[Congressional Record Volume 151, Number 38 (Wednesday, April 6, 2005)]
[Senate]
[Pages S3280-S3316]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SMITH (for himself, Mr. Inouye, Ms. Snowe, Mr. Dorgan, Mr.
Sununu, Mr. Burns, Mr. Lautenberg, and Mr. Stevens):
S. 714. A bill to amend section 227 of the Communications Act of 1934
(47 U.S.C. 227) relating to the prohibition on junk fax transmissions;
to the Committee on Commerce, Science, and Transportation.
Mr. SMITH. Mr. President, I rise today with Senator Inouye and other
colleagues to introduce the ``Junk Fax Prevention Act of 2005.'' This
bill will strengthen existing laws by providing consumers the ability
to prevent unsolicited fax advertisements and provide greater
Congressional oversight of enforcement efforts by the Federal
Communications Commission (FCC). This bill will also help businesses by
allowing them to continue to send faxes to their customers in a manner
that has proven successful with both businesses and consumers.
In July of 2003, the FCC reconsidered its Telephone Consumer
Protection Act (TCPA) rules and elected to eliminate the ability for
businesses to contact their customers even where there exists an
established business relationship. The effect of the FCC's rule would
be to prevent a business from sending a fax solicitation to any person,
whether it is a supplier or customer, without first obtaining prior
written consent. This approach, while seemingly sensible, would impose
significant costs on businesses in the form of extensive record
keeping. Recognizing the problems created by this rule, the Commission
has twice delayed the effective date, with the current extension of
stay expiring on June 30, 2005.
The purpose of this legislation is to preserve the established
business relationship exception currently recognized under the TCPA. In
addition, this bill will allow consumers to opt out of receiving
further unsolicited faxes. This is a new consumer protection that does
not exist under the TCPA today.
We believe that this bipartisan bill strikes the appropriate balance
in providing significant protections to consumers from unwanted
unsolicited fax advertisements and preserves the many benefits that
result from legitimate fax communications.
In the 108th Congress, this legislation passed both the Senate and
House but was not signed into law prior to the adjournment of Congress.
We hope that both the Senate and House can pass this legislation in a
timely manner, prior to June 30, 2005, when the FCC's stay expires.
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. 714
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 ``Junk Fax Prevention Act of
2005''.
SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CONTAINING
UNSOLICITED ADVERTISEMENTS.
(a) Prohibition.--Section 227(b)(1)(C) of the
Communications Act of 1934 (47 U.S.C. 227(b)(1)(C)) is
amended to read as follows:
``(C) to use any telephone facsimile machine, computer, or
other device to send, to a telephone facsimile machine, an
unsolicited advertisement, unless--
``(i) the unsolicited advertisement is from a sender with
an established business relationship with the recipient; and
``(ii) the unsolicited advertisement contains a notice
meeting the requirements under paragraph (2)(D), except that
the exception under clauses (i) and (ii) shall not apply with
respect to an unsolicited advertisement sent to a telephone
facsimile machine by a sender to whom a request has been made
not to send future unsolicited advertisements to such
telephone facsimile machine that complies with the
requirements under paragraph (2)(E); or''.
(b) Definition of Established Business Relationship.--
Section 227(a) of the Communications Act of 1934 (47 U.S.C.
227(a)) is amended--
(1) by redesignating paragraphs (2) through (4) as
paragraphs (3) through (5), respectively; and
(2) by inserting after paragraph (1) the following:
``(2) The term `established business relationship', for
purposes only of subsection (b)(1)(C)(i), shall have the
meaning given the term in section 64.1200 of title 47, Code
of Federal Regulations, as in effect on January 1, 2003,
except that--
``(A) such term shall include a relationship between a
person or entity and a business subscriber subject to the
same terms applicable under such section to a relationship
between a person or entity and a residential subscriber; and
``(B) an established business relationship shall be subject
to any time limitation established pursuant to paragraph
(2)(G)).''.
(c) Required Notice of Opt-Out Opportunity.--Section
227(b)(2) of the Communications Act of 1934 (47 U.S.C.
227(b)(2)) is amended--
(1) in subparagraph (B), by striking ``and'' at the end;
(2) in subparagraph (C), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following:
``(D) shall provide that a notice contained in an
unsolicited advertisement complies with the requirements
under this subparagraph only if--
``(i) the notice is clear and conspicuous and on the first
page of the unsolicited advertisement;
``(ii) the notice states that the recipient may make a
request to the sender of the unsolicited advertisement not to
send any future unsolicited advertisements to a telephone
facsimile machine or machines and that failure to comply,
within the shortest reasonable time, as determined by the
Commission, with such a request meeting the requirements
under subparagraph (E) is unlawful;
``(iii) the notice sets forth the requirements for a
request under subparagraph (E);
``(iv) the notice includes--
``(I) a domestic contact telephone and facsimile machine
number for the recipient to transmit such a request to the
sender; and
``(II) a cost-free mechanism for a recipient to transmit a
request pursuant to such notice to the sender of the
unsolicited advertisement; the Commission shall by rule
require the sender to provide such a mechanism and may, in
the discretion of the Commission and subject to such
conditions as the Commission may prescribe, exempt certain
classes of small business senders, but only if the Commission
determines that the costs to such class are unduly burdensome
given the revenues generated by such small businesses;
``(v) the telephone and facsimile machine numbers and the
cost-free mechanism set forth pursuant to clause (iv) permit
an individual or business to make such a request during
regular business hours; and
``(vi) the notice complies with the requirements of
subsection (d);''.
(d) Request To Opt-Out of Future Unsolicited
Advertisements.--Section 227(b)(2) of the Communications Act
of 1934 (47 U.S.C. 227(b)(2)), as amended by subsection (c),
is further amended by adding at the end the following:
[[Page S3281]]
``(E) shall provide, by rule, that a request not to send
future unsolicited advertisements to a telephone facsimile
machine complies with the requirements under this
subparagraph only if--
``(i) the request identifies the telephone number or
numbers of the telephone facsimile machine or machines to
which the request relates;
``(ii) the request is made to the telephone or facsimile
number of the sender of such an unsolicited advertisement
provided pursuant to subparagraph (D)(iv) or by any other
method of communication as determined by the Commission; and
``(iii) the person making the request has not, subsequent
to such request, provided express invitation or permission to
the sender, in writing or otherwise, to send such
advertisements to such person at such telephone facsimile
machine;''.
(e) Authority To Establish Nonprofit Exception.--Section
227(b)(2) of the Communications Act of 1934 (47 U.S.C.
227(b)(2)), as amended by subsections (c) and (d), is further
amended by adding at the end the following:
``(F) may, in the discretion of the Commission and subject
to such conditions as the Commission may prescribe, allow
professional or trade associations that are tax-exempt
nonprofit organizations to send unsolicited advertisements to
their members in furtherance of the association's tax-exempt
purpose that do not contain the notice required by paragraph
(1)(C)(ii), except that the Commission may take action under
this subparagraph only--
``(i) by regulation issued after public notice and
opportunity for public comment; and
``(ii) if the Commission determines that such notice
required by paragraph (1)(C)(ii) is not necessary to protect
the ability of the members of such associations to stop such
associations from sending any future unsolicited
advertisements; and''.
(f) Authority To Establish Time Limit on Established
Business Relationship Exception.--Section 227(b)(2) of the
Communications Act of 1934 (47 U.S.C. 227(b)(2)), as amended
by subsections (c), (d), and (e) of this section, is further
amended by adding at the end the following:
``(G)(i) may, consistent with clause (ii), limit the
duration of the existence of an established business
relationship, however, before establishing any such limits,
the Commission shall--
``(I) determine whether the existence of the exception
under paragraph (1)(C) relating to an established business
relationship has resulted in a significant number of
complaints to the Commission regarding the sending of
unsolicited advertisements to telephone facsimile machines;
``(II) determine whether a significant number of any such
complaints involve unsolicited advertisements that were sent
on the basis of an established business relationship that was
longer in duration than the Commission believes is consistent
with the reasonable expectations of consumers;
``(III) evaluate the costs to senders of demonstrating the
existence of an established business relationship within a
specified period of time and the benefits to recipients of
establishing a limitation on such established business
relationship; and
``(IV) determine whether with respect to small businesses,
the costs would not be unduly burdensome; and
``(ii) may not commence a proceeding to determine whether
to limit the duration of the existence of an established
business relationship before the expiration of the 18-month
period that begins on the date of the enactment of the Junk
Fax Prevention Act of 2005.''.
(g) Unsolicited Advertisement.--Section 227(a)(5) of the
Communications Act of 1934, as so redesignated by subsection
(b)(1), is amended by inserting ``, in writing or otherwise''
before the period at the end.
(h) Regulations.--Except as provided in section
227(b)(2)(G)(ii) of the Communications Act of 1934 (as added
by subsection (f)), not later than 270 days after the date of
enactment of this Act, the Federal Communications Commission
shall issue regulations to implement the amendments made by
this section.
SEC. 3. FCC ANNUAL REPORT REGARDING JUNK FAX ENFORCEMENT.
Section 227 of the Communications Act of 1934 (47 U.S.C.
227) is amended by adding at the end the following:
``(g) Junk Fax Enforcement Report.--The Commission shall
submit an annual report to Congress regarding the enforcement
during the past year of the provisions of this section
relating to sending of unsolicited advertisements to
telephone facsimile machines, which report shall include--
``(1) the number of complaints received by the Commission
during such year alleging that a consumer received an
unsolicited advertisement via telephone facsimile machine in
violation of the Commission's rules;
``(2) the number of citations issued by the Commission
pursuant to section 503 during the year to enforce any law,
regulation, or policy relating to sending of unsolicited
advertisements to telephone facsimile machines;
``(3) the number of notices of apparent liability issued by
the Commission pursuant to section 503 during the year to
enforce any law, regulation, or policy relating to sending of
unsolicited advertisements to telephone facsimile machines;
``(4) for each notice referred to in paragraph (3)--
``(A) the amount of the proposed forfeiture penalty
involved;
``(B) the person to whom the notice was issued;
``(C) the length of time between the date on which the
complaint was filed and the date on which the notice was
issued; and
``(D) the status of the proceeding;
``(5) the number of final orders imposing forfeiture
penalties issued pursuant to section 503 during the year to
enforce any law, regulation, or policy relating to sending of
unsolicited advertisements to telephone facsimile machines;
``(6) for each forfeiture order referred to in paragraph
(5)--
``(A) the amount of the penalty imposed by the order;
``(B) the person to whom the order was issued;
``(C) whether the forfeiture penalty has been paid; and
``(D) the amount paid;
``(7) for each case in which a person has failed to pay a
forfeiture penalty imposed by such a final order, whether the
Commission referred such matter for recovery of the penalty;
and
``(8) for each case in which the Commission referred such
an order for recovery--
``(A) the number of days from the date the Commission
issued such order to the date of such referral;
``(B) whether an action has been commenced to recover the
penalty, and if so, the number of days from the date the
Commission referred such order for recovery to the date of
such commencement; and
``(C) whether the recovery action resulted in collection of
any amount, and if so, the amount collected.''.
