Congressional Record, Volume 151 Issue 12 (Tuesday, February 8, 2005)

[Congressional Record Volume 151, Number 12 (Tuesday, February 8, 2005)]
[Senate]
[Pages S1117-S1138]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. LAUTENBERG (for himself and Mr. Corzine):
S. 308. A bill to require that Homeland Security grants related to
terrorism preparedness and prevention be awarded based strictly on an
assessment of risk, threat, and vulnerabilities; to the Committee on
Homeland Security and Governmental Affairs.
Mr. LAUTENBERG. Mr. President, I rise today to speak on a matter of
great significance to our State and to many States across the country:
protecting our homeland from another terrorist attack.
Everyone is aware of how difficult the fight is against terrorism,
wherever it takes place in the world, and the number of casualties we
have experienced in Iraq, that manifests itself in Afghanistan and
different countries. But one place we ought to be looking at in terms
of protecting ourselves from terror is in the United States. We should
not be skimping on the costs or resources available for Homeland
Security. My colleague Senator Corzine and I today are introducing a
bill to ensure that Federal Homeland Security funds get sent where they
are needed most.
On September 11, 2001, 700 of the people who lost their lives were
from New Jersey. On that terrible day, people of north Jersey could see
the smoke rising from the World Trade Center. From my own home, I look
directly at the World Trade Center. In my pre-Senate day, I was
commissioner of the Port Authority of New York and New Jersey and had
offices in the Trade Center and know what the hustle and bustle of life
was there. Thousands and thousands of people were working in those two
buildings, destroyed by a terrorist that went beyond the wildest
imagination.
The New York-New Jersey region bore the brunt of those attacks on
September 11. It continues to be the most at-risk area. We are not the
only ones at risk. States such as Virginia, with their military
installation, their ports, are also to be included, and a place of some
threat, New Mexico, with Los Alamos, and Florida with its ports, and
Texas with their ports. All of these States have to be on the alert all
the time and need funds with which to protect themselves. So I hope we
can all agree that homeland security funding ought to be targeted to
those parts of the country most at risk of another terrorist attack.

Now, the 9/11 Commission agrees with this approach. They said:

Homeland security assistance should be based strictly--

``Strictly''--

on an assessment of risks and vulnerabilities.

They further say:

[F]ederal homeland security assistance should not remain a
program for general revenue sharing.

I think we are all agreed they did a splendid job. This was a focal
point for them. The 9/11 Commission reported homeland security money is
too important to be caught up in porkbarrel politics. Unfortunately,
our current homeland security funding is not based on risks and
threats.
Under current law, 40 percent of all State homeland security grants,
over $1 billion each year, are given out as revenue sharing. The system
results in preposterous funding allocations.
For example, this year, New Jersey's homeland security grant was cut,
reduced by 34 percent. I remind those who are listening, New Jersey
lost 700 of its citizens. Our funding was cut despite the fact that we
in New Jersey were under a code orange alert from August 1 to just
after the election because of unspecified threats against the
Prudential Building in Newark. The Prudential Building is a center of
major financial activity and was highlighted as one of five locations
that ought to be especially guarded. Yet the city of Newark saw its
funding cut by 17 percent. Another high-risk urban area, Jersey City--
which is directly across from where the Trade Centers were in New York,
and where so much of the rescue activity was directed, with police from
that area, emergency response people--Jersey City saw its funding cut
60 percent. That does not make sense.
The FBI has identified a 2-mile strip between the Port of Newark and
Newark-Liberty International Airport as the most at-risk area in the
entire country for a terrorist attack--a 2-mile stretch, highly
visible. If you fly into Newark-Liberty Airport, you see the bustling
port that we have there and the activity that goes on. It is an area,
certainly, that would represent, in the FBI's view, one of the most
appealing targets for terror. Yet the area's homeland security funding
was cut. It defies sense.
The system is broken. That is why my colleague, Senator Corzine, and
I are introducing the Risk-Based Homeland Security Funding Act, to
require that homeland security grants are allocated solely based on
risk and threat to the area.
Our bill would take the 9/11 Commission's recommendations and turn
them into law.
President Bush understands that risk and vulnerability must be the
principal yardsticks for distributing homeland security funds. In the
fiscal year 2006 budget just released, President Bush stated that
homeland security funds need to be allocated on risks, threats, and
vulnerabilities.
So I hope our colleagues will support the bill Senator Corzine and I
are introducing today. Our bill will set the gold standard for
determining whether homeland security grants are being properly
allocated. I ask my colleagues to think of this as a national interest,
to make sure that none of the areas of high vulnerability are open to
attack any more than we can possibly do to prevent it because any
attack in these areas will have a ripple effect throughout the country.
Again, these places are an invitation to the terrorists. As much as we
hate them, we know these people are not fools. We know they plan these
things. We know they look for the most vulnerable targets. And we
should not permit those targets to go without the protection they fully
deserve.
So I hope our colleagues will support this bill. It would turn the 9/
11 Commission's recommendations into law.
I ask unanimous consent that the text of our bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 308

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 ``Risk-Based Homeland Security
Funding Act''.

SEC. 2. FINDINGS.

Congress agrees with the recommendation on page 396 of the
Final Report of the National Commission on Terrorist Attacks
Upon the United States (commonly known as the ``9/11
Report''), which includes the following:
``Homeland security assistance should be based strictly on an
assessment of risks and vulnerabilities. . . . [F]ederal
homeland security assistance should not remain a program for
general revenue sharing. It should supplement state and local
resources based on the risks or vulnerabilities that merit
additional support. Congress should not use this money as a
pork barrel.''.

SEC. 3. RISK-BASED HOMELAND SECURITY GRANT FUNDING.

(a) Criteria for Awarding Homeland Security Grants.--Except
for grants awarded under any of the programs listed under
section 4(b), all homeland security grants related to
terrorism prevention and terrorism preparedness shall be
awarded based strictly on an assessment of risk, threat, and
vulnerabilities, as determined by the Secretary of Homeland
Security.
(b) Limitation.--Except for grants awarded under any of the
programs listed under section 4(b), none of the funds
appropriated for Homeland Security grants may be used for
general revenue sharing.
(c) Conforming Amendment.--Section 1014(c)(3) of the USA
PATRIOT ACT (42 U.S.C. 3714(c)(3)) is repealed.

SEC. 4. PRESERVATION OF PRE-9/11 GRANT PROGRAMS FOR TRADITION
FIRST RESPONDER MISSIONS .

(a) Savings Provision.--This Act shall not be construed to
affect any authority to award grants under a Federal grant
program listed under subsection (b), which existed on
September 10, 2001, to enhance traditional missions of State
and local law enforcement, firefighters, ports, emergency
medical services, or public health missions.
(b) Programs Excluded.--The programs referred to in
subsection (a) are the following:
(1) The Firefighter Assistance Program authorized under
section 33 of the Federal Fire Prevention and Control Act of
1974 (15 U.S.C. 2229).

[[Page S1118]]

(2) The Emergency Management Performance Grant Program and
the Urban Search and Rescue Grant Program authorized under--
(A) title VI of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5195 et seq.);
(B) the Departments of Veterans Affairs and Housing and
Urban Development, and Independent Agencies Appropriations
Act, 2000 (Public Law 106-74; 113 Stat. 1047 et seq.); and
(C) the Earthquake Hazards Reduction Act of 1977 (42 U.S.C.
7701 et seq.).
(3) The Edward Byrne Memorial State and Local Law
Enforcement Assistance Programs authorized under part E of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3750 et seq.).
(4) The Public Safety and Community Policing (COPS ON THE
BEAT) Grant Program authorized under part Q of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3796dd et seq.).
(5) Grant programs under the Public Health Service Act (42
U.S.C. 201 et seq.) regarding preparedness for bioterrorism
and other public health emergencies;
(6) The Emergency Response Assistance Program authorized
under section 1412 of the Defense Against Weapons of Mass
Destruction Act of 1996 (50 U.S.C. 2312).
(7) Grant programs under the Robert T. Stafford Disaster
Relief and Emergency Act (42 U.S.C. 5121 et seq.).

Mr. CORZINE. Mr. President, I rise today to join my colleague,
Senator Lautenberg, in both support and the introduction of the Risk-
Based Homeland Security Funding Act. I think this is simply urgent. It
is fundamental to the recommendations of the 9/11 Commission, as
Senator Lautenberg mentioned.
Quoting language that was in that Commission report:

Homeland security assistance should be based strictly on an
assessment of risks and vulnerabilities.

Quoting further:

[F]ederal homeland security assistance should not remain a
program for general revenue sharing.

In fact, I believe we should relabel the bill. I had a little
argument with my colleague from New Jersey. I think we ought to call it
the Common Sense Homeland Security Act. It is only common sense. I
think there is a consensus among all those who seriously contemplate
this issue that we need to be smart and strategic about how we allocate
our limited homeland security resources.
This is not a local issue, although people will often argue that we
are trying to speak only from parochial interests. I think you have to
think about this as protecting America where we are most vulnerable. It
is a national issue.
Our economic assets are at stake. In New Jersey, that 2-mile stretch
Senator Lautenberg spoke about in his comments has the Port of Newark,
which is really what is often labeled the Port of New York. Mr.
President, 80 percent of all of the incoming cargo containers that come
into that east coast port are in Newark and Elizabeth. So you hear
about the Port of New York and New Jersey. It is really the Port of New
Jersey and Elizabeth. And that is in that 2-mile stretch.
Then on the other end of that 2-mile stretch is Liberty International
or Newark Airport, which is, depending on which year and the number of
flight landings, the third or fourth busiest airport in America--the
busiest airport in the metropolitan region of New York and New Jersey.
In between, there are rail lines, chemical plants, oil refineries,
all the economic assets that are important to the economic distribution
of assets across the east coast.
It is incredible, as Senator Lautenberg talked about, that this
particular area is seeing these cuts. Newark is getting cut 17 percent
from 2004 to 2005, and, unbelievably, Jersey City is getting cut 64
percent, from $17 million down to about $6 million in homeland
security, State, and local grants. It is very hard to justify. You look
at your constituents and say we are talking about the threat-based
allocation of risk, and we see these kinds of cuts given the kind of
serious concerns that we have.
It is a national issue, it is not just a New Jersey issue because if
that airport and that port come down, it has a major long-term impact
on the economy of the Nation. It is important. I note, as Senator
Lautenberg did, the Senator from Virginia has ports that have a major
impact on more than just Virginia's economic well-being. The airports
have more than just an economic impact on the individual State. We have
to think about what the ripple impact is as we go forward. So we have
to prioritize.
I am pleased the President cited almost the same language in his
budget yesterday. Concentrating Federal funds for State and local
homeland security assistance programs on the highest threats and
vulnerabilities and needs is the Presidential goal. We need to
translate that into specific legislative authority so we do not come up
with formulas that are revenue sharing based.

Forty percent of the funds currently allocated are based on just
equal allocation to the States. Nice idea, but we ought to do that in
other areas, not with regard to homeland security where we ought to
deal with the national economy, the national strategic interests of the
country. So I hope we can take this act, this commonsensical approach,
and implement it.
By the way, I also wonder why we are cutting 30 percent to our State
and local communities. The first responders are the first line of
defense in protecting the American people and in responding to these
attacks. We certainly saw that in the 9/11 case.
I hope we can have a strong debate in Congress about how we are
allocating within the expenditures we have with regard to homeland
security. In my view, there is too much ignoring of the reality of the
need to fund our local responders, making sure their communications
equipment can talk to each other, making sure they have the kinds of
equipment that would be able to respond, as was so heroically done by
the people who responded to the 9/11 tragedy.
All this has to be put in the context of real-life experiences,
though. And Senator Lautenberg talked about that. Seven hundred people
in our community died. This is a hot issue in the State of New Jersey
because it impacted families, and it still is very much a live part of
their community. People want to see action. They want to see changes as
we go forward. And they want to see us be particularly focused on those
places where there are risks.
It is hard for New Jerseyans to understand when you put the city of
Newark on the highest alert, singled out, along with New York City and
Washington, DC, one day, and then get your homeland security funds cut
by 20 percent or so 6 months later when the allocation comes out
according to a formula, as apposed to thinking about where risks are.
It is hard for the people not only in Newark, but we have Hamilton, NJ,
which had a post office that was the site where all the anthrax letters
were sent out. We had to shut it down. We spent $60 million cleaning up
that post office, just like we had to clean up the Hart Building here
in Washington.
And people say, I do not really understand why we are not concerned
about what is going on with regard to risk in New Jersey when we have
these kinds of practical realities: 700 of our citizens, orange alerts
for Newark, Hamilton post office, and I could go on and on. There are a
number of instances--Atlantic City, where the way the formula works is,
if you are not a town of 225,000 people, you do not get considered for
these grants. We have about 40,000 people in Atlantic City, but that
does not take into account the people who come and visit there, which
is about 100,000 on average a day; and then all the people who work
there, which is about another 40,000. So you are getting up toward
those numbers. And on peak days it can be 300,000 people. It is the
second highest concentration of casinos in the country.
I think we need to bring common sense to where we are focusing
homeland security dollars. I think that is what this act is about. I am
thrilled that we have Michael Chertoff who is stepping in as the
Secretary of the Department of Homeland Security. I do not think there
is a smarter guy, a more objective, intellectually honest individual. I
think he will push forward with commonsense approaches to allocation
and recommendations.
Finally, this bill does not cover other programs. It does not include
the COPS Program, fire grants, other things where you need to be
reflective of the needs of general revenue sharing approaches. This is
dealing with homeland security the same way we deal

[[Page S1119]]

with national security. There we identify what we think the threats are
and apply the resources to match those needs.
We need to bring common sense to this. I hope my colleagues will
support this legislation. It is very straightforward and a simple
reflection of the 9/11 Commission Report, a reflection of the words the
President put in his budget report. I think it is appropriate as to how
we should move forward with regard to funding for homeland security
allocations.
______

By Mr. DeMINT (for himself, Mr. Salazar, and Mr. Ensign):
S. 309. A bill to amend the Internal Revenue Code of 1986 to provide
for the disposition of unused health benefits in cafeteria plans and
flexible spending arrangements; to the Committee on Finance.
Mr. DeMINT. Mr. President, I rise today to offer a bill that would
update flexible spending arrangements, known as FSAs, to allow up to
$500 of unused health benefits to be carried forward to next year's FSA
or transferred to a health savings account.
Flexible spending arrangements allow employees to set aside money in
an employer-established benefit plan that can be used on a tax-free
basis to meet their out-of-pocket health care expenses during the year.
However, under current law, any money remaining in the FSA at the end
of the year must be returned to the employer.
Nearly 37 million private sector employees have access to an FSA.
However, only 18 percent of eligible employees take advantage of the
pretax health care spending provided by flexible spending arrangements.
Many employees cite the fear of forfeiting unused funds as the primary
reason why they elect not to participate in an FSA.
This use-it-or-lose-it rule does more, though, than discourage
widespread participation. It can also lead to perverse incentives such
as encouraging people to spend money on health care products and
services that they do not necessarily need. In other words, at the end
of the year, if there is money left in the account, the employee's
incentive is to go out and get an extra pair of sunglasses or whatever
it is and spend that money, and that in turn drives up demand and the
price of health care for everybody.
The bill I am introducing today provides greater flexibility and
consumer choice. The bill would allow up to $500 of unused funds at the
end of the year to be carried forward in that flexible spending
arrangement for use in the next year, or that employee could begin a
new HSA, a health savings account, and put up to $500 into that health
savings account.
I believe this bill will encourage greater participation in flexible
spending arrangements and, to a lesser extent, participation in health
savings account benefit plans. The Joint Committee on Taxation
estimates that approximately 76 percent of current FSA participants
will take advantage of the rollover option each year.
Through this legislation, we can expand access to health care for
millions of Americans by making it easier for them to save for their
health care costs. This bill would also reduce end-of-the-year excess
spending and overuse of health care services, allowing FSA participants
to benefit from the prudent use of their health care resources.
I am grateful to Senators Salazar and Ensign who have joined me as
original cosponsors of this bill. They understand that reducing health
costs and increasing access to health care are worthy goals that we
should all support.
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. 309

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

SECTION 1. DISPOSITION OF UNUSED HEALTH BENEFITS IN CAFETERIA
PLANS AND FLEXIBLE SPENDING ARRANGEMENTS.

