcohol fuels tax credit, this legislation creates a
new tax credit for biodiesel.
Under the VEETC we accomplish three objectives: First, improve the
tax collection system for renewable fuels; second, increase the revenue
source for the Highway Trust Fund.
This is because the full amount of user excise taxes levied will be
collected and remitted to the Highway Trust Fund (HTF). In simplifying
the tax collection system, all user excise taxes levied on both
gasoline and ethanol blended fuels would be collected at 18.4 cents per
gallon; and all excise taxes levied on diesel and biodiesel blended
fuels would be collected at 24.4 cents per gallon.
On average, the proposal would generate more than $2 billion per year
in additional HTF revenue, which would improve the ability of the
federal government to address the nation's transportation
infrastructure needs; and third, we will enhance the delivery of
renewable fuels in the marketplace.
The federal government's tax collection system will work in concert
with the petroleum industry's and independent terminal's fuel delivery
system.
The Grassley/Baucus amendment provides tremendous new flexibility to
gasoline refiners, marketers, and ethanol producers.
It eliminates the restrictive blend levels, 5.7 percent, 7.7 percent
and 10 percent dictated by the Tax Code to reflect obsolete Clean Air
Act requirements, providing significant flexibility to oil companies to
blend as much or as little ethanol or biodiesel to meet their octane or
volume needs.
It streamlines the tax collection system to avoid the potential for
fraud while accelerating the refund mechanism.
It provides new market opportunities for ethanol and biodiesel in
off-road uses, E-85 and ETBE, and, of course, it resolves a
longstanding issue with regard to the Highway Trust Fund.
The ``Volumetric Ethanol Excise Tax Credit Act of 2003'' is a
forward-thinking piece of legislation that deserves universal support
and it will address a number of tax issues that have created roadblocks
for the renewable industry for a number of years.
Specifically, the tax amendment will do the following: eliminate the
negative impact of the ethanol tax incentive on the Highway Trust Fund;
eliminate the waste, fraud and abuse of the excise tax collection
system, which means that 18.4 cents per gallon of each gallon of
ethanol-blend fuel will be remitted to the U.S. Treasury; streamline
the delivery of renewable fuels to petroleum blenders at the terminal
rack because fuel mixtures will not be based on the Clean Air Act
requirements of 5.7, 7.7 or 10 percent blends--the tax credit is
allowed for any blend of ethanol and gasoline; streamline the tax
refund system for below the rack blenders to allow a tax refund of 52
cents per gallon on each gallon of ethanol blended with gasoline to be
paid within 20 days of blending gasoline with ethanol; Eliminate the
need of the alcohol fuels income tax credit that is subject to the
alternative minimum tax; any taxpayer eligible for the alcohol fuels
tax credit will be able to use the volume ethanol excise tax credit
system, which means they will be able to file for a refund for every
gallon of ethanol used in the marketplace without regard to the income
of the taxpayer or whether the ethanol is used in a taxed fuel or tax
exempt fuel.
Create a new tax credit for biodiesel--$1.00 per gallon for biodiesel
made from virgin oils derived from agricultural products and animal
fats; and $.50 per gallon for biodiesel made from agricultural products
and animal fats.
Allow the credit to be claimed in both taxable and nontaxable
markets; tax exempt fleet fuel programs; off road diesel markets (died
diesel).
Streamline the use of biodiesel at the terminal rack--the tax
structure and credit will encourage petroleum blenders to blend
biodiesel as far upstream as possible, which under the RFS and
Minnesota's 2 percent volume requirement will allow more biodiesel to
be used in the marketplace.
Streamline the tax refund system for below the rack blenders to allow
a tax refund of the biodiesel tax credit on each gallon of biodiesel
blended with diesel, dyed and undyed, to be paid within 20 days of
blending.
The alternative minimum tax (AMT) will not be an issue for biodiesel;
any taxpayer eligible for the biodiesel tax credit will be able use the
volume biodiesel excise tax credit system, which means they will be
able to file for a refund for every gallon of biodiesel used in the
marketplace regard to the income of the taxpayer or whether the ethanol
is used in a taxed fuel or tax exempt fuel.
[[Page S10681]]
No affect on the Highway Trust Fund--the biodiesel tax credit will be
paid for out of the ``General fund'' not the ``Highway Trust Fund.''
Eliminate the E85 AMT issue: any taxpayer eligible for the alcohol
fuels tax credit will be able use the volume ethanol excise tax credit
system, which means they will be able to file for a refund for every
gallon of ethanol used in the marketplace without regard to the income
of the taxpayer or whether the ethanol is used in a taxed fuel or tax
exempt fuel.
Allow the alcohol fuels tax credit to be claimed in both taxable and
nontaxable markets;
Streamline the tax refund system for below the rack blenders to allow
a tax refund of the alcohol fuels credit on each gallon of ethanol
blended with gasoline to be paid within 20 days of blending.
I feel strongly about the legislation because it eliminates the tax
infrastructure, and fuel delivery impediments that have been
problematic throughout the history of the renewable duels industry and
encourage you to join us in working to enact this legislation during
this Congress.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1548
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; ETC.
(a) Short Title.--This Act may be cited as the ``Volumetric
Ethanol Excise Tax Credit (VEETC) Act of 2003''.
(b) Amendment of 1986 Code.--Except as otherwise expressly
provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a
section or other provision, the reference shall be considered
to be made to a section or other provision of the Internal
Revenue Code of 1986.
SEC. 2. INCENTIVES FOR BIODIESEL.
(a) In General.--Subpart D of part IV of subchapter A of
chapter 1 (relating to business related credits), as amended
by this Act, is amended by inserting after section 40A the
following new section:
``SEC. 40B. BIODIESEL USED AS FUEL.
``(a) General Rule.--For purposes of section 38, the
biodiesel fuels credit determined under this section for the
taxable year is an amount equal to the sum of--
``(1) the biodiesel mixture credit, plus
``(2) the biodiesel credit.
``(b) Definition of Biodiesel Mixture Credit and Biodiesel
Credit.--For purposes of this section--
``(1) Biodiesel mixture credit.--
``(A) In general.--The biodiesel mixture credit of any
taxpayer for any taxable year is 50 cents for each gallon of
biodiesel used by the taxpayer in the production of a
qualified biodiesel mixture.
``(B) Qualified biodiesel mixture.--The term `qualified
biodiesel mixture' means a mixture of biodiesel and diesel
fuel which--
``(i) is sold by the taxpayer producing such mixture to any
person for use as a fuel, or
``(ii) is used as a fuel by the taxpayer producing such
mixture.
