[Congressional Record Volume 149, Number 176 (Tuesday, December 9, 2003)]
[Senate]
[Pages S16122-S16140]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. GRAHAM of Florida:
S. 1980. A bill to amend the Help America Vote Act of 2002 to require
a voter-verified permanent record or hardcopy under title III of such
Act, and for other purposes; to the Committee on Rules and
Administration.
(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record.)
Mr. GRAHAM of Florida. Mr. President, today I rise to
introduce the Voter Confidence and Increased Accessibility Act.
In 2000, Florida grabbed the national spotlight as an unfortunate
example of an electoral process gone awry. The question of who would
assume our Nation's highest office became contingent on such things as
whether a chad was bulging or hanging. In the aftermath of that
debacle, Americans demand that Congress improve the accuracy and
integrity of our electoral process. Congress responded with the Help
America Vote Act (HAVA), which we passed in 2002.
HAVA aimed to modernize our electoral system and there have been some
positive developments. Under the law, States have replaced punch card
and lever voting systems with modern computer voting machines.
Modernization, however, has failed to overcome all the pitfalls seen in
recent elections. In 2002, Floridians were subject to another failure
of our electoral process when a software error failed to court
approximately 100,000 votes.
As it now stands, computer-voting systems--including the popular
touch screen models--are not mandated to include a paper record
verifying voter intent. In the absence of a paper trail, confirming the
accuracy of a computer voting machine is very difficult, sometimes even
impossible. Further, voting irregularities, security intrusions and
electronic errors can go unnoticed. We have a duty to our democracy to
continue to address challenges that threaten to undermine the security
and reliability of our electoral system.
The Voter Confidence & Increased Accessibility Act renews our
commitment to fulfilling that obligation. It will take us one step
closer to our ultimate goal: ensuring that every vote really counts.
This legislation responds to a set of challenges presented by computer
voting systems. It would require all voting systems produce a
verifiable paper record. States would also be given assistance in
meeting this standard through funds dedicated to HAVA.
The Voter Confidence & Increased Accessibility Act also stipulates
several other provisions to ensure that every vote really counts. It
would prohibit the use of unreported software and wireless
communication devices in all voting systems. It would also restrict
electronic communications from voting machines, permitting outgoing
transmissions of vote totals only.
The legislation specifies that voting systems must comply with these
standards in time for the November 2004 general election. In the event
that a locality is unable to get their computer voting systems
compliant by this deadline, they are authorized to use a paper system
as an interim measure. The Federal Government would be authorized to
pay the cost of these paper systems for the November 2004 election.
The Voter Confidence & Increased Accessibility Act also requires that
individuals with disabilities must be accommodated with electronic
voting systems by January 1, 2006, a year earlier than mandated by
HAVA. While a paper record of a disabled persons vote is not expressly
required, voting systems for disabled persons must include a means for
voter verification. In the event a jurisdiction cannot meet this
standard, disabled voters must be given the option to utilize a
temporary paper system, with the assistance of an aide of their
choosing.
Finally, the legislation would require the Election Assistance
Commission to conduct unannounced recounts in .5 percent of domestic
jurisdictions and .5 percent of overseas jurisdictions. This way,
Congress and America's voters can be assured that the election
equipment is operating properly, and votes are really being counted.
Creating these new standards will help ensure that our elections
accurately reflect the intent of the voting public, and put into place
an election system in which Americans can have full confidence.
______
By Mrs. CLINTON:
S. 1986. A bill to amend the help America Vote Act of 2002 to require
voter verification and improved security for voting systems under title
III of the Act, and for other purposes; to the Committee on Rules and
Administration.
Mrs. CLINTON. Mr. President, I rise to introduce the Protecting
American Democracy Act of 2003, legislation that is vital to ensuring
that the voting systems used in our Federal elections are as secure as
possible while also ensuring that each and every voter in our Nation
has an equal opportunity to verify his or her vote before that vote is
cast and permanently recorded. At its core, this legislation will
ensure that every vote is properly counted, ensuring the integrity of
each vote, which is at the heart of our democracy.
In recent months, there has been discussion about the increasing use
of electronic voting systems such as direct recording electronic
systems (DREs), the first completely computerized voting systems.
Computerized voting systems can have many advantages. As the
Congressional Research
[[Page S16123]]
Service has reported, they are arguably the most user-friendly and
versatile of any current voting system. Among many features, such
voting machines can be easily programmed to display ballots in
different languages and can be made fully accessible for persons with
disabilities, including the visually impaired. They can also prevent
overvotes and spoilage of ballots due to extraneous marks since no
document ballot is involved. In addition, fully computerized systems
have the ability to notify voters of undervotes. Presently, no other
kind of voting system possesses so many features. For this reason, it
is expected that within the next two years, with funding authorized
under the Help America Vote Act of 2002 (``HAVA''), state and local
jurisdictions across the country will begin purchasing fully
computerized systems.
One of the disadvantages of these electronic voting systems, however,
is that they do not give voters an opportunity to verify their votes--
to confirm that the voting machinery is registering the vote that the
voter intended to cast--before the vote is cast and permanently
recorded. In addition, electronic voting systems raise other concerns
because of the ability of the software in the voting system to be
compromised, or worse, maliciously attacked, by someone who may want to
alter the voting results. Indeed, a number of recent studies, including
the July 2001 study by Caltech/MIT, the July 2003 study by Johns
Hopkins and Rice universities, the September 2003 study by the Science
Applications International Corporation, requested by the Governor of
Maryland, and the two November 2003 studies conducted by Compuware
Corporation and InfoSENTRY, requested by the Ohio Secretary of State,
pointed to significant and disturbing security risks in electronic
voting systems and related administrative procedures and processes.
That is why in addition to ensuring that voters have an opportunity
to verify their vote, it is vital that we improve the security of
voting system technology, and that means not only the kind of software
that is used but also how, for example, that software is designed,
stored, disseminated, updated, field tested, and used in an actual
election. This is a developing consensus among computer security
experts that not only is the security of electronic voting systems
wholly inadequate, but that the security policies and procedures that
State and local election officials, voting system vendors, and others
use are non-existent, inadequate, or, if they exist, are not followed,
which is the same as having no policy at all.
Our Nation is the greatest Nation on earth and it is the leading
democracy in the world. Central to that democracy is ability of
Americans to have confidence in the voting system used to register and
record their votes. This is a fundamental standard that must be met. I
have concerns, however, that our Nation is falling short of that
standard.
That is why I am today introducing the ``Protecting American
Democracy Act of 2003,'' which amends by adding a voter verification
requirement for voting systems to give each voter an opportunity to
verify his or her vote at the time the vote is cast. Voters will be
given an opportunity to correct any error made by the voting system
before the permanent voting record is preserved.
While requiring that all election jurisdictions give voters the
ability to verify their votes, this legislation also gives States and
local jurisdictions the flexibility to employ the most appropriate,
accurate, and secure voter verification technologies, which may include
voter-verifiable paper ballots, votemeters, modular voting
architecture, and/or encrypted votes, for their State or jurisdiction
in a uniform and nondiscriminatory manner. Any voter verification
method used must ensure that voters with disabilities and other
affected voters have the ability to cast their vote in private, and
language minorities must have equal access in verifying their vote.
This is important if we are to ensure that all Americans--including the
more than 20 million voters who are visually impaired, the more than 40
million Americans who lack basic literacy skills, and millions of
language minorities--will be able to exercise their constitutional
right to vote.
To address critical security issues, the ``Protecting American
Democracy Act of 2003'' also amends HAVA by adding a security
requirement for voting systems to ensure that voting systems are as
secure as possible. Specifically, voting systems must adhere to the
security requirements for Federal computer systems as required under
current law or, alternatively, more stringent requirements adopted by
the Election Assistance Commission. Currently no such requirement
exists. I believe that, at minimum, the systems used by the people of
the United States to exercise their constitutional right to vote, the
hallmark of our democracy, should be at least as secure as the computer
systems used by the Federal Government.
The security requirements must also provide that no voting system
shall contain any wireless device, which reduces the risk that hackers
will be able to attack any electronic voting system. In addition, all
software and hardware used in any electronic voting system must be
certified by laboratories accredited by the Commission as meeting all
security requirements.
The Act also requires the Election Assistance Commission to report to
Congress within 6 months of enactment regarding a proposed security
review and certification process for all voting systems. Within 3
months of enactment, the Government Accounting Office, unless the
Commission has already completed the following report, must issue a
report to Congress on the operational and management systems that
should be employed to safeguard the security of voting systems,
together with a schedule for how quickly each such measure should be
implemented.
Lastly, immediately upon enactment, the National Institute of
Standards and technology (NIST) must provide security consultation
services to State and local jurisdiction. Two million dollars in Fiscal
Years 2004 through 2006 are authorized to be appropriated to assist
NIST in providing these security consultation services.
I cannot think of a more significant risk to our democracy than for
Americans to lack complete confidence in the voting systems used to
cast and count their votes in Federal elections. For all those who
believe that in a democracy, there is no more important task than
assuring the sanctity of votes, this should be an easy step to take to
assure it. For this reason, I urge all of my colleagues to support this
legislation. I ask unanimous consent that the text of this bill be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1986
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 ``Protecting American
Democracy Act of 2003''.
SEC. 2. REQUIRING VERIFICATION FOR VOTERS.
(a) In General.--Section 301(a)(2) of the Help America Vote
Act of 2002 (42 U.S.C. 15481(a)(2)) is amended by adding at
the end the following new subparagraph:
``(C) Voter verification.--
``(i) The voting system shall provide a means by which each
individual voter must be able to verify his or her vote at
the time the vote is cast, and shall preserve each vote
within the polling place on the day of the election in a
manner that ensures the security of the votes as verified for
later use in any audit.
``(ii) The voting system shall provide the voter with an
opportunity to correct any error made by the system before
the permanent record is preserved for use in any audit.
``(iii) The verified vote produced under this subparagraph
shall be available as an official record.
``(iv) Any method used to permit the individual voter to
verify his or her vote at the time the vote is cast and
before a permanent record is created--
``(I) shall use the most accurate technology, which may
include voter-verifiable paper ballots, votemeters, modular
voting architecture, and encrypted votes, in a uniform and
nondiscriminatory manner;
``(II) shall guarantee voters with disabilities and other
affected voters the ability to cast a vote in private,
consistent with paragraph (3)(A); and
``(III) shall guarantee voters alternative language
accessibility under the requirements of section 203 of the
Voting Rights Act of 1965 (42 U.S.C. 1973aa-1a), consistent
with paragraph (4).''.
SEC. 3. REQUIRING INCREASED SECURITY FOR VOTING SYSTEMS.
(a) Section 301(a) of the Help America Vote Act of 2002 (42
U.S.C. 15481(a)) is amended by
[[Page S16124]]
adding at the end the following new paragraph:
``(7) Increased security for voting systems.--
``(A) Voting system security requirement.--The voting
system shall adhere to security requirements for Federal
computer systems or more stringent requirements adopted by
the Election Assistance Commission after receiving
recommendations from the Technical Guidelines Development
Committee under sections 221 and 222. Such requirements shall
provide that no voting system shall contain any wireless
device. All software and hardware used in any electronic
voting system shall be certified by laboratories accredited
by the Commission as meeting the requirements of this
subsection.
``(B) Report to congress on security review.--The
Commission, in consultation with the National Institute of
Standards and Technology (NIST), shall report to Congress not
later than 6 months after the date of enactment of the
Protecting American Democracy Act of 2003 regarding a
proposed security review and certification process for all
voting systems.
``(C) General accounting office report.--Not later than 3
months after the date of enactment of the Protecting American
Democracy Act of 2003, the Government Accounting Office,
unless the Commission has previously completed such report,
shall issue a report to Congress on the operational and
management systems that should be employed to safeguard the
security of voting systems, together with a schedule for how
quickly each such system should be implemented.
``(D) Provision of security consultation services.--
``(i) In general.--On and after the date of enactment of
the Protecting American Democracy Act of 2003, the National
Institute of Standards and Technology (NIST) shall provide
security consultation services to State and local
jurisdictions.
``(ii) Authorization.--To carry out the purposes of this
subparagraph, $2,000,0000 is authorized for each of fiscal
years 2004 through 2006.''.
SEC. 4. EFFECTIVE DATE.
The amendments made by this Act shall take effect as if
included in the enactment of the Help America Vote Act of
2002.
______
By Mr. LUGAR:
S. 1987. A bill to implement the obligations of the United States
under the Protocol Additional to the Agreement between the United
States of America and the International Atomic Energy Agency for the
Application of Safeguards in the United States of America, known as
``the Additional Protocol'' signed by the United States on June 12,
1998; to the Committee on Foreign Relations.
Mr. LUGAR. Mr. President, at the request of the administration, I am
pleased to introduce the Additional Protocol Implementation Act of
2003. This important legislation is needed to implement the provisions
of the Protocol to the Agreement of the International Atomic Energy
Agency, IAEA, Regarding Safeguards in the United States.
The United States signed the Additional Protocol in Vienna on June
12, 1998. President Bush submitted the Additional Protocol to the
Senate on May 9, 2002. The State Department sent the implementing
legislation to us on November 19, 2003, and asked that it be considered
in conjunction with the Senate's advice and consent on the Protocol.
The adoption of this agreement is an important step in demonstrating
U.S. leadership in the fight against the spread of nuclear weapons. The
Additional Protocol will provide the United States and the IAEA with
another tool as we attempt to secure broader inspection rights in non-
nuclear-weapon states that are parties to the Treaty on the
Nonproliferation of Nuclear Weapons, NPT.
When the Committee on Foreign Relations reported out the NPT in 1968,
it noted that ``the treaty's fundamental purpose is to slow the spread
of nuclear weapons by prohibiting the nuclear weapon states which are
party to the treaty from transferring nuclear weapons to others, and by
barring the non-nuclear weapon countries from receiving, manufacturing,
or otherwise acquiring nuclear weapons.'' Since the Senate ratified the
NPT, we have seen 188 states join the United States in approving the
treaty. But recently we also have seen a disturbing increase in the
global availability of nuclear materials and reprocessing and
enrichment technology. To ensure that these materials and technologies
are devoted only to peaceful purposes, the IAEA must have the power to
conduct intrusive inspections at almost any location in a non-nuclear-
weapon state to verify state parties' commitments under the NPT.
The world community has learned that existing safeguard arrangements
in non-nuclear-weapon states do not provide the IAEA with a complete
and accurate picture of possible nuclear weapons-related activities. It
is critical that the IAEA have the ability to expand the scope of its
activities in states that pose a potential proliferation threat. At
this point, the only means at the IAEA's disposal, beyond existing
safeguards arrangements, is the Model Additional Protocol.
The United States, as a declared nuclear-weapon state party to the
NPT, may exclude the application of IAEA safeguards on its nuclear
activities. Under the negotiated Additional Protocol, the United States
also has the right to exclude activities and sites of direct national
security significance in accordance with its National Security
exclusion. This provision is crucial to U.S. acceptance of the
Additional Protocol and provides a basis for the protection of U.S.
nuclear weapons-related activities, sites, and materials as a declared
nuclear power.
The Additional Protocol does not contain any new arms control or
disarmament obligations for the United States. While there are
increased rights granted to the IAEA for the conduct of inspections in
the United States, the administration has assured the committee that
the likelihood of an inspection occurring in the United States is very
low. Nevertheless, should an inspection under the Additional Protocol
be potentially harmful to U.S. national security interests, the United
States has the right, through the National Security Exclusion, to
prevent such an inspection.
The Committee on Foreign Relations will hold hearings early next year
to consider the Additional Protocol. I am confident the Committee will
draft a resolution of ratification that will enjoy the support of the
senate. Ratification of this treaty and passage of its implementing
legislation would be an important demonstration of the U.S. commitment
to vigorous and expansive authority for the IAEA in non-nuclear-weapon
states.
I am pleased to introduce this legislation today as a statement of
the Committee's strong support for aggressive verification capabilities
in the global fight against the spread of weapons of mass destruction.
I look forward to working closely with my friend, Senator Hatch,
Chairman of the Committee on the Judiciary, to construct legislation
that protects U.S. national security interests, while strengthening the
ability of the IAEA to discover illegal nuclear weapons activities.
the package I send to the desk today contains a letter from the
Department of State, the administration's implementing legislation, and
a section-by-section analysis, all submitted by the administration.