SEC. 4. GAO STUDY OF JUNK FAX ENFORCEMENT.
(a) In General.--The Comptroller General of the United
States shall conduct a study regarding complaints received by
the Federal Communications Commission concerning unsolicited
advertisements sent to telephone facsimile machines, which
study shall determine--
(1) the mechanisms established by the Commission to
receive, investigate, and respond to such complaints;
(2) the level of enforcement success achieved by the
Commission regarding such complaints;
(3) whether complainants to the Commission are adequately
informed by the Commission of the responses to their
complaints; and
(4) whether additional enforcement measures are necessary
to protect consumers, including recommendations regarding
such additional enforcement measures.
(b) Additional Enforcement Remedies.--In conducting the
analysis and making the recommendations required under
subsection (a)(4), the Comptroller General shall specifically
examine--
(1) the adequacy of existing statutory enforcement actions
available to the Commission;
(2) the adequacy of existing statutory enforcement actions
and remedies available to consumers;
(3) the impact of existing statutory enforcement remedies
on senders of facsimiles;
(4) whether increasing the amount of financial penalties is
warranted to achieve greater deterrent effect; and
(5) whether establishing penalties and enforcement actions
for repeat violators or abusive violations similar to those
established under section 1037 of title 18, United States
Code, would have a greater deterrent effect.
(c) Report.--Not later than 270 days after the date of
enactment of this Act, the Comptroller General shall submit a
report on the results of the study under this section to the
Committee on Commerce, Science, and Transportation of the
Senate and the Committee on Energy and Commerce of the House
of Representatives.
______
By Mr. HARKIN (for himself, Mr. Dayton, Mr. Durbin, and Mr.
Lautenberg):
S. 715. A bill to amend the Internal Revenue Code of 1986 to
encourage investment in facilities using wind to produce electricity,
and for other purposes; to the Committee on Finance.
Mr. HARKIN. Mr. President, I am introducing today the Wind Power Tax
Incentives Act of 2005. I am pleased to be joined by Senators Dayton,
Durbin and Lautenburg. This legislation makes it easier for farmers and
others around the country to invest in wind power for commercial
electricity production. Wind power is a clean, economical, and reliable
source of renewable energy abundant on farms and in rural areas of Iowa
and elsewhere.
With this legislation we can help farmers help themselves by
developing a new source of income, and help the rest of the country in
the production of renewable energy. Farmers are ready to take on this
challenge. A recent study found that 93 percent of corn producers
support wind energy. They also strongly support the 2002 farm bill's
historic energy title.
This regulation complements the farm bill's energy programs and other
wind power initiatives currently being
[[Page S3282]]
considered by this body, and is strongly supported by the American Wind
Energy Association and John Deere. Our bill changes Federal tax law to
make the section 45 wind production tax credit more widely available to
farmers, farm cooperatives, and other investors. Section 45 of the
Federal tax code provides a tax credit, currently 1.8 cents per
kilowatt-hour, for electricity produced and sold during the first ten
years of the life of a wind turbine. The credit has been
extraordinarily successful in spurring greater installation of new wind
power capacity, making this sustainable energy source economically
feasible. However, certain barriers have prevented many farmers and
other investors from qualifying for the credit, thus impeding their
participation.
It is time to allow full participation by farmers and other investors
in this important tax incentive. Our legislation removes barriers by
making two important changes to the tax code.
First, under current tax law most losses, deductions, and credits
from passive investments cannot affect wages or other income or reduce
taxes on such income. So a farmer who passively invests in wind energy
could not use the credits to offset taxes on farm income. This bill
creates an exception to passive loss restrictions for an interest in a
wind facility that qualifies for the section 45 credit. The wind
facility's loss or tax credits could then offset the income or taxes
arising from the taxpayer's farming business. Existing law provides an
even broader exception for oil and gas investments, but in contrast to
existing law, our proposed exception for wind investment applies only
to those with income under $1 million, in order to avoid potential
windfalls or abuse.
Second, the bill allows cooperatives to invest in qualified wind
facilities and pass through the section 45 credits to cooperative
members. This will allow farmers to join together and pool their
resources in a cooperative and still take advantage of the credit.
When we first introduced this bill in the 108th Congress, it also
contained a measure providing alternative minimum tax (AMT) relief.
This important piece of the equation was incorporated late last year in
the American Jobs Creation Act, and passed into law. But there's more
to be done.
The benefits of this legislation are obvious. Increased renewable
energy production lessens our dependence on foreign oil, provides
environmental and public health gains, bolsters farm income, creates
jobs and boosts economic growth, especially in rural areas. The Nation
must move toward energy security, and domestically produced wind power,
along with other forms of renewable energy like biofuels, plays an
important part in this endeavor.
I want to thank Senators Dayton, Durbin and Lautenburg for co-
sponsoring this legislation with me. Their leadership in this area will
be instrumental to moving the bill forward. I am hopeful we can pass
this legislation soon to help secure a brighter renewable energy future
for our Nation's farmers and all citizens.
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. 715
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 ``Wind Power Tax Incentives
Act of 2005''.
SEC. 2. OFFSET OF PASSIVE ACTIVITY LOSSES AND CREDITS OF AN
ELIGIBLE TAXPAYER FROM WIND ENERGY FACILITIES.
(a) In General.--Section 469 of the Internal Revenue Code
of 1986 (relating to passive activity losses and credits
limited) is amended--
(1) by redesignating subsections (l) and (m) as subsections
(m) and (n), respectively; and
(2) by inserting after subsection (k) the following:
``(l) Offset of Passive Activity Losses and Credits From
Wind Energy Facilities.--
``(1) In general.--Subsection (a) shall not apply to the
portion of the passive activity loss, or the deduction
equivalent (within the meaning of subsection (j)(5)) of the
portion of the passive activity credit, for any taxable year
which is attributable to all interests of an eligible
taxpayer in qualified facilities described in section
45(d)(1).
``(2) Eligible taxpayer.--For purposes of this subsection--
``(A) In general.--The term `eligible taxpayer' means, with
respect to any taxable year, a taxpayer the adjusted gross
income (taxable income in the case of a corporation) of which
does not exceed $1,000,000.
``(B) Rules for computing adjusted gross income.--Adjusted
gross income shall be computed in the same manner as under
subsection (i)(3)(F).
``(C) Aggregation rules.--All persons treated as a single
employer under subsection (a) or (b) of section 52 shall be
treated as a single taxpayer for purposes of this paragraph.
``(D) Pass-thru entities.--In the case of a pass-thru
entity, this paragraph shall be applied at the level of the
person to which the credit is allocated by the entity.''.
(b) Effective Date.--The amendments made by this section
shall apply to facilities placed in service after the date of
the enactment of this Act.
SEC. 3. APPLICATION OF CREDIT TO COOPERATIVES.
(a) In General.--Section 45(e) of the Internal Revenue Code
of 1986 (relating to definitions and special rules) is
amended by adding at the end the following:
``(10) Allocation of credit to shareholders of
cooperative.--
``(A) Election to allocate.--
``(i) In general.--In the case of a cooperative
organization described in section 1381(a), any portion of the
credit determined under subsection (a) for the taxable year
may, at the election of the organization, be apportioned pro
rata among shareholders of the organization on the basis of
the capital contributions of the shareholders to the
organization.
``(ii) Form and effect of election.--An election under
clause (i) for any taxable year shall be made on a timely
filed return for such year. Such election, once made, shall
be irrevocable for such taxable year.
``(B) Treatment of organizations and patrons.--The amount
of the credit apportioned to any shareholders under
subparagraph (A)--
``(i) shall not be included in the amount determined under
subsection (a) with respect to the organization for the
taxable year, and
``(ii) shall be included in the amount determined under
subsection (a) for the taxable year of the shareholder with
or within which the taxable year of the organization ends.
``(C) Special rules for decrease in credits for taxable
year.--If the amount of the credit of a cooperative
organization determined under subsection (a) for a taxable
year is less than the amount of such credit shown on the
return of the cooperative organization for such year, an
amount equal to the excess of--
``(i) such reduction, over
``(ii) the amount not apportioned to such shareholders
under subparagraph (A) for the taxable year, shall be treated
as an increase in tax imposed by this chapter on the
organization. Such increase shall not be treated as tax
imposed by this chapter for purposes of determining the
amount of any credit under this subpart or subpart A, B, E,
or G.''.
(b) Effective Date.--The amendments made by this section
shall apply to taxable years ending after the date of the
enactment of this Act.
______
By Mr. AKAKA (for himself, Mr. Rockefeller, and Mr. Conrad):
S. 716. A bill to amend title 38, United States Code, to enhance
services provided by vet centers, to clarify and improve the provision
of bereavement counseling by the Department of Veterans Affairs, and
for other purposes; to the Committee on Veterans' Affairs.
Mr. AKAKA. Mr. President, I rise today to introduce the ``Vet Center
Enhancement Act of 2005.'' This legislation would enhance care and
services provided through Vet Centers. Since their establishment over
25 years ago, Vet Centers have become a safe place in the community
where more and more veterans and their families have turned for
assistance and services. This legislation would provide resources that
Vet Centers need to serve and reach out to the growing number of
Operation Enduring Freedom and Operation Iraqi Freedom (OEF/OIF)
veterans and surviving family members.
The legislation would allow the Department of Veterans Affairs (VA)
to hire an additional 50 Global War on Terror outreach coordinators,
strike the three-year authorization provision for these outreach
workers, clarify that Vet Centers can provide bereavement counseling to
family members including parents, and provide more funding for the Vet
Center program.