``(C) Sale or use must be in trade or business, etc.--
Biodiesel used in the production of a qualified biodiesel
mixture shall be taken into account--
``(i) only if the sale or use described in subparagraph (B)
is in a trade or business of the taxpayer, and
``(ii) for the taxable year in which such sale or use
occurs.
``(D) Casual off-farm production not eligible.--No credit
shall be allowed under this section with respect to any
casual off-farm production of a qualified biodiesel mixture.
``(2) Biodiesel credit.--
``(A) In general.--The biodiesel credit of any taxpayer for
any taxable year is 50 cents for each gallon of biodiesel
which is not in a mixture with diesel fuel and which during
the taxable year--
``(i) is used by the taxpayer as a fuel in a trade or
business, or
``(ii) is sold by the taxpayer at retail to a person and
placed in the fuel tank of such person's vehicle.
``(B) User credit not to apply to biodiesel sold at
retail.--No credit shall be allowed under subparagraph (A)(i)
with respect to any biodiesel which was sold in a retail sale
described in subparagraph (A)(ii).
``(3) Credit for agri-biodiesel.--
``(A) In general.--Subject to subparagraph (B), in the case
of any biodiesel which is agri-biodiesel, paragraphs (1)(A)
and (2)(A) shall be applied by substituting `$1.00' for `50
cents'.
``(B) Certification for agri-biodiesel.--Subparagraph (A)
shall apply only if the taxpayer described in paragraph
(1)(A) or (2)(A) obtains a certification (in such form and
manner as prescribed by the Secretary) from the producer of
the agri-biodiesel which identifies the product produced.
``(c) Coordination With Credit Against Excise Tax.--The
amount of the credit determined under this section with
respect to any agri-biodiesel shall, under regulations
prescribed by the Secretary, be properly reduced to take into
account any benefit provided with respect to such agri-
biodiesel solely by reason of the application of section 6426
or 6427(e).
``(d) Definitions and Special Rules.--For purposes of this
section--
``(1) Biodiesel.--The term `biodiesel' means the monoalkyl
esters of long chain fatty acids derived from plant or animal
matter for use in diesel-powered engines which meet--
``(A) the registration requirements for fuels and fuel
additives established by the Environmental Protection Agency
under section 211 of the Clean Air Act (42 U.S.C. 7545), and
``(B) the requirements of the American Society of Testing
and Materials D6751.
``(2) Agri-biodiesel.--The term `agri-biodiesel' means
biodiesel derived solely from virgin oils. Such term shall
include esters derived from vegetable oils from corn,
soybeans, sunflower seeds, cottonseeds, canola, crambe,
rapeseeds, safflowers, flaxseeds, rice bran, and mustard
seeds, and from animal fats.
``(3) Biodiesel mixture not used as a fuel, etc.--
``(A) Imposition of tax.--If--
``(i) any credit was determined under this section with
respect to biodiesel used in the production of any qualified
biodiesel mixture, and
``(ii) any person--
``(I) separates such biodiesel from the mixture, or
``(II) without separation, uses the mixture other than as a
fuel,
then there is hereby imposed on such person a tax equal to
the product of the rate applicable under subsection (b)(1)(A)
and the number of gallons of the mixture.
``(B) Applicable laws.--All provisions of law, including
penalties, shall, insofar as applicable and not inconsistent
with this section, apply in respect of any tax imposed under
subparagraph (A) as if such tax were imposed by section 4081
and not by this chapter.
``(4) Pass-thru in the case of estates and trusts.--Under
regulations prescribed by the Secretary, rules similar to the
rules of subsection (d) of section 52 shall apply.
``(e) Termination.--This section shall not apply to any
fuel sold after December 31, 2005.''.
(b) Credit Treated as Part of General Business Credit.--
Section 38(b) (relating to current year business credit), as
amended by this Act, is amended by striking ``plus'' at the
end of paragraph (15), by striking the period at the end of
paragraph (16) and inserting ``, plus'', and by adding at the
end the following new paragraph:
``(17) the biodiesel fuels credit determined under section
40B(a).''.
(c) Conforming Amendments.--
(1) Section 39(d), as amended by this Act, is amended by
adding at the end the following new paragraph:
``(12) No carryback of biodiesel fuels credit before
effective date.--No portion of the unused business credit for
any taxable year which is attributable to the biodiesel fuels
credit determined under section 40B may be carried back to a
taxable year ending on or before the date of the enactment of
section 40B.''.
(2)(A) Section 87, as amended by this Act, is amended--
(i) by striking ``and'' at the end of paragraph (1),
(ii) by striking the period at the end of paragraph (2) and
inserting ``, and'',
(iii) by adding at the end the following new paragraph:
``(3) the biodiesel fuels credit determined with respect to
the taxpayer for the taxable year under section 40B(a).'',
and
(iv) by striking ``FUEL CREDIT'' in the heading and
inserting ``AND BIODIESEL FUELS CREDITS''.
(B) The item relating to section 87 in the table of
sections for part II of subchapter B of chapter 1 is amended
by striking ``fuel credit'' and inserting ``and biodiesel
fuels credits''.
(3) Section 196(c) is amended by striking ``and'' at the
end of paragraph (9), by striking the period at the end of
paragraph (10) and inserting ``, and'', and by adding at the
end the following new paragraph:
``(11) the biodiesel fuels credit determined under section
40B(a).''.
(4) The table of sections for subpart D of part IV of
subchapter A of chapter 1, as amended by this Act, is amended
by adding after the item relating to section 40A the
following new item:
``Sec. 40B. Biodiesel used as fuel.''.
(d) Effective Date.--The amendments made by this section
shall apply to fuel sold after the date of the enactment of
this Act, in taxable years ending after such date.
SEC. 3. ALCOHOL FUEL AND BIODIESEL MIXTURES EXCISE TAX
CREDIT.
(a) In General.--Subchapter B of chapter 65 (relating to
rules of special application) is amended by inserting after
section 6425 the following new section:
``SEC. 6426. CREDIT FOR ALCOHOL FUEL AND BIODIESEL MIXTURES.
``(a) Allowance of Credits.--There shall be allowed as a
credit against the tax imposed by section 4081 an amount
equal to the sum of--
``(1) the alcohol fuel mixture credit, plus
``(2) the biodiesel mixture credit.
``(b) Alcohol Fuel Mixture Credit.--
``(1) In general.--For purposes of this section, the
alcohol fuel mixture credit is the
[[Page S10682]]
applicable amount for each gallon of alcohol used by the
taxpayer in producing an alcohol fuel mixture.