(a) In General.--Section 125 of the Internal Revenue Code
of 1986 (relating to cafeteria plans) is amended by
redesignating subsections (h) and (i) as subsections (i) and
(j), respectively, and by inserting after subsection (g) the
following:
``(h) Contributions of Certain Unused Health Benefits.--
``(1) In general.--For purposes of this title, a plan or
other arrangement shall not fail to be treated as a cafeteria
plan solely because qualified benefits under such plan
include a health flexible spending arrangement under which
not more than $500 of unused health benefits may be--
``(A) carried forward to the succeeding plan year of such
health flexible spending arrangement, or
``(B) to the extent permitted by section 106(d),
contributed by the employer to a health savings account (as
defined in section 223(d)) maintained for the benefit of the
employee.
``(2) Health flexible spending arrangement.--For purposes
of this subsection, the term `health flexible spending
arrangement' means a flexible spending arrangement (as
defined in section 106(c)) that is a qualified benefit and
only permits reimbursement for expenses for medical care (as
defined in section 213(d)(1), without regard to subparagraphs
(C) and (D) thereof).
``(3) Unused health benefits.--For purposes of this
subsection, with respect to an employee, the term `unused
health benefits' means the excess of--
``(A) the maximum amount of reimbursement allowable to the
employee for a plan year under a health flexible spending
arrangement, over
``(B) the actual amount of reimbursement for such year
under such arrangement.''.
(b) Effective Date.--The amendments made by subsection (a)
shall apply to taxable years beginning after December 31,
2004.
______

By Mr. SMITH (for himself, Mrs. Clinton, Ms. Collins, Mr.
Bingaman, Ms. Cantwell, Mr. Coleman, Mr. Corzine, Ms. Snowe,
Mrs. Feinstein, Ms. Landrieu, Mrs. Murray, Mr. DeWine, Mr.
Bayh, Mr. Reed, Mr. Kerry, Mr. Schumer, Mr. Dayton, Mr. Wyden,
Mrs. Lincoln, Mr. Lieberman, Ms. Mikulski, Mr. Nelson of
Florida, Ms. Stabenow, Mr. Johnson, Mr. Leahy, Mr. Kennedy, Mr.
Feingold, and Mr. Sarbanes):
S. 311. A bill to amend title XIX of the Social Security Act to
permit States the option to provide medicaid coverage for low-income
individuals infected with HIV; to the Committee on Finance.
Mr. SMITH. Mr. President, I rise today to introduce the Early
Treatment for HIV Act, ETHA, of 2005. Senator Clinton joins me in
introducing this bill, and I want to thank her for her steadfast
support for people living with HIV. HIV knows no party affiliation, and
I am pleased to say that ETHA cosponsors sit on both sides of the
aisle.
Simply stated, ETHA gives States the opportunity to extend Medicaid
coverage to low-income, HIV-positive individuals before they develop
full-blown AIDS. Today, the unfortunate reality is that most patients
must become disabled before they can qualify for Medicaid coverage.
Nearly 50 percent of people living with AIDS who know their status lack
ongoing access to treatment. In my home State of Oregon, there are
approximately 4,500 persons living with HIV/AIDS. It is estimated that
approximately 40 percent of these Oregonians are not receiving care for
their HIV disease. Not being in care puts these people's own health at
risk, and also makes them more infectious. We can do better, and we
should do everything possible to ensure that all people living with HIV
can get early, effective medical care.
Oregon's Ryan White funded AIDS Drug Assistance Program is nearing
maximum enrollment and may need to wait list eligible clients in the
near future. The fact of the matter is that safety net programs all
over the country are running out of money, and are generally unable to
cover all of the people who need assistance paying for their medical
care. As other programs are failing, ETHA gives States another way to
reach out to low-income, HIV-positive individuals.
With approximately 150 newly detected HIV infections in Oregon
annually, my state desperately needs to provide early treatment to
these individuals. It has been shown that current HIV treatments are
very successful in delaying the progression from HIV infection to AIDS,
and help improve the health and quality of life for millions of people
living with the disease.
Studies conducted by Pricewaterhouse Cooper have found that providing
early intervention care significantly delays the progression of HIV and
is highly cost-effective. ETHA reduces by 60 percent the death rate of

[[Page S1120]]

persons living with HIV who received coverage under Medicaid. Disease
progression is significantly slowed and health outcomes improved.
Medicaid offsets alone reduce gross Medicaid costs by approximately 70
percent due to the prevention of avoidable high cost medical
interventions. Research determined that over 5 years the true cost of
ETHA is $55.2 million. Over 10 years, ETHA saves $31.7 million. It
shows that preventing the health of people living with HIV, preventing
opportunistic infections, and slowing the progression to AIDS, will
save taxpayers dollars. Ultimately, its clear that in implementing
ETHA, the United States will take an important step toward ensuring
that all Americans living with HIV can get the medical care they need
to stay healthy and productive for as long as possible.
Importantly, ETHA also offers States an enhanced Federal Medicaid
match, which means more money for States that invest in treatments for
HIV. This provision models the successful Breast and Cervical Cancer
Treatment and Prevention Act of 2000, which allows States to provide
early Medicaid intervention to women with breast and cervical cancer.
Even in these difficult times, 45 States are now offering early
Medicaid coverage to women with breast and cervical cancer. We can
build upon this success by passing ETHA and extending similar early
intervention treatments to people with HIV.
HIV/AIDS touches the lives of millions of people living in every
State in the Union. Some get the proper medications, but too many do
not. This is literally a life and death issue, and ETHA can help many
more Americans enjoy long, healthy lives.
I want to thank Senators Clinton, Collins, Bingaman, Coleman,
Cantwell, Snowe, Corzine, Feinstein, Murray, Wyden, DeWine, Bayh, Reed,
Kerry, Dayton, Schumer, Lincoln, Lieberman, Mikulski, Nelson, Stabenow,
Johnson, Sarbanes, Leahy, Kennedy, Feingold and Lautenberg for joining
us as cosponsors of ETHA. I also wish to thank all of the organizations
around the country that have expressed support for this bill. I have
received numerous support letters from those organizations, and I ask
unanimous consent that those letters be printed in the Record. In
particular, I want to thank the Human Rights Campaign, The AIDS
Institute, ADAP Working Group and the Treatment Access Expansion
Project, for helping bring so much attention to ETHA. I hope all of my
colleagues will join us in supporting this critical, life-saving
legislation.
There being no objection, the material was ordered to be printed in
the Record, as follows:

AIDS Action,

Washington, DC, February 2, 2005.
Hon. Gordon Smith,
Russell Senate Office Building,
Washington, DC.
Dear Senator Smith: On behalf of the AIDS Action Council
board of directors and our diverse, nationwide membership of
community-based service providers and public health
departments working with people living with or affected by
HIV, I would like to thank you for introducing the Early
Treatment for HIV Act (ETHA) with Senator Clinton and offer
my strong support for this important piece of legislation.
As you know, ETHA is a means to eliminate barriers to early
drug therapy and comprehensive care for people living with
HIV. This important legislation would give States the option
of allowing HIV positive people with low incomes to qualify
for Medicaid coverage earlier in the course of their
infection, permitting them to receive greater benefits from
anti-retroviral therapy.
Access to pharmaceuticals and quality health services is
vital for people living with HIV. Advancements in treatment
and the development of anti-retroviral (ARV) therapy have
enabled HIV positive individuals to lead longer and healthier
lives. However, ARV therapy is often prohibitively expensive,
costing approximately $10,000 to $12,000 annually, making it
virtually impossible for low-income people, who are often
uninsured or underinsured, to access these life-prolonging
medications.
Current Federal treatment guidelines recommend the
initiation of ARV therapy early in the course of HIV
infection. With early initiation, the efficacy of ARV therapy
increases, boosting the effectiveness of other available HIV
drugs and staving off disability. Initiated early on, ARV
therapy ultimately saves costs associated with delayed
medical treatment. Unfortunately, many uninsured and
underinsured people living with HIV cannot afford ARV therapy
on their own. Further, Americans living with HIV do not
qualify for Medicaid until they have received an AIDS
diagnosis and are sick enough to meet Medicaid's categorical
requirements for disability--a point at which it is too late
for ARV treatment to be optimally effective. These barriers
to early treatment must be eliminated so that low income
people living with HIV can access the health care they need.
During this time of shrinking Federal budgets and economic
downsizing, savings in Federal HIV programs, whether in
mandatory or discretionary spending, are beneficial to all
parties involved. By allowing HIV positive individuals to
qualify for Medicaid earlier in the course of HIV infection,
ETHA will create significant savings for the Federal
Government in overall health care funding.
AIDS Action looks forward to working with you on passage of
this bill. Together we can ensure that people living with HIV
have access to the treatments and health services they need
to stay healthy.
Sincerely,
Marsha A. Martin,
Executive Director.
____

The AIDS Institute,

Washington, DC, February 2, 2005.
Re the early treatment for HIV Act (ETHA).

Senator Gordon Smith,
U.S. Senate,
Washington, DC.
Dear Senator Smith: The AIDS Institute applauds you for
your continued leadership and commitment to those people
living with HIV/AIDS in our country who are in need of
lifesaving healthcare and treatment. While the HIV/AIDS
epidemic in sub-Sahara Africa and other parts of the world
often overshadow the epidemic in the United States, we must
not forget about the approximately 900,000 people living in
the U.S. who have HIV or AIDS.
Those infected with HIV are more likely to be low-income,
and it disproportionately impacts certain populations,
particularly minorities. In fact, the AIDS case rate per
100,000 population for African Americans was 9.5 times that
of whites in 2003.
According to a recent Institute of Medicine report titled,
``Public Financing and Delivery of HIV/AIDS Care: Securing
the Legacy of the Ryan White CARE Act'', 233,000 of the
463,070 people living with HIV in the U.S. who need
antiretroviral treatment do not have ongoing access to this
treatment. This does not include an additional 82,000 people
who are infected but unaware of their HIV status and are in
need of antiretrovira1 medications.
One reason why there are so many people lacking treatment
is that under current law, Medicaid, which is the single
largest public payer of HIV/AIDS care in the U.S., only
covers those with full blown AIDS, not those with HIV.
The Early Treatment for HIV Act (ETHA), being re-introduced
in this Congress under your leadership and Sen. Hillary
Clinton, would correct an archaic mindset in the delivery of
public health care. No longer would a Medicaid eligible
person with HIV have to become disabled with AIDS to receive
access to Medicaid provided care and treatment. Providing
coverage to those with HIV can prevent them from developing
AIDS, and allow them to live a productive life with their
family and be a healthy contributing member of society.
ETHA would provide States the option of amending their
Medicaid eligibility requirements to include uninsured and
under-insured, pre-disabled poor and low-income people living
with HIV. No State has to participate if they choose not to.
As all States have participated in the Breast and Cervical
Cancer Prevention and Treatment Act, on which ETHA is
modeled, we believe all States will opt to choose this
approach in treating those with HIV. States will opt into
this benefit not only because it is the medically and
ethically right thing to do, but it is cost effective, as
well.
A recent study prepared by PricewaterhouseCoopers found
that if ETHA was enacted, over 10 years:
--the death rate for persons living with HIV on Medicaid
would be reduced by 50 percent;
--there would be 35,000 more individuals having CD4 levels
above 500 under ETHA versus the existing Medicaid system; and
--result in a savings of $31.7 million.
The AIDS Institute thanks you for your bipartisan
leadership by introducing ``The Early Treatment for HIV Act
of 2006''. It is the type of Medicaid reform that is
critically needed to update the program to keep current with
the Federal Government's guidelines for treating people with
HIV.
We look forward to working with you and your colleagues as
it moves to enactment.
Sincerely,
Dr. A. Gene Copello,
Executive Director.
____

February 2, 2005.
Hon. Gordon Smith,
404 Russell Senate Office Building,
Washington, DC.
Dear Senator Smith: The American Academy of HIV Medicine is
an independent organization of HIV Specialists and others
dedicated to promoting excellence in HIV/AIDS care. As the
largest independent organization of HIV frontline providers,
our 2,000 members provide direct care to more than 340,000
HIV patients--more than two thirds of the patients in active
treatment for HIV disease.
The Academy, particularly those HIV Specialists in the
state of Oregon, would like to thank and commend you for co-
sponsoring the Early Treatment for HIV Act (ETHA).

[[Page S1121]]

ETHA addresses a cruel irony in the current Medicaid
system--that under current Medicaid rules people must become
disabled by AIDS before they can receive access to Medicaid
provided care and treatment that could have prevented them
from becoming so ill in the first place. ETHA would bring
Medicaid eligibility rules in line with the clinical standard
of care for treating HIV disease. ETHA helps address the fact
that increasingly, in many parts of the country, there are
growing waiting lists for access to life-saving medications
and limited to no access to comprehensive health care.
Particularly in Oregon, we have been witness to difficulties
in access to care for some of our patients, having endured a
severe strain on our AIDS Drug Assistance Program (ADAP) for
quite some time.
The Academy believes this legislation would allow HIV
positive individuals access to the medical care that we
recognize as vital towards postponing or avoiding the onset
of AIDS and towards enormously increase the quality of life
for people living with HIV disease.
As a provider at a public health clinic (the Multnomah
County Health Department HIV clinic), I see patients from a 6
county area, with a growing number of uninsured. The
difficulties in obtaining medication coverage have been
growing monthly, and have become a major part of the 'medical
care' we provide. A more equitable system of coverage and
medication access would help tremendously, and allow us to
focus on what we are trained to do. Thank you for your
efforts in this area.
Sincerely,
Michael S. MacVeigh.
James E. McDonald.
Joan Reeder.
Maria Kosmetatos.
____

Cascade AIDS Project,

Portland, OR, February 1, 2005.
Senator Gordon Smith,
U.S. Senate,
Washington, DC.
Dear Senator Smith: As you know, Cascade AIDS Project is
the largest AIDS service organization in Oregon. For two
decades we have served and advocated for people living with
and at risk for HIV/AIDS. We strongly urge you to support the
Early Treatment of HIV Act.
The Early Treatment for HIV Act will allow low-income
individuals living with HIV to qualify for Medicaid coverage
earlier in the course of their disease instead of waiting
until they are disabled by full-blown AIDS.
Healthcare advocates have long been arguing that to treat
an individual's illness at its earlier stages costs less than
waiting until the individual is significantly disabled by
further progression of the illness.
There are many Americans--those in the low income bracket
and in underserved communities--who do not have access to
drug treatment regimens because they have not progressed to
fullblown AIDS. The ACT would make access to those drugs
possible.
Medicaid is a lifeline to HIV care for roughly half of
those living with AIDS, and 90% of all children living with
AIDS. All Medicaid programs cover some prescription drugs,
but with the improved drug therapy of today, it is crucial
that individuals infected with HIV receive access to these
drugs as soon as their conditions call for it.
Passage of the Early Treatment for HIV Act will save
countless lives and must be viewed as a priority. We know
that passage of the Act is the right thing to do.
Sincerely,
Thomas Bruner,
Executive Director.
____

TII-CANN,

Washington, DC, February 2, 2005.
Hon. Gordon Smith,
U.S. Senate,
Washington, DC.
Subject: ETHA (The Early Treatment for HIV Act)

Dear Senator Smith: I wanted to express our appreciation
and support for your introduction of ETHA in the 109th U.S.
Congress together with Senator Clinton and the other original
co-sponsors.
Having been working since day one on the ETHA process and
having closely studied the potentially lifesaving--and cost
savings--potentials of this bill we feel it's particularly
crucial that this important legislation be passed into law as
soon as possible.
The across the board potential cost savings inherent in
providing early access to HIV treatment over 10 years are a
compelling fiscally responsible story and of course treating
sick Americans as soon as possible is simply the correct
moral and ethical course of action for the world's most
powerful country. The value of increasing life span and
quality of life to tens of thousands of affected individuals,
and their families, has a tremendous value to society at
large, as well.
Once again we extend our thanks to you and Senator Clinton
for your leadership and we look forward to helping this
Important private and PublIc health legislation to work its
way through our congressional process.
Sincerely,
William E. Arnold,
CEO.
____

Project Inform,

San Francisco, CA, February 2, 2005.
Hon. Gordon Smith,
U.S. Senate,
Washington, DC.
Dear Senator Smith: I am writing to thank you and Senator
Clinton for introducing the Early Treatment for HIV Act.
Project Inform, a national HIV/AIDS treatment information and
advocacy organization serving 80,000 people nationwide,
strongly supports this legislation.
This bill would allow, states to extend Medicaid coverage
to pre-disabled people living with IV. It represents a
breakthrough in assuring early access to care for thousands
of low-income people living with HIV. Current HIV treatments
are successfully delaying the progression from HIV infection
to AIDS, thus improving the health and quality of life for
many people living with the disease. However, without access
to early intervention health care and treatment, these
advances remain out of reach for many non-disabled, low-
income people with HIV.
Project Inform is acutely aware of the need for early
access to lifesaving medications and healthcare for people
living with HIV/AIDS. Discretionary programs such as the AIDS
Drug Assistance Program (ADAP) are simply unable to meet the
growing need. If ETHA is passed and implemented by the
states, a great burden will be lifted off these safety net
programs and people living with the disease will be able to
get the care and treatment needed to live longer, more
productive lives.
A recent report by PricewaterhouseCoopers found that if
ETHA is passed and implemented by the states, the death rate
of people living with HIV on Medicaid would be cut in half
over a ten-year period. It also revealed that over a ten-year
period, ETHA would save money in the Medicaid program. It is
a humane and cost-effective bill and I thank you again for
your leadership in introducing it. Please let me know how
Project Inform can help make it become law.
Sincerely,
Ryan Clary,
Senior Policy Advocate.
____

Partnership Project,

Portland, OR, February 1, 2005.
Hon. Gordon Smith,
U.S. Senate,
Washington, DC.
Dear Senator Smith: I am writing to thank you for
introducing the Early Treatment for HIV Act with Senator
Clinton, and to offer my strong support for this legislation.
This bill would allow states to extend Medicaid coverage to
pre-disabled people living with HIV. It represents a
breakthrough In assuring early access to care for thousands
of low-income people living with HIV. Current HIV treatments
are successfully delaying the progression from HIV infection
to AIDS, thus improving the health and quality of life for
many people living with the disease. However, without access
to early intervention health care and treatment, these
advances remain out of reach for many non-disabled, low-
income people with HIV.
The more people who are on Medicaid the more the pressure
will be relieved on ADAP, CareAssist, and other programs that
serve Oregon residents.
A recent report by PricewaterhouseCoopers found that if
ETHA Is passed and implemented by the states, the death rate
of people living with HIV on Medicaid would be cut in half
over a ten-year period. It also revealed that over a ten-year
period, ETHA would save money in the Medicaid program. It is
a humane and cost-effective bill and I thank you again for
your leadership in introducing it. Please let me know how I
can help make it become law.
Sincerely,
Rick Stoller,
Clinical Manager.
____

NASTAD,

Washington, DC, February 2, 2005.
Hon. Gordon Smith,
Russell Senate Office Building,
Washington, DC.
Dear Senator Smith: On behalf of the National Alliance of
State and Territorial AIDS Directors (NASTAD), I am writing
to offer our support for the ``Early Treatment for HIV Act.''
NASTAD represents the nation's chief state and territorial
health agency staff who are responsible for HIV/AIDS
prevention, care and treatment programs funded by state and
federal governments. This legislation would give states an
important option in providing care and treatment services to
low-income Americans living with HIV.
The Early Treatment for HIV Act (ETHA) would allow states
to expand their Medicaid programs to cover HIV positive
individuals, before they become disabled, without having to
receive a waiver. NASTAD believes this legislation would
allow HIV positive individuals to access the medical care
that is widely recommended, can postpone or avoid the onset
of AIDS, and can enormously increase the quality of life for
people living with HIV.
State AIDS directors continue to develop innovative and
cost-effective HIV/AIDS programs in the face of devastating
state budget cuts and federal contributions that fail to keep
up with need. ETHA provides a solution to states by
increasing health care access for those living with HIV/AIDS.
ETHA will also save states money in the long-run by treating
HIV positive individuals earlier in the disease's progression
and providing states with a federal match for the millions of
dollars they are presently spending on HIV/AIDS care.