In February 2004, VA authorized the Vet Center program to hire 50
OEF/OIF veterans to conduct outreach to their fellow Global War on
Terrorism veterans. There are still many OEF/OIF veterans in need of
readjustment services, which requires more workers. This legislation
would authorize the hiring of 50 additional outreach coordinators to
reach this underserved population of veterans. In addition, this
legislation would also repeal the three-
[[Page S3283]]
year authorization provision placed on these positions.
The number of brave servicemembers who die while defending freedom
continues to rise, leaving many surviving family members in need for
help. Under current law, VA has the authority to provide bereavement
counseling to the immediate family. However, it is necessary to clarify
that parents of a deceased servicemember qualify for this bereavement
counseling and that such care could be provided at Vet Centers. This
legislation would make the clarifications.
A recent article in the Washington Post detailed a mother's
experience after her son was killed in Iraq and how she finally felt
relief at an unexpected place, a Vet Center. The article also provided
information concerning the Vet Center bereavement program and discussed
the need for clarification of the Vet Center bereavement care program.
This article paints a clear picture of the distress that surviving
family members endure as a result of the death of a beloved soldier. I
ask unanimous consent that the text of The Washington Post article be
printed in the Record.
As the War on Terrorism persists, the number of veterans seeking
readjustment counseling and related mental health services through Vet
Centers will continue to grow. Experts predict that as many as 30
percent of those returning servicemembers may need psychiatric care.
For these returning servicemembers who have suffered psychological
wounds, the stigma surrounding these types of wounds creates a barrier
that often times prevents them from seeking the care they need. Vet
Centers, which have licensed mental health professionals, provide a
means to overcome this barrier because of the center's location in the
community and because veteran staff members can relate to the
experiences of the veterans seeking services. In 2004, Vet Centers
cared for 9,597 OEF/OIF veterans and 2005 projections are that Vet
Centers will see 12,656 OEF/OIF veterans.
Despite increases in the number of veterans coming for care to Vet
Centers, the budget for the program has remained stagnant. This
legislation would authorize funding for the program from $93 million to
$180 million.
We must make the readjustment period for the returning service
members and the surviving family members of deceased servicemembers as
smooth as possible.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Feb. 24, 2005]
VA Program Offers Solace to Civilians
(By David Finkel)
Her son had been killed in Iraq, and Hope Veverka needed
someone to talk to.
``It was so horrific, the pain,'' said Veverka, the mother
of Army Pfc. Brandon Sapp, who died in August when he drove
his vehicle over a remote-controlled bomb. ``I didn't want it
to destroy me.''
Unable to sleep, Veverka, 45, tried a hospice-based program
for dealing with grief. Unable to stop thinking about the
person who was the last to see her son while deliberately
pushing a detonator, she talked to friends and attended a
support group for parents who lost children. All helped
somewhat, she says, but it was in an unexpected place--a
readjustment center for veterans--where she finally felt some
relief.
``These guys, they have served,'' Veverka said of the
counselors she sees weekly at the Department of Veterans
Affairs' Vet Center near her home in West Palm Beach, Fla.
``They get it. I can just talk, and they understand.''
More and more relatives of service members who died are
learning the same thing, that because of a new bereavement
program, vet centers are not just for veterans anymore. In
August 2003, as the number of fatalities in Iraq passed the
250 mark, the 206 vet centers across the United States began
offering counseling and bereavement services to immediate
relatives of anyone in the military to die while on active
duty.
The program marks the first time that non-veterans have
been eligible for a benefit previously restricted to
veterans. Before the program began, civilian family members
might go to a vet center as part of a living veteran's
counseling but had to go elsewhere if they needed counseling
of their own.
``It's a big deal,'' said Alfonso Batres, chief of the VA's
Office of Readjustment Counseling. ``And the families are so
grateful that anything is being done.''
The program, which is free and allows unlimited visits, had
367 participants in connection with 252 deaths as of Feb. 1.
Eighty-six of the 367 were spouses, 119 were mothers, 64 were
fathers, 60 were siblings, 37 were children and one was a
grandparent.
Batres says the numbers would be higher, but privacy
concerns prohibit counselors from contacting people to see
whether they are interested in getting help. Instead, initial
contact must come from the family members.
Typically, relatives are referred to the program by
military casualty-assistance officers, who are the ones to
notify them of the death of their loved ones. A civilian
organization called TAPS, the Tragedy Assistance Program for
Survivors, which offers around-the-clock grief counseling
and peer support--but does not have professionally trained
counselors as at a vet center--also refers people to the
program.
``It's really, really significant,'' TAPS founder and
chairman Bonnie Carroll said of the VA's decision to treat
family members. ``From our perspective, it has just been
revolutionary.''
Batres says that implementing the program has not been
problem-free. Especially in the early months, he says, some
counselors complained that they already had more to do than
they could handle. Others were concerned that expanding the
centers' mandate to non-veterans could create a bad
precedent.
The provisional status of the program has also been
unsettling to some. Batres says he had hoped to get the
program authorized by Congress, which would have given it a
sense of permanence, but instead it was approved as an
unfunded initiative at the discretion of the secretary of the
VA.
Nonetheless, Batres says, as the months have gone by, the
nature of the work has changed the misgivings of his staff
into a shared sense of mission. ``It's akin to going to a
disaster site'' is how he describes the work. ``This is a
death site. It's almost like going into a sacred place.''
Joe Griffis, a counselor at the vet center in Lake Worth,
Fla., agrees that this first venture into treating non-
veterans is worthwhile. ``We're here to help the veteran,''
he said, ``and when they've been killed, it's the closest we
can get to them to give them that service.''
Griffis says he has treated family members connected to
five deaths, four of which occurred from enemy fire and one
by suicide.
``They come in with grief, with a great sense of loss,
often with guilt feelings about what they could have done,
angry at the government, angry at God, angry at the child
himself,'' he said of his clients, most of whom have been
parents.
Rather than diagnosing a condition, he says, his goal is to
``let them ventilate all of their feelings. Their anger.
Their grief. Their sadness. No matter what it's about. And
let them have a feeling of relief before they walk out of the
session.''
Veverka, who is one of Griffis's clients, says that is
exactly what has happened to her in her weekly sessions.
``There was something lacking,'' she said of the support
groups she attended in the first days after her son's death,
where she found herself undifferentiated from the parents
whose child had died of leukemia and the parents whose child
had been killed crossing a street. ``It was only addressing
half of my emotions. I needed something with the military.''
Try the vet center, someone suggested.
``So I went,'' she said of a place so familiar to her now
that counselors have hung a photograph of her son for her to
see every time she walks in the door, ``and it ended up being
the door I needed.''
______
By Mr. BIDEN (for himself, Mr. Specter, Mr. McConnell, Mrs.
Murray, Mr. Dayton, Mr. Chambliss, Mr. Corzine, and Ms.
Cantwell):
S. 718. A bill to amend title I of the Omnibus Crime Control and Safe
Streets Act of 1968 to provide standards and procedures to guide both
State and local law enforcement agencies and law enforcement officers
during internal investigations, interrogation of law enforcement
officers, and administrative disciplinary hearings, and to ensure
accountability of law enforcement officers, to guarantee the due
process rights of law enforcement officers, and to require States to
enact law enforcement discipline, accountability, and due process laws;
to the Committee on the Judiciary.
Mr. BIDEN. Mr. President, I rise to introduce the State and Local Law
Enforcement Discipline, Accountability, and Due Process Act of 2005,
along with Senator Specter, Senator McConnell, Senator Chambliss,
Senator Dayton, Senator Murray, Senator Corzine, and Senator Cantwell.
These are trying times for the men and women on our front lines who
provide our domestic security and public safety--our Nation's law
enforcement personnel. In fact, our men and women in blue are facing
what I have called a perfect storm. First, they are being called upon
to undertake more responsibilities than ever before. They are being
required to undertake homeland security duties that weren't required
before September 11, and, at the same time, the FBI is reprogramming
its field agents from crime to terrorism
[[Page S3284]]
cases. While I don't disagree that this shift in resources is
appropriate, it undoubtedly leaves a gap in law enforcement efforts to
combat drugs and crime, and State and local agencies must fill this
gap. At the same time, budget shortages at the local level are forcing
personnel lay-offs, an increasing use of overtime to meet demand, and
the forced elimination of critical crime prevention programs. Local law
enforcement is struggling to keep up with service calls. To add insult
to injury, Federal assistance for State and local law enforcement has
been reduced by billions over the last 2 years--with the proposed
elimination of the COPS hiring program--a proven initiative that has
been hailed as one of the keys to the crime-drop of the nineties. Quite
simply, we are asking law enforcement to do more with less, and I
believe that public safety is being compromised as a result of
Congress's unfortunate choices on the Federal budget.
We may argue about the Federal responsibility to provide financial
assistance to State and local law enforcement, however, few will
dispute the sacrifices that our men and women in law enforcement make
for our nation. Indeed, they face one of the most difficult work
environments imaginable--an average of 165 police officers are killed
in the line of duty every year. Our Nation's law enforcement officers
put themselves in harms way on a daily basis to ensure the safety of
their fellow citizens and the domestic security of our Nation.
Nevertheless, many times these brave officers do not receive basic
rights if they become involved in internal police investigations or
administrative hearings. According to the National Association of
Police Organizations, ``[i]n roughly half of the states in this
country, officers enjoy some legal protections against false
accusations and abusive conduct, but hundreds of thousands of officers
have very limited due process rights and confront limitations on their
exercise of other rights, such as the right to engage in political
activities.'' Similarly, the Fraternal Order of Police notes that,
``[i]n a startling number of jurisdictions throughout this country, law
enforcement officers have no procedural or administrative protections
whatsoever; in fact, they can be, and frequently are, summarily
dismissed from their jobs without explanation. Officers who lose their
careers due to administrative or political expediency almost always
find it impossible to find new employment in public safety. An
officer's reputation, once tarnished by accusation, is almost
impossible to restore.''
The legislation that we introduce today, which is endorsed by the
Fraternal Order of Police and of the National Association of Police
Organizations, seeks to provide officers with certain basic protections
in those jurisdictions where such workplace protections are not
currently provided. First, this bill allows law enforcement officials
to engage in political activities when they are off-duty. Second, it
provides standards and procedures to guide State and local law
enforcement agencies during internal investigations, interrogations,
and administrative disciplinary hearings. Additionally, it calls upon
States to develop and enforce these disciplinary procedures. The bill
would preempt State laws which confer fewer rights than those provided
for in the legislation, but it would not preempt any State or local
laws that confer rights or protections that are equal to or exceed the
rights and protections afforded in the bill. For example, my own State
of Delaware has a law enforcement officers' bill of rights, and those
procedures would not be impacted by the provisions of this bill.