``(2) Applicable amount.--For purposes of this subsection--
``(A) In general.--Except as provided in subparagraph (B),
the applicable amount is 52 cents (51 cents in the case of
any sale or use after 2004).
``(B) Mixtures not containing ethanol.--In the case of an
alcohol fuel mixture in which none of the alcohol consists of
ethanol, the applicable amount is 60 cents.
``(3) Alcohol fuel mixture.--For purposes of this
subsection, the term `alcohol fuel mixture' is a mixture
which--
``(A) consists of alcohol and a taxable fuel, and
``(B) is sold for use or used as a fuel by the taxpayer
producing the mixture.
``(4) Other definitions.--For purposes of this subsection--
``(A) Alcohol.--The term `alcohol' includes methanol and
ethanol but does not include--
``(i) alcohol produced from petroleum, natural gas, or coal
(including peat), or
``(ii) alcohol with a proof of less than 190 (determined
without regard to any added denaturants).
Such term also includes an alcohol gallon equivalent of ethyl
tertiary butyl ether or other ethers produced from such
alcohol.
``(B) Taxable fuel.--The term `taxable fuel' has the
meaning given such term by section 4083(a)(1).
``(5) Termination.--This subsection shall not apply to any
sale or use for any period after December 31, 2010.
``(c) Biodiesel Mixture Credit.--
``(1) In general.--For purposes of this section, the
biodiesel mixture credit is the product of the applicable
amount and the number of gallons of biodiesel used by the
taxpayer in producing any qualified biodiesel mixture.
``(2) Applicable amount.--
``(A) In general.--Except as provided in subparagraph (B),
the applicable amount is 50 cents.
``(B) Amount for agri-biodiesel.--
``(i) In general.--Subject to clause (ii), in the case of
any biodiesel which is agri-biodiesel, the applicable amount
is $1.00.
``(ii) Certification for agri-biodiesel.--Clause (i) shall
apply only if the taxpayer described in paragraph (1) obtains
a certification (in such form and manner as prescribed by the
Secretary) from the producer of the agri-biodiesel which
identifies the product produced.
``(3) Definitions.--Any term used in this subsection which
is also used in section 40B shall have the meaning given such
term by section 40B.
``(4) Termination.--This subsection shall not apply to any
sale or use for any period after December 31, 2005.
``(d) Mixture Not Used As a Fuel, Etc.--
``(1) Imposition of tax.--If--
``(A) any credit was determined under this section with
respect to alcohol or biodiesel used in the production of any
alcohol fuel mixture or qualified biodiesel mixture,
respectively, and
``(B) any person--
``(i) separates such alcohol or biodiesel from the mixture,
or
``(ii) without separation, uses the mixture other than as a
fuel,
then there is hereby imposed on such person a tax equal to
the product of the applicable amount and the number of
gallons of such alcohol or biodiesel.
``(2) Applicable laws.--All provisions of law, including
penalties, shall, insofar as applicable and not inconsistent
with this section, apply in respect of any tax imposed under
paragraph (1) as if such tax were imposed by section 4081 and
not by this section.''.
(b) Registration Requirement.--Section 4101(a) (relating to
registration) is amended by inserting ``and every person
producing biodiesel (as defined in section 40B(d)(1)) or
alcohol (as defined in section 6426(b)(4)(A))'' after
``4091''.
(c) Conforming Amendments.--
(1) Section 40(c) is amended by striking ``section 4081(c),
or section 4091(c)'' and inserting ``section 4091(c), section
6426, section 6427(e), or section 6427(f)''.
(2) Section 40(d)(4)(B) is amended by striking ``or
4081(c)''.
(3) Section 40(e)(1) is amended--
(A) by striking ``2007'' in subparagraph (A) and inserting
``2010'', and
(B) by striking ``2008'' in subparagraph (B) and inserting
``2011''.
(4) Section 40(h) is amended--
(A) by striking ``2007'' in paragraph (1) and inserting
``2010'', and
(B) by striking ``, 2006, or 2007'' in the table contained
in paragraph (2) and inserting ``through 2010''.
(5) Section 4041(b)(2)(B) is amended by striking ``a
substance other than petroleum or natural gas'' and inserting
``coal (including peat)''.
(6) Paragraph (1) of section 4041(k) is amended to read as
follows:
``(1) In general.--Under regulations prescribed by the
Secretary, in the case of the sale or use of any liquid at
least 10 percent of which consists of alcohol (as defined in
section 6426(b)(4)(A)), the rate of the tax imposed by
subsection (c)(1) shall be the comparable rate under section
4091(c).''.
(7) Section 4081 is amended by striking subsection (c).
(8) Paragraph (2) of section 4083(a) is amended to read as
follows:
``(2) Gasoline.--The term `gasoline'--
``(A) includes any gasoline blend, other than qualified
methanol or ethanol fuel (as defined in section
4041(b)(2)(B)) or a denaturant of alcohol (as defined in
section 6426(b)(4)(A)), and
``(B) includes, to the extent prescribed in regulations--
``(i) any gasoline blend stock, and
``(ii) any product commonly used as an additive in
gasoline.
For purposes of subparagraph (B)(i), the term `gasoline blend
stock' means any petroleum product component of gasoline.''.
(9) Section 6427 is amended by inserting after subsection
(d) the following new subsection:
``(e) Alcohol or Biodiesel Used To Produce Alcohol Fuel and
Biodiesel Mixtures or Used as Fuels.--Except as provided in
subsection (k)--
``(1) Used to produce a mixture.--If any person produces a
mixture described in section 6426 in such person's trade or
business, the Secretary shall pay (without interest) to such
person an amount equal to the alcohol fuel mixture credit or
the biodiesel mixture credit with respect to such mixture.
``(2) Used as fuel.--If alcohol (as defined in section
40(d)(1)) or biodiesel (as defined in section 40B(d)(1)) or
agri-biodiesel (as defined in section 40B(d)(2)) which is not
in a mixture with a taxable fuel (as defined in section
4083(a)(1))--
``(A) is used by any person as a fuel in a trade or
business, or
``(B) is sold by any person at retail to another person and
placed in the fuel tank of such person's vehicle,
the Secretary shall pay (without interest) to such person an
amount equal to the alcohol credit (as determined under
section 40(b)(2)) or the biodiesel credit (as determined
under section 40B(b)(2)) with respect to such fuel.
``(3) Coordination with other repayment provisions.--No
amount shall be payable under paragraph (1) with respect to
any mixture with respect to which an amount is allowed as a
credit under section 6426.