[[Page S1122]]

Thank you very much for your continued commitment to
persons living with HIV/AIDS. I look forward to working with
you to gain support for this important piece of legislation.
Sincerely,
Julie M. Scofield,
Executive Director.
____

AIDS Foundation of Chicago,

Chicago, IL, February 2, 2005.
Hon. Gordon Smith,
U.S. Senate,
Washington DC.
Dear Senator Smith: I am writing to thank you for
introducing the Early Treatment for HIV Act with Senator
Clinton, and to offer the AIDS Foundation of Chicago's (AFC)
strong support for this legislation.
Founded in 1985, the mission of AFC is to lead the fight
against HIV/AIDS and improve the lives of people affected by
the epidemic. In order to accomplish this, AFC collaborates
with community organizations to develop and improve HIV/AIDS
services; funds and coordinates prevention, care, and
advocacy projects; and champion's effective, compassionate
HIV/AIDS policy. AFC is the sole AIDS advocacy organization
monitoring and responding to AIDS-related state legislation
and public policy in Illinois.
This bill would allow states to extend Medicaid coverage to
pre-disabled people living with HIV. It represents a
breakthrough in assuring early access to care for thousands
of low-income people living with HIV. Current HIV treatments
are successfully delaying the progression from HIV infection
to AIDS, thus improving the health and quality of life for
many people living with the disease. However, without access
to early intervention health care and treatment, these
advances remain out of reach for many non-disabled, low-
income people with HIV.
A recent report by PricewaterhouseCoopers found that if
ETHA is passed and implemented by the states, the death rate
of people living with HIV on Medicaid would be cut in half
over a ten-year period. It also revealed that over a ten-year
period, ETHA would save money in the Medicaid program. It is
a humane and cost-effective bill and I thank you again for
your leadership in introducing it. Please let me know how I
can help make it become law.
Sincerely,
Jim Pickett,
Director of Public Policy.
____

AIDS Action Baltimore, Inc.,

Baltimore, MD, February 3, 2005.
Hon. Gordon Smith,
U.S. Senate,
Washington, DC.
Dear Senator Smith: On behalf of AIDS Action Baltimore,
Inc. (AAB) I am writing to thank you for introducing the
Early Treatment for HIV Act with Senator Clinton, and to
offer my strong support for this legislation.
This bill would allow states to extend Medicaid coverage to
pre-disabled people living with HIV. It represents a
breakthrough in assuring early access to care for thousands
of low-income people living with HIV. Current HIV treatments
are successfully delaying the progression from HIV infection
to AIDS, thus improving the health and quality of life for
many people living with the disease. However, without access
to early intervention health care and treatment, these
advances remain out of reach for many non-disabled, low-
income people with HIV.
AAB has been engaged in research advocacy and providing
valuable medical, financial and emotional support to
thousands of people with HIV infection since 1987. Access to
care and treatment is of the utmost importance to someone
living with HIV disease. Medicaid will not only help improve
the quality of life for an individual with HIV disease by
will also help to relieve pressure on the AIDS Drug
Assistance Programs in all of our states.
A recent report by PricewaterhouseCoopers found that if
ETHA is passed and implemented by the states, the death rate
of people living with HIV on Medicaid would be cut in half
over a ten-year period. It also revealed that over a ten-year
peiod, ETHA would save money in the Medicaid program. It is a
humane and cost-effective bill and I thank you again for your
leadership in introducing it. Please let me know how I can
help make it become law.
Sincerely,
Lynda Dee,
Executive Director.
____

AIDS Action,

February 2, 2005.
Hon. Gordon Smith,
Russell Senate Office Building,
Washington, DC.
Dear Senator Smith: On behalf of the AIDS Action Council
board of directors and our diverse, nationwide membership of
community-based service providers and public health
departments working with people living with or affected by
HIV, I would like to thank you for introducing the Early
Treatment for HIV Act (ETHA) with Senator Clinton and offer
my strong support for this important piece of legislation.
As you know, ETHA is a means to eliminate barriers to early
drug therapy and comprehensive care for people living with
HIV. This important legislation would give states the option
of allowing HIV positive people with low incomes to qualify
for Medicaid coverage earlier in the course of their
infection, permitting them to receive greater benefits from
anti-retroviral therapy.
Access to pharmaceuticals and quality health services is
vital for people living with HIV. Advancements in treatment
and the development of anti-retroviral (ARV) therapy have
enabled HIV positive individuals to lead longer and healthier
lives. However, ARV therapy is often prohibitively expensive,
costing approximately $10,000 to $12,000 annually, making it
virtually impossible for low-income people, who are often
uninsured or underinsured, to access these life-prolonging
medications.
Current federal treatment guidelines recommend the
initiation of ARV therapy early in the course of HIV
infection. With early initiation, the efficacy of ARV therapy
increases, boosting the effectiveness of other available HIV
drugs and staving off disability. Initiated early on, ARV
therapy ultimately saves costs associated with delayed
medical treatment. Unfortunately, many uninsured and
underinsured people living with HIV cannot afford ARV therapy
on their own. Further, Americans living with HIV do not
qualify for Medicaid until they have received an AIDS
diagnosis and are sick enough to meet Medicaid's categorical
requirements for disability--a point at which it is too late
for ARV treatment to be optimally effective. These barriers
to early treatment must be eliminated so that low income
people living with HIV can access the health care they need.
During this time of shrinking federal budgets and economic
downsizing, savings in federal HIV programs, whether in
mandatory or discretionary spending, are beneficial to all
parties involved. By allowing HIV positive individuals to
qualify for Medicaid earlier in the course of HIV infection,
ETHA will create significant savings for the federal
government in overall health care funding.
AIDS Action looks forward to working with you on passage of
this bill. Together we can ensure that people living with HIV
have access to the treatments and health services they need
to stay healthy.
Sincerely,
Marsha A. Martin, DSW,
Executive Director.
____

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. 311

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 ``Early Treatment for HIV Act
of 2005''.

SEC. 2. OPTIONAL MEDICAID COVERAGE OF LOW-INCOME HIV-INFECTED
INDIVIDUALS.

(a) In General.--Section 1902 of the Social Security Act
(42 U.S.C. 1396a) is amended--
(1) in subsection (a)(10)(A)(ii)--
(A) by striking ``or'' at the end of subclause (XVII);
(B) by adding ``or'' at the end of subclause (XVIII); and
(C) by adding at the end the following:

``(XIX) who are described in subsection (cc) (relating to
HIV-infected individuals);''; and

(2) by adding at the end the following:
``(cc) HIV-infected individuals described in this
subsection are individuals not described in subsection
(a)(10)(A)(i)--
``(1) who have HIV infection;
``(2) whose income (as determined under the State plan
under this title with respect to disabled individuals) does
not exceed the maximum amount of income a disabled individual
described in subsection (a)(10)(A)(i) may have and obtain
medical assistance under the plan; and
``(3) whose resources (as determined under the State plan
under this title with respect to disabled individuals) do not
exceed the maximum amount of resources a disabled individual
described in subsection (a)(10)(A)(i) may have and obtain
medical assistance under the plan.''.
(b) Enhanced Match.--The first sentence of section 1905(b)
of the Social Security Act (42 U.S.C. 1396d(b)) is amended by
striking ``section 1902(a)(10)(A)(ii)(XVIII)'' and inserting
``subclause (XVIII) or (XIX) of section 1902(a)(10)(A)(ii)''.
(c) Conforming Amendments.--Section 1905(a) of the Social
Security Act (42 U.S.C. 1396d(a)) is amended in the matter
preceding paragraph (1)--
(1) by striking ``or'' at the end of clause (xii);
(2) by adding ``or'' at the end of clause (xiii); and
(3) by inserting after clause (xiii) the following:
``(xiv) individuals described in section 1902(cc);''.
(d) Exemption From Funding Limitation for Territories.--
Section 1108(g) of the Social Security Act (42 U.S.C.
1308(g)) is amended by adding at the end the following:
``(3) Disregarding medical assistance for optional low-
income hiv-infected individuals.--The limitations under
subsection (f) and the previous provisions of this subsection
shall not apply to amounts expended for medical assistance
for individuals described in section 1902(cc) who are only
eligible for such assistance on the basis of section
1902(a)(10)(A)(ii)(XIX).''.
(e) Effective Date.--The amendments made by this section
shall apply to calendar quarters beginning on or after the
date of

[[Page S1123]]

the enactment of this Act, without regard to whether or not
final regulations to carry out such amendments have been
promulgated by such date.
______

By Mr. McCAIN (for himself, Ms. Cantwell, and Mr. Leahy):
S. 312. A bill to implement the recommendations of the Federal
Communications Commission report to the Congress regarding low-power FM
service; to the Committee on Commerce, Science, and Transportation.
Mr. McCAIN. Mr. President, I rise today to introduce The Local
Community Radio Act of 2005. This bill would allow the Federal
Communications Commission (FCC) to license Low Power FM stations on
third adjacent channels to full power stations without limitations and
eliminate the requirement that the FCC perform further testing on the
economic impact of Low Power FM radio. Additionally, the bill seeks to
protect stations that provide radio reading services, which some have
suggested are more susceptible to interference then other stations
because they are carried on a subcarrier frequency. I am pleased to be
joined in this effort by Senators Leahy and Cantwell who are co-
sponsors of the bill. I thank them for their support. A similar bill
was introduced in the 108th Congress and passed out of the Senate
Committee on Commerce, Science, and Transportation.
In January 2000, the FCC launched Low Power FM radio service to
``enhance locally focused community-oriented radio broadcasting.'' Low
Power FM stations are just that--low power radio stations on the FM
band that generally reach an audience within a 3.5 mile radius of the
station's transmitter. In rural areas, this signal may not reach many
people, but it provides rural citizens with another media outlet--
another voice in the market. In urban areas, this signal may reach
hundreds of thousands of people and provide not just local content, but
very specific neighborhood news and information.
Localism is increasingly important in today's changing media
landscape. Rampant ownership consolidation has taken place in the radio
industry since passage of the Telecommunications Act of 1996. Since
that time, many Americans have complained that the large media
conglomerates fail to serve local communities' interests and seem to
use their local station license as a conduit to air national
programming. Low Power FM was introduced, in part, to respond to such
complaints.
Between May 1999 and May 2000, the Commission received over 3,400
applications for Low Power FM stations from non-commercial educational
entities and community organizations. However, before the Commission
could act on many of the applications for this new community service,
broadcasters frightened legislators into halting the full
implementation of Low Power FM. Broadcasters masqueraded their true
concerns about competition from a real local radio broadcaster in
thinly veiled claims of interference.
Due to the broadcasters' subterfuge, Congress added language to a
2000 appropriations bill requiring the FCC to hire an independent
engineering firm to further study broadcasters' claims of interference.
I am not happy to report that after spending almost two years and over
2 million dollars, the independent study revealed what the FCC and
community groups had said all along: LPFM will do no harm to other
broadcasters. Perhaps, we should send a bill to the National
Association of Broadcasters.
That brings us to the future of Low Power FM. The FCC, as required by
the appropriations language, reported the study's findings to Congress
last February and recommended full implementation of Low Power FM. This
bill simply follows the FCC's recommendation: begin licensing Low Power
FM stations on third adjacent channels to full power stations without
limitations. Additionally, the bill seeks to protect full power
stations that provide radio reading services. It is estimated that
about 1.1 million people in the U.S. are blind, and it is important to
ensure this helpful radio reading service remains interference free.
The enactment of this bill will immediately make available a number
of Low Power FM frequencies. By some estimates, Congress' legislation
delaying the full implementation, which mostly affected metropolitan
areas, led to the elimination of half the Low Power FM applications
filed during 2000.
For example, Congress' action eliminated the LPFM slot in Fresno
applied for by El Comite de los Pobres. The group had hoped to address
the dearth of local programming for the Latino community by airing
bilingual coverage of local issues. New Orleans' Music Business
Institute's application was eliminated as well. The Music Business
Institute teaches young people how to get into the music business. The
Institute had planned to use the station to help start the musical
careers of local artists, and to educate listeners about the city's
jazz and blues musical heritage.
There are some wonderful LPFM stations that are up and running. A
recent article published in The Nation called these stations, ``beacons
of grassroots democracy.'' The article discussed WRFR in Rockland,
Maine: ``Shunning the canned programming approach of Rockland's two
Clear Channel stations, WRFR offers an array of local talent, tastes
and interests, and was recently named Maine station of the year by a
state music association. Although country music, a Maine favorite, is
heavily represented, hardly any WRFR deejay restricts himself to a
single era, genre or Top-40 play list.''
In 2000, the Southern Development Foundation established a Low Power
FM station in Opelousas, Louisiana, which sponsors agriculture
programs, leases land to farmers, raises money for scholarships for
needy kids and helps citizens learn to read. The station director told
a local community newsletter: ``You've got local radio stations that
are owned by larger companies. There should be some programming
concerning the music that is from here, and the people from here. But
there's not.''
I ask the broadcasters to come clean and join us in promoting LPFM.
More good radio brings about more radio listening--and that's good for
all broadcasters. Therefore, in the interests of would-be new
broadcasters, existing broadcasters, but most of all, the listening
public, I urge the enactment of the Local Community Radio Act of 2005.
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. 312

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 ``Local Community Radio Act of
2005''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) The passage of the Telecommunications Act of 1996 led
to increased ownership consolidation in the radio industry.
(2) At a hearing before the Senate Committee on Commerce,
Science, and Transportation, on June 4, 2003, all 5 members
of the Federal Communications Commission testified that there
has been, in at least some local radio markets, too much
consolidation.
(3) A commitment to localism--local operations, local
research, local management, locally-originated programming,
local artists, and local news and events--would bolster radio
listening.
(4) Local communities have sought to launch radio stations
to meet their local needs. However, due to the scarce amount
of spectrum available and the high cost of buying and running
a large station, many local communities are unable to
establish a radio station.
(5) In 2003, the average cost to acquire a commercial radio
station was more than $2,500,000.
(6) In January, 2000, the Federal Communications Commission
authorized a new, affordable community radio service called
``low-power FM'' or ``LPFM'' to ``enhance locally focused
community-oriented radio broadcasting''.
(7) Through the creation of LPFM, the Commission sought to
``create opportunities for new voices on the air waves and to
allow local groups, including schools, churches, and other
community-based organizations, to provide programming
responsive to local community needs and interests''.
(8) The Commission made clear that the creation of LPFM
would not compromise the integrity of the FM radio band by
stating, ``We are committed to creating a low-power FM radio
service only if it does not cause unacceptable interference
to existing radio service.''.
(9) Currently, FM translator stations can operate on the
second and third-adjacent channels to full power radio
stations, up to an effective radiated power of 250 watts,
pursuant to part 74 of title 47, Code of Federal

[[Page S1124]]

Regulations, using the very same transmitters that LPFM
stations will use. The FCC based its LPFM rules on the actual
performance of these translators that already operate without
undue interference to FM stations. The actual interference
record of these translators is far more useful than any
results that further testing could yield.
(10) Small rural broadcasters were particularly concerned
about a lengthy and costly interference complaint process.
Therefore, in September, 2000, the Commission created a
simple process to address interference complaints regarding
LPFM stations on an expedited basis.
(11) In December, 2000, Congress delayed the full
implementation of LPFM until an independent engineering study
was completed and reviewed. This delay was due to some
broadcasters' concerns that LPFM service would cause
interference in the FM band.
(12) The delay prevented millions of Americans from having
a locally operated, community based radio station in their
neighborhood.
(13) Approximately 300 LPFM stations were allowed to
proceed despite the congressional action. These stations are
currently on the air and are run by local government
agencies, groups promoting arts and education to immigrant
and indigenous peoples, artists, schools, religious
organizations, environmental groups, organizations promoting
literacy, and many other civically-oriented organizations.
(14) After 2 years and the expenditure of $2,193,343 in
taxpayer dollars to conduct this study, the broadcasters'
concerns were demonstrated to be unsubstantiated.

SEC. 3. REPEAL OF PRIOR LAW.

Section 632 of the Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations
Act, 2001 (Public Law 106-553; 114 Stat. 2762A-111), is
repealed.

SEC. 4. MINIMUM DISTANCE SEPARATION REQUIREMENTS.

The Federal Communications Commission shall modify its
rules to eliminate third-adjacent minimum distance separation
requirements between--
(1) low-power FM stations; and
(2) full-service FM stations, FM translator stations, and
FM booster stations.

SEC. 5. PROTECTION OF RADIO READING SERVICES.

The Federal Communications Commission shall retain its
rules that provide third-adjacent channel protection for
full-power non-commercial FM stations that broadcast radio
reading services via a subcarrier frequency from potential
low-power FM station interference.

SEC. 6. ENSURING AVAILABILITY OF SPECTRUM FOR LPFM STATIONS.

The Federal Communications Commission when licensing FM
translator stations shall ensure--
(1) licenses are available to both FM translator stations
and low-power FM stations; and
(2) that such decisions are made based on the needs of the
local community.

Ms. CANTWELL. Mr. President, today, I am pleased to be joining with
the Senator from Arizona, Mr. McCain, and the Senator from Vermont, Mr.
Leahy, as a cosponsor of the Local Community Radio Act of 2005. This
legislation is similar to the version of S. 2505, the Low Power Radio
Act of 2004 that was introduced last Congress.
This bill removes once and for all the barriers keeping low power FM
service from flourishing in communities of all sizes across the
country, while protecting important radio reading services. Under the
existing law, my State has only a handful of low power FM stations. If
this bill becomes law, the Federal Communication Commission will be
able to move forward and license additional low power FM stations to
serve communities all across the State of Washington such as Bainbridge
Island, Vashon Island and Auburn.
Let me review the history of this issue for the Senate. The
Telecommunications Act of 1996 removed completely the ownership caps
restricting the number of stations that any one company can own
nationwide. The Act has led to an unprecedented level of consolidation
and mergers in the U.S. radio industry. Additionally, within a local
market, the rules allows ownership of up to eight radio stations, on a
sliding scale, depending on total number of stations in the market.
Five years ago, the FCC adopted rules creating a new, low power FM
radio service in response to public concerns that the increased
consolidation of radio ownership weakened the local character of radio.
Low power FM stations serve the public interest by providing
significantly greater opportunities for citizen involvement in
broadcasting in communities across the country. Eligible licensees are
non-profit, government or educational institutions, public safety or
transportations services. No existing broadcasting licensee or media
entity can have an ownership interest or any program or operating
agreement with any low power FM stations.
In many media markets, the number of independent local voices has
dropped significantly, replaced by giant corporations replicating
formats and programming from across the country. Voice-tracking, a
practice in which a DJ either pre-records part of a program for a local
station or for a station out of the immediate market, is not a
substitute for true localism.
With fewer independent outlets available for artists to get airplay
for a given genre of music, particularly for newer acts, there is a
perception in some quarters of the music industry that you need to
resort to the reprehensible practices such as payola in order to be
heard by the public.
During its proceeding on low power FM, the FCC conducted tests on the
effects of these low power stations on full power FM broadcasts for
various types of radio receivers. The FCC engineering reports concluded
that low power FM signals would not cause interference with the signals
to full power FM stations within their service areas. Based on the
results of interference testing, LPFM stations were not required to
protect stations three channels away from inference as is required for
full power stations. These rules allowed radio frequencies for LPFM
stations to become available in larger media markets where under the
old rules of third adjacent channel separation, there was no space
available for them on the crowded radio dial.
While the public reaction to low power FM was positive, the reaction
of FM broadcasters, both commercial and non-commercial, was negative.
Congress was convinced to add a rider to the 2001 Commerce, Justice,
State appropriations law that effectively undid the provisions in the
FCC rules, and once again required third adjacent channel separation.
Congress also required the FCC to perform a study examining the impact
on interference on the third adjacent channel.
Over two million dollars later, the results of the study validated
the FCC's original analysis. Last year, I joined the Senator from
Arizona, Mr. McCain, and the Senator from Vermont, Mr. Leahy, in
sponsoring a bill that would have accepted the results of this latest
engineering study to undo the 2001 appropriations rider. It also
addressed specific concerns about protecting stations providing reading
services over the radio frequencies to assist the blind. Under the
Senator from Arizona's (Mr. McCain) leadership, the Commerce Committee
reported the low power FM bill out favorably with an amendment, but it
did not come to a vote on the floor.
The time has come to move ahead with this proposal. The U.S. radio
industry has experienced an unprecedented wave of consolidation and
mergers since passage of the 1996 Telecommunications Act. The
consolidation trend has raised barriers of both size and cost for new
broadcasters. The legislation we introduce today allows new entrants
into broadcasting activities and new voices on our public airwaves. I
hope the Commerce Committee will again act quickly on this legislation.
Mr. LEAHY. Mr. President, I am pleased today to join Senators McCain
and Cantwell in introducing important legislation to increase the
number of frequencies available for low power radio stations in
America. Low power stations serve their communities with broadcasting
that reflects local needs and local preferences. In this way, low power
FM offers a valuable counterpoint to nationwide media consolidation. As
National Public Radio reported this morning, low power FM has a large
following of listeners tired of hearing the same programming across the
country. For this reason, I have been a strong supporter of low power
FM for many years now. In fact, I recently urged FCC Chairman Powell to
expedite licensing for new low power stations.
Unfortunately, for many years now the number of low power FM stations
the FCC could license has been limited by unrealistic and unnecessary
rules requiring these small stations to find available frequencies far
from any full power broadcaster. Interference must be avoided if we are
to make use of the