I ask unanimous consent that the referenced letter and analysis be
printed in the Record.
There being no objection, the additional material was ordered to be
printed in the Record, as follows:
United States Department of State,
Washington, DC.
Hon. Richard G. Lugar,
Chairman, Committee on Foreign Relations, United States
Senate.
Dear Mr. Chairman: On behalf of the President, I am pleased
to submit for consideration the Administration's recommended
text for legislation to implement the Protocol Additional to
the Agreement Between the United States of America and the
International Atomic Energy Agency for Application of
Safeguards in the United States of America (U.S.-IAEA
Additional Protocol). The U.S.-IAEA Additional Protocol,
signed in Vienna on June 12, 1998, is a bilateral treaty that
supplements and amends the Agency verification arrangements
under the existing Agreement Between the United States of
America and the International Atomic Energy Agency for the
Application of Safeguards in the United States of America of
November 18, 1977 (the ``Voluntary Offer''), which entered
into force on December 9, 1980.
The U.S.-IAEA Additional Protocol contains a number of
provisions that require implementing legislation to give them
effect within the United States. These include:
Declarations of U.S. civil nuclear activities and related
industry;
Restrictions on disclosure of information; and
International inspections of locations in the United
States.
The President, in his letter of transmission dated May 9,
2002, stated that the U.S.-IAEA ``Additional Protocol is in
the best interests of the United States. Our acceptance of
this agreement will sustain our longstanding record of
voluntary acceptance of nuclear safeguards and greatly
strengthen our ability to promote universal adoption of the
[[Page S16125]]
Model Protocol, a central goal of my nuclear nonproliferation
policy. Widespread acceptance of the Protocol will contribute
significantly to our nonproliferation objectives as well as
strengthen U.S., allied and international security.'' We urge
the Senate to give early and favorable consideration to the
Protocol and the recommended implementing legislation.
The Office of Management and Budget advises that there is
no objection to the submission of this proposal and its
enactment, is in accord with the President's program.
We hope this information and the enclosed recommended
legislation and sectional analysis are helpful. Please let us
know if we can be of further assistance.
Sincerely,
Paul V. Kelly,
Assistant Secretary,
Legislative Affairs.
____
Section-by-Section Analysis of the Proposed Additional Protocol to the
U.S.-IAEA Safeguards Agreement Implementation Act of 2003
overview
The Protocol Additional to the Agreement between the United
States of America and the International Atomic Energy Agency
(IAEA) for the Application of Safeguards in the United States
of America (the Additional Protocol) contains a number of
provisions that require legislation to give them effect
within the United States. These include provisions on the
submission to the United States Government of civil nuclear
and nuclear-related information by entities identified in
Article 2 of the Additional Protocol, and on civil and
criminal penalties for failure of such entities to keep or
provide such information. The proposed legislation also sets
forth procedures for inspections, or ``complementary
access,'' by the IAEA at U.S. locations under the Additional
Protocol.
The proposed Additional Protocol to the U.S.-IAEA
Safeguards Agreement Implementation Act (the Act) contains
five miscellaneous sections and six titles. The five
miscellaneous sections concern the short title of the Act,
the table of contents, Congressional findings, definitions,
and a severability clause. Title I provides specific
authority for the President to implement and carry out the
Act and the Additional Protocol through directing the
issuance of necessary regulations. Title II authorizes
complementary access at U.S. locations consistent with the
Act, and establishes the terms upon which such access may
take place. For example, it addresses the notice that must be
given to the owner or operator of the inspected location, and
the procedures to be followed for seeking access--including
obtaining an administrative search warrant where necessary.
Title III restricts disclosure of certain information
provided pursuant to the Act or the Additional Protocol.
Title IV makes it illegal for entities willfully to fail to
report information required by regulations pursuant to the
Act, and Title V provides for criminal and civil penalties
for such violations. Finally, Title VI authorizes
appropriation of funds for the Agencies required to carry out
responsibilities under the Act.
miscellaneous sections
The first part of the Act contains five miscellaneous
sections: the short title of the Act, the table of contents,
Congressional findings, definitions, and a severability
clause. The first two sections are standard provisions. The
third section contains seven Congressional findings, which
recognize the threat posed by nuclear proliferation, the
importance of the Nuclear Non-Proliferation Treaty (NPT), the
urgency of strengthening its safeguards system, and the need
to implement the U.S.-IAEA Additional Protocol as a means of
encouraging other NPT State Parties to accept stricter
verification measures. The fourth section provides
definitions of key terms as they are used in the Act. In many
instances, the same definitions appear in the Additional
Protocol, and are therefore cross-referenced. Finally, the
fifth section provides that, if any provision of the Act is
held invalid, the remainder of the Act shall remain in force.
The Administration believes that the Additional Protocol and
the Act are fully consistent with the U.S. Constitution, but
has included this section as a matter of prudence.
title i--authorization
Title I authorizes the President to implement and carry out
the provisions of the Act and the Additional Protocol. This
is to be accomplished through an Executive Order designating
Agencies to promulgate regulations requiring, inter alia,
submission to the United States Government of information
specified under Article 2 of the Additional Protocol. This
information is necessary for the United States to fulfill its
Treaty obligation to provide the IAEA with a broad
declaration of its civil nuclear and nuclear-related
activities. While the Agencies most likely to issue or amend
such regulations are identified in Section 101(a) of the Act,
this list is not exclusive.
title ii--complementary access
Title II sets forth the terms under which complementary
access may occur in the United States. Section 201 of the Act
makes clear that the IAEA may not conduct complementary
access in the United States without the authorization, in
accordance with the Act, of the United States Government. It
further directs that certain U.S. agencies may not
participate in complementary access. These agencies,
including the Environmental Protection Agency and the
Occupational Safety and Health Administration, are excluded
because their employees may detect violations of regulatory
schemes wholly unrelated to the Additional Protocol. Section
201 further requires the number of U.S. representatives be
kept to a minimum.
Section 202 addresses procedures for complementary access.
For example, Section 202(b) sets forth the requirement for
the United States Government to provide ``actual written
notice'' of a complementary access request, as soon as
possible, to the owner, operator, occupant or agent in charge
of the location to be inspected. The notice must contain all
appropriate information provided by the IAEA concerning the
purpose of the access request, the basis for selection of the
location, the activities it intends to carry out, the time
and duration of the access, and the identities of inspectors.
In addition, Section 202(c) requires IAEA and U.S. personnel
participating in the complementary access to show their
credentials prior to gaining entry to the inspected location.
Section 202(d)(1) states the general rule that IAEA
inspectors may conduct all activities specified under Article
6 of the Additional Protocol for the type of location being
inspected. However, there are several exceptions to this
rule. First, a warrant issued authorizing complementary
access at a location may restrict the activities that
inspectors may conduct. Second, as indicated in 202(d)(1),
the United States Government has certain rights under the
Additional Protocol to limit such access. In addition to its
right under Article 1(b) of the
Protocol to deny IAEA access to activities with direct
national security significance or to location or information
associated with such activities, the United States may manage
access in connection with such activities, locations or
information. These rights are unilateral and absolute; they
are not subject to challenge by or negotiation with the IAEA.
Furthermore, Article 7 of the Additional Protocol provides
for managed access, under arrangements with the IAEA, to
prevent the dissemination of proliferation sensitive
information, to meet safety or physical protection
requirements, or to protect proprietary or commercially
sensitive information. Third, Section 202(d)(2) lists a
series of items that are specifically excluded from IAEA
access. This third set of exceptions, which are mainly
directed at protecting commercial information, may not
however be enforced if the Additional Protocol requires such
disclosure. Section 202(e) requires that all persons
participating in complementary access, including U.S.
representatives, observe all environmental, health, safety
and security regulations applicable for the inspected
location.
Section 203 provides the legal framework for IAEA
inspectors to gain complementary access to U.S. locations
under the Additional Protocol. Section 203(a) sets forth
three grounds for such access: warrantless access, where the
Fourth Amendment of the U.S. Constitution does not require a
warrant; consent to the access by the owner/operator of the
location; or, where necessary, obtaining an administrative
search warrant. Section 203(a)(2) makes clear that the
legislation is intended to impose no warrant requirement
beyond that which is required by the Fourth Amendment. Where
such a warrant requirement exists, Section 203(a)(1) directs
the United States Government first to seek consent to access
from the location's owner or operator. The remainder of
Section 203 addresses the requirements for obtaining an
administrative search warrant, and what such a warrant should
contain. Section 203(b)(1) states that the United States
Government shall provide to the judge all appropriate
information it has received from the IAEA regarding its basis
for selecting a particular location for complementary access.
A ``judge of the United States'' is defined by the Act to
mean a judge or magistrate judge of a district court of the
United States. In addition, Section 203(b)(2) requires the
United States to submit to the judge a more detailed
affidavit showing, among other things, that the Additional
Protocol is in force in the United States, applicable to the
location to be inspected, and that the complementary access
requested is consistent with the provisions of the Additional
Protocol, including Article 4 regarding the purpose of the
access, and Article 6 regarding its scope. The affidavit must
also indicate the anticipated time and duration of the
inspection.
Finally, the affidavit must show that the location to be
inspected was selected by the IAEA either (i) because there
is probable cause, on the basis of specific evidence, to
believe that information required to be reported regarding a
location pursuant to regulations promulgated under the Act is
incorrect or incomplete, and that the location to be accessed
contains evidence regarding that violation; or (ii) pursuant
to a reasonable general administrative plan developed by the
IAEA based upon specific neutral criteria. Selection based on
either of these approaches would meet U.S. Constitutional
requirements for issuance of a warrant. Section 203 directs
that a judge, upon receiving the affidavit, shall promptly
issue an administrative search warrant authorizing the
requested complementary access. The warrant is to specify the
same information as the affidavit, and shall, if known, also
include the identities of the IAEA complementary access
[[Page S16126]]
team and accompanying U.S. representatives.
title III--confidentiality of information
Title III of the proposed implementing legislation
restricts the disclosure of information provided to the
United States Government, or to its contractor personnel,
pursuant to the Act or the Additional Protocol. For example,
Section 301(a) exempts from the Freedom of Information Act
(FOIA) disclosure information obtained by the United States
Government in implementing the provisions of the Additional
Protocol. Thus, information reported to the Government by
entities covered by Article 2 of the Additional Protocol, as
required by regulation, is not subject to release under the
FOIA.
title iv--recordkeeping
Title IV of the proposed implementing legislation prohibits
the willful failure of any person to maintain records or
submit reports to the United States Government as required by
regulations issued under Section 101 of the Act. The
prohibitions of Title IV are necessary to implement the
Additional Protocol, as the United States is dependent on
such reporting to meet its Treaty obligations. A person is
defined by the Act very broadly to ensure that all possible
entities within the United States are covered.
title v--enforcement
Title V of the proposed implementing legislation provides
for both civil and criminal penalties for failure to meet the
recordkeeping and reporting requirements of Title IV.
Violators shall be subject to imprisonment for not more than
five years, criminal fines, and civil penalties up to $25,000
per violation. While the Agency issuing the applicable
regulations is responsible for their enforcement, an entity
subject to civil penalty under this Title may seek judicial
review. Title V also provides United States district courts
with jurisdiction to specifically enforce Agency orders,
either by restraining or compelling action so as to avoid a
violation of Title IV.
title vi--authorization of funds
Title VI of the proposed legislation authorizes the
appropriation of such sums as necessary to carry out the
purpose of the Act.
______
By Mr. Daschle (for Mr. Kerry (for himself and Mr. Kennedy)):
S. 1991. A bill to require the reimbursement of members of the Armed
Forces or their family members for the costs of protective body armor
purchased by or on behalf of members of the Armed Forces; to the
Committee on Armed Services.
(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record).
Mr. KERRY. Mr. President, it is the responsibility of the
military departments to ``organize, train, and equip,'' the armed
forces of the United States. Yet, reports indicate that nearly a
quarter of the 130,000 U.S. troops in Iraq still wait for the latest
``Interceptor'' body armor, which is a Kevlar vest with ``small-arms
protective inserts''--boron carbide ceramic plates--that protect
critical organs from weapons fired by assault rifles like the Ak-47s
favored by Iraqi insurgents.
While the Congress has taken measures to provide the latest personal
protective gear to all U.S. forces in Iraq and Afghanistan, over the
last several months we have heard alarming reports of family members
scurrying to buy bullet-proof vests to send to their loved ones in
Iraq. Military families are patriotic and selfless. Their devotion is
no less than that of those serving in harm's way. They have more than
enough to worry about, let alone whether or not they can find and buy
the gear that might save their child's life. This is the responsibility
of the Department of Defense, plain and simple. There is no excuse for
their failure.
On November 19, 2003, acting-Secretary of the Army Les Brownlee
admitted to Congress that the administration failed to provide basic
equipment, like body armor, to all of our forces in Iraq because, as he
put it, ``Events since the end of major combat operations in Iraq have
differed from our expectations and have combined to cause problems.''
The Washington Post reported recently that, ``Going into the war in
Iraq, the Army decided to outfit only dismounted combat soldiers with
the plated vests, which cost about $1,500 each. But when Iraqi
insurgents began ambushing convoys and killing clerks as well as combat
troops, controversy erupted.'' I ask unanimous consent that the full
text of this article be included in the Record.
Stories abound of family members, fathers and mothers, wives, and
others paying for personal body armor out of their own pockets and
shipping the much needed equipment to Iraq. Consider the case of Mimi
McCreary of Victorville, CA, whose son Olaf received his bullet-proof
vest not from his reserve unit, but from his colleagues on the Clinton,
SC, police department. Or consider the 120 members of the National
Guard from Marin County, CA, who were unsure of when their body armor
would be made available. Instead of letting their neighbors go off to
war, the men and women of law enforcement in Marin County donated more
than 60 vests so that they would have ``at least some protection.'' Or
consider Army Specialist Richard Murphy of Sciota, PA, whose parents,
Susan and Joe Werfelman, purchased the ceramic plates missing from
their son's vest. According to Murphy's step-father, he ``called us
frantically three or four times on this . . . We said, ``If the Army is
not going to protect him, we've got to do it.''
We owe Mr. and Mrs. Werfelman and Mrs. McCreary and every other
military family an incredible debt of gratitude. They raised children
who believe in this country and are risking all in service to it. The
last thing we should ask of them now is to take money out of their own
pockets to buy the gear their kids should have had in the first place.
But that's exactly what poor planning has led to.
The legislation I introduce today with Senator Kennedy requires the
Department of Defense to reimburse family members who paid money out of
their own pockets to provide the personal body armor that the
government failed to provide our troops. Lives and blood will always be
the cost of war. But it is a dereliction of duty to send anyone into
harm's way without basic protective gear, and it is disgusting for
family members to have to take this burden of outfitting their loved
ones for war. This grateful Nation must make right by those family
members and reimburse their expenses in providing these materials to
their sons and daughters, husbands and wives. Let families send
pictures and letters from home. The Department of Defense should
provide the gear.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
[From the Washington Post, Dec. 4, 2003]
Body Armor Saves Lives in Iraq
(By Vernon Loeb and Theola Labbe)
Baghdad.--Pfc. Gregory Stovall felt the explosion on his
face. He was standing in the turret of a Humvee, manning a
machine gun, when the roadside bomb went off. At the time, he
was guarding a convoy of trucks making a mail run. In an
instant, Stovall's face was perforated by shrapnel, the index
finger on his right hand was gone, and the middle finger was
hanging by a tendon. But the 22-year-old from Brooklyn
remembers instinctively reaching for his chest and stomach--
``to make sure everything was there,'' he said. It was,
encased in a Kevlar vest reinforced by boron carbide ceramic
plates that are so hard they can stop AK-47 rounds traveling
2,750 feet per second. Thus, on the morning of Nov. 4,
Stovall became the latest in a long line of soldiers serving
in Iraq to be saved by the U.S. military's new Interceptor
body armor.
This high-tech ``system''--the Kevlar vest and ``small-arms
protective inserts,'' which the troops call SAPI plates--is
dramatically reducing the kind of torso injuries that have
killed soldiers on the battlefield in wars past.
Soldiers will not patrol without the armor--if they can get
it. But as of now, there is not enough to go around. Going
into the war in Iraq, the Army decided to outfit only
dismounted combat soldiers with the plated vests, which cost
about $1,500 each. But when Iraqi insurgents began ambushing
convoys and killing clerks as well as combat troops,
controversy erupted.