``(4) Termination.--This subsection shall not apply with
respect to--
``(A) any alcohol fuel mixture (as defined in section
6426(b)(3)) or alcohol (as so defined) sold or used after
December 31, 2010, and
``(B) any qualified biodiesel mixture (within the meaning
of section 6426(c)(1)) or biodiesel (as so defined) or agri-
biodiesel (as so defined) sold or used after December 31,
2005.''.
(10) Subsection (f) of section 6427 is amended to read as
follows:
``(f) Aviation Fuel Used To Produce Certain Alcohol
Fuels.--
``(1) In general.--Except as provided in subsection (k), if
any aviation fuel on which tax was imposed by section 4091 at
the regular tax rate is used by any person in producing a
mixture described in section 4091(c)(1)(A) which is sold or
used in such person's trade or business, the Secretary shall
pay (without interest) to such person an amount equal to the
excess of the regular tax rate over the incentive tax rate
with respect to such fuel.
``(2) Definitions.--For purposes of paragraph (1)--
``(A) Regular tax rate.--The term `regular tax rate' means
the aggregate rate of tax imposed by section 4091 determined
without regard to subsection (c) thereof.
``(B) Incentive tax rate.--The term `incentive tax rate'
means the aggregate rate of tax imposed by section 4091 with
respect to fuel described in subsection (c)(2) thereof.
``(3) Coordination with other repayment provisions.--No
amount shall be payable under paragraph (1) with respect to
any aviation fuel with respect to which an amount is payable
under subsection (d) or (l).
``(4) Termination.--This subsection shall not apply with
respect to any mixture sold or used after September 30,
2007.''.
(11) Paragraphs (1) and (2) of section 6427(i) are amended
by inserting ``(f),'' after ``(d),''.
(12) Section 6427(i)(3) is amended--
(A) by striking ``subsection (f)'' both places it appears
in subparagraph (A) and inserting ``subsection (e)(1)'',
(B) by striking ``gasoline, diesel fuel, or kerosene used
to produce a qualified alcohol mixture (as defined in section
4081(c)(3))'' in subparagraph (A) and inserting ``a mixture
described in section 6426'',
(C) by striking ``subsection (f)(1)'' in subparagraph (B)
and inserting ``subsection (e)(1)'',
(D) by striking ``20 days of the date of the filing of such
claim'' in subparagraph (B) and inserting ``45 days of the
date of the filing of such claim (20 days in the case of an
electronic claim)'', and
(E) by striking ``alcohol mixture'' in the heading and
inserting ``alcohol fuel and biodiesel mixture''.
(13) Section 6427(o) is amended--
(A) by striking paragraph (1) and inserting the following
new paragraph:
``(1) any tax is imposed by section 4081, and'',
(B) by striking ``such gasohol'' in paragraph (2) and
inserting ``the alcohol fuel mixture (as defined in section
6426(b)(3))'',
(C) by striking ``gasohol'' both places it appears in the
matter following paragraph (2) and inserting ``alcohol fuel
mixture'', and
(D) by striking ``Gasohol'' in the heading and inserting
``Alcohol Fuel Mixture''.
(14) Section 9503(b)(1) is amended by adding at the end the
following new flush sentence:
``For purposes of this paragraph, taxes received under
sections 4041 and 4081 shall be
[[Page S10683]]
determined without reduction for credits under section
6426.''.
(15) Section 9503(b)(4) is amended--
(A) by adding ``or'' at the end of subparagraph (C),
(B) by striking the comma at the end of subparagraph
(D)(iii) and inserting a period, and
(C) by striking subparagraphs (E) and (F).
(16) Section 9503(c)(2)(A)(i)(III) is amended by inserting
``(other than subsection (e) thereof)'' after ``section
6427''.
(17) Section 9503(e)(2) is amended by striking subparagraph
(B) and by redesignating subparagraphs (C), (D), and (E) as
subparagraphs (B), (C), and (D), respectively.
(18) The table of sections for subchapter B of chapter 65
is amended by inserting after the item relating to section
6425 the following new item:
``Sec. 6426. Credit for alcohol fuel and biodiesel mixtures.''.
(d) Effective Date.--The amendments made by this section
shall apply to fuel sold or used after September 30, 2003.
(e) Format for Filing.--The Secretary of the Treasury shall
describe the electronic format for filing claims described in
section 6427(i)(3)(B) of the Internal Revenue Code of 1986
(as amended by subsection (b)(12)(D)) not later than
September 30, 2003.
______
By Mr. GREGG.
S. 1550. A bill to change the 30-year treasury bond rate to a
composite corporate rate, and to establish a commission on defined
benefit plans; to the Committee on Finance.
Mr. GREGG. Mr. President, I come to the floor today to offer
legislation to solve a pension funding crisis in our country. The
approach incorporated in this bill has been supported in the past by
both the American Federation of Labor-Congress of Industrial
Organizations and the American business community. As Chairman of the
Senate Labor Committee, I must say that these two groups do not often
agree and I want to take this historic opportunity to memorialize their
agreement.
These groups have supported the approach taken by this legislation
because it will generate jobs, improve the financial strength of our
corporations, and promote capital investment, all at a time when our
economy sorely needs a shot in the arm.
My colleagues will remember that Congress adopted a temporary fix to
the problem raised by the artificially low interest rate set by the 30-
year Treasury bond. Pension law relies on that the 30-year Treasury
bond, which is no longer being issued, to determine funding levels. A
low interest rate means employers must put more cash in their plans to
satisfy full funding requirements. That temporary fix, enacted in March
2002, is set to expire at the end of this year.
If no action is taken soon, companies will be required to divert
billions of dollars from capital investment and job growth in order to
satisfy the arbitrary funding rules. For example, General Motors will
have to contribute $7 billion if no action is taken by the end of this
year. Compounded in businesses across the nation, the total liability
adds up to--as the late Carl Sagan used to say--``Billions and
Billions.''
Both for collective bargaining and corporate financial planning
purposes, a new fix needs to be in place this summer.
In a nutshell, the Pension Stability Act, the legislation I am
introducing today, does four things.
First, it extends the temporary fix for a longer period of time--five
years--in order to give Congress time to craft a permanent solution.
The five year period is important because businesses and their unions
need time to plan ahead and to make commitments that they can live up
to.
Second, the bill temporarily switches form the out-of-date 30-year
Treasury bond as the benchmark rate and adopts for this five-year
period a rate based on a high-quality corporate bond index or composite
of indices. In shifting to this rate, the legislation assumes that the
highest permissible rate of interest is 105 percent of the four-year
weighted average of that rate for the first two years--2004 and 2005.
For the remaining three years--so as not to permit long term
underfunding of pensions--the highest permissible rate of interest
drops down to 100 percent of the weighted average.