This bill will also include important provisions that will enhance
the ability of citizens to hold their local police departments
accountable. The legislation includes provisions that will ensure
citizen complaints against police officers are investigated and that
citizens are informed of the outcome of these investigations. The bill
balances the rights of police officers with the rights of citizens to
raise valid concerns about the conduct of some of these officers. In
addition, I have consulted with constitutional experts who have opined
that the bill is consistent with Congress' powers under the Commerce
Clause and that it does not run afoul of the Supreme Court's Tenth
Amendment jurisprudence.
I would also like to note that I understand the objections that many
management groups, including the International Association of Chiefs of
Police, have to this measure. I have discussed this with them, and I've
pledged that their views will be heard and considered as this bill is
debated in Congress. It is my view that we must bridge this gap.
Without a meeting of the minds between police management and union
officials, the enactment of a meaningful law enforcement officers' bill
of rights will be difficult. Law enforcement officials are facing
unprecedented challenges, and management and labor simply must work
together on this issue and the numerous other issues facing the law
enforcement community.
I urge my colleagues to join Senators Specter, McConnell, Chambliss,
Dayton, Murray, Corzine, Cantwell, and me in providing all of the
Nation's law enforcement officers with the basic rights they deserve.
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. 718
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 ``State and Local Law
Enforcement Discipline, Accountability, and Due Process Act
of 2005''.
SEC. 2. FINDINGS AND DECLARATION OF PURPOSE AND POLICY.
(a) Findings.--Congress finds that--
(1) the rights of law enforcement officers to engage in
political activity or to refrain from engaging in political
activity, except when on duty, or to run as candidates for
public office, unless such service is found to be in conflict
with their service as officers, are activities protected by
the first amendment of the United States Constitution, as
applied to the States through the 14th amendment of the
United States Constitution, but these rights are often
violated by the management of State and local law enforcement
agencies;
(2) a significant lack of due process rights of law
enforcement officers during internal investigations and
disciplinary proceedings has resulted in a loss of confidence
in these processes by many law enforcement officers,
including those unfairly targeted for their labor
organization activities or for their aggressive enforcement
of the laws, demoralizing many rank and file officers in
communities and States;
(3) unfair treatment of officers has potentially serious
long-term consequences for law enforcement by potentially
deterring or otherwise preventing officers from carrying out
their duties and responsibilities effectively and fairly;
(4) the lack of labor-management cooperation in
disciplinary matters and either the perception or the
actuality that officers are not treated fairly detrimentally
impacts the recruitment of and retention of effective
officers, as potential officers and experienced officers seek
other careers, which has serious implications and
repercussions for officer morale, public safety, and labor-
management relations and strife and can affect interstate and
intrastate commerce, interfering with the normal flow of
commerce;
(5) there are serious implications for the public safety of
the citizens and residents of the United States which
threatens the domestic tranquility of the United States
because of a lack of statutory protections to ensure--
(A) the due process and political rights of law enforcement
officers;
(B) fair and thorough internal investigations and
interrogations of and disciplinary proceedings against law
enforcement officers; and
(C) effective procedures for receipt, review, and
investigation of complaints against officers, fair to both
officers and complainants; and
(6) resolving these disputes and problems and preventing
the disruption of vital police services is essential to the
well-being of the United States and the domestic tranquility
of the Nation.
(b) Declaration of Policy.--Congress declares that it is
the purpose of this Act and the policy of the United States
to--
(1) protect the due process and political rights of State
and local law enforcement officers and ensure equality and
fairness of treatment among such officers;
(2) provide continued police protection to the general
public;
(3) provide for the general welfare and ensure domestic
tranquility; and
(4) prevent any impediments to the free flow of commerce,
under the rights guaranteed under the United States
Constitution and Congress' authority thereunder.
SEC. 3. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF
OFFICERS.
(a) In General.--Part H of title I of the Omnibus Crime
Control and Safe Streets Act
[[Page S3285]]
of 1968 (42 U.S.C. 3781 et seq.) is amended by adding at the
end the following:
``SEC. 820. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF
STATE AND LOCAL LAW ENFORCEMENT OFFICERS.
``(a) Definitions.--In this section:
``(1) Disciplinary action.--The term `disciplinary action'
means any adverse personnel action, including suspension,
reduction in pay, rank, or other employment benefit,
dismissal, transfer, reassignment, unreasonable denial of
secondary employment, or similar punitive action taken
against a law enforcement officer.
``(2) Disciplinary hearing.--The term `disciplinary
hearing' means an administrative hearing initiated by a law
enforcement agency against a law enforcement officer, based
on an alleged violation of law, that, if proven, would
subject the law enforcement officer to disciplinary action.
``(3) Emergency suspension.--The term `emergency
suspension' means the temporary action by a law enforcement
agency of relieving a law enforcement officer from the active
performance of law enforcement duties without a reduction in
pay or benefits when the law enforcement agency, or an
official within that agency, determines that there is
probable cause, based upon the conduct of the law enforcement
officer, to believe that the law enforcement officer poses an
immediate threat to the safety of that officer or others or
the property of others.
``(4) Investigation.--The term `investigation'--
``(A) means an action taken to determine whether a law
enforcement officer violated a law by a public agency or a
person employed by a public agency, acting alone or in
cooperation with or at the direction of another agency, or a
division or unit within another agency, regardless of a
denial by such an agency that any such action is not an
investigation; and
``(B) includes--
``(i) asking questions of any other law enforcement officer
or non-law enforcement officer;
``(ii) conducting observations;
``(iii) reviewing and evaluating reports, records, or other
documents; and
``(iv) examining physical evidence.
``(5) Law enforcement officer.--The terms `law enforcement
officer' and `officer' have the meaning given the term `law
enforcement officer' in section 1204, except the term does
not include a law enforcement officer employed by the United
States, or any department, agency, or instrumentality
thereof.
``(6) Personnel record.--The term `personnel record' means
any document, whether in written or electronic form and
irrespective of location, that has been or may be used in
determining the qualifications of a law enforcement officer
for employment, promotion, transfer, additional compensation,
termination or any other disciplinary action.
``(7) Public agency and law enforcement agency.--The terms
`public agency' and `law enforcement agency' each have the
meaning given the term `public agency' in section 1204,
except the terms do not include the United States, or any
department, agency, or instrumentality thereof.
``(8) Summary punishment.--The term `summary punishment'
means punishment imposed--
``(A) for a violation of law that does not result in any
disciplinary action; or
``(B) for a violation of law that has been negotiated and
agreed upon by the law enforcement agency and the law
enforcement officer, based upon a written waiver by the
officer of the rights of that officer under subsection (i)
and any other applicable law or constitutional provision,
after consultation with the counsel or representative of that
officer.
``(b) Applicability.--
``(1) In general.--This section sets forth the due process
rights, including procedures, that shall be afforded a law
enforcement officer who is the subject of an investigation or
disciplinary hearing.
``(2) Nonapplicability.--This section does not apply in the
case of--
``(A) an investigation of specifically alleged conduct by a
law enforcement officer that, if proven, would constitute a
violation of a statute providing for criminal penalties; or
``(B) a nondisciplinary action taken in good faith on the
basis of the employment related performance of a law
enforcement officer.
``(c) Political Activity.--
``(1) Right to engage or not to engage in political
activity.--Except when on duty or acting in an official
capacity, a law enforcement officer shall not be prohibited
from engaging in political activity or be denied the right to
refrain from engaging in political activity.
``(2) Right to run for elective office.--A law enforcement
officer shall not be--
``(A) prohibited from being a candidate for an elective
office or from serving in such an elective office, solely
because of the status of the officer as a law enforcement
officer; or
``(B) required to resign or take an unpaid leave from
employment with a law enforcement agency to be a candidate
for an elective office or to serve in an elective office,
unless such service is determined to be in conflict with or
incompatible with service as a law enforcement officer.
``(3) Adverse personnel action.--An action by a public
agency against a law enforcement officer, including requiring
the officer to take unpaid leave from employment, in
violation of this subsection shall be considered an adverse
personnel action within the meaning of subsection (a)(1).
``(d) Effective Procedures for Receipt, Review, and
Investigation of Complaints Against Law Enforcement
Officers.--
``(1) Complaint process.--Not later than 1 year after the
effective date of this section, each law enforcement agency
shall adopt and comply with a written complaint procedure
that--
``(A) authorizes persons from outside the law enforcement
agency to submit written complaints about a law enforcement
officer to--
``(i) the law enforcement agency employing the law
enforcement officer; or
``(ii) any other law enforcement agency charged with
investigating such complaints;
``(B) sets forth the procedures for the investigation and
disposition of such complaints;
``(C) provides for public access to required forms and
other information concerning the submission and disposition
of written complaints; and
``(D) requires notification to the complainant in writing
of the final disposition of the complaint and the reasons for
such disposition.
``(2) Initiation of an investigation.--
``(A) In general.--Except as provided in subparagraph (B),
an investigation based on a complaint from outside the law
enforcement agency shall commence not later than 15 days
after the receipt of the complaint by--
``(i) the law enforcement agency employing the law
enforcement officer against whom the complaint has been made;
or
``(ii) any other law enforcement agency charged with
investigating such a complaint.
``(B) Exception.--Subparagraph (A) does not apply if--
``(i) the law enforcement agency determines from the face
of the complaint that each allegation does not constitute a
violation of law; or
``(ii) the complainant fails to comply substantially with
the complaint procedure of the law enforcement agency
established under this section.
``(3) Complainant or victim conflict of interest.--The
complainant or victim of the alleged violation of law giving
rise to an investigation under this subsection may not
conduct or supervise the investigation or serve as an
investigator.
``(e) Notice of Investigation.--
``(1) In general.--Any law enforcement officer who is the
subject of an investigation shall be notified of the
investigation 24 hours before the commencement of questioning
of such officer or to otherwise being required to provide
information to an investigating agency.