Last month, Rep. Ted Strickland (D-Ohio) and 102 other
House members wrote to Rep. Duncan Hunger ( R-Calif.),
chairman of the House Armed Services Committee, to demand
hearings on why the Pentagon had been unable to provide all
U.S. service members in Iraq with the latest body armor. In
the letter, the lawmakers cited reports that soldiers'
parents had been purchasing body armor with ceramic plates
and sending it to their children in Iraq.
The demand came after Gen. John Abizaid, head of the U.S.
Central Command and commander of all military forces in Iraq,
told a House Appropriations subcommittee in September that he
could not ``answer for the record why we started this war
with protective vests that were in short supply.''
With the armor, ``it's the difference between being hit
with a fist or with a knife,'' said Ben Gonzalez, chief of
the emergency room at the 28th Combat Support Hospital in
Baghdad, the largest U.S. Army hospital in the country, which
treats the majority of wounded soldiers.
Jonathan Turley, a law professor at George Washington
University, began investigating the Army's decision not to
equip all troops deploying to Iraq with Interceptor body
armor after learning that one of his students, reservist
Richard Murphy, was in the
[[Page S16127]]
country with a Vietnam-era flak jacket. ``There's been an
overwhelming effort to get the military every possible
resource,'' Turley said. ``To have such an item denied to
troops in Iraq was a terrible oversight.'' Since he began
publicizing the lack of body armor, Turley said, he has been
deluged with e-mails from people offering to donate body
armor to U.S. troops.
Joe Werfelman, the father of Turley's student, said he was
dismayed to learn that his son had been sent to Iraq in May
without ceramic plates. ``He called us frantically three or
four times on this,'' Werfelman said in an interview. ``We
said, `If the Army is not going to protect him, we've got to
do it.' '' So Werfelman, of Scotia, Pa., found a New Jersey
company that had the ceramic plates in stock, plunked down
$660 for two plates and a carrying case, and sent them to his
son. ``As far as I know, he's still using the ones that we
got him'' he said. ``Some units have the new plates and some
units don't.''
At a hearing of the Senate Armed Services Committee on Nov.
19, Sen. John W. Warner (R-Va.), the committee's chairman,
told Acting Army Secretary Les Brownlee that the shortage of
body armor in Iraq was ``totally unacceptable.'' ``Now, where
was the error--and I say it's an error made in planning--to
send those troops to forward-deployed regions, and the
conflict in Iraq, without adequate numbers of body armor?''
Warner asked. ``Events since the end of major combat
operations in Iraq have differed from our expectations and
have combined to cause problems,'' Brownlee said. Before
approving the administration's $87 billion supplemental bill
for Iraq and Afghanistan, Congress added hundreds of millions
of dollars for more body armor, armored Humvees, and other
systems to protect soldiers from roadside bombs and ambushes.
Now, three manufacturers are working overtime to produce
the 80,000 vests and 160,000 plates required to outfit
everyone in Iraq by the end of the year. Assembly lines are
producing 25,000 sets a month.
Commanders say the vests are changing the way soldiers
think and act in combat. ``I will tell you that the
soldiers--to include this one--experience some degree of
feeling a little indestructible, particularly in light of the
fact that we have seen the equipment work,'' said Lt Col.
Henry Arnold, a battalion commander and combat veteran in
the 101st Airborne Division in northern Iraq. ``It's a
security blanket,'' Stovall said from his hospital bed,
awaiting a medevac flight to Germany with his hand
bandaged. ``If only they had a glove, I might have my
finger, but I'm thankful that I'm here.''
The product of a five-year military research effort aimed
at reducing the weight and cost of the plates while
increasing their strength, the body armor made its combat
debut last year in Afghanistan and was credited with saving
more than a dozen lives during Operation Anaconda. The
camouflage Kevlar vest, which alone can stop rounds from a
9mm handgun, weighs 8.4 pounds, while each of the plates
weighs 4 pounds. At 16.4 pounds, Interceptor body armor is a
third lighter than the 25-pound flak jacket from the Vietnam
era, but it provides far more protection.
Consider the case of Charlie Company, 1st Battalion, 505th
Parachute Infantry Regiment of the 82nd Airborne Division.
During a foot patrol in Fallujah in late September, an Iraqi
insurgent suddenly emerged from an alleyway and fired an AK-
47 at Spec. John Fox from point-blank range. Fox was hit in
the stomach as he returned fire, and the blast knocked him
off his feet. The bullet hit the middle of three ammunition
magazines hanging from the front of his Kevlar vet, igniting
tracer rounds and setting off a smoke grenade. A thick gray
plume poured from his vest where he lay. His squad mates,
having shot and killed the gunman, rushed to his side. ``Am I
bleeding? Am I bleeding?'' they recalled Fox asking. They
checked and discovered he was unharmed. His body armor had
protected him not only from the AK-47 round by also from his
own exploding munitions. ``Fox must have been only 10, 15
meters from this guy,'' recalled St. Roger Vasquez. ``And
this thing stopped the bullet.''
A month later, two of those who had rushed to Fox's side,
Spec. Sean Bargmann and Spec. Joseph Rodriguez, were on a
mounted patrol in Fallujah, sitting atop a Humvee, when a
powerful roadside bomb exploded just feet away. ``It felt
like somebody took a Louisville Slugger to my head,''
Bargmann said. Weeks after the attack, he and Rodriguez still
bore the outlines of their armor: The tops of their head,
protected by their Kevlar helmets, and their torsos,
protected by their body armor, were unscathed. But Bargmann
had a deep cut right below the helmet line, and Rodriguez had
three scars running down his right cheek and a scar above his
left eye.
This often happens with body armor: Lives are saved, but
faces, arms and legs are punctured and scarred. Doctors are
treating serious wound to the extremities that are creating
large numbers of amputees--soldiers who in earlier wars never
would have made it off the battlefield. Gonzalez, the doctor
at the 28th Combat Support Hospital, is not complaining about
the number of amputations. ``The survival rate has increased
significantly,'' he said. ``In the past, you'd see head and
chest and abdominal injuries. They would die even before they
got to me.''
Sgt. Gary Frisbee of the 2nd Armored Cavalry Regiment
remembers standing in the turret of a Humvee waiting to die.
His vehicle was bringing up the rear during a routine three-
vehicle patrol in Sadr City, Baghdad's vast Shiite slum, when
hundreds of armed followers of the Shiite cleric Moqtada Sadr
opened fire on them with AK-47s and rocket-propelled
grenades. ``I knew it was all over; it was just a matter of
when,'' he recalled. ``You're bracing yourself, because
you're just waiting for the bullet to hit you. The volume of
AK fire was unreal, from the roofs, in front of your, and
behind you.'' Two of 10 soldiers on the patrol were killed;
four were wounded. During the battle, Frisbee felt something
hit the back of his Kelvar vest but kept on fighting. When
the smoke finally cleared, he pulled out the back plate to
see what had happened and found a bullet hole. It has been,
as he had thought, just a matter of time. He had been hit--
and saved by boron carbide.
______
By Mr. KENNEDY:
S. 1992. A bill to amend the Medicare Prescription Drug, Improvement,
and Modernization Act of 2003 to eliminate privatization of the
medicare program, to improve the medicare prescription drug benefit, to
repeal health savings accounts, and for other purposes; to the
Committee on Finance.
Mr. KENNEDY. Mr. President, today, along with Senator Bob Graham I am
introducing the ``Defense of Medicare and Real Prescription Drug
Benefit Act.'' Congressman John Dingell is introducing companion
legislation in the House of Representatives.
The more senior citizens learn about the legislation President Bush
has just signed, the more concerned they are. It's a sweetheart deal
for big insurance companies and pharmaceutical companies and a raw deal
for senior citizens. It's not really a prescription drug bill. It's an
anti-Medicare bill.
Our legislation will reverse these destructive policies. Our
legislation will protect and preserve Medicare--not turn senior
citizens over to the un-tender mercies of HMOs and insurance companies.
It will provide prescription drug benefit for senior citizens, without
coverage gaps or hidden loopholes. It will protect senior citizens with
good retirement coverage from a former employer, and it will protect
the poorest of the poor on Medicaid. It will reduce prescription drug
costs, by allowing safe importation of drugs from Canada and government
negotiations with drug companies for discounts. And it will repeal the
program of Health Savings Accounts that help the healthy, wealthy and
insurance companies who have contributed heavily to the Republican
Party, while harming every family that needs comprehensive, affordable
health insurance.
The legislation the President signed is designed to destroy Medicare
and turn senior citizens over to the un-tender mercies of HMOs. Our
legislation will protect Medicare.
The legislation the President signed provides a skimpy, inadequate,
and unreliable drug benefit. Our legislation provides comprehensive
drug coverage and assures that senior citizens can get it everywhere in
the country without having to join an HMO or other private plan.
The legislation the President signed denies senior citizens the right
to get safe drugs at lower prices from Canada and prohibits the
government from negotiating with drug companies to get a good deal for
senior citizens. This legislation eliminates those special interest,
anti-senior provisions.
The legislation the President signed allows unfettered Heath Savings
Accounts. These accounts are a bonanza for the healthy, the wealthy,
and for favored insurance companies, but they are a disaster for
ordinary citizens who need comprehensive coverage and can't afford to
put thousands of dollars aside to meet medical needs that insurance is
supposed to cover. This legislation repeals this unwise policy.
Senior citizens want prescription drug coverage under Medicare, and
they deserve it. Instead, the President and the Republican Party used
their control of Congress to attack Medicare itself and force senior
citizens into HMOs and other private insurance plans. They want to
privatize Medicare, and if they get away with it, they'll try to
privatize Social Security too.
Their legislation raises Medicare payments to HMOs so that Medicare
can't compete. They use the elderly's own Medicare money to undermine
the Medicare program they depend on. According to estimates of the
Medicare Actuary, Medicare already pays 16 percent too much for every
senior citizen
[[Page S16128]]
who joins an HMO or other private insurance plan, because these
programs attract the healthiest elderly. IN addition, the Republican
legislation raises the base payment to 109 percent of what it costs
Medicare to care for an average senior citizen, without even taking
into account the health selection bonus the HMOs receive. The total
overpayment is 25 percent--a whopping $2,000 per senior citizen. And to
top it all off, the legislation establishes a $12 billion slush fund
for the new PPO program established by the bill. This isn't
competition, its corporate welfare--and senior citizens and the
Medicare program are the losers.
Their legislation also creates a vast social experiment--called the
``premium support'' program--using millions of senior citizens as
guinea pigs. The sole purpose of the experiment is to raise Medicare
premiums so that senior citizens have to give up their Medicare and
join an HMO.
Our legislation eliminates these indefensible overpayments and
restores parity to the competition between conventional Medicare and
private sector alternatives. It repeals the premium support program, so
that senior citizens will have choice, not coercion, when they decide
whether they prefer conventional Medicare or an HMO.
The assistance with prescription drug costs their program provides is
actually very little. Overall, it covers less than 25 percent of the
drug expenses faced by the elderly. Senior citizens with $1,000 in drug
expenses would pay 86 percent of the cost out of their own pockets.
Those with $5,000 in drug expenses would pay 78 percent. When senior
citizens' drug costs exceed $2,250, they get no benefits at all until
their costs reach $5,100, even though they have to continue to pay
premiums. And senior citizens won't necessarily have access to the
drugs their doctor's prescribe, if they aren't on the formularies of
the private insurance companies that will administer the benefit. A bus
ticket to Canada would do more to reduce drug costs for senior citizens
than this bill.
Our legislation fills the gaps in the Medicare benefit, so that it
truly meets the needs of the elderly and is comparable to the
assistance provided under most private insurance plans and that is
available to every member of Congress. It assures that the formularies
offered by the insurance companies administering the program are not
manipulated by the companies to exclude the drugs senior citizens need
most.
Nine million senior citizens--almost one of every four--will actually
be worse off in their drug coverage under the Bush program than they
are today. According to the nonpartisan Congressional Budget Office,
almost 3 million senior citizens with good retiree drug coverage
through a former employer will lose it as the result of this bill. Six
million senior citizens and the disabled who have both Medicare and
Medicaid--the poorest of the poor--will actually pay more and have
reduced access to the drugs they need. The Bush plan establishes a
cruel and demeaning assets test, so that millions of senior citizens
with very low incomes are disqualified from the special assistance they
need, simply because they have managed to save a little bit for a rainy
day, or because they have a car that's worth too much or a burial fund,
or personal property like jewelry or furniture.
Our legislation addresses these problems. It ends the discriminatory
treatment of senior citizens with private retirement coverage, so that
employers do not have an incentive to drop this coverage. It restores
benefits to dual eligibles--senior citizens with coverage under both
Medicare and Medicaid--so that they will not be made worse off by the
new program. It eliminates the assets test.
The Republican bill does nothing about escalating drug prices.
Republicans even had the nerve to include a specific prohibition on any
role by the Federal government in any negotiation on drug prices. The
Congressional Budget Office has estimated that drug prices will
actually increase as the result of this bill. No wonder drug company
stocks are soaring and senior citizens are concerned. Our legislation
will allow reimportation of drugs from Canada--where drug prices are
much lower--with stringent controls to assure that any imported drugs
meet FDA standards. It will allow the Federal government to negotiate
the best possible price for prescription drugs, so that senior citizens
and the Medicare program are no longer victimized by exorbitant prices
that have little relationship to costs or value.
It's not just seniors who are very concerned. Younger Americans will
be hurt too. A separate booby trap in the Republican program includes
tax breaks for the healthy and wealthy to buy private policies with
very high deductibles that will undermine health insurance for those
who are not elderly. These tax breaks, called health savings accounts,
encourage people to buy high deductible policies and put money aside in
a tax-free savings account. Because the healthy people don't contribute
to the cost of regular insurance, premiums skyrocket for people who
can't afford thousands of dollars in out-of-pocket costs before their
insurance kicks in. The Urban Institute and the American Academy of
Actuaries have estimated that premiums for regular insurance policies
could increase 60 percent or more. Our bill repeals this unjustified
and destructive policy.
The President's signing of the Republican legislation yesterday was
the beginning of this fight, not the end. We will never rest until we
have protected Medicare and provided senior citizens a prescription
drug benefit that truly meets their needs.
I ask unanimous consent that a summary of the ``Defense of Medicare
and Real Prescription Drug Benefit Act'' be printed in the Record.
There being no objection, the Summary was ordered to be printed in
the Record, as follows:
Summary: Provisions of the Defense of Medicare and Real Medicare
Prescription Drug Benefit Act
Title 1: Defense of Medicare
Repeals the premium support demonstration.
Requires risk adjustment between private sector plans and Medicare.
Medicare will pay private sector plans an amount reflecting Medicare's
cost for covering an individual, rather than paying HMOs a large markup
as a result of failing to adjust for the better health of senior
citizens who join HMOs.
Repeals PPO slush fund.
Pays all private sector plans an amount equivalent to average
Medicare costs, rather than paying an average of 109 percent of
Medicare costs, as provided under the current legislation. Phased in
over 5 years.
Repeals Medicare spending cap.
Title II: Establishment of Real Medicare Prescription Drug benefit
Elminates coverage gap in 2006-2008, beneficiaries will pay 75
percent coinsurance in the coverage gap. In 2009-2011, they will pay 50
percent. In 2012 and subsequent years, they will pay the same 25
percent copayment as under the initial coverage limit.
Eliminates discriminatory treatment of employer plans.
Allows Medicaid wrap-around for dual eligibles.
Eliminates assets test.
Requires two stand-alone prescription drug plans to avoid federal
fallback.
Secretary defines classes and categories under any formula.
Repeals prohibition on Medigap coverage of prescription drugs.
Modifies current Medigap policies covering drugs to wrap-around new
benefit.
Phases out elimination of state ``clawback.''
Title III: Reduction in Prescription Drug Prices
Allows reimportation from Canada with certification and inspection of
Canadian exporters to assure safety of drugs.
Repeals prohibition on government negotiating directly with drug
companies for best prices and gives authority for such negotiations.
Title VI: Repeals Health Savings Accounts
______
By Mr. WARNER (for himself and Mrs. Clinton):
S. 1993. A bill to amend title 23, United States Code, to provide a
highway safety improvement program that includes incentives ot States
to enact primary safety belt laws; to the Committee on Environment and
Public Works.