[[Page S1125]]

airwaves. The current rules, however, go beyond what is necessary to
protect full power stations from interference and, instead, protect
them from competition. This bill will reduce the unnecessary
restrictions on low power FM stations.
Of course, the need for low power FM radio must be balanced against
other important uses of nearby frequencies. I have worked hard to
protect reading services for the blind, and this bill protects those
services by retaining the third-adjacent rule where such services would
be affected. In addition, this bill protects commercial broadcasters of
all sizes from actual interference by leaving intact the FCC's
expedited interference claim review procedures.
I look forward to working with all the parties involved to strengthen
local broadcasting.
______

By Mr. LUGAR (for himself, Mr. Domenici, Mr. Hagel, Mr. Reed, Mr.
Biden, Mr. Levin, Ms. Collins, Mr. McCain, and Mr. Obama):
S. 313. A bill to improve authorities to address urgent
nonproliferation crises and United States nonproliferation operations;
to the Committee on Armed Services.
Mr. LUGAR. Mr. President, I rise to again introduce a bill that will
strengthen U.S. nonproliferation efforts. It is supported by the
Administration and several of my colleagues. This bill represents the
fourth installment of Nunn-Lugar legislation that I have offered since
1991.
In that year, Sam Nunn and I authored the Nunn-Lugar Act, which
established the Cooperative Threat Reduction Program. That program has
provided U.S. funding and expertise to help the former Soviet Union
safeguard and dismantle their enormous stockpiles of nuclear, chemical
and biological weapons, means of delivery and related materials. In
1997, Senator Nunn and I were joined by Senator Domenici in introducing
the Defense Against Weapons of Mass Destruction Act, which expanded
Nunn-Lugar authorities in the former Soviet Union and provided WMD
expertise to first responders in American cities. In 2003, Congress
adopted the Nunn-Lugar Expansion Act, which authorized the Nunn-Lugar
program to operate outside the former Soviet Union to address
proliferation threats. The bill that I am introducing today would
strengthen the Nunn-Lugar program and provide it with greater
flexibility to address emerging threats.
To date, the Nunn-Lugar program has deactivated or destroyed: 6,564
nuclear warheads; 568 ICBMs; 477 ICBM silos; 17 ICBM mobile missile
launchers; 142 bombers; 761 nuclear air-to-surface missiles; 420
submarine missile launchers; 543 submarine launched missiles; 28
nuclear submarines; and 194 nuclear test tunnels.
The Nunn-Lugar program also facilitated the removal of all nuclear
weapons from Ukraine, Belarus and Kazakhstan. After the fall of the
Soviet Union, these three nations emerged as the third, fourth, and
eighth largest nuclear powers in the world. Today, all three are
nuclear weapons free as a result of cooperative efforts under the Nunn-
Lugar program. In addition, Nunn-Lugar is the primary tool through
which the United States is working with Russian authorities to
identify, safeguard and destroy Russia's massive chemical and
biological warfare capacity.
These successes were never a foregone conclusion. Today, even after
more than 12 years, creativity and constant vigilance are required to
ensure that the Nunn-Lugar program is not encumbered by bureaucratic
obstacles or undercut by political disagreements.
During Secretary Rice's confirmation hearing with the Senate Foreign
Relations Committee on January 18, 2005, I asked Dr. Rice if she and
the Administration supported this legislation, to which she responded
``Yes we do.'' Secretary Rice and President Bush have long argued that
there needs to be maximum flexibility granted to the Administration to
execute a global, focused and timely effort to fight proliferation. In
view of the Administration's strong support for this bill, I look
forward to working with the Armed Services Committee to enact it.
I have devoted much time and effort to overseeing and accelerating
the Nunn-Lugar program. Uncounted individuals of great dedication
serving on the ground in the former Soviet Union and in our government
have made this program work. Nevertheless, from the beginning, we have
encountered resistance to the Nunn-Lugar concept in both the United
States and Russia. In our own country, opposition often has been
motivated by false perceptions that Nunn-Lugar money is foreign
assistance or by beliefs that Defense Department funds should only be
spent on troops, weapons, or other war-fighting capabilities. Until
recently, we also faced a general disinterest in non-proliferation that
made gaining support for Nunn-Lugar funding and activities an annual
struggle.
The attacks of September 11 changed the political discourse on this
subject. We have turned a corner--the public, the media, and political
candidates are paying more attention now. In a remarkable moment in the
first presidential debate last year, both President Bush and his
opponent agreed that the number one national security threat facing the
United States was the prospect that weapons of mass destruction would
fall into the hands of terrorists.
While the Administration has noted its support for this bill, the 9/
11 Commission also weighed in last year with another important
endorsement of the Nunn-Lugar program, saying that ``Preventing the
proliferation of [weapons of mass destruction] warrants a maximum
effort--by strengthening counter-proliferation efforts, expanding the
Proliferation Security Initiative, and supporting the Cooperative
Threat Reduction Program.'' The Report went on to say that ``Nunn-Lugar
. . . is now in need of expansion, improvement and resources.''
My bill would underscore the bipartisan consensus on Nunn-Lugar by
streamlining and accelerating Nunn-Lugar implementation. It would grant
more flexibility to the President and the Secretary of Defense to
undertake proliferation projects outside the former Soviet Union. It
also would eliminate Congressionally-imposed conditions on Nunn-Lugar
assistance that in the past have forced the suspension of time-
sensitive nonproliferation projects. The purpose of the bill is to
reduce bureaucratic red tape and friction within our government that
hinder effective responses to nonproliferation opportunities and
emergencies.
For example, recently Albania appealed for help in destroying 16 tons
of chemical agent left over from the Cold War. Last August, I visited
this remote storage facility. Nunn-Lugar officials are working closely
with Albanian leaders to destroy this dangerous stockpile. But this
experience also is illustrative of the need to reduce bureaucratic
delays. The package of documents related to the mission took some 11
weeks to be finalized and readied for President Bush. From beginning to
end, the bureaucratic process to authorize dismantlement of chemical
weapons in Albania took more than three months. Fortunately, the
situation in Albania was not a crisis, but we may not be able to afford
these timelines in future nonproliferation emergencies.
As I said when I introduced this legislation during our November
session last year, I wanted to have the benefit of the Administration's
views and my colleagues' input. Since then, I am pleased that Senators
Domenici, Hagel, Reed, Biden, Levin, Collins, McCain and Obama have all
signed on as co-sponsors. The Administration has now stated that they
support this bill. I look forward to working in Congress to enact it.
______

By Mr. CORNYN:
S. 314. A bill to protect consumers, creditors, workers, pensioners,
shareholders, and small businesses, by reforming the rules governing
venue in bankruptcy cases to combat forum shopping by corporate
debtors; to the Committee on the Judiciary.
Mr. CORNYN. Mr. President, I rise today to introduce the Fairness in
Bankruptcy Litigation Act of 2005.
This legislation will provide much-needed protection--for consumers,
creditors, workers, pensioners, shareholders, and small businesses--by
reforming the rules governing venue in bankruptcy cases to combat forum
shopping.
Quite simply, my bill will prevent corporate debtors from moving
their

[[Page S1126]]

bankruptcy cases thousands of miles away from the communities and their
workers who have the most at stake. And it will prevent bankrupt
corporations from effectively selecting the judge in their own cases--
because picking the judge isn't far off from picking the verdict.
This Act is a positive step for fairness, responsibility, and
justice. It implements a major recommendation from the October 1997
National Bankruptcy Review Commission report, and earned the support of
prominent bankruptcy law professors and practitioners nationwide. The
bill is also supported by Texas Attorney General Greg Abbott (R) and
former Massachusetts Attorney General Scott Harshbarger (D); Brady C.
Williamson, who served as chairman of the National Bankruptcy Review
Commission; and major national bankruptcy organizations like the
National Association of Credit Management and the Commercial Law League
of America.
With the introduction of this Act, this body will now have an
opportunity to consider this growing crisis, which effects so many
consumers and workers, just as we are about to examine the issue of
comprehensive bankruptcy reform.
Sadly, our current bankruptcy venue law has become a target for
enormous abuse. It's a problem that is well documented by academics,
most recently in a comprehensive book published just last week by UCLA
Law Professor Lynn M. LoPucki, as well as by Harvard Law Professor
Elizabeth Warren, who served as the reporter for the National
Bankruptcy Review Commission, and Professor Jay L. Westbrook of the
University of Texas Law School.
I have personal experience with the worst kind of forum shopping.
During my service to the State of Texas as Attorney General, I argued
that the Enron Federal bankruptcy court proceedings should be litigated
in Houston. That seemed like the common sense argument, of course--
after all, Houston was where the majority of employees and others who
were victimized by that corporate scandal called home.
Yet that's not where the case ended up. Instead, Enron was able to
exploit a key loophole in bankruptcy law to maneuver their proceedings
as far away from Houston as possible. They ended up in their desired
forum in New York. See In re Enron Corp., 274 B.R. 327 (S.D.N.Y. Bankr.
2002).
Enron used the place of incorporation of one of its small
subsidiaries in order to file a bankruptcy claim in New York, and then
used that smaller claim as the basis for shifting all of its much
larger bankruptcy proceedings into that same court. The company had
7,500 employees in the Houston headquarters, but they filed for
bankruptcy in New York, where Enron had only 57 employees.
This kind of blatant forum shopping makes a mockery of our laws. The
common-sense legislation that I've introduced today will combat such
egregious forum shopping by requiring that corporate debtors file where
their principal place of business or principal assets are located,
rather than their state of incorporation, and forbidding parent
companies from manipulating the venue by filing first through a
subsidiary.
Bankruptcy venue abuse is not just bad for our legal system; it hurts
America's consumers, creditors, workers, pensioners, shareholders, and
small businesses. Under current law, corporate debtors effectively get
to pick the court in which they will file for bankruptcy. As a result,
creditors can be forced to litigate far away from the real-world
location, where costs and inconveniences associated with travel are
prohibitive.
This troubling loophole also serves to unfairly enable corporate
debtors to evade their financial commitments. It badly disables
consumers, creditors, workers, pensioners, shareholders, and small
businesses from pursuing and receiving reasonable compensation from
bankruptcy proceedings.
Current law allows debtors to forum shop and thereby to pick
jurisdictions likely to rule in their favor. If debtors get to pick the
jurisdiction, then bankruptcy judges have a disturbing incentive to
compete with other bankruptcy courts for major bankruptcy cases, by
tilting their rulings in favor of corporate debtors and their
attorneys.
The examples are numerous. Here are three of the most prominent
incidents: Polaroid. In October 2001, Boston-based Polaroid filed for
bankruptcy in Delaware, listing assets at $1.9 billion. Polaroid's top
executives claimed that the company was a ``melting ice cube,'' and
arranged a hasty sale for $465 million to a single bidder. The court
refused to hear testimony as to the true value of the company and
closed the sale in only 70 days. The top executives went to work for
the new buyer and received millions of dollars in stock. Meanwhile,
disabled employees had their health-care coverage canceled. The so-
called ``melting ice cube'' became profitable the day after the sale
became final.
K-Mart. In January 2002, failed top executives delivered Michigan-
based K-Mart to the bankruptcy court in Chicago, which reportedly had
been actively soliciting large corporate debtors to file there. With a
workforce of 225,000, K-Mart had more employees than any company that
had ever filed bankrupt nationwide. The Chicago judge let the failed
executives take tens of millions of dollars in bonuses, perks, and loan
forgiveness. Bankruptcy lawyers also profited, pocketing nearly $140
million in legal fees. But some 43,000 creditors received only about
ten cents on the dollar.
Worldcom. Worldcom perpetrated one of the biggest accounting frauds
in history, inflating its income by $9 billion. Although based in
Mississippi, Worldcom followed Enron into the New York bankruptcy
court, where its managers received the same lenient treatment. No
trustee was appointed; indeed, five months after the case was filed,
the directors in office when the fraud occurred still constituted a
majority of the board. They chose their own successors. A Top Worldcom
executive used money taken from the company to build an exempt Texas
homestead, and Worldcom took no action. That executive then used the
homestead to buy his way out of his problems with the SEC. Meanwhile,
creditors--mostly bondholders--lost $20 billion.
This is not the first time we have addressed this important issue.
The House Judiciary Subcommittee on Commercial and Administrative Law
held a hearing on July 21, 2004, entitled ``Administration of Large
Business Bankruptcy Reorganizations: Has Competition for Big Cases
Corrupted the Bankruptcy System?,'' and Congressman Brad Sherman (D-CA)
has previously led efforts to champion bankruptcy venue reform in the
House. During the 107th Congress, Senator Durbin introduced S. 2798,
the Employee Abuse Prevention Act of 2002, joined by Senators Kennedy,
Kerry, Leahy, and Rockefeller, while Congressman William D. Delahunt
(D-MA) introduced the same bill in the House; section 205 of that
legislation would have reformed bankruptcy venue law.
I believe we must take steps to respond to this important problem.
The American people deserve better from our legal system. All
bankruptcy cases deserve to be handled fairly and justly, and no
corporate debtor should be allowed to escape responsibility by fleeing
to another venue. It is high time that we take up this much-needed
reform.
I ask unanimous consent that letters of support be printed in the
Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

Attorney General of Texas,

Austin, TX, February 2, 2005.
Re Fairness in Bankruptcy Litigation Act of 2005.

Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: I support your important initiative to
prohibit opportunistic forum shopping by corporate debtors.
As you know firsthand from your tenure as Attorney General
of Texas during the State's involvement in the Enron
bankruptcy proceedings, such unsavory court-shopping truly
harms innumerable parties--large and small alike. Far too
often, corporate debtors file for bankruptcy in a far-flung
district solely because of their incorporation in the state
where that district is located.
Your proposal to amend 28 U.S.C. Sec. 1408--the aptly named
Fairness in Bankruptcy Litigation Act--would prevent this
unseemly practice. As you know, bankruptcy forum shopping can
adversely impact not just states and state agencies, but
countless consumers, creditors, employees, pensioners,
stockholders, and small businesses that are regularly
thwarted from protecting their interests simply because the
debtor filed in a distant forum.

[[Page S1127]]

The venue stratagems used by large law firms to maximize
their professional fees, render far-away courts inaccessible
to scores of unsecured creditors, and select compliant,
debtor-friendly judges undermine the credibility of our
nation's bankruptcy system. Indeed, after two years of public
hearings, the National Bankruptcy Review Commission
recommended that Congress overhaul the law to prevent forum
shopping by large Chapter 11 debtors and their affiliates. I
strongly support their recommendation and applaud you for
bringing this urgent matter to the attention of the United
State Senate.
Abusive forum shopping by corporate debtors harms Americans
from all walks of life. It is time for this gamesmanship to
stop. I commend your efforts to strengthen our bankruptcy
system and safeguard the interests of ordinary Americans.
Sincerely,
Greg Abbott.
____

Murphy, Hesse, Toomey

& Lehane, LLP, Attorneys at Law,

Boston, MA, February 8, 2005.
Re Bankruptcy Venue Reform.

Senator John Cornyn,
Hart Senate Office Building,
Washington, DC.
Dear Senator: I commend efforts, either through an
amendment to the bankruptcy bill before Congress or through
the separate vehicle being introduced by Senator Cornyn, to
close a major jurisdictional loophole in the bankruptcy
statutes which directly affects every investor, business
competitor, creditor, consumer, union, and state Attorney
General in this country. While forum shopping and court
competition are having a direct, adverse effect on the
governance and reorganization of large, public companies,
investors are feeling that effect in their returns; employees
and unions in the abrogation of collectively bargained
contracts and economic security; competitors in the loss of a
level playing field; consumers and creditors in the loss of
basic rights; and Attorneys General in the loss of power to
be heard and to protect the rights of constituents and state
public policy.
For the past decade, most bankrupt large public companies
have ``forum shopped'' their cases to the bankauptcy courts
in Wilmington, Delaware and New York City. For a time, that
was generally thought to be advantageous. But events in Enron
and other cases have shown otherwise. The shopping benefited
bankruptcy professionals who worked in those cases by
enabling them to charge higher fees and by freeing them from
some restrictions on conflicts of interest. The shopping also
benefited executives of some of those companies by allowing
them to hang onto their jobs longer and in some cases even be
paid large ``retention bonuses.''
But the effect of forum shopping on the companies--and
hence on the shareholders and bondholders who invested in
them--has been decidedly negative. According to major studies
and the empirical research of experts like Professor Lynn
LoPucki of UCLA law school, companies reorganized in the
Delaware and New York courts in the early and mid-1990s
failed at a rate more than double the rate for companies
reorganized in other courts. As other courts copied Delaware
in an effort to staunch their outflow of cases, the failure
rates for those courts' reorganizations skyrocketed to match
Delaware's rates. To confirm a plan, the Bankruptcy Code
requires that the court find that ``confirmation . . . is not
likely to be followed by the liquidation, or the need for
further financial reorganization of the debtor.'' But of the
43 largest public companies reorganized in U.S. Bankruptcy
Courts from 1997 through 2000--the most recent period for
which failure rates can be calculated--21 (49%) were back in
bankruptcy within five years. Historically, the failure rates
for big reorganization in non-competing courts have been
below 10%.
Legislative action can address this problem in a common
sense, fair, simple and direct way, by requiring bankrupt
companies file in their local bankruptcy courts. By local
courts, I mean the courts in the cities where the companies
have their headquarters or their principal operations. This
will free judges from the pressures to compete with other
courts for cases, and enable them to return to the crucial
function for which they were appointed: to protect
shareholders, creditors, employees, suppliers, customers and
the companies themselves during the brief but often frantic
period between the failure of one corporate regime and its
replacement with another. It will also ensure that these
judges and courts hear from everyone affected and entitled to
be heard--not only those who can afford to travel or appear
in ``foreign'' courts, especially the public's lawyers, the
Attorneys General. It is not a panacea for economic
insecurity, and it changes no legal rights or duties or law.
But it will cure a major inequity and a loophole utilized
primarily to ``game'' the system. Enactment of this bill, or
a similar legislative amendment, will enable us to say: ``We
had a problem, and now we have fixed it.''
Scott Harshbarger.
____