``(2) Contents of notice.--Notice given under paragraph (1)
shall include--
``(A) the nature and scope of the investigation;
``(B) a description of any allegation contained in a
written complaint;
``(C) a description of each violation of law alleged in the
complaint for which suspicion exists that the officer may
have engaged in conduct that may subject the officer to
disciplinary action; and
``(D) the name, rank, and command of the officer or any
other individual who will be conducting the investigation.
``(f) Rights of Law Enforcement Officers Prior to and
During Questioning Incidental to an Investigation.--If a law
enforcement officer is subjected to questioning incidental to
an investigation that may result in disciplinary action
against the officer, the following minimum safeguards shall
apply:
``(1) Counsel and representation.--
``(A) In general.--Any law enforcement officer under
investigation shall be entitled to effective counsel by an
attorney or representation by any other person who the
officer chooses, such as an employee representative, or both,
immediately before and during the entire period of any
questioning session, unless the officer consents in writing
to being questioned outside the presence of counsel or
representative.
``(B) Private consultation.--During the course of any
questioning session, the officer shall be afforded the
opportunity to consult privately with counsel or a
representative, if such consultation does not repeatedly and
unnecessarily disrupt the questioning period.
``(C) Unavailability of counsel.--If the counsel or
representative of the law enforcement officer is not
available within 24 hours of the time set for the
commencement of any questioning of that officer, the
investigating law enforcement agency shall grant a reasonable
extension of time for the law enforcement officer to obtain
counsel or representation.
``(2) Reasonable hours and time.--Any questioning of a law
enforcement officer under investigation shall be conducted at
a reasonable time when the officer is on duty, unless exigent
circumstances compel more immediate questioning, or the
officer agrees in writing to being questioned at a different
time, subject to the requirements of subsections (e) and
paragraph (1).
``(3) Place of questioning.--Unless the officer consents in
writing to being questioned elsewhere, any questioning of a
law enforcement officer under investigation shall take
place--
``(A) at the office of the individual conducting the
investigation on behalf of the
[[Page S3286]]
law enforcement agency employing the officer under
investigation; or
``(B) the place at which the officer under investigation
reports for duty.
``(4) Identification of questioner.--Before the
commencement of any questioning, a law enforcement officer
under investigation shall be informed of--
``(A) the name, rank, and command of the officer or other
individual who will conduct the questioning; and
``(B) the relationship between the individual conducting
the questioning and the law enforcement agency employing the
officer under investigation.
``(5) Single questioner.--During any single period of
questioning of a law enforcement officer under investigation,
each question shall be asked by or through 1 individual.
``(6) Reasonable time period.--Any questioning of a law
enforcement officer under investigation shall be for a
reasonable period of time and shall allow reasonable periods
for the rest and personal necessities of the officer and the
counsel or representative of the officer, if such person is
present.
``(7) No threats, false statements, or promises to be
made.--
``(A) In general.--Except as provided in subparagraph (B),
no threat against, false or misleading statement to,
harassment of, or promise of reward to a law enforcement
officer under investigation shall be made to induce the
officer to answer any question, give any statement, or
otherwise provide information.
``(B) Exception.--The law enforcement agency employing a
law enforcement officer under investigation may require the
officer to make a statement relating to the investigation by
explicitly threatening disciplinary action, including
termination, only if--
``(i) the officer has received a written grant of use and
derivative use immunity or transactional immunity by a person
authorized to grant such immunity; and
``(ii) the statement given by the law enforcement officer
under such an immunity may not be used in any subsequent
criminal proceeding against that officer.
``(8) Recording.--
``(A) In general.--All questioning of a law enforcement
officer under an investigation shall be recorded in full, in
writing or by electronic device, and a copy of the transcript
shall be provided to the officer under investigation before
any subsequent period of questioning or the filing of any
charge against that officer.
``(B) Separate recording.--To ensure the accuracy of the
recording, an officer may utilize a separate electronic
recording device, and a copy of any such recording (or the
transcript) shall be provided to the public agency conducting
the questioning, if that agency so requests.
``(9) Use of honesty testing devices prohibited.--No law
enforcement officer under investigation may be compelled to
submit to the use of a lie detector, as defined in section 2
of the Employee Polygraph Protection Act of 1988 (29 U.S.C.
2001).
``(g) Notice of Investigative Findings and Disciplinary
Recommendation and Opportunity to Submit a Written
Response.--
``(1) Notice.--Not later than 30 days after the conclusion
of an investigation under this section, the person in charge
of the investigation or the designee of that person shall
notify the law enforcement officer who was the subject of the
investigation, in writing, of the investigative findings and
any recommendations for disciplinary action.
``(2) Opportunity to submit written response.--
``(A) In general.--Not later than 30 days after receipt of
a notification under paragraph (1), and before the filing of
any charge seeking the discipline of such officer or the
commencement of any disciplinary proceeding under subsection
(h), the law enforcement officer who was the subject of the
investigation may submit a written response to the findings
and recommendations included in the notification.
``(B) Contents of response.--The response submitted under
subparagraph (A) may include references to additional
documents, physical objects, witnesses, or any other
information that the law enforcement officer believes may
provide exculpatory evidence.
``(h) Disciplinary Hearings.--
``(1) Notice of opportunity for hearing.--Except in a case
of summary punishment or emergency suspension (subject to
subsection (k)), before the imposition of any disciplinary
action the law enforcement agency shall notify the officer
that the officer is entitled to a due process hearing by an
independent and impartial hearing officer or board.
``(2) Requirement of determination of violation.--No
disciplinary action may be taken against a law enforcement
officer unless an independent and impartial hearing officer
or board determines, after a hearing and in accordance with
the requirements of this subsection, that the law enforcement
officer committed a violation of law.
``(3) Time limit.--No disciplinary charge may be brought
against a law enforcement officer unless--
``(A) the charge is filed not later than the earlier of--
``(i) 1 year after the date on which the law enforcement
agency filing the charge had knowledge or reasonably should
have had knowledge of an alleged violation of law; or
``(ii) 90 days after the commencement of an investigation;
or
``(B) the requirements of this paragraph are waived in
writing by the officer or the counsel or representative of
the officer.
``(4) Notice of hearing.--Unless waived in writing by the
officer or the counsel or representative of the officer, not
later than 30 days after the filing of a disciplinary charge
against a law enforcement officer, the law enforcement agency
filing the charge shall provide written notification to the
law enforcement officer who is the subject of the charge,
of--
``(A) the date, time, and location of any disciplinary
hearing, which shall be scheduled in cooperation with the law
enforcement officer, or the counsel or representative of the
officer, and which shall take place not earlier than 30 days
and not later than 60 days after notification of the hearing
is given to the law enforcement officer under investigation;
``(B) the name and mailing address of the independent and
impartial hearing officer, or the names and mailing addresses
of the independent and impartial hearing board members; and
``(C) the name, rank, command, and address of the law
enforcement officer prosecuting the matter for the law
enforcement agency, or the name, position, and mailing
address of the person prosecuting the matter for a public
agency, if the prosecutor is not a law enforcement officer.
``(5) Access to documentary evidence and investigative
file.--Unless waived in writing by the law enforcement
officer or the counsel or representative of that officer, not
later than 15 days before a disciplinary hearing described in
paragraph (4)(A), the law enforcement officer shall be
provided with--
``(A) a copy of the complete file of the pre-disciplinary
investigation; and
``(B) access to and, if so requested, copies of all
documents, including transcripts, records, written
statements, written reports, analyses, and electronically
recorded information that--
``(i) contain exculpatory information;
``(ii) are intended to support any disciplinary action; or
``(iii) are to be introduced in the disciplinary hearing.
``(6) Examination of physical evidence.--Unless waived in
writing by the law enforcement officer or the counsel or
representative of that officer--
``(A) not later than 15 days before a disciplinary hearing,
the prosecuting agency shall notify the law enforcement
officer or the counsel or representative of that officer of
all physical, non-documentary evidence; and
``(B) not later than 10 days before a disciplinary hearing,
the prosecuting agency shall provide a reasonable date, time,
place, and manner for the law enforcement officer or the
counsel or representative of the law enforcement officer to
examine the evidence described in subparagraph (A).
``(7) Identification of witnesses.--Unless waived in
writing by the law enforcement officer or the counsel or
representative of the officer, not later than 15 days before
a disciplinary hearing, the prosecuting agency shall notify
the law enforcement officer or the counsel or representative
of the officer, of the name and address of each witness for
the law enforcement agency employing the law enforcement
officer.
``(8) Representation.--During a disciplinary hearing, the
law enforcement officer who is the subject of the hearing
shall be entitled to due process, including--
``(A) the right to be represented by counsel or a
representative;
``(B) the right to confront and examine all witnesses
against the officer; and
``(C) the right to call and examine witnesses on behalf of
the officer.
``(9) Hearing board and procedure.--
``(A) In general.--A State or local government agency,
other than the law enforcement agency employing the officer
who is subject of the disciplinary hearing, shall--
``(i) determine the composition of an independent and
impartial disciplinary hearing board;
``(ii) appoint an independent and impartial hearing
officer; and
``(iii) establish such procedures as may be necessary to
comply with this section.
``(B) Peer representation on disciplinary hearing board.--A
disciplinary hearing board that includes employees of the law
enforcement agency employing the law enforcement officer who
is the subject of the hearing, shall include not less than 1
law enforcement officer of equal or lesser rank to the
officer who is the subject of the hearing.
``(10) Summonses and subpoenas.--
``(A) In general.--The disciplinary hearing board or
independent hearing officer--
``(i) shall have the authority to issue summonses or
subpoenas, on behalf of--
``(I) the law enforcement agency employing the officer who
is the subject of the hearing; or
``(II) the law enforcement officer who is the subject of
the hearing; and
``(ii) upon written request of either the law enforcement
agency or the officer, shall issue a summons or subpoena, as
appropriate, to compel the appearance and testimony of a
witness or the production of documentary evidence.
``(B) Effect of failure to comply with summons or
subpoena.--With respect to any failure to comply with a
summons or a subpoena issued under subparagraph (A)--
``(i) the disciplinary hearing officer or board shall
petition a court of competent jurisdiction to issue an order
compelling compliance; and
[[Page S3287]]
``(ii) subsequent failure to comply with such a court order
issued pursuant to a petition under clause (i) shall--
``(I) be subject to contempt of a court proceedings
according to the laws of the jurisdiction within which the
disciplinary hearing is being conducted; and
``(II) result in the recess of the disciplinary hearing
until the witness becomes available to testify and does
testify or is held in contempt.