Third, the legislation incorporates a smooth transition from the out-
of-date 30-year Treasury Bond rate to the composite rate that will be
used for determining funding obligations. No change in the lump sum
distribution rate is made for the first two years. Then, in 20 percent
increments, the new rate is phased in. My bill does not take the
interest rate to 100 percent of the composite rate, as most
commentators assert is the appropriate rate. But my bill makes
significant progress toward that goal, and gives Congress time to make
informed decisions on this important issue that affects very many
lives.
Finally, the Pension Stability Act acknowledges that reasonable
people can differ on the best permanent solution to the pension funding
issues. The amendment calls for the creation of an independent
commission to consider all of the issues relevant to funding of
pensions, and making concrete recommendations to Congress. The goal is
to take controversy and politics out of the deliberation.
The issues confronting our pension system are too important, and the
dollar figures too large, for an internal task force within any
administration. Stakeholders in this debate include company financial
and human resources officers, stockholders, plan participants and
beneficiaries, unions, and financial markets. If they are not included
in the process, they are more likely to oppose the proffered solutions.
The intent with this legislation is to create a bipartisan commission
that includes business, union and pension rights groups. Such a panel
would be able to address both the funding issues presented here,
including the ``private yield curve'' approach, and evaluate other
ideas for revitalizing the defined benefit system.
I urge my colleagues to support this amendment.
______
By Mr. McCain.
S. 1551. A bill to provide educational opportunities for
disadvantaged children, and for other purposes; to the Committee on
Health, Education, Labor, and Pensions.
Mr. McCAIN. Mr. President, today, I am pleased to reintroduce
legislation to authorize a three-year nationwide school choice
demonstration program targeted at children from economically
disadvantaged families. The Excellence Through Choice to Elevate
Learning Act, or the EXCEL Act, will expand educational opportunities
for low-income children by providing parents and students the freedom
to choose the best school for their unique academic needs while
encouraging schools to be creative and responsive to the needs of all
students.
This bill authorizes $1.8 billion annually for fiscal years 2004
through 2007 to be used to provide school choice vouchers to
economically disadvantaged children throughout the nation. The funds
allocated by the bill will be divided among states based upon the
number of children they have enrolled in public schools. States will
then conduct a lottery among low-income children who attend the public
schools with the lowest academic performance in their State. Each child
selected in the lottery would receive $2,000 per year for three years
to be used to pay tuition at any school of their choice in the State,
including private or religious schools. The money could also be used to
pay for transportation to the school or supplementary educational
services to meet the unique needs of the individual student.
In total, this bill authorizes $5.4 billion for the three-year school
choice demonstration program, as well as an evaluation of the program
by the General Accounting Office. The cost of this important test of
school vouchers is fully offset by eliminating more than $5.4 billion
in unnecessary pork and inequitable corporate tax loopholes.
We all know that one of the most important issues facing our nation
is the education of our children. We must strive to develop and
implement initiatives which strengthen and improve our education system
thereby ensuring that our children are provided with the essential
academic tools for succeeding professionally, economically and
personally. I am sure we all agree that increasing the academic
performance and skills of all our nation's students must be the
paramount goal of any education reform we implement.
School vouchers are a viable method of allowing all American children
access to high quality schools, including private and religious
schools. Every parent, not just the wealthy, should be able to obtain
the highest quality education for their children. Tuition vouchers
would provide low-income children trapped in poor or mediocre
[[Page S10684]]
schools the same educational choices as children of economic privilege.
Some of my colleagues may argue that vouchers would divert money away
from our Nation's public schools. They will claim it is better to pour
more and more money into poor performing public schools, rather than
promote competition in our school systems. I respectfully disagree.
While I support strengthening financial support for education in our
nation, the solution to what ails our system is not money alone.
Currently our nation spends significantly more money on education
than most countries and yet our students consistently score lower than
their peers. Students in countries which are struggling economically,
socially and politically, such as Russia, outscore U.S. children in
critical subjects such as math and physics. Clearly, we must make
significant change beyond blindly throwing money into the current
structure in order to improve our children's academic performance in
order to maintain a viable force in the world economy.
It is shameful that we are failing to provide many of our children
with adequate training and quality academic preparation for the real
world. The number of college freshmen who require remedial courses in
reading, writing and mathematics when they begin their higher education
is unacceptably high. It does not bode well for our future economy if
the majority of workers are not prepared with the basic skills to
engage in a competitive global marketplace.
I concede that school vouchers are not the magic bullet for
eradicating all that is wrong with our current educational system, but
they are an important opportunity for providing improved academic
opportunities for all children, not just the wealthy. Examination of
the limited voucher programs scattered around our country reveal high
levels of parent and student satisfaction, an increase in parental
involvement, and a definite improvement in attendance and discipline at
the participating schools. Vouchers encourage public schools,
communities and parents to work together to raise the level of
education for all students. Through this bill, we have the opportunity
to replicate these important benefits throughout all our nation's
communities.
Thomas Jefferson said, ``The purpose of education is to create young
citizens with knowing heads and loving hearts.'' If we fail to give our
children the education they need to nurture their heads and hearts,
then we threaten their futures and the future of our nation. Each of us
is responsible for ensuring that our children have both the love in
their hearts and the knowledge in their heads to not only dream, but to
make their dreams a reality.
The time has come for us to finally conduct a national demonstration
of school choice to determine the benefits or perhaps disadvantages of
providing educational choices to all students, not just those who are
fortunate enough to be born into a wealthy family. I urge my colleagues
to support this bill and put the needs of America's school children
ahead of pork barrel projects and tax loopholes benefitting only
special interests and big business.
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. 1551
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 ``Excellence through Choice to
Elevate Learning Act''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to assist States to--
(A) give children from low-income families the same choices
among all elementary and secondary schools and other academic
programs as children from wealthier families already have;
(B) improve schools and other academic programs by giving
parents in low-income families increased consumer power to
choose the schools and programs that the parents determine
best fit the needs of their children; and
(C) more fully engage parents in their children's
schooling; and
(2) to demonstrate, through a 3-year national grant
program, the effects of a voucher program that gives parents
in low-income families--
(A) choice among public, private, and religious schools for
their children; and
(B) access to the same academic options as parents in
wealthy families have for their children.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There is authorized to be appropriated to
carry out this Act (other than section 11) $1,800,000,000 for
each of fiscal years 2004 through 2007.
(b) Evaluation.--There is authorized to be appropriated to
carry out section 11 $17,000,000 for fiscal years 2005
through 2008.
SEC. 4. PROGRAM AUTHORITY.