Commercial Law League

of America ^',

Chicago, IL, February 7, 2005.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: The Commercial Law League of America
(``CLLA''), founded in 1895, is the Nation's oldest
organization of attorneys and other experts in credit and
finance actively engaged in the field of commercial law,
bankruptcy and reorganization. Its membership exceeds 3,500
individuals. The CLLA has long been associated with the
representation of creditor interests, while at the same time
seeking fair, equitable and efficient administration of
bankruptcy cases for all parties in interest.
The Bankruptcy Section of the CLLA is made up of
approximately 1,100 bankruptcy lawyers and bankruptcy judges
from virtually every State in the United States. Its members
include practitioners with both small and large practices,
who represent divergent interests in bankruptcy cases. The
CLLA has testified on numerous occasions before Congress as
experts in the bankruptcy and reorganization fields.
A principal concern of the CLLA is the need for an
amendment requiring that the domicile and residence for venue
of corporate debtors be conclusively presumed to be the
location of the debtor's principal place of business without
regard to the debtor's state of incorporation. Such a change
would benefit creditors and prevent an unacceptable degree of
forum shopping by debtors who are in search of a venue that
will be friendly to their needs. More important, however,
requiring that a corporate bankruptcy take place locally
ensures that the distinct needs of the community are not
overlooked.
Allowing the practice of forum shopping by debtors
undermines the bankruptcy process and creates unwarranted
competition among the courts. Before filing, the debtor is
able to determine which courts have taken friendly views of
the debtor's particular needs and select such a court with
the intent of creating a disadvantage for creditors. Indeed,
some corporate debtors have even commenced bankruptcy cases
in preferred venues by strategically creating or using
otherwise healthy subsidiaries to create a basis for filing
in the intended court. Current law as written fosters these
abuses.
The CLLA strongly supports passage of the Fairness in
Bankruptcy Litigation Act of 2005 (the ``Act'') since the
proposed legislation addresses these abuses. The Act will
help to eliminate the forum shopping that skews the
bankruptcy process and will foster greater local control over
important business and community decisions. Although the Act
may require some technical modifications to achieve and
address the legislation's purported goals, its overall
provisions and goals are well grounded and supported by the
abuses taking place within the bankruptcy system.
Much has been said among members of Congress that
bankruptcy reform is necessary to prevent what it perceives
as abuse of the bankruptcy process. A venue provision that
requires corporate bankruptcies to be filed at the principal
place of business furthers that goal and for all these
reasons we encourage the passage of the Act at the earliest
opportunity.
Respectfully submitted,
Mary K. Whitmer,
President.
Jay L. Welford,
Co-Chair, National Governmental Affairs Committee.
Peter C. Califano,
Chair, Legislative Committee, Bankruptcy Section.
Alan I. Nahmias,
Chair, Bankruptcy Section.
Judith Greenstone Miller,
Co-Chair, National Governmental Affairs Committee.
____

Harvard Law School,

January 31, 2005.
Senator John Cornyn,
617 Senate Hart Office Building,
Washington, DC.
Dear Senator Cornyn: Since its inception, the central
promise of the Federal bankruptcy system is that all
creditors--large and small--have equal access to participate
in the judicially-supervised liquidation or reorganization of
the debtor. No bankruptcy will be run to benefit one group of
creditors over another, or to permit the debtor to escape
from close scrutiny after its financial collapse.
Unfortunately, that promise has been significantly eroded.
Mega-companies and their counsel shop for courts that will
render decisions that may favor the debtor, the attorneys or
a small group of powerful creditors. These parties often file
the bankruptcy petitions in locations far distant from most
of the company's business and from most of its creditors,
including its workers, retirees and local trade creditors who
have made their own investments in the company.
Forum shopping creates an advantage for the insiders, while
making it virtually impossible for small creditors to
participate in the bankruptcy process. Employees, pensioners,
trade creditors and others have claims that are important to
them, but that are not large enough to justify millions of
dollars in lawyers' fees or trips to distant locations. As a
result, many of these smaller parties are shut out of the
system. They literally cannot get to the courthouse.
Bankruptcy courts around the country are capable of
handling the cases that come their way--large or small. The
judges are smart and thoughtful, and the court personnel are
dedicated and hard-working. No

[[Page S1128]]

single court in this country, regardless of its experience,
should have an exclusive lock on dealing with big cases. No
court has special powers or unique skills to deal with the
questions of claims, property of the estate, financing,
fraud, attorneys' fees and so on--issues that can arise in
any case, regardless of size.
The current system of court shopping harms too many
parties. Closing a loophole in the bankruptcy laws that
permits this unseemly practice and forcing companies in
trouble to subject themselves to the scrutiny of their local
courts and local creditors is an important step toward
strengthening the credibility of the bankruptcy system. The
reform embodied in your proposal is real reform. If a company
prospers in part because it draws on the strength of the
community where it operates, that same community should be
able to participate fully in its financial reorganization.
Very truly yours,
Elizabeth Warren,
Leo Gottlieb Professor of Law.
____

School of Law,

The University of Texas at Austin,

Austin, Texas, February 6, 2005.
Senator John Cornyn,
Senate Hart Office Building,
Washington, DC.
Dear Senator Cornyn: There is no single reform of our
Chapter 11 system that is as important as ensuring an end to
the forum shopping that has so distorted that system in
recent years. The present venue rules are so loosely
constructed that they permit any large public' company to
file a Chapter 11 pretty much wherever it likes. Naturally,
the management of companies in financial trouble and the
professionals that advise them take advantage of those rules
to choose the forum that will best serve their interests.
Often that means a Chapter 11 filing in a courthouse far away
from the company's home.
These rules permit the company's management to escape the
close scrutiny of intensely interested local media and to
avoid attendance at court hearings by employees, local
suppliers, and others vitally interested in the case and
knowledgeable about the company. They force smaller creditors
to file claims from afar, claims that are often the subject
of an arbitrary objection by the debtor that the distant
creditor cannot afford to litigate. Conversely, creditors who
received some payment before bankruptcy may be the subject of
long-distance preference attacks that they cannot properly
defend in a remote courthouse, especially if the amounts
involved, although substantial, are not enough to justify the
expense of a defense. Compounding the problem of expense is
the creditor's lack of knowledge of lawyers in the distant
forum and the risk, especially in Delaware, that in a big
case most experienced local lawyers will already be committed
to other clients. On top of these direct injuries to
creditors, in cases where a trustee in bankruptcy is
appointed, the administration of assets hundreds or thousands
of miles removed from the trustee's home cannot be done
efficiently and rarely can be done well.
These and other effects of forum shopping are inefficient
and prejudicial. In addition, the present system imposes
subtle pressures on bankruptcy judges and district judges,
who cannot be unaware that their decisions as to venue will
determine whether the community and the local bar will be
greatly enriched by the administration of large bankruptcy
cases. Despite the high degree of professionalism on our
federal bench, it is not reasonable to expect that these
pressures will have no effect.
Although I am expressing my own opinions and not speaking
for the University or the Law School, I write as someone who
has practiced, studied, taught, and written about bankruptcy
law for over thirty years. Please let me know if I can
provide further information that would be helpful to your
work.
Respectfully,
Jay L. Westbrook,
Benno C. Schmidt,
Chair of Business Law
____

University of California,

Los Angeles, School of Law,

Los Angeles, CA, January 31, 2005.
Senator John Cornyn,
Hart Senate Office Bldg.,
Washington, DC.
Dear Senator Cornyn: I write to thank you for your courage
in proposing the Fairness in Bankruptcy Litigation Act of
2005. This legislation will not only provide protection for
all parties to large, public company bankruptcies, it will
also protect honest bankruptcy judges from the pressures
arising from the necessity to compete for cases. My research
suggests that by ending the necessity for the courts to
compete for cases, this legislation will result in better
reorganizations, the preservation of jobs, and higher returns
to creditors and shareholders.
This is a difficult issue to present to the public, because
it is both obscure and complex. Please be assured that I and
many others appalled by the competition will do whatever we
can to assist you.
Yours truly,
Lyan M. LoPucki
____

Dear Senator Cornyn: I am writing to you to support your
effort to pass a bill that would prevent corporations from
shopping for the most favorable venue. The current practice
has resulted in a ``race to the bottom'' as bankruptcy courts
work hard to lure corporate bankruptcies to their courts.
I was a professor at the University of Missouri-Kansas City
School of Law for almost 20 years. My own worst example is
the case of Birch Telecom, a Kansas City-based company that
filed in Delaware in 2002. After laying off a quarter of
their employees--citizens of Missouri, Kansas, and Texas--
Birch went into bankruptcy with a prepared plan (known as a
``pre-pack'') that included significant compensation for the
very officers who had led the company into bankruptcy.
A bankruptcy judge from Texas, sitting by designation
(because of the volume of cases being filed in Delaware) had
the audacity to suggest that he might not approve the plan
because of the compensation package. Before his words were
out of his mouth, Birch Telecom's attorneys had appealed the
reference of the case to that judge. The case was withdrawn,
and a Delaware judge, who understood that the game is
appeasing the corporate debtors, approved the plan 13 days
later.
What possible chance do employees and local creditors have
when a distant bankruptcy judge will rubber-stamp the
company's every request, in a court too far away for them
even to appear?
Congress says that it is trying to stop bankruptcy abuse.
Venue shopping is the very worst example of bankruptcy abuse,
and it affects the lives of thousands of ordinary Americans--
employees and small businesses--every single day.
I wish you good luck in the passage of this important piece
of legislation.
Sincerely,
Corinne Cooper,
Professor Emerita of Law.
____

Creel & Moore, L.L.P.,

Attorneys and Counselors,

Dallas, TX, February 4, 2005.
Re proposed bankruptcy legislation/venue.

Senator John Cornyn,
Hart Senate Building, Washington, DC.
Dear Senator Cornyn: One of the issues being discussed in
connection with proposed bankruptcy legislation is in what
venue or venues is it most appropriate for business debtors
to initiate voluntary bankruptcy cases, where they conduct
their daily business or where they were incorporated.
Because a corporation (or any other type of business
organization) seeking bankruptcy relief should do so in a
forum that is convenient for itself, its management, its
employees and its creditors, Section 1408 of Title 28 of the
U.S. Code should be amended to prohibit the right of a debtor
corporation to file in the state of its incorporation unless
it either has its principal place of business or its
principal assets in that state.
The reason for requiring a debtor to seek relief in a
bankruptcy court nearest to its actual place of operation is
that, otherwise, the rights of the other parties are
significantly and adversely affected because of the distance,
delay and costs of dealing with a faraway court.
The practice that has developed over the years is that
corporations, for example those created under the laws of
Delaware, file in Delaware, far from their actual places of
business, Texas for example, thus causing their management,
employees and creditors to have the burden and expense of
travel, to hire distant counsel with whom they have had no
prior experience, or both, in order to protect their
interests. Many times, at least from a creditor/employee
perspective, the inconvenience and expense, when balanced
against the probability of an insignificant recovery on a
claim, is such that creditors/employees simply abandon their
claims, a result which is contrary to the spirit and intent
of the Bankruptcy Code.
As a bankruptcy practitioner for over 40 years and one who
is active in various bankruptcy organizations, I urge you and
your staff to consider the thoughts expressed in their
letter.
As the grandfather of Richie Anderson who served as an
intern on your staff last summer, I know, from his
experience, that you will listen to the opinions of your
constituents.
Yours very truly,
L. E. Creel, III.
____

Winstead,
February 4, 2005.
Re Bankruptcy Venue Reform
Hon. John Cornyn,
U.S. Senate, Hart Senate Office Bldg.,
Washington, DC.

Dear Senator Cornyn: I write in support of reform of the
Bankruptcy Code's current venue provisions.
I am twenty-three year bankruptcy practitioner and head of
the bankruptcy practice for our law firm, I additionally
serve as Vice President (Business Bankruptcy) of the
Bankruptcy Section of the State Bar of Texas and am national
co-chair of the Unsecured Trade Creditors' Committee of the
American Bankruptcy Institute. My practice, while focused in
Texas, brings me before courts throughout the country--
particularly those in Delaware and New York.
Practicing in Texas, I have personal experience with the
unfortunate practice of companies and their counsel shopping
for forums. Whether to escape the watchful eye of employees,
creditors or the press, numerous companies from around the
country have filed bankruptcy cases in the District of

[[Page S1129]]

Delaware or the Southern District of New York to obtain what
they believed would be either favorable treatment or a venue
for their bankruptcy cases which would in large measure
frustrate the rights and interests of their creditors and
employees. It is for these reasons, among others, that I
strongly support a modification of the Bankruptcy Venue
Statute and urge prompt action.
If I can be of any assistance to you, please do not
hesitate to call upon me. Best regards.
Very truly yours,
Berry D. Spears.
____

Munsch Hardt Kopf & Harr PC,

Attorneys & Counselors,

February 7, 2005.
Re Amendment to Section 1408 of Title 28, United States Code
Hon. John Cornyn,
U.S. Senate, Hart Senate Office Bldg.,
Washington, DC.

Dear Senator Cornyn: As a bankruptcy practitioner for some
25 years, I am writing to voice my support for an amendment
to the venue provisions of Section 1408 of Title 28, United
States Code. As has been well documented, the concept of
``forum shopping'' by significant Chapter 11 Debtors
throughout the country has become an art form over the last
few years. Certain jurisdictions now actively campaign to
attract large, high-profile bankruptcy cases to their venue.
It goes without saying that bankruptcy judges must become
``Debtor friendly'' in order to maintain the attractiveness
of these venue options. Accordingly, decisions relating to
the allowance of professional fees, conflicts and other
critical bankruptcy issues have become disparate throughout
the country.
An amendment to Section 1408, which limits the use of the
state of incorporation to those instances where the Debtors'
principal place of business or principal assets reside, will
promote uniformity as well as removing some of the perceived
inequities in the system. The public's perception of a fair
and uniform bankruptcy system is paramount.
Thank you for your interest in this legislation.
Very truly yours,
Russell L. Munsch.
____

Fulbright & Jaworski, L.L.P.,

Houston, Texas, February 7, 2005.
Re bankruptcy venue reform.

Senator John Cornyn,
Senate Hart Office Building, Washington, DC.
Dear Senator Cornyn: I write you to express my strong
support for bankruptcy venue reform. By way of introduction,
I have been a partner in the bankruptcy section of Fulbright
& Jaworski since June 1, 2004. Prior to that, I served as a
United States Bankruptcy Judge in Houston for almost 17
years, resigning as Chief Judge a day before I joined
Fulbright.
Over the many years of my judicial career, I watched as
many cases which should have been filed in Texas instead
found their way to the dockets of courts in Delaware, New
York, or some other distant jurisdiction. This migration of
large cases is not unique to Texas and it represents a
fundamental flaw in the perceived and actual fairness of the
bankruptcy system. The ``little people'' (small creditors,
former employees, etc.) in a large bankruptcy case are at
once the most vulnerable economically and the parties least
capable of participating in a distant forum.
I firmly feel the integrity of today's bankruptcy system
requires that the rights of all involved be protected and
that fair access to court be ensured. Bankruptcy venue reform
would be a tremendous step toward rectifying these problems.
The opinions expressed in this letter are my own and not
those of Fulbright & Jaworski or its clients. I appreciate
your consideration of my concerns. If you should have any
questions or need additional information or assistance from
me, please do not hesitate to contact me.
Sincerely,
William Greendyke.
____

January 31, 2005.
Senator John Cornyn,
Senate Hart Office Building,
Washington, DC.
Dear Senator Cornyn: On behalf of the National Association
of Credit Management (NACM), I am writing to express the
support of NACM National Board of Directors and the NACM
membership for the Venue in Bankruptcy Cases bill scheduled
to be introduced by Senator Cornyn. This important
legislation would provide enormous relief to the thousands of
business creditors, and most importantly to small business
creditors whose interests are routinely impaired by a
bankruptcy process that is long-overdue for change.
NACM is a 22,000-member trade association, representing the
interests of corporate (commercial) credit executives. NACM
was founded in 1896 and represents both American business
credit professionals in all 50 states as well as business
credit executives in more than 30 countries worldwide. NACM's
mission is to ensure the constant improvement and enhancement
of the business trade credit profession and process.
NACM's membership comprises all types of businesses:
manufacturers, wholesalers, service industries, and financial
institutions. NACM's members range in size from small
businesses to a majority of the Fortune 500. NACM members
make the daily decisions to extend unsecured, business and
trade credit from one company to another. NACM members--the
business credit executive--approve and provide billions of
dollars each day in business and trade credit, which fuels
this country's business economy.
This bill would provide much needed relief to businesses
and--perhaps even more importantly--to small businesses. This
bill would provide relief to the current practice of
requesting a transfer of venue, which is both expensive and
time consuming to both the debtor's estate and to creditors.
Additionally, this bill would address any abuse that
currently exists in the Code that encourages ``shopping''
cases into a ``friendly forum''.
Our membership stands ready to provide whatever level of
support is needed to advance this important legislation. As
the national organization representing the decision makers
within the American economic model who drive commerce, we
hope you will ensure that Congressional leadership will take
action on this bill as expeditiously as possible.
We must provide immediate relief to the small business that
simply cannot afford to wait any longer for bankruptcy reform
from Congress.
Thank you for your consideration of our comments and please
let us know what we can do to assist you in advancing this
legislation.
Sincerely yours,
Robin Schausell, CAE,
President.
______

By Mr. FEINGOLD:
S. 315. A bill to amend the Internal Revenue Code of 1986 to provide
that reimbursements for costs of using passenger automobiles for
charitable and other organizations are excluded from gross income, and
for other purposes; to the Committee on Finance.
Mr. FEINGOLD. Mr. President, I am pleased to reintroduce legislation
today that would increase the mileage reimbursement rate for
volunteers.
Under current law, when volunteers use their cars for charitable
purposes, the volunteers may be reimbursed up to 14 cents per mile for
their donated services without triggering a tax consequence for either
the organization or the volunteers. If the charitable organization
reimburses any more than that, they are required to file an information
return indicating the amount, and the volunteers must include the
amount over 14 cents per mile in their taxable income. By contrast, the
mileage reimbursement level currently permitted for businesses is 40.5
cents per mile.
We are asking volunteers and volunteer organizations to bear a
greater burden of delivering essential services. But the 14 cents per
mile limit is posing a very real hardship for charitable organizations
and other nonprofit groups. I have heard from a number of people in
Wisconsin on the need to increase this reimbursement limit.
A representative of one organization, the Portage County Department
on Aging, explained just how important volunteer drivers are to their
ability to provide services to seniors in that county. The Department
on Aging reported that dozens of volunteer drivers delivered meals to
homes and transported people to medical appointments, meal sites, and
other essential services.
As many of my colleagues know, the senior meals program is one of the
most vital services provided under the Older Americans Act, and
ensuring that meals can be delivered to seniors or that seniors can be
taken to meal sites is an essential part of that program.
Unfortunately, Federal support for the senior nutrition programs has
stagnated in recent years. This has increased pressure on local
programs to leverage more volunteer services to make up for lagging
Federal support. The 14 cents per mile reimbursement limit, though,
increasingly poses a barrier to obtaining those contributions. Portage
County reports that many of their volunteers cannot afford to offer
their services under such a restriction. And if volunteers cannot be
found, their services will have to be replaced by contracting with a
provider, greatly increasing costs to the Department, costs that come
directly out of the pot of funds available to pay for meals and other
services.
And the same is true for thousands of other non-profit and charitable
organizations that provide essential services to communities across our
Nation.
By contrast, businesses do not face this restrictive mileage
reimbursement limit. The comparable mileage rate for someone who works
for a business is currently 40.5 cents per mile. This disparity means
that a business hired to deliver the same meals delivered by

[[Page S1130]]

volunteers for Portage County may reimburse their employees over double
the amount permitted the volunteer without a tax consequence.