``(11) Closed hearing.--A disciplinary hearing shall be
closed to the public unless the law enforcement officer who
is the subject of the hearing requests, in writing, that the
hearing be open to specified individuals or to the general
public.
``(12) Recording.--All aspects of a disciplinary hearing,
including pre-hearing motions, shall be recorded by audio
tape, video tape, or transcription.
``(13) Sequestration of witnesses.--Either side in a
disciplinary hearing may move for and be entitled to
sequestration of witnesses.
``(14) Testimony under oath.--The hearing officer or board
shall administer an oath or affirmation to each witness, who
shall testify subject to the laws of perjury of the State in
which the disciplinary hearing is being conducted.
``(15) Final decision on each charge.--
``(A) In general.--At the conclusion of the presentation of
all the evidence and after oral or written argument, the
hearing officer or board shall deliberate and render a
written final decision on each charge.
``(B) Final decision isolated to charge brought.--The
hearing officer or board may not find that the law
enforcement officer who is the subject of the hearing is
liable for disciplinary action for any violation of law as to
which the officer was not charged.
``(16) Burden of persuasion and standard of proof.--The
burden of persuasion or standard of proof of the prosecuting
agency shall be--
``(A) by clear and convincing evidence as to each charge
alleging false statement or representation, fraud,
dishonesty, deceit, moral turpitude, or criminal behavior on
the part of the law enforcement officer who is the subject of
the charge; and
``(B) by a preponderance of the evidence as to all other
charges.
``(17) Factors of just cause to be considered by the
hearing officer or board.--A law enforcement officer who is
the subject of a disciplinary hearing shall not be found
guilty of any charge or subjected to any disciplinary action
unless the disciplinary hearing board or independent hearing
officer finds that--
``(A) the officer who is the subject of the charge could
reasonably be expected to have had knowledge of the probable
consequences of the alleged conduct set forth in the charge
against the officer;
``(B) the rule, regulation, order, or procedure that the
officer who is the subject of the charge allegedly violated
is reasonable;
``(C) the charging party, before filing the charge, made a
reasonable, fair, and objective effort to discover whether
the officer did in fact violate the rule, regulation, order,
or procedure as charged;
``(D) the charging party did not conduct the investigation
arbitrarily or unfairly, or in a discriminatory manner,
against the officer who is the subject of the charge, and the
charge was brought in good faith; and
``(E) the proposed disciplinary action reasonably relates
to the seriousness of the alleged violation and to the record
of service of the officer who is the subject of the charge.
``(18) No commission of a violation.--If the officer who is
the subject of the disciplinary hearing is found not to have
committed the alleged violation--
``(A) the matter is concluded;
``(B) no disciplinary action may be taken against the
officer;
``(C) the personnel record of that officer shall not
contain any reference to the charge for which the officer was
found not guilty; and
``(D) any pay and benefits lost or deferred during the
pendency of the disposition of the charge shall be restored
to the officer as though no charge had ever been filed
against the officer, including salary or regular pay,
vacation, holidays, longevity pay, education incentive pay,
shift differential, uniform allowance, lost overtime, or
other premium pay opportunities, and lost promotional
opportunities.
``(19) Commission of a violation.--
``(A) In general.--If the officer who is the subject of the
charge is found to have committed the alleged violation, the
hearing officer or board shall make a written recommendation
of a penalty to the law enforcement agency employing the
officer or any other governmental entity that has final
disciplinary authority, as provided by applicable State or
local law.
``(B) Penalty.--The employing agency or other governmental
entity may not impose a penalty greater than the penalty
recommended by the hearing officer or board.
``(20) Appeal.--Any officer who has been found to have
committed an alleged violation may appeal from a final
decision of a hearing officer or hearing board to a court of
competent jurisdiction or to an independent neutral
arbitrator to the extent available in any other
administrative proceeding under applicable State or local
law, or a collective bargaining agreement.
``(i) Waiver of Rights.--
``(1) In general.--An officer who is notified that the
officer is under investigation or is the subject of a charge
may, after such notification, waive any right or procedure
guaranteed by this section.
``(2) Written waiver.--A written waiver under this
subsection shall be--
``(A) in writing; and
``(B) signed by--
``(i) the officer, who shall have consulted with counsel or
a representative before signing any such waiver; or
``(ii) the counsel or representative of the officer, if
expressly authorized by subsection (h).
``(j) Summary Punishment.--Nothing in this section shall
preclude a public agency from imposing summary punishment.
``(k) Emergency Suspension.--Nothing in this section may be
construed to preclude a law enforcement agency from imposing
an emergency suspension on a law enforcement officer, except
that any such suspension shall--
``(1) be followed by a hearing in accordance with the
requirements of subsection (h); and
``(2) not deprive the affected officer of any pay or
benefit.
``(l) Retaliation for Exercising Rights.--There shall be no
imposition of, or threat of, disciplinary action or other
penalty against a law enforcement officer for the exercise of
any right provided to the officer under this section.
``(m) Other Remedies Not Impaired.--Nothing in this section
may be construed to impair any other right or remedy that a
law enforcement officer may have under any constitution,
statute, ordinance, order, rule, regulation, procedure,
written policy, collective bargaining agreement, or any other
source.
``(n) Declaratory or Injunctive Relief.--A law enforcement
officer who is aggrieved by a violation of, or is otherwise
denied any right afforded by, the Constitution of the United
States, a State constitution, this section, or any
administrative rule or regulation promulgated pursuant
thereto, may file suit in any Federal or State court of
competent jurisdiction for declaratory or injunctive relief
to prohibit the law enforcement agency from violating or
otherwise denying such right, and such court shall have
jurisdiction, for cause shown, to restrain such a violation
or denial.
``(o) Protection of Law Enforcement Officer Personnel
Files.--
``(1) Restrictions on adverse material maintained in
officers' personnel records.--
``(A) In general.--Unless the officer has had an
opportunity to review and comment, in writing, on any adverse
material generated after the effective date of the State and
Local Law Enforcement Discipline, Accountability, and Due
Process Act of 2005 to be included in a personnel record
relating to the officer, no law enforcement agency or other
governmental entity may--
``(i) include the adverse material in that personnel
record; or
``(ii) possess or maintain control over the adverse
material in any form as a personnel record within the law
enforcement agency or elsewhere in the control of the
employing governmental entity.
``(B) Responsive material.--Any responsive material
provided by an officer to adverse material included in a
personnel record pertaining to the officer shall be--
``(i) attached to the adverse material; and
``(ii) released to any person or entity to whom the adverse
material is released in accordance with law and at the same
time as the adverse material is released.
``(2) Right to inspection of, and restrictions on access to
information in, the officer's own personnel records.--
``(A) In general.--Subject to subparagraph (B), a law
enforcement officer shall have the right to inspect all of
the personnel records of the officer not less than annually.
``(B) Restrictions.--A law enforcement officer shall not
have access to information in the personnel records of the
officer if the information--
``(i) relates to the investigation of alleged conduct that,
if proven, would constitute or have constituted a definite
violation of a statute providing for criminal penalties, but
as to which no formal charge was brought;
``(ii) contains letters of reference for the officer;
``(iii) contains any portion of a test document other than
the results;
``(iv) is of a personal nature about another officer, and
if disclosure of that information in non-redacted form would
constitute a clearly unwarranted intrusion into the privacy
rights of that other officer; or
``(v) is relevant to any pending claim brought by or on
behalf of the officer against the employing agency of that
officer that may be discovered in any judicial or
administrative proceeding between the officer and the
employer of that officer.
``(p) States' Rights.--
``(1) In general.--Nothing in this section may be
construed--
``(A) to preempt any State or local law, or any provision
of a State or local law, in effect on the date of enactment
of the State and Local Law Enforcement Discipline,
Accountability, and Due Process Act of 2005, that confers a
right or a protection that equals or exceeds the right or
protection afforded by this section; or
``(B) to prohibit the enactment of any State or local law
that confers a right or protection that equals or exceeds a
right or protection afforded by this section.
[[Page S3288]]
``(2) State or local laws preempted.--A State or local law,
or any provision of a State or local law, that confers fewer
rights or provides less protection for a law enforcement
officer than any provision in this section shall be preempted
by this section.
``(q) Collective Bargaining Agreements.--Nothing in this
section may be construed to--
``(1) preempt any provision in a mutually agreed-upon
collective bargaining agreement, in effect on the date of
enactment of the State and Local Law Enforcement Discipline,
Accountability, and Due Process Act of 2005, that provides
for substantially the same or a greater right or protection
afforded under this section; or
``(2) prohibit the negotiation of any additional right or
protection for an officer who is subject to any collective
bargaining agreement.''.
(b) Technical Amendment.--The table of contents of title I
of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3711 et seq.) is amended by inserting after the item
relating to section 819 the following:
``Sec. 820. Discipline, accountability, and due process of State and
local law enforcement officers''.
SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE AND LOCAL
CRIMINAL JUSTICE AGENCIES.
Nothing in this Act or the amendments made by this Act
shall be construed to authorize any department, agency,
officer, or employee of the United States to exercise any
direction, supervision, or control of any police force or any
criminal justice agency of any State or any political
subdivision thereof.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall take effect with
respect to each State on the earlier of--
(1) 2 years after the date of enactment of this Act; or
(2) the conclusion of the second legislative session of the
State that begins on or after the date of enactment of this
Act.
______
By Mr. SARBANES (for himself and Ms. Mikulski):
S. 719. A bill to extend Corridor O of the Appalachian Development
Highway System from its currnet southern terminus at I-68 near
Cumberland to Corridor H, which stretches from Weston, West Virginia,
to Strasburg, Virginia; to the Committee on Environment and Public
Works.
Mr. SARBANES. Mr. President, today I am introducing legislation to
add a 35.5 mile segment of a proposed new highway, extending south of
Interstate 68 near Cumberland, MD to Corridor H in West Virginia, to
the Appalachian Development Highway System (ADHS). Joining me in co-
sponsoring this legislation is my colleague Senator Mikulski.