[[Page S16129]]
Mr. WARNER. Mr. President, I am pleased to introduce today with my
distinguished colleague from New York, Senator Clinton, the National
Highway Safety Act of 2003. It would be our intention in the course of
the deliberations next year on the reauthorization or, as we call it,
the successive piece of legislation to TEA-21, that this bill, which we
introduce today, would be incorporated as an amendment.
As the Congress prepares to consider legislation next year to enact a
new 6-year surface transportation law to succeed TEA-21, our foremost
responsibility, in my judgment and in the judgment of many, and in the
judgment of the President of the United States, must be to improve
highway safety for the driving public. Simply by increasing the number
of Americans who will buckle up is the most effective step that can be
taken to save the their lives and the lives of others. That is the
single most important step.
I am privileged to serve on the Environment and Public Works
Committee that has now completed its markup of the TEA-21
reauthorization bill. The bill addresses, as it should, highway safety
measures, such as how to build safer roads, how to do use new
technologies to improve safety. But, statistics show that the greatest
measure of safety, again, to drivers, passengers, and possibly third
parties not connected with the vehicle, is through the use of a
seatbelt. It is remarkable, the lives that have been saved through the
use of this simple device. I have, through my career in the Senate--I
say with modesty--been associated with, and indeed I think in the
forefront of, trying to move forward on seatbelt legislation. I will
not belabor what this humble Senator has done working with others
through the years, but we are very proud today that America has about a
79 percent use rate of seatbelts. That has been translated into the
saving of tens of thousands of lives and injuries in automobile
accidents.
Those are the facts. Are we just going to have a standstill, or are
we going to move forward? Senator Clinton and I think we should move
forward with this somewhat new approach. I will address the technical
aspects as we go along.
We have debated the benefits of seatbelt use on many occasions in
this body, and elsewhere across America. And whether it is in the town
forums we conduct, town meetings, or here on the floor of the Senate,
there is always that individual who comes back: Don't tell me what I
have to do. What does it matter to you, John Warner--or to any other
colleague with whom I am privileged to serve--what does it matter to
you whether I buckle up?
Well, let's take a look. No one disputes that the absence of a
seatbelt causes more serious loss of life and injury and, to some
extent, crashes. The statistics show that with the impact associated
with the crash, to the extent the driver can maintain, as best he can
control of the vehicle in those fatal microseconds, often fatal,
perhaps the severity of the crash, and perhaps the loss of life can be
reduced by the use of a safety belt--simply said.
Accidents involving unbelted drivers result in a significant cost to
the wallet, out of your pocket. Many people are rushed from the
accident scene to various emergency facilities. All of that has the
initial cost of the law enforcement that responds, the rescue squads
that respond, and eventually the emergency room or whatever medical
facility you might have the good fortune to be taken to, to hopefully
save you your life. That isn't free. There is a cost. Maybe it is a
hidden cost in the budgets of the towns and the communities and the
States, but there is definitely a cost. Regrettably, a number of
persons who suffer those types of injuries are uninsured. Again, the
cost often devolves down on the good old hard-working taxpayers; in
most instances, the taxpayers who buckle up.
This also is rather interesting and fascinating. When an accident
happens, regrettably, on our roads and highways across this great
Nation, we try to refrain from rubbernecking. Nevertheless, chances are
that we take a glance. More often than not, the accident with the
combined slowdown of those passing the accident causes significant
congestion for some considerable portion of time. Either the lane in
which we are traveling moves very slowly because of the accident or,
indeed, we come to a standstill, as often is the case when a lane is
closed to clear an accident. That standstill frequently is necessitated
because of the severity of the injuries experienced in that accident.
It takes the response team longer in their carefully trained steps to
extricate the injured person, to give the initial treatment, and then
to carefully transport that individual, if necessary, to a medical
facility. That takes time. That road is backed up.
That is lost time for your mission on the road, be it for business,
family, or pleasure. That is lost time and productivity. Behind you
often are trucks and other vehicles involved in commerce. That is lost
time and delay due to the seriousness occasioned by injuries and
accidents where there has been the lack of use of seatbelts. It is as
simple as that.
The legislation Senator Clinton and I are introducing today will take
an important step forward for the States to adopt either a primary
safety belt law, or take steps of their own devising to meet a 90
percent seat belt use rate--not the Warner-Clinton bill or the
legislative measure put forth by the administration upon which Senator
Clinton and I draw for concepts of certain portions. The States can
decide for themselves how they achieve a 90-percent goal of the use of
seatbelts in their respective States. That is the purpose of this
legislation--to move every State to a 90-percent use rate for safety
belts.
In a letter dated November 12, 2003, to Chairman Inhofe of the
Committee on the Environment and Public Works, on which I am privileged
to serve, Secretary Mineta states:
President Bush and I believe that increasing safety belt
usage rates is the single most effective means to decrease
highway fatalities and injuries.
That is explicit and clear. The Secretary goes on to say:
The surest way for a State to increase safety belt usage is
through the passage of a primary safety belt law.
I have had this debate with Governors, former Governors, even in this
Chamber with former Governors. I think they would tell you that a
primary safety belt law is a tough piece of State legislation to pass
solely on its own. Frankly, it needs the impetus of Uncle Sam, the
impetus of the Congress of the United States to move that process in
the States forward, so the local politicians can shake their fist
saying, it is Washington that has done it again--more regulation, more
direction--you know the arguments. But I think quietly in the hearts of
those State legislatures is the thought that we will improve safety in
my State. We will improve the chance of survivability on the roads in
my State. So that is why we are here today. I ask unanimous consent
that the full text of Secretary Mineta's letter be printed in the
Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. As provided in our legislation, the Warner-Clinton bill,
States can increase seatbelt use either by enacting, as I said, a
primary seatbelt law--everybody knows what a primary seatbelt law is
and how it works. It means a law enforcement officer can literally stop
a vehicle if they observe that the individual is not wearing his or her
seatbelt. It is as simple as that. But a State, if they decide not to
enact a primary safety belt law, can, by implementing their own
strategies, whatever they may be--and there is a lot of innovation out
in the States--that would result in a 90-percent safety belt use rate.
So that is a challenge to the States.
The current national belt use, as I said, is 79 percent. But many
States--those that have the primary law are sometimes at 90, or even
above 90, but those that do not have the primary seatbelt law are down
sometimes in the 60 percentile. It is the weight of the primary States
that carries the percentile and brings it up to 79 from those States
that don't have an effective law. States with their primary safety belt
law have the greatest success for drivers wearing seatbelts.
On an average, States with the primary seatbelt law have a 10 to 15
percent higher seatbelt use compared to those with a secondary system.
This demonstrates that secondary seatbelt
[[Page S16130]]
laws are far more limited in their effectiveness than a primary law.
Essentially, the secondary laws say that if a law enforcement officer
has cause other than a perceived or actual seatbelt violation--namely,
the driver didn't have it buckled--if they have cause to stop that car,
for example, for a speeding offense or a reckless driving offense or
indeed an accident and they observed there has been no use of the
seatbelt, then in the course of proceeding to enforce the several laws
of the State as regards speeding or reckless driving, or whatever the
case may be, they can add a second penalty to address the absence of
the use of the seatbelt in that State.
Drivers are gamblers. They say: Oh, well, don't worry, I will not
buckle up. State law doesn't require it. Unless they stop me--and they
are not going to stop me today. It is that gambling attitude that, more
often than not, will cause an accident. Then it is too late.
So we come forward today to build on our national programs. We are
building on what we did in TEA-21. I was privileged to be on the
committee. I was chairman of the subcommittee 6 years ago. I worked
with Senator Chafee, who was chairman of the full committee, and we
drove hard to make progress with the seatbelt laws, and we did it. We
basically put aside a very considerable sum of money to encourage
States--again, using their own devices--to increase uses. As a direct
consequence of what we did in TEA-21, there has been an 11 percent
increase in these 6 years in the use of seatbelts.
Sadly, traffic deaths in 2002 rose to the highest level in over a
decade. It is astonishing. Of the nearly 43,000 people killed on our
highways, over half were not wearing their seatbelts. That is according
to the National Highway Traffic Safety Administration. And 9,200 of
these deaths might have been prevented if the safety belt had been
used.
Those are alarming statistics. Automobile crashes are the leading
cause of death for Americans age 2 to 34. Stop to think of that: age 2,
that means a child; that means a parent neglected to buckle up a child.
Automobile crashes are the leading cause of death for Americans age 2
to 34. That is our Nation's youth. Do we have a higher calling in the
Congress of the United States than to do everything we can to foster
the dreams and ambitions and the productivity of our Nation's youth? I
think not. And this is one of the ways.
Last year, 6 out of 10 children who died in car crashes did not have
the belt on--6 out of 10; that is over half. I plead with colleagues to
join with me, join with the President who has taken this initiative.
My primary responsibility in the Senate--and this is one of the
reasons I got interested in this subject--is the welfare of the men and
women in the Armed Forces. I say to colleagues, again, the statistics
are tragic. Traffic fatalities are the leading non-combat cause of
death for our soldiers, sailors, airmen, and marines. They are in that
high-risk age category, 18 to 35.
Someone even took a look at the statistics, the total of the
fatalities last year, and said that represents in deaths approximately
the size of the average U.S. Army battalion. That is several companies
and maybe a reinforced element. Just think, that is the magnitude in
one category of those who serve our United States, the men and women in
the Armed Forces.
I cannot think of any reason why we all cannot join behind this
effort. That alone is a driving impetus for this Senator.
The time is long overdue for a national policy to strengthen seatbelt
use rates. I said a national policy, and that is what this bill
represents, either through States enacting a primary seatbelt law or
giving far greater attention to public awareness programs that result
in more drivers and passengers wearing safety belts. Our goal is 90
percent--90 percent.
I have been privileged to serve on this committee 17 years, and I,
together with many others, notably my dear friend and late chairman,
Senator Chafee, addressed this issue. Our committee is rich in the
history of focusing revenue from the highway trust fund on effective
safety programs. It goes back through many chairmen and members of the
committee.
With jurisdiction over the largest share of the highway trust fund,
our committee has had the vision to tackle important national safety
problems. Regrettably, I report to you that the recent markup of the
committee on the proposed successor to the TEA-21 legislation, which we
will take up next year, does provide more funding to help build safer
roads--that is a step forward--but it does not have, in my judgment,
that provision which represents a step up from what we did in TEA-21,
that provision that would represent a recognition for the President's
initiative. He has taken a decidedly strong initiative to increase the
use of seatbelts. It is absent from the bill, and that is why, I say
respectfully to Chairman Inhofe and others on that committee, we need a
provision to strengthen and to move forward the position of the
Congress on the issue of increased use of safety belts. That is the
purpose of this legislation.
It is just unfortunate, but those with reckless intent quickly
disregard responsible behavior and drive unbelted at excessive speeds
and many times with the use of alcohol. So no increased dollars for
improved road engineering, which is in this bill, can defy in many
instances and the type of personal conduct that results in reckless
behavior. It is as simple as that.
Our automobiles now come equipped with crash avoidance technologies
and are more crashworthy than ever before, but these advances are only
part of the solution.
In repeated testimony before the Environment and Public Works
Committee, from the administration, our States, safety groups, and the
highway insurance industry, we are told that three main causes of
traffic deaths and injuries are unbelted drivers, speed, and alcohol.
The formula we have devised in this legislation does have a reduction
in the amount a State receives under this proposed bill that we will
consider next year when they fail to achieve the 90 percent safety belt
use rate. It is as simple as that. But the formula is patterned
directly after the law that is on the books now with respect to the .08
legal blood alcohol content level.
The net effect of this legislation is simply to recognize we are
asking that the same type of sanction policy with regard to one of the
three major causes of death--alcohol--be equated to a second cause of
death and injury, and that is absence of the use of seatbelts, bringing
into parallel two of the three principal causes of death and injury on
today's highways.
The administration put forward an innovative safety belt program, as
I said, under the leadership of the President that was a major
component of their new core transportation program, the Highway Safety
Improvement Program. Regrettably, this recommendation is not included
in the bill that will come before my committee next year as a
consequence of the markup seeking reauthorization of TEA-21.
The proposed reauthorization bill also does not include the current
program, the Safety Belt Incentive Grant program, that we even had in
the previous highway bill, of which I was primarily one of the authors.
Not only are we not going forward, but in a sense we are stepping
backwards. I just cannot understand how we can, as a body, not observe
our responsibility to do what we can to provide the necessary incentive
to the States to take these steps.
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. 1993
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 Safety Act
of 2003''.
SEC. 2. HIGHWAY SAFETY IMPROVEMENT PROGRAM.
(a) Safety Improvement.--
(1) In general.--Section 148 of title 23, United States
Code, is amended to read as follows:
``Sec. 148. Highway safety improvement program
``(a) Definitions.--In this section:
``(1) Highway safety improvement program.--The term
`highway safety improvement program' means the program
carried out under this section.
``(2) Highway safety improvement project.--
``(A) In general.--The term `highway safety improvement
project' means a project described in the State strategic
highway safety plan that--
[[Page S16131]]
``(i) corrects or improves a hazardous road location or
feature; or
``(ii) addresses a highway safety problem.
``(B) Inclusions.--The term `highway safety improvement
project' includes a project for--
``(i) an intersection safety improvement;
``(ii) pavement and shoulder widening (including addition
of a passing lane to remedy an unsafe condition);
``(iii) installation of rumble strips or another warning
device, if the rumble strips or other warning devices do not
adversely affect the safety or mobility of bicyclists and
pedestrians;
``(iv) installation of a skid-resistant surface at an
intersection or other location with a high frequency of
accidents;
``(v) an improvement for pedestrian or bicyclist safety;
``(vi)(I) construction of any project for the elimination
of hazards at a railway-highway crossing that is eligible for
funding under section 130, including the separation or
protection of grades at railway-highway crossings;
``(II) construction of a railway-highway crossing safety
feature; or
``(III) the conduct of a model traffic enforcement activity
at a railway-highway crossing;
``(vii) construction of a traffic calming feature;
``(viii) elimination of a roadside obstacle;
``(ix) improvement of highway signage and pavement
markings;
``(x) installation of a priority control system for
emergency vehicles at signalized intersections;
``(xi) installation of a traffic control or other warning
device at a location with high accident potential;
``(xii) safety-conscious planning;
``(xiii) improvement in the collection and analysis of
crash data;
``(xiv) planning, equipment, operational activities, or
traffic enforcement activities (including police assistance)
relating to workzone safety;
``(xv) installation of guardrails, barriers (including
barriers between construction work zones and traffic lanes
for the safety of motorists and workers), and crash
attenuators;
``(xvi) the addition or retrofitting of structures or other
measures to eliminate or reduce accidents involving vehicles
and wildlife; or
``(xvii) installation and maintenance of signs (including
fluorescent, yellow-green signs) at pedestrian-bicycle
crossings and in school zones.
``(3) Primary safety belt law.--The term `primary safety
belt law' means a law that authorizes a law enforcement
officer to issue a citation for the failure of the operator
of, or any passenger in, a motor vehicle to wear a safety
belt as required by State law, based solely on that failure
and without regard to whether there is any other violation of
law.
``(4) Safety project under any other section.--
``(A) In general.--The term `safety project under any other
section' means a project carried out for the purpose of
safety under any other section of this title.
``(B) Inclusion.--The term `safety project under any other
section' includes a project to--
``(i) promote the awareness of the public and educate the
public concerning highway safety matters; or
``(ii) enforce highway safety laws.
``(5) State highway safety improvement program.--The term
`State highway safety improvement program' means projects or
strategies included in the State strategic highway safety
plan carried out as part of the State transportation
improvement program under section 135(f).