This doesn't make sense. The 14 cents per mile volunteer
reimbursement limit is badly outdated. According to the Congressional
Research Service, Congress first set a reimbursement rate of 12 cents
per mile as part of the Deficit Reduction Act of 1984, and did not
increase it until 1997, when the level was raised slightly, to 14 cents
per mile, as part of the Taxpayer Relief Act of 1997.
The bill I am introducing today is identical to a measure I
introduced in the 107th Congress and the 108th Congress in nearly every
respect. It raises the limit on volunteer mileage reimbursement to the
level permitted to businesses. It is essentially the same provision
passed by the Senate as part of a tax bill in 1999, and it is
essentially the same provision that passed the Senate as part of the
CARE Act.
At the time of the 1999 tax bill, the Joint Committee on Taxation
(JCT) estimated that the mileage reimbursement provision would result
in the loss of $1 million over the five-year fiscal period from 1999 to
2004. The revenue loss was so small that the JCT did not make the
estimate on a year by year basis.
Though the revenue loss is small, it is vital that we do everything
we can to move toward a balanced budget, and to that end I have
included a provision to fully offset the cost of the measure and make
it deficit neutral. That provision increases the criminal monetary
penalties for individuals and corporations convicted of tax fraud. The
provision passed the Senate in the 108th Congress as part of the JOBS
bill, but was later dropped in conference and was not included in the
final version of that bill.
I urge my colleagues to support this measure. It will help ensure
charitable organizations can continue to attract the volunteers that
play such a critical role in helping to deliver services and it will
simplify the tax code both for nonprofit groups and the volunteers
themselves.
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. 315

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

SECTION 1. MILEAGE REIMBURSEMENTS TO CHARITABLE VOLUNTEERS
EXCLUDED FROM GROSS INCOME.

(a) In General.--Part III of subchapter B of chapter 1 of
the Internal Revenue Code of 1986 is amended by inserting
after section 139A the following new section:

``SEC. 139B. MILEAGE REIMBURSEMENTS TO CHARITABLE VOLUNTEERS.

``(a) In General.--Gross income of an individual does not
include amounts received, from an organization described in
section 170(c), as reimbursement of operating expenses with
respect to use of a passenger automobile for the benefit of
such organization. The preceding sentence shall apply only to
the extent that such reimbursement would be deductible under
this chapter if section 274(d) were applied--
``(1) by using the standard business mileage rate
established under such section, and
``(2) as if the individual were an employee of an
organization not described in section 170(c).
``(b) No Double Benefit.--Subsection (a) shall not apply
with respect to any expenses if the individual claims a
deduction or credit for such expenses under any other
provision of this title.
``(c) Exemption From Reporting Requirements.--Section 6041
shall not apply with respect to reimbursements excluded from
income under subsection (a).''.
(b) Clerical Amendment.--The table of sections for part III
of subchapter B of chapter 1 of the Internal Revenue Code of
1986 is amended by inserting after the item relating to
section 139A and inserting the following new item:

``Sec. 139B. Reimbursement for use of passenger automobile for
charity.''.

(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after the date of the
enactment of this Act.

SEC. 2. INCREASE IN CRIMINAL MONETARY PENALTY LIMITATION FOR
THE UNDERPAYMENT OR OVERPAYMENT OF TAX DUE TO
FRAUD.

(a) In General.--Section 7206 of the Internal Revenue Code
of 1986 (relating to fraud and false statements) is amended--
(1) by striking ``Any person who--'' and inserting ``(a) In
General.--Any person who--'', and
(2) by adding at the end the following new subsection:
``(b) Increase in Monetary Limitation for Underpayment or
Overpayment of Tax Due to Fraud.--If any portion of any
underpayment (as defined in section 6664(a)) or overpayment
(as defined in section 6401(a)) of tax required to be shown
on a return is attributable to fraudulent action described in
subsection (a), the applicable dollar amount under subsection
(a) shall in no event be less than an amount equal to such
portion. A rule similar to the rule under section 6663(b)
shall apply for purposes of determining the portion so
attributable.''.
(b) Increase in Penalties.--
(1) Attempt to evade or defeat tax.--Section 7201 of the
Internal Revenue Code of 1986 is amended--
(A) by striking ``$100,000'' and inserting ``$250,000'',
(B) by striking ``$500,000'' and inserting ``$1,000,000'',
and
(C) by striking ``5 years'' and inserting ``10 years''.
(2) Willful failure to file return, supply information, or
pay tax.--Section 7203 of such Code is amended--
(A) in the first sentence--
(i) by striking ``misdemeanor'' and inserting ``felony'',
and
(ii) by striking ``1 year'' and inserting ``10 years'', and
(B) by striking the third sentence.
(3) Fraud and false statements.--Section 7206(a) of such
Code (as redesignated by subsection (a)) is amended--
(A) by striking ``$100,000'' and inserting ``$250,000'',
(B) by striking ``$500,000'' and inserting ``$1,000,000'',
and
(C) by striking ``3 years'' and inserting ``5 years''.
(c) Effective Date.--The amendments made by this section
shall apply to underpayments and overpayments attributable to
actions occurring after the date of the enactment of this
Act.
______

By Mr. FEINGOLD:
S. 316. A bill to limit authority to delay notice of search warrants;
to the Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, today I will reintroduce in the Senate
the Reasonable Notice and Search Act. This bill is nearly identical to
a bill I introduced in the 108th Congress, S. 1701. It addresses
Section 213 of the USA-PATRIOT Act, the provision of that important
statute passed in the wake of the 9/11 attacks that has caused perhaps
the most concern among Members of Congress and the public. Section 213,
sometimes referred to as the ``delayed notice search provision'' or the
``sneak and peek provision,'' authorizes the government in limited
circumstances to conduct a search without immediately serving a search
warrant on the owner or occupant of the premises that have been
searched.
Prior to the PATRIOT Act, secret searches for physical evidence were
performed in some jurisdictions under the authority of Court of Appeals
decisions, but the Supreme Court never definitively ruled whether they
were constitutional. Section 213 of the PATRIOT Act authorized delayed
notice warrants in any case in which an ``adverse result'' would occur
if the warrant were served before the search was executed. Adverse
result was defined as including: 1. endangering the life or physical
safety of an individual; 2. flight from prosecution; 3. destruction of
or tampering with evidence; 4. intimidation of potential witnesses; or
5. otherwise seriously jeopardizing an investigation or unduly delaying
a trial. This last catch-all category could apply in virtually any
criminal case. In addition, while some courts had required the service
of the warrant within a specified period of time, the PATRIOT Act
simply required that the warrant specify that it would be served within
a ``reasonable'' period of time after the search.
It is interesting to note that this provision of the PATRIOT Act was
not limited to terrorism cases. In fact, before the PATRIOT Act passed,
the FBI already had the authority to conduct secret searches of foreign
terrorists and spies with no notice at all under the Foreign
Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and
peek'' authority was not made subject to the sunset provision that will
cause many of the new surveillance provisions of the act to expire at
the end of this year unless Congress reenacts them. So Section 213 was
pretty clearly a provision that the Department of Justice wanted
regardless of the terrorism threat after 9/11.
Perhaps that is why this provision has caused such controversy since
it was passed. In 2003, by a wide bipartisan margin, the House passed
an amendment to the Commerce-Justice-

[[Page S1131]]

State appropriations bill offered by Representative Otter from Idaho, a
Republican, to stop funding for delayed notice searches authorized
under section 213. The size of the vote took the Department by
surprise, and it immediately set out to defend the provision
aggressively. Clearly, this is a power that the Department does not
want to lose.

I raised concerns about the sneak and peek provision when it was
included in the PATRIOT Act. I did not, and still do not, believe there
had been adequate study and analysis of the justifications for these
searches and the potential safeguards that might be included. I did not
argue then, however, and I am not arguing now that there should be no
delayed notice searches at all and that the provision should be
repealed. I simply believe that this provision should be modified to
protect against abuse. My bill will do four things to accomplish this.
First, my bill would narrow the circumstances in which a delayed
notice warrant can be granted to the following: potential loss of life,
flight from prosecution, destruction or tampering with evidence, or
intimidation of potential witnesses. The ``catch-all provision'' in
section 213, allowing a secret search when serving the warrant would
``seriously jeopardize an investigation or unduly delay a trial'' can
too easily be turned into permission to do these searches whenever the
government wants.
Second, I believe that any delayed notice warrant should provide for
a specific and limited time period within which notice must be given--7
days. This is consistent with some of the pre-PATRIOT Act court
decisions and will help to bring this provision in closer accord with
the Fourth Amendment to the Constitution. Under my bill, prosecutors
will be permitted to seek 7-day extensions if circumstances continue to
warrant that the subject not be made aware of the search. But the
default should be a week, unless a court is convinced that more time
should be permitted.
Third, Section 213 should include a sunset provision so that it
expires along with the other expanded surveillance provisions in Title
II of the PATRIOT Act, at the end of 2005. This will allow Congress to
determine if the balance between civil liberties and law enforcement
has been correctly struck.
Finally, the bill requires a public report on the number of times
that section 213 is used, the number of times that extensions are
sought beyond the 7-day notice period, and the type of crimes being
investigated with this power. This information will help the public and
Congress evaluate the need for this authority and determine whether it
should be retained or modified after the sunset.
These are reasonable and moderate changes to the law. They do not gut
the provision. Rather, they recognize the growing and legitimate
concern from across the political spectrum that this provision was
passed in haste and presents the potential for abuse. They also send a
message that Fourth Amendment rights have meaning and potential
violations of those rights should be minimized if at all possible. I
urge my colleagues to support this bill.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 316

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 ``Reasonable Notice and Search
Act''.

SEC. 2. LIMITATION ON AUTHORITY TO DELAY NOTICE OF SEARCH
WARRANTS.

Section 3103a of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking ``may have an adverse
result (as defined in section 2705)'' and inserting ``will
endanger the life or physical safety of an individual, result
in flight from prosecution, result in the destruction of or
tampering with the evidence sought under the warrant, or
result in intimidation of potential witnesses''; and
(B) in paragraph (3), by striking ``a reasonable period''
and all that follows and inserting ``7 calendar days, which
period, upon application of the Attorney General, the Deputy
Attorney General, or an Associate Attorney General, may
thereafter be extended by the court for additional periods of
up to 7 calendar days each if the court finds, for each
application, reasonable cause to believe that notice of the
execution of the warrant will endanger the life or physical
safety of an individual, result in flight from prosecution,
result in the destruction of or tampering with the evidence
sought under the warrant, or result in intimidation of
potential witnesses.''; and
(2) by adding at the end the following:
``(c) Reports.--
``(1) In general.--On a semiannual basis, the Attorney
General shall transmit to Congress and make public a report
concerning all requests for delays of notice, and for
extensions of delays of notice, with respect to warrants
under subsection (b).
``(2) Contents.--Each report under paragraph (1) shall
include, with respect to the preceding 6-month period--
``(A) the total number of requests for delays of notice
with respect to warrants under subsection (b);
``(B) the total number of such requests granted or denied;
``(C) for each request for delayed notice that was granted,
the total number of applications for extensions of the delay
of notice and the total number of such extensions granted or
denied; and
``(D) on an aggregate basis, the nature of the crime being
investigated for each request for delay of notice that was
granted or denied.''.

SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.

(a) PATRIOT Act.--Section 224(a) of the USA PATRIOT Act of
2001 (Public Law 107-56; 115 Stat. 295) is amended by
striking ``213,''.
(b) Amendments.--The amendments made by this Act shall
sunset as provided in section 224 of the USA PATRIOT Act of
2001.
______

By Mr. FEINGOLD (for himself, Mr. Akaka, Mr. Bingaman, Ms.
Cantwell, Mr. Corzine, Mr. Dayton, Mr. Durbin, Mr. Jeffords,
Mr. Kennedy, and Mr. Wyden):
S. 317. A bill to protect privacy by limiting the access of the
Government to library, bookseller, and other personal records for
foreign intelligence and counterintelligence purposes; to the Committee
on the Judiciary.
Mr. FEINGOLD. Mr. President, today I will reintroduce the Library,
Bookseller, and Personal Records Privacy Act. The bill is identical to
the bill I introduced in the 108th Congress, S. 1507.
This bill would amend Sections 215 and 505 of the USA-PATRIOT Act to
protect the privacy of law-abiding Americans. It would set reasonable
limits on the Federal Government's access to library, bookseller,
medical, and other sensitive, personal information under the Foreign
Intelligence Surveillance Act (``FISA'') and related foreign
intelligence authority.
I am pleased that several of my distinguished colleagues have joined
me as original cosponsors of this important legislation.
Millions of Patriotic Americans love our country and support our
military men and women in their difficult missions abroad, but worry
about the fate of our Constitution here at home.
Much of our Nation's strength comes from our constitutional liberties
and respect for the rule of law. That is what has kept us free for our
two and a quarter century history. Our constitutional freedoms, our
American values, are what make our country worth fighting for as we
strive to win the war on terror.
Here at home, there is no question that the FBI needs ample resources
and legal authority to prevent future acts of terrorism. But the
PATRIOT Act went too far when it comes to the government's access to
personal information about law abiding Americans.
Even though in the end I opposed the PATRIOT Act, there were many
provisions that I did support. And even in those provisions I sought to
amend when the bill was debated, there was often some change that I
supported. For example, Congress was right to expand the category of
business records that the FBI could obtain pursuant to the Foreign
Intelligence Surveillance Act. Prior to the PATRIOT Act, the FBI could
seek a court order to obtain only travel records--such as airline,
hotel, and car rental records--and records maintained by storage
facilities. The PATRIOT Act allows any business records to be
subpoenaed. I don't quibble with that change.
But what my colleagues and I do find problematic--and an increasing
number of Americans who value their privacy and First Amendment rights
agree with us--is that the current law allows the FBI broad, almost
unfettered access to personal information

[[Page S1132]]

about law-abiding Americans who have no connection to terrorism or
spying.

Section 215 of the PATRIOT Act requires the FBI to show in an
application to the court that the documents are ``sought for'' an
international terrorism or foreign intelligence investigation. There is
no requirement that the FBI make a showing of individualized suspicion
that the documents relate to a suspected terrorist or spy.
In other words, under current law, the FBI could serve a subpoena on
a library for all the borrowing records of its patrons or on a
bookseller for the purchasing records of its customers simply by
asserting that they want the records for a terrorism investigation.
Since the passage of the PATRIOT Act, librarians and booksellers have
become increasingly concerned by the potential for abuse of this law. I
was pleased to stand with the American Booksellers Association and the
Free Expression Network over 2 years ago when we first started to raise
these concerns.
Librarians and booksellers are concerned that under the PATRIOT Act,
the FBI could seize records from libraries and booksellers in order to
monitor what books Americans have purchased or borrowed, or who has
used a library's or bookstore's internet computer stations, even if
there is no evidence that the person is a terrorist or spy, or has any
connection to a terrorist or spy.
These concerns are so strong that some librarians across the country
have taken the unusual step of destroying records of patrons' book and
computer use, as well as posting signs on computer stations warning
patrons that whatever they read or access on the internet could be
monitored by the federal government.
As a librarian in California said, ``We felt strongly that this had
to be done. . . . The government has never had this kind of power
before. It feels like Big Brother.''
And as the executive director of the American Library Association
said, ``This law is dangerous. . . . I read murder mysteries--does that
make me a murderer? I read spy stories--does that mean I'm a spy?
There's no clear link between a person's intellectual pursuits and
their actions.''
The American people do not know how many or what kind of requests
Federal agents have made for library records under the PATRIOT Act. The
Justice Department refuses to release that information to the public.
But in a survey released by the University of Illinois at Urbana-
Champaign, about 550 libraries around the Nation reported having
received requests from Federal or local law enforcement during the past
year. About half of the libraries said they complied with the law
enforcement request, and another half indicated that they had not.
Americans don't know much about these incidents, because the law also
contains a provision that prohibits anyone who receives a subpoena from
disclosing that fact to anyone.
In testimony before the Judiciary Committee, Attorney General
Ashcroft stated that as of September 18, 2003, the Department of
Justice had never used Section 215. The Department has not made that
claim in public testimony since then, leading many to speculate that
the provision has now been used. Whether it has been used once, or
dozens of times, the problem with the section remains--it is too broad
and does not permit adequate judicial supervision. There is a potential
for overreaching that Congress must address.
David Schwartz, president of Harry W. Schwartz Bookshops, the oldest
and largest independent bookseller in Milwaukee, summed up well the
American values at stake when he said: ``The FBI already has
significant subpoena powers to obtain records. There is no need for the
government to invade a person's privacy in this way. This is a uniquely
un-American tool, and it should be rejected. The books we read are a
very private part of our lives. People could stop buying books, and
they could be terrified into silence.''
I would not claim that we have reached the point where people in this
country are afraid to buy books, but section 215 is a tool that is
unnecessarily broad. And it raises the specter of indiscriminate
government snooping into the private lives of innocent citizens, which
is an unnecessary distraction from the serious law enforcement work
that is needed to fight terrorism.
It is time to reconsider those provisions of the PATRIOT Act that are
un-American and, frankly, unpatriotic.
But my concerns with the PATRIOT Act go beyond library and bookseller
records. Under section 215 of the PATRIOT Act, the FBI could seek any
records maintained by a business. These business records could contain
sensitive, personal information--for example, medical records
maintained by a doctor or hospital or credit records maintained by a
credit agency. All the FBI would have to do is simply assert that the
records are ``sought for'' its terrorism or foreign intelligence
investigation.
Section 215 of the PATRIOT Act goes too far. Americans rightfully
have a reasonable expectation of privacy in their library, bookstore,
medical, financial, or other records containing personal information.
Prudent safeguards are needed to protect these legitimate privacy
interests.
The Library, Bookseller, and Personal Records Privacy Act is a
reasonable solution. It would restore a pre-PATRIOT Act requirement
that the FBI make a factual, individualized showing that the records
sought pertain to a suspected terrorist or spy while leaving in place
other PATRIOT Act expansions of this business records power.
My bill will not prevent the FBI from doing its job. It recognizes
that the post-September 11 world is a different world. There are
circumstances when the FBI should legitimately have access to library,
bookseller, or other personal information.
I'd like to take a moment to explain how the safeguard in my bill
would be applied. Suppose the FBI is conducting an investigation of an
international terrorist organization. It has information that suspected
members of the group live in a particular neighborhood. The FBI would
like to obtain records from the library in the suspects' neighborhood.
Under current law, the FBI could decide to ask the library for all
records concerning anyone who has ever borrowed a book or used a
computer, and what books were borrowed, simply by asserting that the
documents are sought for a terrorism investigation. But under my bill,
the FBI could not do so. The FBI would have to set forth specific and
articulable facts giving reason to believe that the person to whom the
records pertain is a suspected terrorist. The FBI could obtain only
those library records--such as borrowing records or computer sign-in
logs--that pertain to the suspected terrorists. The FBI could not
obtain library records concerning individuals who are not suspected
terrorists.
So, under my bill, the FBI can still obtain documents that it
legitimately needs, but my bill would also protect the privacy of law-
abiding Americans. I might add that if, as the Justice Department says,
the FBI is using its PATRIOT Act powers in a responsible manner, does
not seek the records of law-abiding Americans, and only seeks the
records of suspected terrorists or suspected spies, then there is no
reason for the Department to object to my bill.
The second part of my bill would address privacy concerns with
another Federal law enforcement power expanded by the PATRIOT Act--the
FBI's national security letter authority. The FBI does not need court
approval to use this power.
My bill would amend section 505 of the PATRIOT Act. Part of this
section relates to the production of records maintained by electronic
communications providers. Libraries or bookstores with internet access
for customers could be deemed ``electronic communication providers''
and therefore be subject to a request by the FBI under its NSL
authority.
As I mentioned earlier, some librarians are so concerned about the
potential for abuse by the FBI that they have taken matters into their
own hands before the FBI knocks on their door. Some librarians have
begun shredding on a daily basis sign-in logs and other documents
relating to the public's use of library computer terminals to access
the internet.
Again, safeguards are needed to ensure that any individual who
accesses the internet at a library or bookstore does not automatically
give up all expectations of privacy. Like the section