(a) In General.--The Secretary shall make grants to States,
from allotments made under section 5 to enable the States to
carry out educational choice programs that provide
scholarships, in accordance with this Act.
(b) Limit on Federal Administrative Expenditures.--The
Secretary may reserve not more than $1,000,000 of the amounts
appropriated under section 3(a) for a fiscal year to pay for
the costs of administering this Act.
SEC. 5. ALLOTMENTS TO STATES.
(a) Allotments.--The Secretary shall make the allotments to
States in accordance with a formula specified in regulations
issued in accordance with subsection (b). The formula shall
provide that the Secretary shall allot to each State an
amount that bears the same relationship to the amounts
appropriated under section 3(a) for a fiscal year (other than
funds reserved under section 4(b)) as the number of covered
children in the State bears to the number of covered children
in all such States.
(b) Formula.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall issue regulations
specifying the formula referred to in subsection (a).
(c) Limit on State Administrative Expenditures.--The State
may reserve not more than 1 percent of the funds made
available through the State allotment to pay for the costs of
administering this Act.
(d) Definition.--In this section, the term ``covered
child'' means a child who is enrolled in a public school
(including a charter school) that is an elementary school or
secondary school.
SEC. 6. ELIGIBLE SCHOOLS.
(a) Eligibility.--
(1) In general.--Schools identified by a State under
paragraph (2) shall be considered to be eligible schools
under this Act.
(2) Determination.--Not later than 180 days after the date
the Secretary issues regulations under section 5(b), each
State shall identify the public elementary schools and
secondary schools in the State that are at or below the 25th
percentile for academic performance of schools in the State.
(b) Performance.--The State shall determine the academic
performance of a school under this section based on such
criteria as the State may consider to be appropriate.
SEC. 7. SCHOLARSHIPS.
(a) In General.--
(1) Scholarship awards.--With funds awarded under this Act,
each State awarded a grant under this Act shall provide
scholarships to the parents of eligible children, in
accordance with subsections (b) and (c). The State shall
ensure that the scholarships may be redeemed for elementary
or secondary education for the children at any of a broad
variety of public and private schools, including religious
schools, in the State.
(2) Scholarship amount.--The amount of each scholarship
shall be $2000 per year.
(3) Tax exemption.--Scholarships awarded under this Act
shall not be considered income of the parents for Federal
income tax purposes or for determining eligibility for any
other Federal program.
(b) Eligible Children.--To be eligible to receive a
scholarship under this Act, a child shall be--
(1) a child who is enrolled in a public elementary school
or secondary school that is an eligible school; and
(2) a member of a family with a family income that is not
more than 200 percent of the poverty line.
(c) Award Rules.--
(1) Priority.--In providing scholarships under this Act,
the State shall provide scholarships for eligible children
through a lottery system administered for all eligible
schools in the State by the State educational agency.
(2) Continuing eligibility.--Each State receiving a grant
under this Act to carry out an educational choice program
shall provide a scholarship in each year of the program to
each child who received a scholarship during the previous
year of the program, unless--
(A) the child no longer resides in the area served by an
eligible school;
(B) the child no longer attends school;
(C) the child's family income exceeds, by 20 percent or
more, 200 percent of the poverty line; or
(D) the child is expelled or convicted of a felony,
including felonious drug possession, possession of a weapon
on school grounds, or a violent act against an other student
or a member of the school's faculty.
SEC. 8. USES OF FUNDS.
Any scholarship awarded under this Act for a year shall be
used--
(1) first, for--
(A) the payment of tuition and fees at the school selected
by the parents of the child for whom the scholarship was
provided; and
(B) the reasonable costs of the child's transportation to
the school, if the school is
[[Page S10685]]
not the school to which the child would be assigned in the
absence of a program under this Act;
(2) second, if the parents so choose, to obtain
supplementary academic services for the child, at a cost of
not more than $500, from any provider chosen by the parents,
that the State determines is capable of providing such
services and has an appropriate refund policy; and
(3) finally, for educational programs that help the
eligible child achieve high levels of academic excellence in
the school attended by the eligible child, if the eligible
child chooses to attend a public school.
SEC. 9. STATE REQUIREMENT.
A State that receives a grant under this Act shall allow
lawfully operating public and private elementary schools and
secondary schools, including religious schools, if any,
serving the area involved to participate in the program.
SEC. 10. EFFECT OF PROGRAMS.
(a) Title I.--Notwithstanding any other provision of law,
if a local educational agency in the State would, in the
absence of an educational choice program that is funded under
this Act, provide services to a participating eligible child
under part A of title I of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6311 et seq.), the State
shall ensure the provision of such services to such child.
(b) Individuals With Disabilities.--Nothing in this Act
shall be construed to affect the requirements of part B of
the Individuals with Disabilities Education Act (20 U.S.C.
1411 et seq.).
(c) Aid.--
(1) In general.--Scholarships under this Act shall be
considered to aid families, not institutions. For purposes of
determining Federal assistance under Federal law, a parent's
expenditure of scholarship funds under this Act at a school
or for supplementary academic services shall not constitute
Federal financial aid or assistance to that school or to the
provider of supplementary academic services.
(2) Supplementary academic services.--
(A) In general.--Notwithstanding paragraph (1), a school or
provider of supplementary academic services that receives
scholarship funds under this Act shall, as a condition of
participation under this Act, comply with the provisions of
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.) and section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794).
(B) Regulations.--The Secretary shall promulgate
regulations to implement the provisions of subparagraph (A),
taking into account the purposes of this Act and the nature,
variety, and missions of schools and providers that may
participate in providing services to children under this Act.
(d) Other Federal Funds.--No Federal, State, or local
agency may, in any year, take into account Federal funds
provided to a State or to the parents of any child under this
Act in determining whether to provide any other funds from
Federal, State, or local resources, or in determining the
amount of such assistance, to such State or to a school
attended by such child.
(e) No Discretion.--Nothing in this Act shall be construed
to authorize the Secretary to exercise any direction,
supervision, or control over the curriculum, program of
instruction, administration, or personnel of any educational
institution or school participating in a program under this
Act.
SEC. 11. EVALUATION.
The Comptroller General of the United States shall conduct
an evaluation of the program authorized by this Act. Such
evaluation shall, at a minimum--
(1) assess the implementation of educational choice
programs assisted under this Act and their effect on
participants, schools, and communities in the school
districts served, including parental involvement in, and
satisfaction with, the program and their children's
education;
(2) compare the educational achievement of participating
eligible children with the educational achievement of similar
non-participating children before, during, and after the
program; and
(3) compare--
(A) the educational achievement of eligible children who
use scholarships to attend schools other than the schools the
children would attend in the absence of the program; with
(B) the educational achievement of children who attend the
schools the children would attend in the absence of the
program.