The development of a north-south Appalachian highway corridor has
long been a priority for elected officials, community leaders and
citizens in the Potomac Highlands region of western Maryland, West
Virginia and neighboring Pennsylvania counties. At least two Maryland
State economic development task forces over the last decade have
identified a north-south corridor as their leading priority for the
region. In order to help determine the need, potential alignments as
well as the projected economic benefits and the social, transportation
and environmental impacts of upgrading north-south corridors, six years
ago, I helped secure a grant from the Federal Highway Administration to
support a multi-state study. That study was completed in 2001 and
identified two corridors as having the greatest potential for
benefiting Appalachian economic development the US 219 Corridor in the
north from I-68 in Maryland to the Pennsylvania Turnpike and the US 220
Corridor in south from Corridor H in West Virginia to I-68 in Maryland.
The study also found that upgrading US 220 South of Interstate 68 would
support the largest number of potential new jobs, 7,800-8,600 jobs,
with the highest relative growth--19 percent--of any of the corridors
and have fewer impacts than the alternatives.
While US 220 north of I-68 is part of the ADHS, the segment south of
the interstate is not currently part of the system, although it serves
Appalachia. This area in Allegany County, MD--a county that has
experienced some of the highest rates of unemployment and poverty in
the State--has been targeted for economic development and job growth in
the ``One Maryland'' economic development program. Major employers in
the area--American Woodmark, Aliant Techsystems and MeadWestvaco--as
well as others that might look at this region for the location of their
next plant currently depend on a two-lane roadway running through
residential neighborhoods and commercial areas. The area is well served
by an important east and west corridor, I-68 (ADHS Corridor E), but
North South transportation is inadequate and hampers the economic
prosperity potential of Allegany and Garrett Counties and many of the
surrounding Pennsylvania and West Virginia communities.
Over the past four years, and with additional funding provided by the
Congress in the Fiscal 2003 Transportation Appropriations bill,
Maryland and West Virginia have been undertaking a detailed project
planning phase of the 35.5 mile segment of US 220 south that was
recommended in the feasibility study. Improvements which have been
proposed include a four-lane divided highway, most of which would be on
a new alignment, with at-grade intersections. Fifteen miles of the
proposed road improvements are in Maryland and 20.5 miles in West
Virginia.
These upgrades would increase safety and alleviate traffic congestion
between Cumberland and Keyser and provide an important link to the 83.2
miles of Appalachian Development Highways in Maryland and in the system
of 28 corridors throughout the 13 Appalachian States. The corridor
would interconnect several important ADHS corridors including the East-
West Corridors P in Pennsylvania, E (I-68) in Maryland & West Virginia,
H in West Virginia and Virginia along with the ADHS North-South
Corridor O and Corridor N from Pennsylvania to the North. Currently ARC
Corridors O & N dead end at I-68, and the closest interstate quality
road continuing south is I-81 seventy miles east, or I-79 that is
seventy miles to the west. The new Appalachian highway would also
provide important linkages to the bi-State, Maryland and West Virginia,
Greater Cumberland Airport, rail facilities in the area, and population
centers of Cumberland, Maryland, Keyser, West Virginia, Romney, West
Virginia, and Moorefield, West Virginia.
The Congress recognized the need to help bring the Appalachian Region
into the mainstream of the American economy in 1965 when it created the
Appalachian Region Commission and authorized the Appalachian
Development Highway System. Now, some 40 years later, with the original
ADHS more than 85 percent complete or under construction, it is time to
provide critical linkages to the east-west ADHS corridors, population
centers, other inter-modal facilities such as air and rail, and the
existing interstate system and to further boost the region's
opportunity to advance towards economic parity. I hope that the
Congress will swiftly approve this legislation.
______
By Mr. VITTER:
S. 721. A bill to authorize the Secretary of the Army to carry out a
program for ecosystem restoration for the Louisiana Coastal Area,
Louisiana; to the Committee on Environment and Public Works.
Mr. VITTER. 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. 721
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION. 1. LOUISIANA COASTAL AREA ECOSYSTEM RESTORATION,
LOUISIANA.
(a) In General.--The Secretary may carry out a program for
ecosystem restoration, Louisiana Coastal Area, Louisiana,
substantially in accordance with the report of the Chief of
Engineers, dated January 31, 2005.
(b) Priorities.--
(1) In general.--In carrying out the program under
subsection (a), the Secretary shall give priority to--
(A) any portion of the program identified in the report
described in subsection (a) as a critical restoration
feature;
(B) any Mississippi River diversion project that--
(i) protects a major population area of the Pontchartain,
Pearl, Breton Sound, Barataria, or Terrebonne Basin; and
(ii) produces an environmental benefit to the coastal area
of the State of Louisiana or the State of Mississippi; and
(C) any barrier island, or barrier shoreline, project
that--
(i) is carried out in conjunction with a Mississippi River
diversion project; and
(ii) protects a major population area.
(c) Non-Federal Share.--
(1) Credit for integral work.--The Secretary shall provide
credit (including in-kind
[[Page S3289]]
credit) toward the non-Federal share for the cost of any work
carried out by the non-Federal interest on a project that is
part of the program under subsection (a) if the Secretary
determines that the work is integral to the project.
(2) Carryover of credits.--A credit provided under
paragraph (1) may be carried over between authorized projects
in the Louisiana Coastal Area ecosystem restoration program.
(3) Nongovernmental organizations.--A nongovernmental
organization shall be eligible to contribute all or a portion
of the non-Federal share of the cost of a project under this
section.
(d) Comprehensive Plan.--
(1) In general.--The Secretary, in coordination with the
Governor of the State of Louisiana, shall--
(A) develop a plan for protecting, preserving, and
restoring the coastal Louisiana ecosystem; and
(B) not later than 1 year after the date of enactment of
this Act, and every 5 years thereafter, submit to Congress
the plan, or an update of the plan.
(2) Inclusions.--The comprehensive plan shall include a
description of--
(A) the framework of a long-term program that provides for
the comprehensive protection, conservation, and restoration
of the wetlands, estuaries (including the Barataria-
Terrebonne estuary), barrier islands, shorelines, and related
land and features of the coastal Louisiana ecosystem,
including protection of a critical resource, habitat, or
infrastructure from the effects of a coastal storm, a
hurricane, erosion, or subsidence;
(B) the means by which a new technology, or an improved
technique, can be integrated into the program under
subsection (a); and
(C) the role of other Federal agencies and programs in
carrying out the program under subsection (a).
(3) Consideration.--In developing the comprehensive plan,
the Secretary shall consider the advisability of integrating
into the program under subsection (a)--
(A) a related Federal or State project carried out on the
date on which the plan is developed;
(B) an activity in the Louisiana Coastal Area; or
(C) any other project or activity identified in--
(i) the Mississippi River and Tributaries program;
(ii) the Louisiana Coastal Wetlands Conservation Plan;
(iii) the Louisiana Coastal Zone Management Plan; or
(iv) the plan of the State of Louisiana entitled ``Coast
2050: Toward a Sustainable Coastal Louisiana''.
(e) Task Force.--
(1) Establishment.--There is established a task force to be
known as the ``Coastal Louisiana Ecosystem Protection and
Restoration Task Force'' (referred to in this subsection as
the ``Task Force'').
(2) Membership.--The Task Force shall consist of the
following members (or, in the case of the head of a Federal
agency, a designee at the level of Assistant Secretary or an
equivalent level):
(A) The Secretary.
(B) The Secretary of the Interior.
(C) The Secretary of Commerce.
(D) The Administrator of the Environmental Protection
Agency.
(E) The Secretary of Agriculture.
(F) The Secretary of Transportation.
(G) The Secretary of Energy.
(H) The Secretary of Homeland Security.
(I) 3 representatives of the State of Louisiana appointed
by the Governor of that State.
(3) Duties.--The Task Force shall make recommendations to
the Secretary regarding--
(A) policies, strategies, plans, programs, projects, and
activities for addressing conservation, protection,
restoration, and maintenance of the coastal Louisiana
ecosystem;
(B) financial participation by each agency represented on
the Task Force in conserving, protecting, restoring, and
maintaining the coastal Louisiana ecosystem, including
recommendations--
(i) that identify funds from current agency missions and
budgets; and
(ii) for coordinating individual agency budget requests;
and
(C) the comprehensive plan under subsection (d).
(4) Working groups.--The Task Force may establish such
working groups as the Task Force determines to be necessary
to assist the Task Force in carrying out this subsection.
(5) Application of the federal advisory committee act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to the Task Force or any working group of the Task
Force.
(f) Mississippi River Gulf Outlet.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall develop a plan for
modifying the Mississippi River Gulf Outlet that addresses--
(A) wetland losses attributable to the Mississippi River
Gulf Outlet;
(B) channel bank erosion;
(C) hurricane storm surges;
(D) saltwater intrusion;
(E) navigation interests; and
(F) environmental restoration.
(2) Report.--If the Secretary determines necessary, the
Secretary, in conjunction with the Chief of Engineers, shall
submit to Congress a report recommending modifications to the
Mississippi River Gulf Outlet, including measures to prevent
the intrusion of saltwater into the Outlet.
(g) Science and Technology.--
(1) In general.--The Secretary shall establish a coastal
Louisiana ecosystem science and technology program.
(2) Purposes.--The purposes of the program established by
paragraph (1) shall be--
(A) to identify any uncertainty relating to the physical,
chemical, geological, biological, and cultural baseline
conditions in coastal Louisiana;
(B) to improve knowledge of the physical, chemical,
geological, biological, and cultural baseline conditions in
coastal Louisiana; and
(C) to identify and develop technologies, models, and
methods to carry out this subsection.
(3) Working groups.--The Secretary may establish such
working groups as the Secretary determines to be necessary to
assist the Secretary in carrying out this subsection.
(4) Contracts and cooperative agreements.--In carrying out
this subsection, the Secretary may enter into a contract or
cooperative agreement with an individual or entity (including
a consortium of academic institutions in Louisiana and
Mississippi) with scientific or engineering expertise in the
restoration of aquatic and marine ecosystems for coastal
restoration and enhancement through science and technology.
(h) Analysis of Benefits.--
(1) In general.--Notwithstanding section 209 of the Flood
Control Act of 1970 (42 U.S.C. 1962-2) or any other provision
of law, in carrying out an activity to conserve, protect,
restore, or maintain the coastal Louisiana ecosystem, the
Secretary may determine that the environmental benefits
provided by the program under this section outweigh the
disadvantage of an activity under this section.
(2) Determination of cost-effectiveness.--If the Secretary
determines that an activity under this section is cost-
effective, no further economic justification for the activity
shall be required.