``(6) State strategic highway safety plan.--The term `State
strategic highway safety plan' means a plan developed by the
State transportation department that--
``(A) is developed after consultation with--
``(i) a highway safety representative of the Governor of
the State;
``(ii) regional transportation planning organizations, if
any;
``(iii) representatives of major modes of transportation;
``(iv) local traffic enforcement officials;
``(v) persons responsible for administering section 130 at
the State level;
``(vi) representatives conducting Operation Lifesaver;
``(vii) representatives conducting a motor carrier safety
program under section 31104 or 31107 of title 49;
``(viii) motor vehicle administration agencies; and
``(ix) other major State and local safety stakeholders;
``(B) analyzes and makes effective use of State, regional,
or local crash data;
``(C) addresses engineering, management, operation,
education, enforcement, and emergency services elements of
highway safety as key factors in evaluating highway projects;
``(D) considers safety needs of, and high-fatality segments
of, public roads;
``(E) considers the results of State, regional, or local
transportation and highway safety planning processes in
existence as of the date of enactment of this section;
``(F) describes a program of projects or strategies to
reduce or eliminate safety hazards;
``(G) is approved by the Governor of the State or a
responsible State agency; and
``(H) is consistent with the requirements of section
135(f).
``(b) Program.--
``(1) In general.--The Secretary shall carry out a highway
safety improvement program.
``(2) Purpose.--The purpose of the highway safety
improvement program shall be to achieve a significant
reduction in traffic fatalities and serious injuries on
public roads.
``(c) Eligibility.--
``(1) In general.--To receive funds under this section, a
State shall have in effect a State highway safety improvement
program under which the State--
``(A) develops and implements a State strategic highway
safety plan that identifies and analyzes highway safety
problems and opportunities as provided in paragraph (2);
``(B) produces a program of projects or strategies to
reduce identified safety problems; and
``(C) evaluates the plan on a regular basis to ensure the
accuracy of the data and priority of proposed improvements.
``(2) Identification and analysis of highway safety
problems and opportunities.--As part of the State strategic
highway safety plan, a State shall--
``(A) have in place a crash data system with the ability to
perform safety problem identification and countermeasure
analysis;
``(B) based on the analysis required by subparagraph (A),
identify hazardous locations, sections, and elements
(including roadside obstacles, railway-highway crossing
needs, and unmarked or poorly marked roads) that constitute a
danger to motorists, bicyclists, pedestrians, and other
highway users;
``(C) adopt strategic and performance-based goals that--
``(i) address traffic safety, including behavioral and
infrastructure problems and opportunities on all roads and
bridges on the Federal-aid system;
``(ii) focus resources on areas of greatest need; and
``(iii) are coordinated with other State highway safety
programs;
``(D) advance the capabilities of the State for traffic
records data collection, analysis, and integration with other
sources of safety data (such as road inventories) in a manner
that--
``(i) complements the State highway safety program under
chapter 4 and the commercial vehicle safety plan under
section 31102 of title 49;
``(ii) includes all roads and bridges on the Federal-aid
system; and
``(iii) identifies hazardous locations, sections, and
elements on public roads that constitute a danger to
motorists, bicyclists, and pedestrians;
``(E)(i) determine priorities for the correction of
hazardous road locations, sections, and elements (including
railway-highway crossing improvements), as identified through
crash data analysis;
``(ii) identify opportunities for preventing the
development of such hazardous conditions; and
``(iii) establish and implement a schedule of highway
safety improvement projects for hazard correction and hazard
prevention; and
``(F)(i) establish an evaluation process to analyze and
assess results achieved by highway safety improvement
projects carried out in accordance with procedures and
criteria established by this section; and
``(ii) use the information obtained under clause (i) in
setting priorities for highway safety improvement projects.
``(d) Eligible Projects.--
``(1) In general.--A State may obligate funds apportioned
to the State under this section to carry out--
``(A) any highway safety improvement project on any--
``(i) road or bridge on the Federal-aid system; or
``(ii) publicly owned bicycle or pedestrian pathway or
trail; or
``(B) as provided in subsection (e), for other safety
projects.
``(2) Use of other funding for safety.--
``(A) Effect of section.--Nothing in this section prohibits
the use of funds made available under other provisions of
this title for highway safety improvement projects.
``(B) Use of other funds.--States are encouraged to address
the full scope of their safety needs and opportunities by
using funds made available under other provisions of this
title (except a provision that specifically prohibits that
use).
``(e) Flexible Funding for States With a Strategic Highway
Safety Plan.--
``(1) In general.--To further the implementation of a State
strategic highway safety plan, a State may use up to 25
percent of the amount of funds made available under this
section for a fiscal year to carry out safety projects under
any other section as provided in the State strategic highway
safety plan.
``(2) Other transportation and highway safety plans.--
Nothing in this subsection requires a State to revise any
State process, plan, or program in effect on the date of
enactment of this section.
``(f) Reports.--
``(1) In general.--A State shall submit to the Secretary a
report that--
``(A) describes progress being made to implement highway
safety improvement projects under this section;
``(B) assesses the effectiveness of those improvements; and
``(C) describes the extent to which the improvements funded
under this section contribute to the goals of--
[[Page S16132]]
``(i) reducing the number of fatalities on roadways;
``(ii) reducing the number of roadway-related injuries;
``(iii) reducing the occurrences of roadway-related
accidents;
``(iv) mitigating the consequences of roadway-related
accidents; and
``(v) reducing the occurrences of roadway-railroad grade
crossing accidents.
``(2) Contents; schedule.--The Secretary shall establish
the content and schedule for a report under paragraph (1).
``(g) Federal Share of Highway Safety Improvement
Projects.--The Federal share of the cost of a highway safety
improvement project carried out with funds made available
under this section shall be 90 percent.
``(h) Use of Funds.--
``(1) Projects under section 402.--For fiscal year 2005 and
each fiscal year thereafter, 10 percent of the funds made
available to a State under this section shall be obligated
for projects under section 402, unless by October 1 of the
fiscal year, the State--
``(A) has in effect a primary safety belt law; or
``(B) demonstrates that the safety belt use rate in the
State is at least 90 percent.
``(2) Withholding.--
``(A) In general.--For fiscal year 2007, the Secretary
shall withhold 2 percent, and for each fiscal year
thereafter, the Secretary shall withhold 4 percent, of the
funds apportioned to a State under paragraphs (1), (3), and
(4) of section 104(b) and section 144 if, by October 1 of
that fiscal year, the State does not--
``(i) have in effect a primary safety belt law; or
``(ii) demonstrate that the safety belt use rate in the
State is at least 90 percent.
``(B) Restoration.--If, within 3 years after the date on
which funds are withheld from a State under subparagraph (A),
the State has in effect a primary safety belt law or has
demonstrated that the safety belt use rate in the State is at
least 90 percent, the apportionment of the State shall be
increased by the amount withheld.
``(C) Lapse.--If, within 3 years after the date on which
funds are withheld from a State under subparagraph (A), the
State does not have in effect a primary safety belt law or
has not demonstrated that the safety belt use rate in the
State is at least 90 percent, the amount withheld shall
lapse.''.
(2) Allocations of apportioned funds.--Section 133(d) of
title 23, United States Code, is amended--
(A) by striking paragraph (1);
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(C) in paragraph (2) (as redesignated by subparagraph
(B))--
(i) in the first sentence of subparagraph (A)--
(I) by striking ``subparagraphs (C) and (D)'' and inserting
``subparagraph (C)''; and
(II) by striking ``80 percent'' and inserting ``90
percent'';
(ii) by striking subparagraph (C);
(iii) by redesignating subparagraphs (D) and (E) as
subparagraphs (C) and (D), respectively; and
(iv) in subparagraph (C) (as redesignated by clause (iii)),
by adding a period at the end; and
(D) in paragraph (4)(A) (as redesignated by subparagraph
(B)), by striking ``paragraph (2)'' and inserting ``paragraph
(1)''.
(3) Conforming amendments.--
(A) Chapter 1 of title 23, United States Code, is amended
by striking the item relating to section 148 and inserting
the following:
``148. Highway safety improvement program.''.
(b) Apportionment of Highway Safety Improvement Program
Funds.--Section 104(b) of title 23, United States Code, is
amended--
(1) in the matter preceding paragraph (1), by inserting
after ``Improvement program,'' the following: ``the highway
safety improvement program,''; and
(2) by adding at the end the following:
``(5) Highway safety improvement program.--
``(A) In general.--For the highway safety improvement
program, in accordance with the following formula:
``(i) 25 percent of the apportionments in the ratio that--
``(I) the total lane miles of Federal-aid highways in each
State; bears to
``(II) the total lane miles of Federal-aid highways in all
States.
``(ii) 40 percent of the apportionments in the ratio that--
``(I) the total vehicle miles traveled on lanes on Federal-
aid highways in each State; bears to
``(II) the total vehicle miles traveled on lanes on
Federal-aid highways in all States.
``(iii) 35 percent of the apportionments in the ratio
that--
``(I) the estimated tax payments attributable to highway
users in each State paid into the Highway Trust Fund (other
than the Mass Transit Account) in the latest fiscal year for
which data are available; bears to
``(II) the estimated tax payments attributable to highway
users in all States paid into the Highway Trust Fund (other
than the Mass Transit Account) in the latest fiscal year for
which data are available.
``(B) Minimum apportionment.--Notwithstanding subparagraph
(A), each State shall receive a minimum of \1/2\ of 1 percent
of the funds apportioned under this paragraph.''.
(c) Elimination of Hazards Relating to Highway
Facilities.--
(1) Funds for protective devices.--Section 130(e) of title
23, United States Code, is amended--
(A) in the heading, by striking ``Protective Devices'' and
inserting ``Railway-Highway Crossings'';
(B) by striking the first sentence and inserting the
following:
``(1) In general.--For each fiscal year, at least
$200,000,000 of the funds authorized and expended under
section 148 shall be available for the elimination of hazards
and the installation of protective devices at railway-highway
crossings.''; and
(C) by striking ``Sums authorized'' and inserting the
following:
``(2) Obligation.--Sums authorized''.
(2) Biennial reports to congress.--Section 130(g) of title
23, United States Code, is amended in the third sentence--
(A) by inserting ``and the Committee on Commerce, Science,
and Transportation,'' after ``Public Works''; and
(B) by striking ``not later than April 1 of each year'' and
inserting ``every other year''.
(3) Expenditure of funds; apportionment.--Section 130 of
title 23, United States Code, is amended by adding at the end
the following:
``(k) Expenditure of Funds; Apportionment.--Funds made
available to carry out this section shall be--
``(1) available for expenditure on compilation and analysis
of data in support of activities carried out under subsection
(g); and
``(2) apportioned in accordance with section 104(b)(5).''.
(d) Transition.--
(1) Implementation.--Except as provided in paragraph (2),
to qualify for funding under section 148 of title 23, United
States Code (as amended by subsection (a)), a State shall
develop and implement a State strategic highway safety plan
as required by subsection (c) of that section not later than
October 1 of the second fiscal year after the date of
enactment of this Act.
(2) Interim period.--
(A) In general.--Before October 1 of the second fiscal year
after the date of enactment of this Act and until the date on
which a State develops and implements a State strategic
highway safety plan, the Secretary shall apportion funds to a
State for the highway safety improvement program and the
State may obligate funds apportioned to the State for the
highway safety improvement program under section 148 for
projects that were eligible for funding under sections 130
and 152 of that title, as in effect on the day before the
date of enactment of this Act.
(B) No strategic highway safety plan.--If a State has not
developed a strategic highway safety plan by October 1 of the
second fiscal year after the date of enactment of this Act,
but demonstrates to the satisfaction of the Secretary that
progress is being made toward developing and implementing
such a plan, the Secretary shall continue to apportion funds
for 1 additional fiscal year for the highway safety
improvement program under section 148 of title 23, United
States Code, to the State, and the State may continue to
obligate funds apportioned to the State under this section
for projects that were eligible for funding under sections
130 and 152 of that title, as in effect on the day before the
date of enactment of this Act.
(C) Penalty.--If a State has not adopted a strategic
highway safety plan by the date that is 2 years after the
date of enactment of this Act, funds made available to the
State under section 1101(6) shall be redistributed to other
States in accordance with section 104(b) of title 23, United
States Code.
Secretary of Transportation
Washington, DC, November 12, 2003.
Hon. James Inhofe,
Chairman, Committee on Environment and Public Works, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: With almost 43,000 people dying every
year on our nation's highway, it is imperative that we do
everything in our power to promote a safer transportation
system. The Bush Administration's proposal to reauthorize
surface transportation programs, the Safe, Accountable,
Flexible and Efficient Transportation Equity Act of 2003
(SAFETEA), offers several bold and innovative approaches to
address this crisis.
President Bush and I believe that increasing safety belt
usage rates is the single most effective means to decrease
highway fatalities and injuries. As a result, SAFETEA's new
core highway safety program provides States with powerful
funding incentives to increase the percentage of Americans
who buckle up every time they get in an automobile. Every
percentage point increase in the national safety belt usage
rate saves hundreds of lives and millions of dollars in lost
productivity.
Empirical evidence shows that the surest way for a State to
increase safety belt usage is through the passage of a
primary safety belt law. States with primary belt laws have
safety belt usage rates that are on average eight percentage
points higher than States with secondary laws. Recognizing
that States may have other innovative methods to achieve
higher rates of belt use, SAFETEA also rewards States that
achieve 90% safety belt usage rates even if a primary safety
belt law is not enacted. I urge you to consider these
approaches as your Committee marks up reauthorization
legislation.
While safety belts are obviously critical to reducing
highway fatalities, so too is a data
[[Page S16133]]
driven approach to providing safety. Every State faces its
own unique safety challenges, and every State must be given
broad funding flexibility to solve those challenges. This is
a central theme of SAFETEA, which aims to provide States the
ability to use scarce resources to meet their own highest
priority needs. Such flexibility is essential for States to
maximize their resources, including the funds available under
a new core highway safety program.
I look forward to working with you on these critically
important safety issues as development of a surface
transportation reauthorization bill progresses.
Sincerely yours,
Norman Y. Mineta.
Mr. DeWINE. Mr. President, let me first congratulate my colleague
from Virginia, Senator Warner, for the very fine statement he just made
a moment ago about the bill that he and Senator Clinton are introducing
with regard to the primary seatbelt law. This is something I have been
interested in for some time. I congratulate them for their very fine
bill and Senator Warner's very fine statement. He is absolutely
correct. If we are serious about saving lives on our highways in this
country, there really is nothing more important that we can do than to
get our fellow citizens to buckle up.
We have made great progress in this area, but the fact that many of
our States do not have a primary seatbelt law on the books costs us
thousands and thousands of lives each year. As my colleague from
Virginia so eloquently stated in this Chamber a few minutes ago, all
the experts--everyone who knows anything about highway safety--will
tell you that the most important thing that we could do and the easiest
thing we could do would be to have every State of the Union tomorrow,
instantly, have a primary seatbelt safety law.
That simply means if law enforcement, instead of having to wait for
another type of violation before they could cite someone for not
wearing a seatbelt could cite someone directly for not using a
seatbelt, the use of seatbelts would dramatically increase in this
country. That is what has happened in every single State that has had
these laws enacted. Seatbelt use dramatically goes up almost overnight.
We know there is an inverse relationship between the use of seatbelts
and auto fatalities. Thousands and thousands of Americans' lives would
be saved every single year. I wanted to come to the floor this
afternoon after I listened to my colleague's speech in my office. I
wanted to thank him. He has been a real leader in the area of highway
safety and this is certainly one more example of his leadership.
When we take up the highway safety bill next year, there are a number
of highway safety initiatives on which I have been working. I intend to
bring them to the floor and talk about them and offer them as
amendments, offer them as initiatives. Frankly, there is nothing as
important as what my colleague from Virginia has suggested.
I hope the Senate will take this very seriously. This is a great
opportunity we will have to save thousands and thousands of lives every
year. So I salute my colleague from Virginia.
______
By Mr. DASCHLE (for Mr. Feingold):
S. 1994. A bill to amend part D of title XVIII of the Social security
Act to strike the language that prohibits the Secretary of Health and
Human Services from negotiating prices for prescription drugs furnished
under the Medicare program; to the Committee on Finance.
(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record.)
Mr. FEINGOLD. Mr. President, today I am introducing a bill
that will fix one of the fundamental flaws in the new Medicare
prescription drug benefit. The ``Efficiency in Government Health Care
Spending Act'' will remove language included in the new benefit that
prohibits the Medicare program from negotiating prescription drug
prices with manufacturers. The new Medicare prescription drug benefit
does far too little to bring down the prices of prescription drugs. In
fact, it actually takes away one of the best tools the Medicare program
could use in bringing down prescription drug prices by denying the
government the ability to negotiate price discounts on behalf of
Medicare beneficiaries. My bill will allow the Federal Government to
take advantage of the purchasing power of the Medicare program
Medicare, saving millions of taxpayers' dollars while reducing the
costs of prescription drugs for Medicare beneficiaries.