SEC. 12. ENFORCEMENT.
(a) Regulations.--The Secretary shall promulgate
regulations to enforce the provisions of this Act.
(b) Private Cause.--No provision or requirement of this Act
shall be enforced through a private cause of action.
SEC. 13. FUNDING.
The Committee on Finance and the Committee on
Appropriations of the Senate and the Committee on Ways and
Means and the Committee on Appropriations of the House of
Representatives shall identify wasteful spending (including
loopholes to revenue raising tax provisions) by the Federal
Government as a means of providing funding for this Act. Not
later than 60 days after the date of enactment of this Act,
the committees referred to in the preceding sentence shall
jointly prepare and submit to the Majority and Minority
Leaders of the Senate and the Speaker and Minority Leader of
the House of Representatives, a report concerning the
spending (and loopholes) identified under such sentence.
SEC. 14. DEFINITIONS.
In this Act:
(1) Charter school.--The term ``charter school'' has the
meaning given the term in section 5210 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7221i).
(2) Elementary school; local educational agency; parent;
secondary school; state educational agency.--The terms
``elementary school'', ``local educational agency'',
``parent'', ``secondary school'', and ``State educational
agency'' have the meanings given the terms in section 9101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801).
(3) Poverty line.--The term ``poverty line'' means the
poverty line (as defined by the Office of Management and
Budget, and revised annually in accordance with section
673(2) of the Community Services Block Grant Act (42 U.S.C.
9902(2))) applicable to a family of the size involved.
(4) Secretary.--The term ``Secretary'' means the Secretary
of Education.
(5) State.--The term ``State'' means each of the 50 States.
______
By Mr. CRAIG:
S. 1553. A bill to amend title 18, United States Code, to combat,
deter, and punish individuals and enterprises engaged in organized
retail theft; to the Committee on the Judiciary.
Mr. CRAIG. Mr. President, today I am introducing legislation to
respond to a growing crime problem that is harming honest businesses,
endangering public health, and dragging down our economy.
The problem I am talking about is organized retail theft.
Organized retail theft is a quantum leap in criminality beyond petty
shoplifting. It involves professional gangs or theft rings that move
quickly from store to store, from community to community, and across
State lines to pilfer large amounts of merchandise that can be easily
sold through fencing operations, flea markets, swap meets and shady
storefront operations.
This type of criminal activity is a growing problem throughout the
United States, harming many segments of the retail community, including
supermarkets, chain drug stores, independent pharmacies, convenience
stores, large discount operations, mass merchandisers, and specialty
shops, among others. Organized retail theft has become the most
pressing security problem confronting retailers and their suppliers,
accounting for an estimated $30 billion in losses at the retail level
annually, according to the Federal Bureau of Investigation's interstate
theft task force.
This kind of theft also presents significant health and safety risks
for consumers. While items that are in high demand and prized by these
organized gangs include software, videos, DVDs and CDs, razor blades,
camera film, and batteries--they also include over-the-counter drug
products, such as analgesics, cough and cold medications, and infant
formula. Professional theft rings do not provide ideal or required
storage conditions for consumable items, and as a result, the integrity
and nutrient content of these products is often compromised.
Furthermore, when products are near the end of their expiration date,
it is not uncommon for unscrupulous middlemen to change the expiration
date, lot numbers, and labels to falsely extend the shelf-life of the
products or to disguise the fact that the merchandise has been stolen.
Clearly, theft of this kind adversely affects both retailers and
consumers in a variety of ways. For example, because theft by
professional gangs has become so rampant in certain product categories,
such as infant formula, many retail stores are taking the product off
the shelves and placing them behind the counter or under lock and key.
In some cases, products are simply unavailable due to high pilferage
rates.
Let me commend the Federal Bureau of Investigation and the Department
of Justice for their work in this area. I know the Department has
successfully prosecuted a number of cases against professional
shoplifting rings. However, retail organizations and individual
companies are crying out for help because this type of criminal
activity is escalating, and there is no federal statute that
specifically addresses organized retail theft. I believe more can be
done to help in the investigation, apprehension, and prosecution of
these criminal gangs.
The legislation that I am introducing is in response to the concerns
that
[[Page S10686]]
have been brought to my attention by the retailing community. I hope my
colleagues will join me in this effort. While this bill is not a cure-
all, I hope it will help to highlight the magnitude of the problem so
that we can begin considering appropriate initiatives with all
interested parties, including our federal law enforcement agencies, on
how to effectively combat and deter organized retail theft in the
future.
I ask unanimous consent that the text of the Organized Retail Theft
Act be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1553
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 ``Organized Retail Theft Act
of 2003''.
SEC. 2. PROHIBITION AGAINST ORGANIZED RETAIL THEFT.
(a) In General.--Chapter 103 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2120. Organized retail theft
``(a) In General.--Whoever in any material way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by taking possession of,
carrying away, or transferring or causing to be carried away,
with intent to steal, any goods offered for retail sale with
a total value exceeding $1,000, but not exceeding $5,000,
during any 180-day period shall be fined not more than
$1,000, imprisoned not more than 1 year, or both.
``(b) High Value.--Whoever in any material way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by taking possession of,
carrying away, or transferring or causing to be carried away,
with intent to steal, any goods offered for retail sale with
a total value exceeding $5,000, during any 180-day period,
shall be fined under this title, imprisoned not more than 10
years, or both.
``(c) Receipt and Disposal.--Whoever receives, possesses,
conceals, stores, barters, sells, disposes of, or travels in
interstate or foreign commerce, with the intent to
distribute, any property which the person knows, or should
know has been taken or stolen in violation of subsection (a)
or (b), or who travels in interstate or foreign commerce,
with the intent to distribute the proceeds of goods which the
person knows or should know to be the proceeds of an offense
described in subsection (a) or (b), or to otherwise knowingly
promote, manage, carry on, or facilitate an offense described
in subsection (a) or (b), shall be fined or imprisoned as
provided in subsection (a) if the actions involved a
violation of subsection (a) and as provided in subsection (b)
if the actions involved a violation of subsection (b).
``(d) Enhanced Penalties.--
``(1) Assault.--Whoever, in committing, or in attempting to
commit, any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy the
life of any person by the use of a dangerous weapon or
device, shall be fined under this title, imprisoned not more
than 25 years, or both.