[[Page S1133]]

215 fix I've discussed, my bill would require an individualized showing
by the FBI of how the records of internet usage maintained by a library
or bookseller pertain to a suspected terrorist or spy.
Yes, the American people want the FBI to be focused on preventing
terrorism. And, yes, it may make sense to make some changes to the law
to allow the FBI access to the information that it needs to prevent
terrorism. But we do not need to change the values that constitute who
we are as a Nation in order to protect ourselves from terrorism. We can
protect both our Nation and our privacy and civil liberties.
An increasing number of Americans are beginning to understand that
the PATRIOT Act went too far. Four States and over 350 cities and
counties across the country have now passed resolutions expressing
opposition to the PATRIOT Act. And it's not just the Berkeleys and
Madisons of this Nation, but other States and communities with strong
conservative and libertarian values, such as Alaska and cities in
Montana, that have passed such resolutions.
I have many concerns with the PATRIOT Act. I am not seeking to repeal
it, in whole or in part. In this bill, my colleagues and I are only
seeking to modify two provisions that pose serious potential for abuse.
The privacy of law-abiding Americans is at stake, along with their
confidence in their government. Congress should act to protect our
privacy and reassure our citizens. The Library, Bookseller, and
Personal Records Privacy Act bill is a reasonable approach to do just
that. I urge my colleagues to support this legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 317

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Library, Bookseller, and
Personal Records Privacy Act''.

SEC. 2. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO LIBRARY,
BOOKSELLER, AND OTHER PERSONAL RECORDS UNDER
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

(a) Applications for Orders.--Subsection (b) of section 501
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) shall specify that there are specific and articulable
facts giving reason to believe that the person to whom the
records pertain is a foreign power or an agent of a foreign
power.''.
(b) Orders.--Subsection (c)(1) of that section is amended
by striking ``finds'' and all that follows and inserting
``finds that--
``(A) there are specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power; and
``(B) the application meets the other requirements of this
section.''.
(c) Oversight of Requests for Production of Records.--
Section 502 of that Act (50 U.S.C. 1862) is amended--
(1) in subsection (a), by striking ``the Permanent'' and
all that follows through ``the Senate'' and inserting ``the
Permanent Select Committee on Intelligence and the Committee
on the Judiciary of the House of Representatives and the
Select Committee on Intelligence and the Committee on the
Judiciary of the Senate''; and
(2) in subsection (b), by striking ``On a semiannual
basis,'' and all that follows through ``a report setting
forth'' and inserting ``The report of the Attorney General to
the Committees on the Judiciary of the House of
Representatives and the Senate under subsection (a) shall set
forth''.

SEC. 3. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO
INFORMATION ON COMPUTER USERS AT BOOKSELLERS
AND LIBRARIES UNDER NATIONAL SECURITY
AUTHORITY.

(a) In General.--Section 2709 of title 18, United States
Code, is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following new
subsection (e):
``(e) Records of Booksellers and Libraries.--(1) When a
request under this section is made to a bookseller or
library, the certification required by subsection (b) shall
also specify that there are specific and articulable facts
giving reason to believe that the person or entity to whom
the records pertain is a foreign power or an agent of a
foreign power.
``(2) In this subsection:
``(A) The term `bookseller' means a person or entity
engaged in the sale, rental, or delivery of books, journals,
magazines, or other similar forms of communication in print
or digitally.
``(B) The term `library' means a library (as that term is
defined in section 213(2) of the Library Services and
Technology Act (20 U.S.C. 9122(2))) whose services include
access to the Internet, books, journals, magazines,
newspapers, or other similar forms of communication in print
or digitally to patrons for their use, review, examination,
or circulation.
``(C) The terms `foreign power' and `agent of a foreign
power' have the meaning given such terms in section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).''.
(b) Sunset of Certain Modifications on Access.--Section
224(a) of the USA PATRIOT ACT of 2001 (Public Law 107-56; 115
Stat. 295) is amended by inserting ``and section 505'' after
``by those sections)''.
______

By Mr. FEINGOLD:
S. 318. A bill to clarify conditions for the interceptions of
computer trespass communications under the USA-PATRIOT Act; to the
Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, I am pleased to introduce the Computer
Trespass Clarification Act of 2005, which would amend and clarify
section 217 of the USA-PATRIOT Act. This bill is virtually identical to
a bill I introduced in the 108th Congress, S. 2783.
Section 217 of the PATRIOT Act addresses the interception of computer
trespass communications. This bill would modify existing law to more
accurately reflect the intent of the provision, and also protect
against invasions of privacy.
Section 217 was designed to permit law enforcement to assist computer
owners who are subject to denial of service attacks or other episodes
of hacking. The original Department of Justice draft of the bill that
later became the PATRIOT Act included this provision. A section by
section analysis provided by the Department on September 19, 2001,
stated the following: ``Current law may not allow victims of computer
trespassing to request law enforcement assistance in monitoring
unauthorized attacks as they occur. Because service providers often
lack the expertise, equipment, or financial resources required to
monitor attacks themselves as permitted under current law, they often
have no way to exercise their rights to protect themselves from
unauthorized attackers. Moreover, such attackers can target critical
infrastructures and engage in cyberterrorism. To correct this problem,
and help to protect national security, the proposed amendments to the
wiretap statute would allow victims of computer attacks to authorize
persons `acting under color of law' to monitor trespassers on their
computer systems in a narrow class of cases.''
I strongly supported the goal of giving computer system owners the
ability to call in law enforcement to help defend themselves against
hacking. Including such a provision in the PATRIOT Act made a lot of
sense. Unfortunately, the drafters of the provision made it much
broader than necessary, and refused to amend it at the time we debated
the bill in 2001. As a result, the law now gives the government the
authority to intercept communications by people using computers owned
by others as long as they have engaged in some unauthorized activity on
the computer, and the owner gives permission for the computer to be
monitored--all without judicial approval.
Only people who have a ``contractual relationship'' with the owner
allowing the use of a computer are exempt from the definition of a
computer trespasser under section 217 of the PATRIOT Act. Many people--
for example, college students, patrons of libraries, Internet cafes or
airport business lounges, and guests at hotels--use computers owned by
others with permission, but without a contractual relationship. They
could end up being the subject of government snooping if the owner of
the computer gives permission to law enforcement.
My bill would clarify that a computer trespasser is not someone who
has permission to use a computer by the owner or operator of that
computer. It would bring the existing computer trespass provision in
line with the purpose of section 217 as expressed in the Department of
Justice's initial explanation of the provision. Section 217 was
intended to target only a narrow class of people: Unauthorized

[[Page S1134]]

cyberhackers. It was not intended to give the government the
opportunity to engage in widespread surveillance of computer users
without a warrant.
I should note that there is no specific evidence that the provision
is being abused. But, of course, unless criminal charges are brought
against someone as a result of such surveillance, there would never be
any notice at all that the surveillance has taken place. The computer
owner authorizes the surveillance, and the FBI carries it out. There is
no warrant, no court proceeding, no opportunity even for the subject of
the surveillance to challenge the assertion of the owner that some
unauthorized use of the computer has occurred.
My bill would modify the computer trespass provision in the following
ways to protect against abuse, while still maintaining its usefulness
in cases of denial of service attacks and other forms of hacking.
First, it would require that the owner or operator of the protected
computer authorizing the interception has been subject to ``an ongoing
pattern of communications activity that threatens the integrity or
operation of such computer.'' In other words, the owner has to be the
target of some kind of hacking.
Second, the bill limits the length of warrantless surveillance to 96
hours. This is twice as long as is allowed for an emergency wiretap.
With four days of surveillance, it should not be difficult for the
government to gather sufficient evidence of wrongdoing to obtain a
warrant if continued surveillance is necessary.
Finally, the bill would require the Attorney General to annually
report on the use of Section 217 to the Senate and House Judiciary
Committees. Section 217 is one of the provisions that is subject to the
sunset provision in the PATRIOT Act and will expire at the end of 2005.
We in the Congress need to do more oversight of the use of this and
other provisions of PATRIOT Act in order to evaluate their
effectiveness.
The computer trespass provision now in the law as a result of section
217 of the PATRIOT Act leaves open the possibility for significant and
unnecessary invasions of privacy. The reasonable and modest changes to
the provision contained in this bill preserve the usefulness of the
provision for investigations of cyberhacking, but reduce the
possibility of government abuse. We must continually seek to balance
the need for effective tools to fight crime and terrorism against the
civil liberties of our citizens. The Computer Trespass Clarification
Act strikes the right balance, and I urge my colleagues to support it.
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. 318

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 ``Computer Trespass
Clarification Act of 2005''.

SEC. 2. AMENDMENTS TO TITLE 18.

(a) Definitions.--Section 2510(21)(B) of title 18, United
States Code, is amended by--
(1) inserting ``or other'' after ``contractual''; and
(2) striking ``for access'' and inserting ``permitting
access''.
(b) Interception and Disclosure.--Section 2511(2)(i) of
title 18, United States Code, is amended--
(1) in clause (I), by inserting after ``the owner or
operator of the protected computer'' the following: ``is
attempting to respond to communications activity that
threatens the integrity or operation of such computer and
requests assistance to protect rights and property of the
owner or operator, and''; and
(2) in clause (IV), by inserting after ``interception'' the
following: ``ceases as soon as the communications sought are
obtained or after 96 hours, whichever is earlier, unless an
interception order is obtained under this chapter, and''.
(c) Report.--The Attorney General shall, within 60 days of
enactment and annually thereafter, report to the Committees
on the Judiciary of the Senate and the House of
Representatives on the use during the previous year of
section 2511 of title 18, United States Code, relating to
computer trespass provisions as amended by subsection (b).
______

By Mr. DOMENICI (for himself and Mr. Kennedy):
S. 319. A bill to amend the Public Health Service Act to revise the
amount of minimum allotments under the Projects for Assistance in
Transition from Homelessness program; to the Committee on Health,
Education, Labor, and Pensions.
Mr. DOMENICI. Mr. President, I rise today with my friend Senator
Kennedy to introduce a bill that will raise the minimum grant amounts
given to States and territories under the PATH program. The PATH
program provides services through formula grants of at least $300,000
to each State, the District of Columbia and Puerto Rico and $50,000 to
eligible U.S. territories. Subject to available appropriations, this
bill will raise the minimum allotments to $600,000 to each State and
$100,000 to eligible US territories.
When the PATH program was established in fiscal year 1991 as a
formula grant program, Congress appropriated $33 million. That amount
has steadily increased over the years with Congress appropriating $55
million this past year. However, despite these increases, States and
territories such as New Mexico that have rural and frontier
populations, have not received an increase in their PATH funds. Under
the formula, as it currently exists, many states and territories will
never receive an increase to their PATH program, even with increasing
demand and inflation. This problem is occurring in my home State of New
Mexico as well as twenty-five other States and territories throughout
the United States.
The PATH program is authorized under the Public Health Service Act
and it funds community-based outreach, mental health, substance abuse,
case management and other support services, as well as a limited set of
housing services for people who are homeless and have serious mental
illnesses. Program services are provided in a variety of different
settings, including clinic sites, shelter-based clinics, and mobile
units. In addition, the PATH program takes health care services to
locations where homeless individuals are found, such as streets, parks,
and soup kitchens.
PATH services are a key element in the plan to end chronic
homelessness. Every night, an estimated 600,000 people are homeless in
America. Of these, about one-third are single adults with serious
mental illnesses. I have worked closely with organizations in New
Mexico such as Albuquerque Health Care for the Homeless and I have seen
first hand the difficulties faced by the more than 15,000 homeless
people in New Mexico, 35 percent of who are chronically mentally ill or
mentally incapacitated.
PATH is a proven program that has been very successful in moving
people out of homelessness. PATH has been reviewed by the Office of
Management and Budget and has scored significantly high marks in
meeting program goals and objectives. Unquestionably, homelessness is
not just an urban issue. Rural and frontier communities face unique
challenges in serving PATH eligible persons and the PATH program
funding mechanisms must account for these differences.
Thank you and I look forward to working with my colleague Senator
Kennedy on this important issue.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 319

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

SECTION 1. MINIMUM ALLOTMENTS UNDER THE PROJECTS FOR
ASSISTANCE IN TRANSITION FROM HOMELESSNESS
PROGRAM.

Section 524 of the Public Health Service Act (42 U.S.C.
290cc-24) is amended to read as follows:

``SEC. 524. DETERMINATION OF AMOUNT OF ALLOTMENT.

``(a) Determination Under Formula.--Subject to subsection
(b), the allotment required in section 521 for a State for a
fiscal year is the product of--
``(1) an amount equal to the amount appropriated under
section 535 for the fiscal year; and
``(2) a percentage equal to the quotient of--
``(A) an amount equal to the population living in urbanized
areas of the State involved, as indicated by the most recent
data collected by the Bureau of the Census; and
``(B) an amount equal to the population living in urbanized
areas of the United States, as indicated by the sum of the
respective amounts determined for the States under
subparagraph (A).

[[Page S1135]]

``(b) Minimum Allotment.--
``(1) In general.--Subject to paragraph (2), the allotment
for a State under section 521 for a fiscal year shall, at a
minimum, be the greater of--
``(A) the amount the State received under section 521 in
fiscal year 2005; and
``(B) $600,000 for each of the several States, the District
of Columbia, and the Commonwealth of Puerto Rico, and
$100,000 for each of Guam, the Virgin Islands, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
``(2) Condition.--If the funds appropriated in any fiscal
year under section 535 are insufficient to ensure that States
receive a minimum allotment in accordance with paragraph (1),
then--
``(A) no State shall receive less than the amount they
received in fiscal year 2005; and
``(B) any funds remaining after amounts are provided under
subparagraph (A) shall be used to meet the requirement of
paragraph (1)(B), to the maximum extent possible.''.
______

By Mr. ALLARD:
S. 320. A bill to require the Secretary of the Army to carry out a
pilot on compatible use buffers on real property bordering Fort Carson,
Colorado, and for other purposes; to the Committee on Armed Services.
Mr. ALLARD. Mr. President, I rise today to introduce the Fort Carson
Conservation Act of 2005 and take a moment to explain why this
legislation is critical to our national security.
Since World War II, hundreds of thousands of soldiers at Fort Carson
have trained in relative isolation. With few current residents nearby,
the Army has been using Fort Carson's ranges for large-scale training
exercises, weapons testing and live fire. This training often occurs at
night, a vital capability given the Army's preference to conduct
military operations in darkness.
The 140,000 acre Army installation and training facility was once
miles from Colorado Springs and Pueblo. As both cities grow closer to
the base's fence line, Fort Carson is facing constraints on its
training flexibility, impacting military readiness. The issue of
training at the post is particularly relevant considering nearly 15,000
soldiers based at Fort Carson have been deployed or are currently
employed to Iraq.
The situation is not getting better. Over the last two decades, real
estate and industrial development along Colorado's front range has
exploded. Hundreds of thousands of people have moved to the Centennial
State and settled along the 1-25 corridor. I remember the days when it
was possible to drive for miles along the eastern foothills of the
Rocky Mountains and encounter few if any residential areas. Today,
there seems to be development all along Colorado's front range.
Yet, military readiness at the post is not the only thing at risk.
The post's fragile prairie habitat is also in danger. Fort Carson has
always prided itself on its conservation of the public trust. Mountain
Post has a special office just to ensure environmental compliance and
protect the post's biodiversity. The mountain plover, the black-tailed
prairie dog, the Arkansas River feverfew, and the Pueblo goldenweed are
among the many rare species protected at Fort Carson.
Over the last 3 years Fort Carson has partnered with the Nature
Conservancy on a unique plan to address the rising encroachment
concerns. This forward-thinking plan calls for the purchase of
conservation easements of lands south and southeast of the base for a
small number of willing sellers.
If implemented, I believe the plan will preserve the military utility
of key Fort Carson training areas while conserving important short
grass prairie at a landscape scale, along with the ranching community
that sustains it. As much as 82,000 acres of uninhibited, precious
prairie would be protected, including four globally rare plant species.
The Army fully supports this plan and has consistently described it
as its number one priority under the service's Compatible Use Buffer
program. This plan also enjoys widespread support from the local
community, including the Colorado Springs Chamber of Commerce. The
Colorado Department of Transportation, the Great Outdoors of Colorado,
and the Nature Conservancy all support the plan as well.
I be1ieve we need to act now to protect unique training facilities
like those at Fort Carson before it is too late. This program makes
sense for the soldiers training at Fort Carson who require an isolated
environment to conduct their maneuvers. This program makes sense for
the environment.
This plan makes too much sense for Congress to pass up. That is why I
am introducing the Fort Carson Conservation Act. I am pleased that
Congressman Joel Hefley is introducing this landmark legislation in the
House of Representatives today as well.
The Fort Carson Conservation Act of 2005 would require the Secretary
of the Army to carry out a pilot project that creates a buffer zone out
of the property bordering Fort Carson. The objective of this pilot
would be to demonstrate the feasibility and effectiveness of utilizing
conservation easements and leases to limit enroachment and preserve the
environment.
Under the pilot project, the Secretary of the Army would enter into
agreements with one or more willing sellers to purchase conservation
easements. These agreements would be founded on the authority already
provided in section 2684a of title 10 of the United States Code. The
pilot project would expire when either the project is completed or
within 5 years.
From my perspective, this pilot project is only the beginning. By
working closely with the Army and the other military services, the
Nature Conservancy has planted the seed for the expansion of this
project. I strongly support the Conservancy's effort and believe that
key military installations like Fort Bragg, Camp Lejeune, Fort
Huachuca, Fort Stewart, and Eglin Air Force Base will soon be in a
position to benefit from this proactive conservation effort.
Mr. President, it is a little known secret that the Department of
Defense is one of the best stewards of our environment. Almost 350
endangered and threatened species live on military bases across the
country--that is more than are found on land managed by the National
Park Service, the Fish and Wildlife Service, and the Bureau of Land
Management. In an era of rapid growth and urban development, military
training areas have become, in many respects, the last refuge for many
endangered species.
Creating natural buffer zones that protect fragile habitat and ensure
our military readiness is a win-win proposal. It is the right thing to
do for the environment. It is the right thing to do for our Nation's
Armed Forces. I urge my colleagues to support the Fort Carson
Conservation Act.
Thank you for the opportunity to speak on this important matter.
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. 320

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 ``Fort Carson Conservation Act
of 2005''.