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. 1994
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 ``Efficiency in Government
Health Care Spending Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Prohibiting the Federal Government from negotiating
prescription drug prices with manufacturers fails to take
advantage of the purchasing power of the Medicare program.
(2) Negotiating prescription drug prices can reduce the
costs of prescription drugs for both the Medicare program and
taxpayers.
(3) A 2002 study by the inspector general of the Department
of Health and Human Services found that--
(A) both the Medicare program and the beneficiaries of the
Medicare program continually pay too much for medical
equipment and medical supplies; and
(B) if the Medicare program paid the same prices for 16
health care supplies as the Department of Veterans Affairs,
which directly negotiates prices with manufacturers, pays for
those supplies, the Federal Government could save
$958,000,000 each year.
SEC. 3. ELIMINATION OF PROHIBITION OF NEGOTIATION OF PRICES.
(a) Repeal of Noninterference Provision.--
(1) In general.--Subsection (i) of section 1860D-11 of the
Social Security Act, as added by section 101 of the Medicare
Prescription Drug, Improvement, and Modernization Act of
2003, is repealed.
(2) Conforming amendment.--Subsection (j) of section 1860D-
11 of the Social Security Act, as added by section 101 of the
Medicare Prescription Drug, Improvement, and Modernization
Act of 2003, is redesignated as subsection (i).
(b) Effective Date.--The amendments made by this section
shall take effect as if included in the enactment of section
101 of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003.
______
By Mr. DASCHLE (for Mr. Feingold):
S. 1995. A bill to amend title XVIII of the Social Security Act to
repeal the MA Regional Plan Stabilization Fund; to the Committee on
Finance.
Mr. FEINGOLD. Mr. President, today I am introducing a bill
that will remove the multi-billion dollar ``stabilization fund'' from
the new Medicare prescription drug benefit. This stabilization fund is
in essence a slush fund that gives billions of dollars to private
insurance companies. This is not an efficient use of taxpayers'
dollars. In fact, it's not clear why it's even necessary. If private
managed care plans are successful in bring costs down, as backers of
the new Medicare bill expect, and if seniors supposedly want to choose
private plans, as backers of the new Medicare bill believe, then why
should American taxpayers pay private companies more money to get more
people to enroll in them?
We should not be subsidizing private health insurance companies in
the name of Medicare reform. It is fiscally irresponsible, in a time of
record deficits, to use taxpayers' dollars as a giveaway to private
insurance companies. By removing this multi-billion slush fund, my bill
will save the American taxpayers billions of dollars. Many analysts
predict that the new Medicare prescription drug benefit will surpass
the $400 billion budgeted for it. We need to look carefully at how we
spend Medicare dollars, so that we can ensure that the program remains
solvent for future generations.
I ask unanimous consent that the text of this legislation be printed
in the Record.
(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record.)
There being no objectin, the bill was ordered to be printed in the
Record, as follows:
S. 1995
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. REPEAL OF MA REGIONAL PLAN STABILIZATION FUND.
(a) Purpose of Section.--The purpose of this section is to
reduce the Federal budget deficit and to more efficiently use
taxpayer dollars in health care spending.
(b) Repeal of MA Regional Plan Stabilization Fund.--Section
1858 of the Social Security Act, as added by section 221(c)
of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003, is amended--
[[Page S16134]]
(1) by striking subsection (e);
(2) by redesignating subsections (f), (g), and (h) as
subsections (e), (f), and (g), respectively; and
(3) in subsection (e), as so redesignated, by striking
``subject to subsection (e),''.
(c) Conforming Amendment.--Section 1851(i)(2) of the Social
Security Act (42 U.S.C. 1395w-21(i)(2)), as amended by
section 221(d)(5) of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003, is amended by
striking``1858(h)'' and inserting ``1858(g)''.
(d) Effective Date.--The amendments made by this section
shall take effect as if included in the enactment of the
Medicare Prescription Drug, Improvement, and Modernization
Act of 2003.
______
By Mr. DASCHLE:
S. 1996. A bill to enhance and provide to the Oglada Sioux Tribe and
Angostura Irrigation Project certain benefits of the Pick-Sloan
Missouri River basin program; to the Committee on Indian Affairs.
Mr. DASCHLE. Mr. President, today I am introducing the Oglala Sioux
Tribe Angostura Irrigation Project Rehabilitation and Development Act.
I have worked with the leadership of the Oglala Sioux Tribe to develop
this legislation, which is intended to benefit the Lakota people by
restoring critical water resources and promoting economic development
on the Pine Ridge Indian Reservation.
The Angostura Unit of the Bureau of Reclamation was first authorized
by Congress under the Water Conservation and Utilization Act of 1939,
and later continued under the Flood Control Act of 1944, otherwise
known as the Pick-Sloan Missouri River Basin Project. The program
consisted primarily of building the six mainstem dams on the Missouri
River, to be operated by the U.S. Army Corps of Engineers, along with
several Bureau-operated irrigation and water development projects. The
Angostura Unit was designed to provide irrigation to 12,218 acres of
farm and ranch land in the Angostura Irrigation District, as well as
flood control, fish, and wildlife benefits.
Tribes in South Dakota existed long before the creation of the Bureau
of Reclamation or the implementation of the water development projects
in South Dakota today. Tribes therefore have a vested interest in the
operation of these projects. While the projects have been helpful in
meeting their authorized goals, they also contribute to adverse
economic and environmental conditions on tribal reservations. In
particular, the Missouri River reservoirs managed by the Corps led to
the taking of thousands of acres of fertile river land from Indian
tribes, and with that taking, the tribes lost valuable natural
resources.
Federal agencies were directed through subsequent acts to provide for
the rehabilitation of the lost fish and wildlife habitat and to
generally improve conditions on the reservations, but results were slow
in coming, and often never materialized. Legislation was enacted
several years ago to finally address some of these issues, but much
more remains to be done before South Dakota's tribes realize the
benefits that Bureau of Reclamation and Corps projects have provided
other parts of the state.
In addition to the irrigation benefits the Angostura Unit provides to
ranchers and agricultural producers in the area, a substantial
recreation industry has developed around the reservoir, including
boating and fishing. However, members of the Oglala Sioux on the Pine
Ridge Indian Reservation have not seen equal economic benefits from the
Angostura Unit as those experienced from the recreation and irrigation
in Fall River County. The Cheyenne River forms the northern boundary of
the reservation, which is just 20 miles downstream from the reservoir,
and is an important natural resource for the tribe. The river is
essential to the survival of riparian vegetation, traditional medicinal
plants, fish, and wildlife habitat. The impoundment of water in the
reservoir has curbed the Cheyenne River's natural flow, and water
quality is reduced. This, coupled with the worst drought the region has
seen in a decade, severely affects water resources on the reservation.
The Oglala Sioux Tribe's leadership has long had a desire to address
these problems, and this legislation is an important manifestation of
their effort. During revision of the Angostura Unit's water management
plan in 2002, the Bureau of Reclamation considered a variety of
alternatives for future operations, but the tribe felt their concerns
about the economic and environmental effects the reservoir has on the
reservation were not adequately addressed. One alternative considered
by the Bureau of Reclamation during this review would return natural
flows to the Cheyenne River, and would provide more water downstream
for the tribe and would improve reservation conditions. The Bureau took
a different approach, however--one that calls for improved irrigation
operations and a more efficient distribution of water resources in the
irrigation district. These improvements would help free up additional
water resources and hopefully lead to improved conditions on the
Cheyenne River that would benefit the tribe.
The Angostura Irrigation Project Rehabilitation and Development Act
would authorize the efficiency improvements proposed by the Bureau of
Reclamation, benefitting both existing water users and the tribe. The
legislation also would authorize the creation of a trust fund to
compensate the tribe for the economic impacts and lost natural
resources caused by the operation of the Angostura Unit. This trust
fund will be used by the tribe to promote economic development, improve
infrastructure, and enhance the education, health, and general welfare
of the Oglala Lakota people. This dual track will both help ensure
continued and efficient operation of the Angostura Unit and the
Angostura Irrigation District, while helping to mitigate the problems
facing the Oglala Sioux Tribe, and providing the tribe with the natural
and financial resources it needs to plan for the future and improve the
quality of life for all tribal members.
This legislation is just one small, yet important, step toward
ensuring that U.S. natural resource policies are fair to American
Indians, and I look forward to working with my colleagues to enact it.
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. 1996
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 ``Oglala Sioux Tribe Angostura
Irrigation Project Rehabilitation and Development Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) Congress approved the Pick-Sloan Missouri River basin
program by passing the Act of December 22, 1944 (commonly
known as the ``Flood Control Act of 1944'') (33 U.S.C. 701-1
et seq.)--
(A) to promote the economic development of the United
States;
(B) to provide for irrigation in regions north of Sioux
City, Iowa;
(C) to protect urban and rural areas from devastating
floods of the Missouri River; and
(D) for other purposes;
(2) the Angostura Unit--
(A) is a component of the Pick-Sloan program; and
(B) provides for--
(i) irrigation of 12,218 acres of productive farm land in
the State; and
(ii) substantial recreation and fish and wildlife benefits;
(3) the Commissioner of Reclamation has determined that--
(A) the national economic development benefits from
irrigation at the Angostura Unit total approximately
$3,410,000 annually; and
(B) the national economic development benefits of
recreation at Angostura Reservoir total approximately
$7,100,000 annually;
(4) the Angostura Unit impounds the Cheyenne River 20 miles
upstream of the Pine Ridge Indian Reservation in the State;
(5)(A) the Reservation experiences extremely high rates of
unemployment and poverty; and
(B) there is a need for economic development on the
Reservation;
(6) the national economic development benefits of the
Angostura Unit do not extend to the Reservation;
(7) the Angostura Unit may be associated with negative
affects on water quality and riparian vegetation in the
Cheyenne River on the Reservation;
(8) rehabilitation of the irrigation facilities at the
Angostura Unit would--
(A) enhance the national economic development benefits of
the Angostura Unit; and
(B) result in improved water efficiency and environmental
restoration benefits on the Reservation; and
(9) the establishment of a trust fund for the Oglala Sioux
Tribe would--
[[Page S16135]]
(A) produce economic development benefits for the
Reservation comparable to the benefits produced at the
Angostura Unit; and
(B) provide resources that are necessary for restoration of
the Cheyenne River corridor on the Reservation.
SEC. 3. DEFINITIONS.
In this Act:
(1) Angostura unit.--The term ``Angostura Unit'' means the
irrigation unit of the Angostura irrigation project developed
under the Act of August 11, 1939 (16 U.S.C. 590y et seq.).
(2) Fund.--The term ``Fund'' means the Oglala Sioux Tribal
Development Trust Fund established by section 201(a).
(3) Pick-sloan program.--The term ``Pick-Sloan program''
means the Pick-Sloan Missouri River basin program approved
under the Act of December 22, 1944 (commonly known as the
``Flood Control Act of 1944'') (33 U.S.C. 701-1 et seq.).
(4) Plan.--The term ``plan'' means the development plan
developed by the Tribe under section 201(f).
(5) Reservation.--The term ``Reservation'' means the Pine
Ridge Indian Reservation in the State.
(6) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(7) State.--The term ``State'' means the State of South
Dakota.
(8) Tribal council.--The term ``Tribal Council'' means the
governing body of the Tribe.
(9) Tribe.--The term ``Tribe'' means the Oglala Sioux Tribe
of South Dakota.
TITLE I--REHABILITATION
SEC. 101. REHABILITATION OF FACILITIES AT ANGOSTURA UNIT.
The Secretary may carry out the rehabilitation and
improvement of the facilities at the Angostura Project
described in the report entitled ``Angostura Unit Contract
Negotiation and Water Management Final Environmental Impact
Statement'', dated August 2002.
SEC. 102. DELIVERY OF WATER TO PINE RIDGE INDIAN RESERVATION.
The Secretary shall provide for--
(1) to the maximum extent practicable, the delivery of
water saved through the rehabilitation and improvement of the
facilities of the Angostura Unit to the Pine Ridge Indian
Reservation; and
(2) the use of that water for purposes of environmental
restoration on the Pine Ridge Indian Reservation.
SEC. 103. EFFECT ON OTHER LAW.
Nothing in this title affects--
(1) any reserved water rights or other rights of the Tribe;
(2) any service or program to which, in accordance with
Federal law, the Tribe, or an individual member of the Tribe,
is entitled; or
(3) any water rights in existence on the date of enactment
of this Act held by any person or entity.
SEC. 104. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as are
necessary to carry out this title, to remain available until
expended.
TITLE II--DEVELOPMENT
SEC. 201. OGLALA SIOUX TRIBAL DEVELOPMENT TRUST FUND.
(a) Oglala Sioux Tribal Development Trust Fund.--There is
established in the Treasury of the United States a fund to be
known as the ``Oglala Sioux Tribal Development Trust Fund'',
consisting of any amounts deposited in the Fund under this
title.
(b) Funding.--On the first day of the 11th fiscal year that
begins after the date of enactment of this Act, the Secretary
of the Treasury shall, from the General Fund of the Treasury,
deposit in the Fund--
(1) such sums as the Secretary of the Treasury, in
consultation with the Secretary, the Secretary of Health and
Human Services, and the Tribal Council, are necessary to
carry out development under this title; and
(2) the amount that equals the amount of interest that
would have accrued on the amount described in paragraph (1)
if that amount had been invested in interest-bearing
obligations of the United States, or in obligations
guaranteed as to both principal and interest by the United
States, on the first day of the first fiscal year that begins
after the date of enactment of this Act and compounded
annually thereafter.
(c) Investment of Trust Fund.--
(1) In general.--The Secretary of the Treasury shall invest
such portion of the Fund as is not, in the judgment of the
Secretary of the Treasury, required to meet current
withdrawals.
(2) Acquisition of obligations.--Such investments may be
made only in interest-bearing obligations of the United
States or in obligations guaranteed as to both principal and
interest by the United States.
(3) Interest.--The Secretary of the Treasury shall deposit
interest resulting from such investments into the Fund.
(d) Payment of Interest to Tribe.--
(1) Withdrawal of interest.--Beginning on the first day of
the 11th fiscal year after the date of enactment of this Act
and, on the first day of each fiscal year thereafter, the
Secretary of the Treasury shall transfer the aggregate amount
of interest deposited into the Fund for the fiscal year to
the Secretary for use in accordance with paragraph (3).
(2) Availability.--Each amount transferred under paragraph
(1) shall be available without fiscal year limitation.
(3) Payments to tribe.--
(A) In general.--The Secretary shall use the amounts
transferred under paragraph (1) only for the purpose of
making payments to the Tribe, as such payments are requested
by the Tribe pursuant to tribal resolution.
(B) Limitation.--Payments may be made by the Secretary of
the Interior under subparagraph (A) only after the Tribe has
adopted a plan under subsection (f).
(C) Use of payments by tribe.--The Tribe shall use the
payments made under subparagraph (B) only for carrying out
projects and programs under the plan prepared under
subsection (f).
(e) Limitation on Transfers and Withdrawals.--Except as
provided in subsections (c) and (d)(1), the Secretary of the
Treasury shall not transfer or withdraw any amount deposited
under subsection (b).
(f) Development Plan.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, the governing body of the Tribe shall
prepare a plan for the use of the payments to the Tribe under
subsection (d).
(2) Contents.--The plan shall provide for the manner in
which the Tribe shall expend payments to the Tribe under
subsection (d) to promote--
(A) economic development;
(B) infrastructure development;
(C) the educational, health, recreational, and social
welfare objectives of the Tribe and members of the Tribe; or
(D) any combination of the activities described in
subparagraphs (A) through (C).
(3) Plan review and revision.--
(A) In general.--The Tribal Council shall make available
for review and comment by the members of the Tribe a copy of
the plan before the plan becomes final, in accordance with
procedures established by the Tribal Council.
(B) Updating of plan.--
(i) In general.--The Tribal Council may, on an annual
basis, revise the plan to update the plan.
(ii) Review and comment.--In revising the plan, the Tribal
Council shall provide the members of the Tribe opportunity to
review and comment on any proposed revision to the plan.
(C) Consultation.--In preparing the plan and any revisions
to update the plan, the Tribal Council shall consult with the
Secretary and the Secretary of Health and Human Services.