``(2) Death and kidnapping.--Whoever, in committing any
offense under this section, or in avoiding or attempting to
avoid apprehension for the commission of such offense, or in
freeing himself or attempting to free himself from arrest or
confinement for such offense, kills any person, or forces any
person to accompany him without the consent of such person,
shall be imprisoned not less than 10 years, or if death
results shall be punished by death or life imprisonment.
``(e) Forfeiture and Disposition of Goods.--
``(1) In general.--Whoever violates this section shall
forfeit to the United States, irrespective of any provision
of State law any interest in the retail goods the person
knows or should know to have been acquired or maintained in
violation of this section.
``(2) Injunctions and impounding, forfeiture, and
disposition of goods.--
``(A) Injunctions and impounding.--In any prosecution under
this subsection, upon motion of the United States, the court
may--
``(i) grant 1 or more temporary, preliminary, or permanent
injunctions on such terms as the court determines to be
reasonable to prevent or restrain the alleged violation; and
``(ii) at any time during the proceedings, order the
impounding on such terms as the court determines to be
reasonable, of any good that the court has reasonable cause
to believe was involved in the violation.
``(B) Forfeiture and disposition of goods.--Upon conviction
of any person of a violation under this subsection, the court
shall--
``(i) order the forfeiture of any good involved in the
violation or that has been impounded under subparagraph
(A)(ii);
``(ii) either--
``(I) order the disposal of the good by delivery to such
Federal, State, or local government agencies as, in the
opinion of the court, have a need for such good, or by gift
to such charitable or nonprofit institutions as, in the
opinion of the court, have a need for such good, if such
disposition would not otherwise be in violation of law and if
the manufacturer consents to such disposition; or
``(II) order the return of any goods seized or impounded
under subparagraph (A)(ii) to their rightful owner; and
``(iii) find that the owner of the goods seized or
impounded under subparagraph (A)(ii) aided in the
investigation and order that such owner be reimbursed for the
expenses associated with that aid.
``(C) Terms.--For purposes of remission and mitigation of
goods forfeited to the Government under this subsection, the
provisions of section 981(d) of this title shall apply.
``(f) Civil Remedies.--
``(1) In general.--Any person injured by a violation of
this section, or who demonstrates the likelihood of such
injury, may bring a civil action in an appropriate United
States district court against the alleged violator. The
complaint shall set forth in detail the manner and form of
the alleged violation.
``(2) Injunctions and impounding and disposition of
goods.--In any action under paragraph (1), the court may--
``(A) grant 1 or more temporary, preliminary, or permanent
injunctions upon the posting of a bond at least equal to the
value of the goods affected and on such terms as the court
determines to be reasonable to prevent or restrain the
violation;
``(B) at any time while the action is pending, order the
impounding upon the posting of a bond at least equal to the
value of the goods affected and, on such terms as the court
determines to be reasonable, if the court has reasonable
cause to believe the goods were involved in the violation;
and
``(C) as part of a final judgment or decree, in the court's
discretion, order the restitution of any good involved in the
violation or that has been impounded under subparagraph (B).
``(3) Damages.--In any action under paragraph (1), the
plaintiff shall be entitled to recover the actual damages
suffered by the plaintiff as a result of the violation, and
any profits of the violator that are attributable to the
violation and are not taken into account in computing the
actual damages. In establishing the violator's profits, the
plaintiff shall be required to present proof only of the
violator's sales, and the violator shall be required to prove
all elements of cost or deduction claimed.
``(4) Costs and attorney's fees.--In any action under
paragraph (1), in addition to any damages recovered under
paragraph (3), the court in its discretion may award the
prevailing party its costs in the action and its reasonable
attorney's fees.
``(5) Repeat violations.--
``(A) Treble damages.--In any case in which a person
violates this section within 3 years after the date on which
a final judgment was entered against that person for a
previous violation of this section, the court may, in its
discretion, in an action brought under this subsection,
increase the award of damages for the later violation to not
more than 3 times the amount that would otherwise be awarded
under paragraph (3), as the court considers appropriate.
``(B) Burden of proof.--A plaintiff that seeks damages
described in subparagraph (A) shall bear the burden of
proving the existence of the earlier violation.
``(h) Definition.--In this section, the term `value' has
the meaning given that term in section 2311 of this title.''.
(b) Conforming Amendment.--The table of sections for
chapter 103 of title 18, United States Code, is amended by
inserting at the end the following:
``2120. Organized retail theft.''.
SEC. 3. COMMISSION OF ORGANIZED RETAIL THEFT A PREDICATE FOR
RICO CLAIM.
Section 1961(1) of title 18, United States Code, is amended
by adding ``, section 2120 (relating to organized retail
theft)'' before ``, sections 2251''.
SEC. 4. FLEA MARKETS.
(a) Prohibitions.--No person at a flea market shall sell,
offer for sale, or knowingly permit the sale of any of the
following products:
(1) Baby food, infant formula, or similar products used as
a sole or major source of nutrition, manufactured and
packaged for sale for consumption primarily by children under
3 years of age.
(2) Any drug, food for special dietary use, cosmetic, or
device, as such terms are defined in the Federal Food, Drug,
and Cosmetic Act and regulations issued under that Act.
(b) Exclusion.--Nothing in this section shall prohibit a
person from engaging in activity otherwise prohibited by
subsection (a), in the case of a product described in
subsection (a)(2), if that person maintains for public
inspection written documentation identifying the person as an
authorized representative of the manufacturer or distributor
of that product.
(c) Flea Market Defined.--
(1) In general.--As used in this section, the term ``flea
market'' means any physical location, other than a permanent
retail store, at which space is rented or otherwise made
available to others for the conduct of business as transient
or limited vendors.
(2) Exclusion.--For purposes of paragraph (1), transient or
limited vendors shall not include those persons who sell by
sample or catalog for future delivery to the purchaser.
[[Page S10687]]
(d) Criminal Penalties.--Any person who willfully violates
this section shall be punished as provided in section 2120 of
title 18, United States Code.
SEC. 5. ATTORNEY GENERAL REPORTING REQUIREMENTS.
Beginning with the first year after the date of enactment
of this Act, the Attorney General shall include in the report
of the Attorney General to Congress on the business of the
Department of Justice prepared pursuant to section 522 of
title 28, United States Code, an accounting, on a district by
district basis, of the following with respect to all actions
taken by the Department of Justice that involve organized
retail theft (as punishable under section 2120 of title 18,
United States Code, as added by this Act), including--
(1) the number of open investigations;
(2) the number of cases referred by the United States
Customs Service;
(3) the number of cases referred by other agencies or
sources; and
(4) the number and outcome, including settlements,
sentences, recoveries, and penalties, of all prosecutions
brought under section 2120 of title 18, United States Code.
____________________