SEC. 2. PILOT PROJECT ON COMPATIBLE USE BUFFERS ON REAL
PROPERTY BORDERING FORT CARSON, COLORADO.

(a) In General.--The Secretary of the Army shall carry out
a pilot project at Fort Carson, Colorado, for purposes of
evaluating the feasibility and effectiveness of utilizing
conservation easements and leases granted by one or more
willing sources to limit development and preserve habitat on
real property in the vicinity of or ecologically related to
military installations in the United States.
(b) Procedures.--
(1) Phases.--The Secretary shall carry out the pilot
project in four phases, as specified in the Fort Carson Army
Compatible Use Buffer Project.
(2) Lease and easement agreements.--Under the pilot
project, the Secretary shall enter into agreements with one
or more eligible entities who are willing to do so to
purchase from the entity or entities one or more conservation
easements, or to lease from the entity or entities one or
more conservation leases, on real property in the vicinity of
or ecologically related to Fort Carson for the purposes of--
(A) limiting any development or use of the property that
would be incompatible with the current and anticipated future
missions of Fort Carson; or
(B) preserving habitat on the property in a manner that--
(i) is compatible with environmental requirements; and
(ii) may eliminate or reduce current or anticipated
environmental restrictions that would or might otherwise
restrict, impede, or otherwise interfere, whether directly or
indirectly, with current or anticipated military training,
testing, or operations on Fort Carson.

[[Page S1136]]

(3) Encroachments and other constraints on use.--In
entering into agreements under the pilot project, the
Secretary may, subject to the provisions of this section,
utilize the authority for agreements under this subsection to
limit encroachments and other constraints on military
training, testing, and operations under section 2684a of
title 10, United States Code.
(4) Relationship to current use plan.--Any agreement
entered into under the pilot project shall be compatible with
the Fort Carson Army Compatible Use Buffer Project.
(c) Expiration.--The authority of the Secretary to enter
into agreements under the pilot project shall expire on the
earlier of--
(1) the date of the completion of phase IV of the Fort
Carson Army Compatible Use Buffer Project; or
(2) the date that is five years after the date of the
enactment of this Act.
(d) Definitions.--In this section:
(1) The term ``Fort Carson Army Compatible Use Buffer
Project'' means the Fort Carson Army Compatible Use Buffer
Project, a plan to use conservation easements and leases on
property in the vicinity of or ecologically related to Fort
Carson to create a land buffer to accommodate current and
future missions at Fort Carson while conserving sensitive
natural resources.
(2) The term ``eligible entity'' means any of the
following:
(A) A State or political subdivision of a State.
(B) A private entity that has as its stated principal
organizational purpose or goal the conservation, restoration,
or preservation of land and natural resources, or a similar
purpose or goal, as determined by the Secretary.
(e) Funding.--
(1) Authorization of appropriations.--Funds are hereby
authorized to be appropriated to the Department of Defense
for fiscal year 2006 for the Department of Defense, for
expenses not otherwise provided for, for operation and
maintenance for Defense-wide activities in the amount of
$30,000,000, to be available for the pilot project.
(2) Availability without fiscal year limitation.--Funds
authorized to be appropriated by paragraph (1) shall be
available without fiscal year limitation.
______

By Ms. SNOWE (for herself, Mr. Kohl, Mr. Rockefeller, and Ms.
Landrieu):
S. 321. A bill to provide more child support money to families
leaving welfare, to simplify the rules governing the assignment and
distribution of child support collected by States on behalf of
children, to improve the collection of child support, and for other
purposes; to the Committee on Finance.
Mr. KOHL. Mr. President, I rise today in strong support of the Child
Support Distribution Act 2005, which Senator Snowe and I introduced
today. I want to thank Senator Snowe for her hard work and dedication
to this important issue and am proud to have worked with her for many
years on this legislation. And I'd like to thank Senators Rockefeller
and Landrieu for their cosponsorship and support.
Senator Snowe and I have worked, both separately and in tandem, on
issues related to child support for more than ten years. On many
occasions, we've come close to seeing the positive changes contained in
this legislation enacted. In 2000, a House version of this bill passed
by an overwhelming bipartisan vote of 405 to 18. In the 108th Congress,
our legislation was included in the TANF Reauthorization bill that
passed out of the Senate Finance Committee with bipartisan support.
This year, S. 6, which was introduced by Senator Santorum, and is
supported by Majority Leader Frist and Senators McConnell and
Hutchison, contains child support provisions that are almost based
entirely on the legislation we're discussing today.
This legislation consistently receives bipartisan support because it
takes a common sense approach to child support. By passing through more
child support funds directly to low-income families, rather than
sending it to the federal government, non-custodial parents are more
likely pay, and families see a huge benefit from the additional income.
Currently, approximately 60 percent of poor children who live with
their mothers and whose fathers live outside the home do not receive
child support. Though there are a variety of reasons why non-custodial
parents may not be paying support for then children, many don't pay
because the system actually discourages them from doing so.
Under current law, $2.1 billion in child support is retained every
year by the State and Federal Governments as repayment for welfare
benefits--rather than delivered to the children to whom it is owed.
Fifty-six percent of that amount is for families who have left welfare.
Since the money doesn't benefit their kids, fathers are discouraged
from paying support. And mothers have no incentive to push for payment
since the support doesn't go to them.
The current rules withhold a key source of income for low-income
families that could help them maintain self-sufficiency. According to
the Center for Law and Social Policy, child support constitutes 16
percent of family income for low-income households that receive it. For
families who leave welfare, this number almost doubles. A Washington
State study of families leaving welfare with regular child support
payments found that these families found work faster and kept jobs
longer, compared to families without steady child support income.
It's time for Congress to change this system and encourage States to
distribute more child support to families. My home State of Wisconsin
has been a leader in this practice, which has benefited thousands of
working families. In 1997, I worked with my State to institute an
innovative program of passing through child support payments directly
to families. An evaluation of the Wisconsin program clearly shows that
when child support payments are delivered to families, non-custodial
parents are more apt to pay, and to pay more. In addition, Wisconsin
has found that, overall, this policy does not increase government
costs. That makes sense because ``passing through'' support payments to
families means they have more of their own resources, and are less apt
to depend on public help to meet other needs such as food,
transportation or child care.

We now have a key opportunity to encourage all States to follow
Wisconsin's example. This legislation gives States options and strong
incentives to send more child support directly to families who are
working their way off--or are already off--public assistance. Not only
will this create the right incentives for non-custodial parents to pay,
but it will also simplify the job for States, who currently face an
administrative nightmare in following the complicated rules of the
current system.
This legislation finally brings the Child Support Enforcement program
into the post-welfare reform era, shifting its focus from recovering
welfare costs to increasing child support to families so they can
sustain work and maintain self-sufficiency. After all, it's only fair
that if we are asking parents to move off welfare, stay off welfare,
and take financial responsibility for their families, then we in
Congress must make sure that child support payments actually go to the
families to whom they are owed and who are working so hard to succeed.
It is time for Congress to make this change. It's time that we
finally make child support meaningful for families, and make sure that
children get the support they need and deserve.
______

Mr. JEFFORDS (for himself, Mr. Leahy, Mrs. Clinton, and Mr.
Schumer):
S. 322. A bill to establish the Champlain Valley National Heritage
Partnership in the States of Vermont and New York, and for other
purposes; to the Committee on Energy and Natural Resources.
Mr. JEFFORDS. Mr. President, I am very pleased to introduce the
Champlain Valley National Heritage Act of 2005. I am joined by Senator
Leahy and Senators Schumer and Clinton of New York. This bill will
establish a National Heritage Partnership within the Champlain Valley.
Passage of this bill will culminate a process to enhance the incredible
cultural resources of the Champlain Valley.
The Champlain Valley of Vermont and New York has one of the richest
and most intact collections of historic resources in the United States.
Fort Ticonderoga still stands where it has for centuries, at the scene
of numerous battles critical to the birth of our nation. Revolutionary
gunboats have recently been found fully intact on the bottom of Lake
Champlain. Our cemeteries are the permanent resting place for great
explorers, soldiers and sailors. The United States and Canada would not
exist today but for events that occurred in this region.
We in Vermont and New York take great pride in our history. We
preserve it, honor it and show it off to visitors from around the
world. These visitors

[[Page S1137]]

are also very important to our economy. Tourism is among the most
important industries in this region and has much potential for growth.
The Champlain Valley Heritage Partnership will bring together more
than one hundred local groups working to preserve and promote our
heritage.
This project has taken many years for me to bring to the point of
introducing legislation. This has been time well spent working at the
grass-roots level to develop a framework to direct federal resources to
where it will do the most good. I am confident that we have found the
best model. This will be a true partnership that supports each member
but does not impose any new federal requirements.
The Champlain Valley National Heritage Partnership will preserve our
historic resources, interpret and teach about the events that shaped
our nation and will be an engine for economic growth. I am hopeful that
this bill, which was passed unanimously by the Senate last year, will
become law during this Congress.
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. 322

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 ``Champlain Valley National
Heritage Partnership Act of 2005''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress finds that--
(1) the Champlain Valley and its extensive cultural and
natural resources have played a significant role in the
history of the United States and the individual States of
Vermont and New York;
(2) archaeological evidence indicates that the Champlain
Valley has been inhabited by humans since the last retreat of
the glaciers, with the Native Americans living in the area at
the time of European discovery being primarily of Iroquois
and Algonquin descent;
(3) the linked waterways of the Champlain Valley, including
the Richelieu River in Canada, played a unique and
significant role in the establishment and development of the
United States and Canada through several distinct eras,
including--
(A) the era of European exploration, during which Samuel de
Champlain and other explorers used the waterways as a means
of access through the wilderness;
(B) the era of military campaigns, including highly
significant military campaigns of the French and Indian War,
the American Revolution, and the War of 1812; and
(C) the era of maritime commerce, during which canals
boats, schooners, and steamships formed the backbone of
commercial transportation for the region;
(4) those unique and significant eras are best described by
the theme ``The Making of Nations and Corridors of
Commerce'';
(5) the artifacts and structures associated with those eras
are unusually well-preserved;
(6) the Champlain Valley is recognized as having one of the
richest collections of historical resources in North America;
(7) the history and cultural heritage of the Champlain
Valley are shared with Canada and the Province of Quebec;
(8) there are benefits in celebrating and promoting this
mutual heritage;
(9) tourism is among the most important industries in the
Champlain Valley, and heritage tourism in particular plays a
significant role in the economy of the Champlain Valley;
(10) it is important to enhance heritage tourism in the
Champlain Valley while ensuring that increased visitation
will not impair the historical and cultural resources of the
region;
(11) according to the 1999 report of the National Park
Service entitled ``Champlain Valley Heritage Corridor
Project'', ``the Champlain Valley contains resources and
represents a theme `The Making of Nations and Corridors of
Commerce', that is of outstanding importance in U.S.
history''; and
(12) it is in the interest of the United States to preserve
and interpret the historical and cultural resources of the
Champlain Valley for the education and benefit of present and
future generations.
(b) Purposes.--The purposes of this Act are--
(1) to establish the Champlain Valley National Heritage
Partnership in the States of Vermont and New York to
recognize the importance of the historical, cultural, and
recreational resources of the Champlain Valley region to the
United States;
(2) to assist the State of Vermont and New York, including
units of local government and nongovernmental organizations
in the States, in preserving, protecting, and interpreting
those resources for the benefit of the people of the United
States;
(3) to use those resources and the theme ``The Making of
Nations and Corridors of Commerce'' to--
(A) revitalize the economy of communities in the Champlain
Valley; and
(B) generate and sustain increased levels of tourism in the
Champlain Valley;
(4) to encourage--
(A) partnerships among State and local governments and
nongovernmental organizations in the United States; and
(B) collaboration with Canada and the Province of Quebec
to--
(i) interpret and promote the history of the waterways of
the Champlain Valley region;
(ii) form stronger bonds between the United States and
Canada; and
(iii) promote the international aspects of the Champlain
Valley region; and
(5) to provide financial and technical assistance for the
purposes described in paragraphs (1) through (4).

SEC. 3. DEFINITIONS.

In this Act:
(1) Heritage partnership.--The term ``Heritage
Partnership'' means the Champlain Valley National Heritage
Partnership established by section 4(a).
(2) Management entity.--The term ``management entity''
means the Lake Champlain Basin Program.
(3) Management plan.--The term ``management plan'' means
the management plan developed under section 4(b)(B)(i).
(4) Region.--
(A) In general.--The term ``region'' means any area or
community in 1 of the States in which a physical, cultural,
or historical resource that represents the theme is located.
(B) Inclusions.--The term ``region'' includes
(i) the linked navigable waterways of--

(I) Lake Champlain;
(II) Lake George;
(III) the Champlain Canal; and
(IV) the portion of the Upper Hudson River extending south
to Saratoga;

(ii) portions of Grand Isle, Franklin, Chittenden, Addison,
Rutland, and Bennington Counties in the State of Vermont; and
(iii) portions of Clinton, Essex, Warren, Saratoga and
Washington Counties in the State of New York.
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(6) State.--the term ``State'' means--
(A) the State of Vermont; and
(B) the State of New York.
(7) Theme.--The term ``theme'' means the theme ``The Making
of Nations and Corridors of Commerce'', as the term is used
in the 1999 report of the National Park Service entitled
``Champlain Valley Heritage Corridor Project'', that
describes the periods of international conflict and maritime
commerce during which the region played a unique and
significant role in the development of the United States and
Canada.

SEC. 4. HERITAGE PARTNERSHIP.

(a) Establishment.--There is established in the regional
the Champlain Valley National Heritage Partnership.
(b) Management Entity.--
(1) Duties.--
(A) In general.--The management entity shall implement the
Act.
(B) Management plan.--
(i) In general.--Not later than 3 years after the date of
enactment of this Act, the management entity shall develop a
management plan for the Heritage Partnership.
(ii) Existing plan.--Pending the completion and approval of
the management plan, the management entity may implement the
provisions of this Act based on its federally authorized plan
``Opportunities for Action, an Evolving Plan For Lake
Champlain''.
(iii) Contents.--The management plan shall include--

(I) recommendations for funding, managing, and developing
the Heritage Partnership;
(II) a description of activities to be carried out by
public and private organizations to protect the resources of
the Heritage Partnership;
(III) a list of specific, potential sources of funding for
the protection, management, and development of the Heritage
Partnership;
(IV) an assessment of the organizational capacity of the
management entity to achieve the goals for implementation;
and
(V) recommendations of ways in which to encourage
collaboration with Canada and the Province of Quebec in
implementing this Act.

(iv) Considerations.--In developing the management plan
under clause (i), the management entity shall take into
consideration existing Federal, State, and local plans
relating to the region.
(v) Submission to secretary for approval.--

(I) In general.--Not later than 3 years after the date of
enactment of this Act, the management entity shall submit the
management plan to the Secretary for approval.
(II) Effect of failure to submit.--If a management plan is
not submitted to the Secretary by the date specified in
paragraph (I), the Secretary shall not provide any additional
funding under this Act until a management plan for the
Heritage Partnership is submitted to the Secretary.

(vi) Approval.--Not later than 90 days after receiving the
management plan submitted under subparagraph (V)(I), the
Secretary, in consultation with the States, shall approve or
disapprove the management plan.
(vii) Action following disapproval.--

(I) General.--If the Secretary disapproves a management
plan under subparagraph (vi), the Secretary shall--

(aa) advise the management entity in writing of the reasons
for the disapproval;

[[Page S1138]]

(bb) make recommendations for revisions to the management
plan; and
(cc) allow the management entity to submit to the Secretary
revisions to the management plan.

(II) Deadline for approval of revision.--Not later than 90
days after the date on which a revision is submitted under
subparagraph (vii)(I)(cc), the Secretary shall approve or
disapprove the revision.

(viii) Amendment.--

(I) In general.--After approval by the Secretary of the
management plan, the management entity shall periodically--

(aa) review the management plan; and
(bb) submit to the Secretary, for review and approval by
the Secretary, the recommendations of the management entity
for any amendments to the management plan that the management
entity considers to be appropriate.

(II) Expenditure of funds.--No funds made available under
this Act shall be used to implement any amendment proposed by
the management entity under subparagraph (viii)(1) until the
Secretary approves the amendments.

(2) Partnerships.--
(A) In general.--In carrying out this Act, the management
entity may enter into partnerships with--
(i) the States, including units of local governments in the
States;
(ii) nongovernmental organizations;
(iii) Indian Tribes; and
(iv) other persons in the Heritage Partnership.
(B) Grants.--Subject to the availability of funds, the
management entity may provide grants to partners under
subparagraph (A) to assist in implementing this Act.
(3) Prohibition on the acquisition of real property.--The
management entity shall not use Federal funds made available
under this Act to acquire real property or any interest in
real property.
(c) Assistance From Secretary.--To carry out the purposes
of this Act, the Secretary may provide technical and
financial assistance to the management entity.

SEC. 5. EFFECT.

Nothing in this Act--
(1) grants powers of zoning or land use to the management
entity;
(2) modifies, enlarges, or diminishes the authority of the
Federal Government or a State or local government to manage
or regulate any use of land under any law (including
regulations); or
(3) obstructs or limits private business development
activities or resource development activities.

SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--There is authorized to be appropriated to
carry out this Act not more than a total of $10,000,000, of
which not more than $1,000,000 may be made available for any
fiscal year.
(b) Non-Federal Share.--The non-Federal share of the cost
of any activities carried out using Federal funds made
available under subsection (a) not be less than 50 percent.

SEC. 7. TERMINATION OF AUTHORITY.

The authority of the Secretary to provide assistance under
this Act terminates on the date that is 15 years after the
date of enactment of this Act.

____________________