(4) Audit.--
(A) In general.--The activities of the Tribe in carrying
out the plan shall be audited as part of the annual single-
agency audit that the Tribe is required to prepare pursuant
to the Office of Management and Budget circular numbered A-
133.
(B) Determination by auditors.--The auditors that conduct
the audit under subparagraph (A) shall--
(i) determine whether funds received by the Tribe under
this section for the period covered by the audit were
expended to carry out the plan in a manner consistent with
this section; and
(ii) include in the written findings of the audit the
determination made under clause (i).
(C) Inclusion of findings with publication of proceedings
of tribal council.--A copy of the written findings of the
audit described in subparagraph (A) shall be inserted in the
published minutes of the Tribal Council proceedings for the
session at which the audit is presented to the Tribal
Council.
(g) Prohibition of Per Capita Payments.--No portion of any
payment made under this title may be distributed to any
member of the Tribe on a per capita basis.
SEC. 202. ELIGIBILITY OF TRIBE FOR CERTAIN PROGRAMS AND
SERVICES.
No payment made to the Tribe under this title shall result
in the reduction or denial of any service or program with
respect to which, under Federal law--
(1) the Tribe is otherwise entitled because of the status
of the Tribe as a federally recognized Indian tribe; or
(2) any individual who is a member of the Tribe is entitled
because of the status of the individual as a member of the
Tribe.
SEC. 203. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to pay the administrative expenses of the Fund.
______
By Mr. BYRD (for himself, Mr. Bayh, and Mr. Rockefeller):
S. 1997. A bill to reinstate the safeguard measures imposed on
imports of certain steel products, as in effect on December 4, 2003; to
the Committee on Finance.
Mr. BYRD. Mr. President, last week, the Bush administration--in what
has become its normal pattern--ignored the pleas of thousands of
hardworking Americans. It lifted the steel tariffs it had promised the
U.S. steel industry and imposed on foreign imports back in March of
2002.
Despite its earlier pledge to stand by America's steelworkers, the
White House, in typical fashion, decided to turn its back on our
highest valued workers and most vulnerable retirees. In a fit of pique
and hard-hearted hubris, the White House decided to lift U.S. tariffs
on foreign steel imports 15
[[Page S16136]]
months ahead of time, instead of letting the tariffs stay in place
until March 2005, as is permitted by U.S. law.
Why? Why would the White House betray America's steel industry--the
backbone of America's industrial base--particularly during this time of
war? Of national emergency? No. Because the President feared
retaliation from America's trading partners, he quivered at the threat
that they would retaliate against U.S. exports if he did not lift the
201 tariffs. He cowered in the face of exactly those nations whose
steel exports to the United States have driven 42 U.S. steel companies
to their knees and into bankruptcy. His resolve collapsed in the face
of retaliatory threats from America's most virulent competitors, whose
illegal trade against the United States has already cost nearly 50,000
steelworkers their jobs.
America's foreign trade opponents gambled that this President lacked
the resolve to stand up to them and to the WTO. Do you know? They were
right. They were sadly correct.
But this President, George W. Bush, did not need to cave like a
``weak willy'' in the face of belligerent foreign bullies. Instead, he
could have invoked Article XXI of the GATT, a viable trade tool that
has been legitimately and successfully employed by the United States in
the past to exempt itself from the GATT, now the WTO, in a time of war
or national emergency. The President on July 31, 2003, formally
proclaimed our Nation to be in a continued state of emergency. As a
result of the President's own misguided and ill-advised actions, we
remain engaged militarily in Iraq.
On July 31, 2003, President Bush formally declared that, in
accordance with section 202(d) of the National Emergencies Act, he was
``continuing for one year the national emergency with respect to
Iraq.'' We also continue to face an ongoing war against terrorism, both
here at home and abroad.
So, President Bush had--and has--ample authority to invoke a
provision of GATT 1994, negotiated by the United States and available
to all WTO Members, that would permit him to exempt protections for the
U.S. steel industry from retaliation by foreign countries.
But this President has so far lacked the foresight or the fortitude
to take that step. Confronted with real threats of economic retaliation
by determined competitors, the President folds like a house of cards
astride the San Andreas fault.
That is why, today, I am introducing a bill that will do what the
President refused to do. It will reinstate the 201 relief and reimpose
the 201 tariffs against foreign steel imports. Under my bill, the 201
tariffs will be put back in place to stop foreign import surges, just
as they did before the President so ill-advisedly lifted the tariffs
last Thursday. And the tariffs will remain in place through March 5,
2005.
This administration should not have been bullied into abandoning the
U.S. steel industry. Our steel industry is key to the national economic
security of our Nation. Without steel, we cannot guarantee America's
national security. Without steel, we could not have rebuilt after
September 11. And I am not the only one who thinks that steel is
integral to America's economic and national security. Just a few days
before that fateful September day, on August 26, 2001, President Bush
told America's steelworkers: ``If you're worried about the security of
the country and you become over reliant upon foreign sources of steel,
it can easily affect the capacity of our military to be well supplied.
Steel is an important jobs issue; it is also an important national
security issue.''
With an annual take deficit of almost $500 billion, Americans have a
right to expect that international trade rules with work for them; not
against them. They also have a right to know that the United States can
respond as it must to the type of trade crises that have been suffered
by America's steel industry for years.
There was absolutely no reason to lift the steel 201 tariffs. They
are fully consistent with both U.S. law and our international
agreements--regardless of the view of the WTO. The purpose of 201
relief is to give the domestic industry time to adjust to import
competition. Our valiant steel industry is doing just that by pursuing
unprecedented restructuring and new investment. Since the 201 tariffs
were imposed, flat-rolled steel producers alone have invested more than
$3 billion to enhance their productivity.
Critics of the 201 relief have been proved wrong on every significant
fact concerning that relief. They said that once the tariffs were
imposed, steel prices would go through the roof. Yet, prices have risen
only modestly, and much less than abroad. The critics claimed that U.S.
steel companies would do nothing to improve their competitiveness. But
our Nation is witnessing the most dramatic restructuring in the
industry's history. The critics also claimed that the tariffs would be
bad for the U.S. economy, but the non-partisan U.S. International Trade
Commission, ITC, recently found that the potential costs are
minuscule--only about 2 percent of what Americans spend each month at
McDonald's--and not even a drop in the bucket compared to the value we
gain by restoring a critical U.S. industry to long-term
competitiveness.
Other nations' actions in this Section 201 dispute have been truly
disgraceful. The European Union originally threatened to retaliate
against the United States immediately upon the President's application
of the safeguard measures in March 2002. In the end, it hesitated. But
its threat was sufficient to extort from the administration nearly
unlimited exclusions from the tariffs to benefit foreign producers.
Acquiescing to this type of bullying jeopardizes the future of the
U.S. steel industry, and it undermines the integrity of, and support
for, the entire international trading system. Americans cannot be
expected to support a system that works against them, rather than for
them.
By lifting the tariffs, the administration is allowing Brazil, the
European Union, Japan, and other nations, once again, to flood the U.S.
market with imports. The Bush administration could have stood up for
America's steelworkers like those at Weirton, WV, and Wheeling-
Pittsburgh Steel in West Virginia, and demanded that other countries
respect the legitimate rights of the United States in the world trading
system. But this administration chose to back down, to lose face, to
sit back and watch, once more, while thousands of additional U.S. steel
jobs are destroyed by wave after wave of foreign imports.
The administration does not seem to care if the U.S. steel industry
is destroyed at a time of war and in the midst of a national emergency.
President Bush did not even care enough to personally inform the U.S.
steel industry, its workers, and their families of his decision to lift
the tariffs. No!! Instead, he sent a trade negotiator, Mr. Zoellick, to
do his dirty work. Ambassador Zoellick had the audacity to tell us that
the tariffs are ``no longer necessary.'' No longer necessary. And why
did he say that they are no longer necessary? They are no longer
necessary because, he said, ``these safeguard measures have achieved
their purpose.''
The only purpose that I can see in this decision to shut the tariff
program down is to succumb to threats and demands from abroad. The only
effect will be the loss of more steel manufacturing jobs here at home.
On October 27, 2000, Mr. Dick Cheney--do you know him? He is now Vice
President of the United States--just a few days before the elections he
came to Weirton, WV, to campaign for the Bush-Cheney ticket. During
that visit, Mr. Cheney forcefully pledged to help America's
steelworkers. He said, ``We will never lie to you. If our trading
partners violate our trading laws, we will respond swiftly and
firmly.''
Promise made, promise broken. Unfortunately, like so many commitments
this administration has made, its pledge to help America's steel
industry got off to a headline-grabbing start, but has now been
discarded, out of the glare of the campaign spotlight.
So now, only 3 years after Mr. Cheney's campaign-season vow of
honesty to America's steelworkers, this White House has taken an axe to
the 201 tariffs and betrayed the trust of thousands of American
families whose paychecks depend on the U.S. steel industry.
Mr. President, the Bush White House has absolutely failed the working
families across this country. This White House has traded the best
interests of the American people for the big special interests of
corporate campaign contributors. It is no surprise that the Bush
Administration would turn its back on steelworkers.
[[Page S16137]]
When the Bush-Cheney ticket needed West Virginia's votes in 2000, it
pledged to help our steel industry. At first, it appeared as though the
administration would follow through on that promise. The White House
applied the steel tariffs, for which West Virginia was thankful and for
which I and other Senators congratulated, commended and thanked the
administration. But then the President exempted import after import
from those tariffs. Now the President has eliminated the tariffs
completely.
The Bush White House may have forgotten the promise made to the steel
industry in West Virginia, but thousands of West Virginians and other
steelworkers across the Nation will not forget. The recognize a fair-
weather friend when they seen one.
______
By Mr. BINGAMAN (for himself, Ms. Snowe, Mr. Schumer, Mr. Leahy,
Mrs. Clinton, Mr. Nelson of Nebraska, Mrs. Lincoln, Mr. Hagel,
Mr. Jeffords, Mr. Domenici, Mr. Harkin, and Mr. Pryor):
S. 1998. A bill to amend title 49, United States Code, to preserve
the essential air service program; to the Committee on Commerce,
Science, and Transportation.
Mr. BINGAMAN. Mr. President, I rise today to introduce the bipartisan
Essential Air Service Preservation Act of 2003. I am pleased to have my
colleague Senator Snowe as the principal cosponsor of the bill. Senator
Snowe has been a long-time champion of commercial air service in rural
areas, and I appreciate her continued leadership on this important
legislation. Senators Shumer, Leahy, Clinton, Ben Nelson, Lincoln,
Hagel, Jeffords, Domenici, and Harkin, are also cosponsors of the bill.
Congress established the Essential Air Service Program in 1978 to
ensure that communities that had commercial air service before airline
deregulation could continue to receive scheduled service. Without EAS,
many rural communities would have no commercial air service at all.
Our bill is very simple. It preserves Congress's intent in the
Essential Air Service program by repealing a provision in the FAA
reauthorization bill that would for the first time require communities
to pay for their commercial air service.
Congress has already barred the Department of Transportation from
implementing any cost sharing requirements on Essential Air Service
communities for one year. This bill would now make the ban permanent. I
believe that implementing any mandatory cost sharing is the first step
in the total elimination of scheduled air service for many rural
communities.
It is indeed a sad commentary on this Congress that my colleagues and
I have to introduce this bill at all. Time and again Congress has gone
on record opposing mandatory cost sharing for EAS communities, yet it
keeps coming back.
In June, during consideration of the FAA reauthorization bill,
Senator Inhofe and I, with 13 bipartisan cosponsors, offered an
amendment that struck out a provision in that bill imposing mandatory
cost sharing on some EAS communities.
I was pleased the full Senate agreed and voted to eliminate mandatory
cost sharing from the FAA reauthorization bill. In parallel, the full
House of Representatives adopted a similar amendment to the FAA bill.
Thus, the bills that were sent to conference required no cost sharing
for EAS communities.
Most students of government would tell you that when a majority of
both houses of Congress have voted against a particular measure, the
conferees couldn't arbitrarily put it back in. Well, they did. In
another example of this Congress's secret back room dealing, the
conferees excluded the minority members, flagrantly ignored the will of
the majority in the House and the Senate, and restored the very cost-
sharing language both houses one month before had voted to reject. I
believe adding this extraneous and objectionable provision was an
egregious violation of the conference process.
When cost sharing showed up in the FAA conference report, Congress,
with bipartisan support, stopped the Department of Transportation from
implementing the measure for one year by barring the use of 2004
appropriations for that purpose. The bill we are introducing today
permanently repeals the mandatory cost-sharing requirements that the
conferees reinserted into the FAA reauthorization bill after both the
House and Senate had voted not to include them. I hope both houses of
Congress will again do the right thing by passing our bill.
All across America, small communities face ever-increasing hurdles to
promoting their economic growth and development. Today, many rural
areas lack access to interstate or even four-lane highways, railroads
or broadband telecommunications. Business development in rural areas
frequently hinges on the availability of scheduled air service. For
small communities, commercial air service provides a critical link to
the national and international transportation system.
The Essential Air Service Program currently ensures commercial air
service to over 100 communities in 34 states. EAS supports an
additional 33 communities in Alaska. Because of increasing costs and
the current financial turndown in the aviation industry, particularly
among commuter airlines, about 28 additional communities have been
forced into the EAS program since the terrorist attacks in 2001.
In my State of New Mexico, five cities currently rely on EAS for
their commercial air service. The communities are Clovis, Hobbs,
Carlsbad, Alamogordo and my hometown of Silver City. In each case
commercial service is provided to Albuquerque, the State's business
center and largest city.
I believe this ill-conceived proposal requiring cities to pay to
continue to have commercial air service could not come at a worse time
for small communities already facing depressed economies and declining
tax revenues.
As I understand it, the mandatory cost-sharing requirements in the
FAA reauthorization bill could affect communities in as many as 22
states. Based an analyses by my staff, the individual cities that may
be affected are as follows:
Alabama--Muscle Shoals; Arizona--Prescott, Kingman;
Arkansas--Hot Springs, Harrison, Jonesboro; Colorado--Pueblo;
Georgia--Athens; Iowa--Fort Dodge, Burlington; Kansas--
Salina; Kentucky--Owensboro; Maine--Augusta, Rockland;
Michigan--Iron Mt.; Mississippi--Laurel; Nebraska--Norfolk;
New Hampshire--Lebanon; New Mexico--Hobbs, Alamogordo,
Clovis; New York--Saranac Lake, Watertown, Jamestown,
Plattsburgh; Oklahoma--Ponca City, Enid; Pennsylvania--
Johnstown, Oil City, Bradford, Altoona; South Dakota--
Brookings, Watertown; Tennessee--Jackson; Texas--Victoria;
Vermont--Rutland; Washington--Moses Lake.
As I see it, the choice here is clear: If we do not preserve the
Essential Air Service Program today, we could soon see the end of all
commercial air service in rural areas. The EAS program provides vital
resources that help link rural communities to the national and global
aviation system. Our bill will preserve the essential air service
program and help ensure affordable, reliable, and safe air service
remains available in rural America. Congress is already on record
opposing mandatory cost sharing. I hope all Senators will once again
join us in opposing this attack on rural America.
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. 1998
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 ``Essential Air Service
Preservation Act of 2003''.
SEC. 2. REPEAL OF EAS LOCAL PARTICIPATION PROGRAM.
(a) In General.--Subchapter II of chapter 417 of title 49,
United States Code, is amended by striking section 41747, and
such title shall be applied as if such section 41747 had not
been enacted.
(b) Conforming Amendment.--The analysis for subchapter II
of chapter 417 of title 49, United States Code, is amended by
striking the item relating to section 41747.
______
By Mr. DASCHLE (for himself, Ms. Stabenow, Mr. Graham of Florida,
Mr. Kennedy, Mr. Pryor, Mr. Dorgan, Mrs. Boxer, Mr. Lautenberg,
Mr. Bingaman, Ms. Mikulski, Mr. Johnson, Mr. Schumer, Mr. Kohl,
Ms. Cantwell, and Mr. Rockefeller):
[[Page S16138]]
S. 1999. A bill to amend part D of title XVIII of the Social Security
Act, as added by the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003, to provide for negotiation of fair prices
for medicare prescription drugs; to the Committee on Finance.
Mr. DASCHLE. Mr. President, yesterday, the President signed the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003.
But the name of that Act is completely misleading. In fact, the Act
fundamentally damages the successful and popular Medicare program--a
long-term Republican goal. And this Act does more to ensure that drug
prices remain high than it does to assist beneficiaries in paying for
their drugs.
Why? Because drug companies want it that way. Republicans with
financial ties to the industry are protecting drug company interests
over the interests of seniors and people with disabilities.
America's seniors pay the highest drug prices in the world, even
though American taxpayers subsidize the research that produces many of
those drugs. The Medicare bill signed by the President squanders our
chances of remedying that inequity. Not only does the bill effectively
prohibit the reimportation of more affordable drugs from other
countries, it actually prohibits Medicare from using its tremendous
bargaining power to ensure that beneficiaries pay lower prices and that
our scant resources are most effectively used.
Today, Senate Democrats are siding with the seniors. We are
introducing legislation that would repeal the provision barring
Medicare from negotiating for lower prices. The Medicare Prescription
Drug Price Reduction Act would give Medicare the authority to negotiate
with drug companies to obtain the lowest possible prices for seniors
and people with disabilities. House Democrats introduced a companion
bill yesterday. Together, we will fight for the goal of giving Medicare
beneficiaries the drug benefit and lower prices they deserve.
______
By Mrs. CLINTON:
S. 2003. A bill to amend the Public Health Service Act to promote
higher quality health care and better health by strengthening health
information, information infrastructure, and the use of health
information by providers and patients; to the Committee on Finance.
Mrs. CLINTON. Mr. President, today, I am introducing a bill that
seeks to begin a dialogue on one of the most important yet neglected
aspects of our health care system--health care quality. this is an
enormous issue that affects every single one of us who has ever needed
medical care, and it affects all taxpayers because quality care has
such potential to avoid waste and save millions of dollars in health
care costs. I have raised many of these ideas as amendments in other
contexts, such as the Medicare debate on S. 1, and the debate over S.
720, the Patient Safety and Quality Improvement Act of 2003. I intend
to continue working with my colleagues on improving these ideas and
proposing additional concepts. But with this bill today, I seek to put
forward a package of ideas, provoke conversation, and present this as a
first step in making quality a focus of my health care efforts next
year. My goal with these efforts is to both improve quality and
outcomes, and reduce costs by encouraging care that is more effective.
There is no reason why we cannot achieve this. We have the most
advanced medical system in human history--the finest medical
institutions, the newest treatments, the best trained health care
professionals. But in spite of the best intentions of clinicians and
patients, our health care system is plagued with underuse, overuse, and
misuse. currently, only about 50 percent of care that is known to be
effective is provided, and the care given is supported by solid
scientific evidence, and the pace of dissemination of new evidence is
painfully slow. It may take up to 17 years for treatments found to be
effective to become common practice.
Much of the overuse or misuse of health services stems from the
fragmentation of our system. In a recent study in Santa Barbara, CA, 20
percent of lab tests and x-rays were conducted solely because previous
results were unavailable. One in seven hospitalizations occurs because
information is unavailable, and a shocking percentage of the time,
physicians do not find patient information that had previously been
recorded in a paper-based medical record.
Despite all of our Nation's medical advances, health quality is
becoming even more endangered in some respects. Nursing care which is
often shown to be a decisive factor for hospital patient outcomes, its
in grave shortage, and a majority of U.S. physicians surveyed by the
Commonwealth Fund perceive their ability to provide quality care as
having worsened over the last 5 years.
Additionally, even as the quality of health care we purchase lags,
our spending on inadequate and wasteful care is spiraling out of
control. Premiums increased 13 percent last year, and health care costs
are increasing at nearly 10 times the rate of inflation. To make
matters worse, the public health system is straining to meet the
challenges of bioterrorism or emerging infections, the number of
uninsured Americans is rising, clinicians are leaving practice, and the
older adult population is set to double by 2040.
The reason is not because doctors aren't trying hard enough, or
hospitals are at fault. That we're able to get good health care at all
is testament to the genius and heroism of doctors and nurses who
deliver care, despite all the obstacles, despite every effort of the
system to hinder them.
But what our medical system requires of providers is a little like
asking pilots to routinely land planes without any information from the
control tower. The best of them can do it--they could land a plane with
one arm around their backs missing key information and confirmations,
but why force them to do it? Why deny them critical information when it
could be easily available? There is no plausible reason for denying
needed information, especially when life and death are at stake.
That's unfortunately exactly what our health care system says to
doctors, nurses, and hospitals. Physicians for example spend four years
in medical school, and then several years more in their residency
training, cramming medical information into their heads. Then we expect
them to look at a patient taking four different drugs, with a heart
condition, and immediately remember any drug-drug interactions that
could occur. We ask them to do it without looking up any reference
materials. We ask them to do it in the few minutes that they have with
each patient given the ever-shorter visits, and ever-increasing patient
and paperwork load. Moreover, in their free time, they are expected to
keep up with all the new journal articles and learn about every new
drug.
Yet hand-held computers can now allow the doctor to pull up up-to-
date information immediately, right at the bedside, if he or she has
any question. And NIH spends billions of dollars in research to
generate that information. Shouldn't that investment reap results for
the patient as quickly as possible? This bill seeks to provide the
direction that would support such technology and make it widely
available to physicians.
Right now, doctors, nurses, and hospitals are holding the health care
system up, preventing utter collapse by sheer, heroic, force of will.
Instead of the clinicians supporting the system, we should build a
system that supports clinicians instead.
The premise of this legislation is that information, in the hands of
the right people at the right time, drives quality and value. We need
to empower patients and health care providers to make the right
choices. And to do that, health care decisionsmakers--providers,
payers, and patients--need to have access to the right information,
where and when it is needed, securely and privately.
This legislation seeks to: 1. Generate information about health
quality through increased research, increased public reporting along
key quality measures, and standardization of those measures to assure
comparability and usability of reported information; 2. Ensure that
payers, providers and patients get information in a usable form so they
can make effective decisions; and 3. Reduce barriers to the development
of an IT infrastructure that is so critical to achieving those first 2
goals.
Eighty percent of the care delivered today is not backed by sound
clinical
[[Page S16139]]
research. That is why we need to do more research, and see if the care
we provide today has sound justification in science. But even where we
know what to do, we don't always do it because the information is
insufficiently disseminated and utilized. Studies have shown some
procedures being performed even when they have not met accepted
criteria for appropriateness: In one study, of all the non-emergent,
noncancerous hysterectomies performed, only 30 percent had been
properly worked up and met the full medical criteria for necessity. In
another study, about one-fourth of coronary angiographies and upper
gastrointestinal endoscopies did not meet standards of medical
appropriateness.
On the flip side, in situations where the benefits of an intervention
are clear, many patients do not receive the indicated care: Very few
hospitalized patients at-risk for pneumococcal pneumonia who had not
been previously vaccinated end up being vaccinated during their
hospital stay. Routine peak flow measurements are conducted in only 28
percent of pediatric patients with asthma. And only one-half of
diabetics receive an annual eye exam.
We know what good health care means in these areas, but we don't
practice it, in part because that information may not be readily
available, and regardless, there is no incentive for quality. We are
suggesting--track the outcomes, share that information with patients,
providers, and insurers, and ultimately, pay for performance.
This bill will help us become better purchasers of care, and help us
take the first steps toward aligning the incentives so that higher
quality is rewarded. I ask unanimous consent that the attached article
from last week's New York Times be printed in the Record showing how
our current reimbursement system is gravely misaligned. Under the
current system, higher quality can be penalized, while worse care can
ironically be more profitable.
Today, by introducing these ideas for the purpose of seeking feedback
from my colleagues and experts in the field, I am taking the first step
toward improving our health care system for everyone and saving money.
I invite interested colleagues to join me in partnership on this
important venture and look forward to taking strong, positive action
next year to improve health quality for all Americans.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the New York Times, Dec. 5, 2003]
Hospitals Say They're Penalized by Medicare for Improving Care
(By Reed Abelson)
Salt Lake City.--By better educating doctors about the most
effective pneumonia treatments, Intermountain Health Care, a
network of 21 hospitals in Utah and Idaho, say it saves at
least 70 lives a year. By giving the right drugs at discharge
time to more people with congestive heart failure,
Intermountain saves another 300 lives annually and prevents
almost 600 additional hospital stays.
But under Medicare, none of these good deeds go unpunished.
Intermountain says its initiatives have cost it millions of
dollars in lost hospital admissions and lower Medicare
reimbursements. In the mid-90's, for example, it made an
average profit of 9 percent treating pneumonia patients; now,
delivering better care, it loses an average of several
hundred dollars on each case.
``The health care system is perverse,'' said a frustrated
Dr. Brent C. James, who leads Intermountain's efforts to
improve quality. ``The payments are perverse. It pays us to
harm patients, and it punishes us when we don't.''
Intermountain's doctors and executives are in a swelling
vanguard of critics who say that Medicare's payment system is
fundamentally flawed.
Medicare, the nation's largest purchaser of health care,
pays hospitals and doctors a fixed sum to treat a specific
diagnosis or perform a given procedure, regardless of the
quality of care they provide. Those who work to improve care
are not paid extra, and poor care is frequently rewarded,
because it creates the need for more procedures and services.
The Medicare legislation that President Bush is expected to
sign on Monday calls for studies and a few pilot programs on
quality improvement, but experts say that it does little to
reverse financial disincentives to improving care.
``Right now, Medicare's payment system is at best neutral
and, in some cases, negative, in terms of quality--we think
that is an untenable situation,'' said Glenn M. Hackbarth,
the chairman of the Medicare Payment Advisory Commission, an
independent panel of economists, health care executives and
doctors that advises Congress on such issues as access to
care, quality and what to pay health care providers.
In a letter published in the current edition of Health
Affairs, a scholarly journal, more than a dozen health care
experts, including several former top Medicare officials,
urged the program to take the lead in overhauling payment
systems so that they reward good care.
``Despite a few initial successes, the inertia of the
health system could easily overwhelm nascent efforts to raise
average performance levels out of mediocrity,'' they wrote.
``Decisive change will occur only when Medicare, with the
full support of the administration and Congress, creates
financial incentives that promote pursuit of improved
quality.''
Medicare's top official is quick to agree that the payment
system needs to be fixed. ``It's one of the fundamental
problems Medicare faces,'' said Thomas A. Scully, who as the
administrator of the Centers for Medicare and Medicaid
Services has encouraged better care by such steps as
publicizing data about the quality of nursing home and home-
health care and by experimenting with programs to reward
hospitals for their efforts.
But the steps taken so far have been small, and many
experts say that rather than paying for more studies,
Congress should start making significant changes to the way
doctors and hospitals are paid.
``They're splashing at the shallow end of the pool,'' said
Dr. Arnold Milstein, a consultant for Mercer Human Resource
Consulting and the medical director for the Pacific Business
Group on Health, an association of large California
employers. He would like to see as much as 20 percent of what
Medicare pays doctors and hospitals linked to the quality of
the care they provide and their efficiency in delivering
treatment.
Two decades ago, Medicare led a revolution in health care.
By setting fixed payments for various kinds of treatment--a
coronary bypass surgery or curing a pneumonia or replacing a
hip--rather than simply reimbursing doctors and hospitals for
whatever it cost to deliver the care, it encouraged shorter
hospital stays and less-expensive treatments.
But today, many health care executives say, Medicare's
payment system hinders attempts to improve care. Dr. James,
the Intermountain executive, said that he wrestled with the
situation every day.
By making sure its doctors prescribe the most effective
antibiotic for pneumonia patients, for example, and thereby
avoiding complications, Intermountain forgoes roughly $1
million a year in Medicare payments, he estimated. When a
pneumonia patient deteriorates so badly that the patient
needs a ventilator, Intermountain collects about $19,000,
compared with $5,000 for a typical pneumonia case. And while
it makes money treating the sicker patient, Dr. James said,
it loses money caring for the healthier one.
Nor is Intermountain rewarded for sparing someone a stay in
the hospital--and for sparing Medicare the bill. Shirley
Monson, 74, of Ephraim, Utah, said that she expected to be
hospitalized when she developed pneumonia last year.
Instead, Sanpete Valley Hospital, part of Intermountain,
sent Mrs. Monson home with antibiotics, and she recovered
over the next two weeks. Such visits produce just token
payments for hospitals.
In addition to losing revenue each time it avoids an
unnecessary hospital stay, Intermountain is penalized for
treating only the sickest patients, Dr. James said.
Medicare's payments for pneumonia are based on a rough
estimate of the cost of an average case and assume a hospital
will see a range of patients, some less sick--and therefore
less expensive to treat--than others. But because
Intermountain now admits only the sickest patients, its
reimbursements fall short of its costs, Dr. James said,
resulting in an average loss this year of a few hundred
dollars a case.
Similarly, averting hospital stays for congestive heart
patients by prescribing the right medicines costs
Intermountain nearly $4 million a year in potential revenues,
according to Dr. James. And every adverse drug reaction
Intermountain avoids deprives it of the revenue from treating
the case.
``We are really rewarded for episodic care and maximizing
the care delivered in each episode,'' said Dr. Charles W.
Sorenson Jr., Intermountain's chief operating officer.
Like the visit majority of the nation's hospitals,
Intermountain is a nonprofit organization, and executives
here say financial penalties do not damp their desire to
provide the highest quality care, which they see as their
central mission. But Intermountain, which operates health
plans and outpatient clinics in addition to its hospitals,
says it beds to keep hospital beds filled and make money
where it can to subsidize unprofitable services and pay for
charity care.
Outside of Medicare, Intermountain often benefits from its
quality initiatives, executives said, because it gets to
pocket much of the savings they produce. For example,
Intermountain has generated about $2 million annually in
savings by reducing the number of deliveries that women
choose to induce before 39 weeks of pregnancy--and thereby
reducing the risk of complications to the mother or baby.
According to Dr. James, almost all that money has been spent
on other kinds of care.
Hospital executives elsewhere say that they, too, have come
up against the cold reality of the Medicare payment system.
Partners HealthCare, the Boston system that includes
Massachusetts General and Brigham
[[Page S16140]]
and Women's Hospitals, has taken steps to reduce the number
of unnecessary diagnostic tests it conducts at outpatient
radiology centers, though executives know that smarter care
will cut into their revenues.
``That's where you're smack up against the perverseness of
the system,'' said Dr. James J. Mongan, chief executive of
Partners.
Medicare's payment policies have stymied efforts in the
private sector to improve care, as well.
For example, the Leapfrog Group, a national organization of
large employers concerned about health issues, has tried to
encourage more hospitals to employ intensivists--specialists
who oversee the care provided in intensive-care units. Though
studies show that such doctors significantly improve care,
Medicare does not pay for them, and employers and insurers
are having difficulty persuading some hospitals to take on
the added expense.
``It's going to be very hard to compete with the incentives
and disincentives in Medicare,'' said Suzanne Delbanco, the
group's executive director.
Others argue that hospitals and doctors should not be paid
extra for doing what they should be doing in the first place.
Helen Darling, the executive director of the National
Business Group on Health, a national employer group, said
Medicare instead should take a firmer stance in demanding
quality. The program had a significant effect, she noted,
when it said that only hospitals meeting a minimum set of
standards could be reimbursed by Medicare for heart
transplants.
``The payment system drove quality,'' Ms. Darling said.
Medicare itself is taking some other tentative steps,
including an experiment that pays certain hospitals an extra
2 percent for delivering the highest-quality care, as
measured, for example, by administering antibiotics to
pneumonia patients quickly and giving heart attack patients
aspirin. But some hospital industry executives question
whether that is enough money to offset the costs of improving
care.
``It can only be a motivator if you really have an
incentive,'' said Carmela Coyle, an executive with the
American Hospital Association, who noted that hospitals on
average are paid only 98 cents for each dollar of Medicare
services they provide.
Mr. Scully, the Medicare administrator, defends the
experiment, saying that the agency's goal is to determine if
it is using the right measures to reward quality. ``If this
works, we'll do a bigger demonstration,'' he said.
But many policy analysts and employer groups want Medicare
to do more. ``Today, Medicare needs to step out front,'' said
Peter V. Lee, chief executive of the Pacific Business Group
on Health, who argues that how hospitals and doctors are paid
is a critical component of motivating them to improve care.
``There needs to be money at play.''
____________________