(i) Apportionment.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Secretary, in consultation with
the non-Federal interest, shall enter into a contract with
the National Academy of Sciences under which the National
Academy of Sciences shall conduct a study.
(2) Identification of causes and sources.--The study under
paragraph (1) shall, to the maximum extent practicable,
identify--
(A) each cause of degradation of the Louisiana Coastal Area
ecosystem that is attributable to an action by the Secretary;
(B) an apportionment of the sources of such degradation;
(C) any potential reduction in the amount of Federal
emergency response funds that would occur as a result of
ecosystem restoration in the Louisiana Coastal Area; and
(D) the reduction in costs associated with protection and
maintenance of infrastructure that is threatened or damaged
as a result of coastal erosion in Louisiana that would occur
as a result of ecosystem restoration in the Louisiana Coastal
Area.
(j) Report.--Not later than July 1, 2006, the Secretary, in
conjunction with the Chief of Engineers, shall submit to
Congress a report describing the features included in table 3
of the report described in subsection (a).
(k) Project Modifications.--
(1) Review.--The Secretary, in cooperation with any non-
Federal interest, shall review each federally-authorized
water resources project in the coastal Louisiana area in
existence on the date of enactment of this Act to determine
whether--
(A) each project is in accordance with the program under
subsection (a); and
(B) the project could contribute to ecosystem restoration
under subsection (a) through modification of the operations
or features of the project.
(2) Public notice and comment.--Before modifying an
operation or feature of a project under paragraph (1)(B), the
Secretary shall provide an opportunity for public notice and
comment.
(3) Report.--
(A) In general.--Before modifying an operation or feature
of a project under paragraph (1)(B), the Secretary shall
submit to the Committee on Environment and Public Works of
the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives a report
describing the modification.
(B) Inclusion.--A report under paragraph (2)(B) shall
include such information relating to the timeline and cost of
a modification as the Secretary determines to be relevant.
(4) Authorization of appropriations.--There is authorized
to be appropriated to the Secretary to carry out
modifications under this subsection $10,000,000.
Mr. SANTORUM. Mr. President, today I am introducing legislation to
amend the Internal Revenue Code of 1986 to reduce the tax on beer to
its pre-1991 level. In 1990, Congress raised taxes on luxury items like
expensive cars, fur coats, jewelry, yachts and private airplanes and
doubled the Federal excise tax on beer.
This was the single largest tax increase on beer in American history
and resulted in some 60,000 people losing
[[Page S3290]]
their jobs in brewing, distributing, retailing and related industries.
The tax burden on beer is higher than the average consumer good in the
American economy, an astounding 44 percent of its retail price. As a
result of this tax increase the Government collects approximately seven
times more in beer taxes than the Nation's brewers make in profits.
The doubling of the beer excise tax in 1990 was regressive, and
therefore unfair, because it hits lower income taxpayers the hardest.
Most beer consumers have household incomes below $40,000. Regular beer
drinkers--Americans raising a family--are the people most affected by
the increase in the Federal excise tax on beer. Lowering the beer tax
means more money in the pockets of these hard-working men and women.
The beer excise tax was first enacted as an emergency measure to help
finance the Civil War. It is an anachronism in our tax code. Since its
enactment, dozens of corporate and payroll taxes have been imposed on
brewers just as they have on other businesses. Yet the beer excise tax
remains. A rollback of just the 1990 beer tax increase would also help
maintain good-paying American manufacturing jobs and will create new
opportunities and a boost to the economy. The U.S. system of alcohol
beverage control has been the maintenance of a domestic presence for
the industry with independent supplier, wholesale and retail tiers.
Brewers, wholesalers and retailers are heavily regulated and to the
extent the U.S. maintains a strong domestic industry, the Federal,
State and local agencies will continue to ensure accountability and
responsible business practices.
The brewing industry has a major presence in many U.S. cities and
provides a significant source of manufacturing jobs. The industry
directly and indirectly accounts for close to 2.5 million jobs
nationwide--a reduction of the beer tax would help brewers maintain or
grow their workforce. Brewing, wholesaling and retail combined
contribute over 41,000 jobs to the economy of my home State of
Pennsylvania.
All of the other luxury taxes enacted in 1990 have been repealed. Yet
the beer tax increase remains in place. It is time to roll back the
Federal excise tax increase on beer and provide another measure of tax
relief to America's working men and women. The Federal Government will
still collect almost $3.7 billion in excise taxes and the industry will
pay an additional $21 billion in Federal, State, and local taxes. This
is a modest and reasonable measure of tax relief to a significant
American industry.
______
By Ms. SNOWE (for herself, Mr. Bond, and Mr. Bingaman):
S. 723. A bill to amend the Internal Revenue Code of 1986 to allow
small businesses to set up simple cafeteria plans to provide nontaxable
employee benefits to their employees, to make changes in the
requirements for cafeteria plans, flexible spending accounts, and
benefits provided under such plans or accounts, and for other purposes;
to the Committee on Finance.
Ms. SNOWE. Mr. President, I rise today to introduce the SIMPLE
Cafeteria Plan Act of 2005'' to increase the access to quality,
affordable health care for millions of small business owners and their
employees. I am pleased that my good friend from Missouri, Senator
Bond, as well as my good friend Senator Bingaman from New Mexico have
agreed to co-sponsor this critical piece of legislation.
Regrettably, our Nation's healthcare system is in the midst of a
crisis. Each year, more and more Americans are unable to purchase
health insurance, and there are no signs that things are improving. As
evidence, the United States Census Bureau estimates that nearly 47
million people did not have health insurance coverage for all of 2002.
Sadly, this number rose from 41.2 million uninsured persons in 2001--a
14.6 percent increase.
As if these numbers on a national scale are not alarming enough, the
results are even more troubling when we look specifically at the small
business sector of our economy. Analysis conducted by the Employee
Benefit Research Institute, a nonpartisan group dedicated to ensuring
that all workers have access to affordable health care, suggests that
the highest rates of uninsured occur among either self-employed workers
or workers whose employer employees fewer than 25 persons. When
compared to workers in firms that employ 1,000 or more employees, where
just 12.6 percent of those workers do not have health insurance, it
becomes clear that the majority of uninsured Americans work for small
enterprises. Clearly, these numbers suggest that there is a direct
correlation among those persons who do not have health insurance and
the size of their employer.
The question, then, is why are our Nation's small businesses, which
are our country's job creators and the true engine of our national
economy, so disadvantaged when it comes to purchasing health insurance.
The main reason that small business owners are not able to offer
their employees health insurance is because many small business owners
are able to pay only a portion of their employees' health insurance
premiums or, even worse, cannot afford to provide any health insurance
or other employee benefits at all. As a result, many small business
workers must acquire health insurance from the private sector rather
than the work place--an unfair, and far more expensive alternative.
Clearly, we have a problem on our hands. While we can debate among
ourselves why this crisis exists and how we ended up here, what is not
open for debate is that we need to start identifying ways to fix the
system because it is simply unconscionable to do nothing while more and
more Americans find themselves without health care.
As you know, I re-introduced a bill earlier this year that will go a
long ways towards improving the situation by creating Associated Health
Plans for small businesses. In general, this bill would permit small
businesses throughout the country to band together for purposes of
obtaining an insurance quote from an insurance company. By pooling
these businesses together, they would pay lower premiums because of the
increased risk pool.
Again, this bill would increase the number of Americans that would be
able to afford health insurance because their insurance premiums would
be based on a more reasonable number. The bill I am introducing today
builds upon this and goes a step further by putting more small business
owners and their employees on a level playing field when compared to
workers of a larger company.
Specifically, many large companies and even the Federal government
enable their employees to purchase health insurance and other qualified
benefits with taxfree dollars. Larger companies are able to do this by
qualifying for certain employee benefit delivery mechanisms under the
tax code.
One such delivery mechanism is a cafeteria plan. As the name
suggests, cafeteria plans are programs whereby employers offer their
employees the opportunity to purchase certain qualified benefits of
their choosing. The key here is that the employer provides the
opportunity for the employee to purchase the benefit, and the employee
is then free to chose whether to participate and which benefits to buy.
Under current law, qualified benefits include health insurance,
dependent-care reimbursement, and life and disability insurance.
Typically, employer contributions, employee contributions, or a
combination of the two fund these plans.
Cafeteria plans offer valuable benefits to employees and are popular
for many reasons. Specifically, they offer employees great flexibility
in selecting their desired benefits while enabling them to disregard
those benefits that do not fit their particular needs. Participating
employees are also able to exclude any wages that they contribute to a
cafeteria plan from their Federal taxable income, Social Security, and
Medicare, which means they are using more valuable pre-tax dollars to
buy these benefits. Moreover, the employees are usually purchasing
these benefits at a lower cost because employers are oftentimes able to
obtain a reduced price for the benefits through a group rate after they
establish a cafeteria plan.
Cafeteria plans also provide employers with valuable benefits, most
notably as a recruiting tool. It certainly stands to reason that if
more small business owners are able to offer their employees the chance
to enjoy a variety of employee benefits, these owners
[[Page S3291]]
then will be more likely to attract, recruit, and retain more talented
workers, which will ultimately increase the firm's business output. Too
often, we hear that small businesses loose skilled employees to larger
companies simply because a big firm is able to offer a more attractive
benefit package. Given that small businesses are responsible for a
majority of the new jobs created in this country, we need to reverse
that trend, and this bill will go a long way in rectifying this
inequity.
Clearly, cafeteria plans play a critical role in our Nation's health
care system and economy in general. The problem, though, is that in
order for companies to qualify for the tax benefits that cafeteria
plans provide, they must satisfy strict nondiscrimination rules under
the tax code. These rules exist to ensure that the benefits offered to
highly compensated employees are offered to non-highly compensated
employees as well. The rules also strive to ensure that non-highly
compensated employees in fact receive a substantial portion of the
benefits provided under the plan.
Now I want to be clear when I say that these non-discrimination rules
serve a legitimate purpose. Indeed, we need to be sure that employers
are not able to game the tax system by implementing these cafeteria
plans, and that the cafeteria plans that qualify for preferential tax
treatment are used by a majority of the employees in the company.
However, what I find to be unacceptable is the way the tax code
attempts to implement this policy under the existing rules. Currently,
many small businesses simply cannot satisfy these mechanical rules
because, through no fault of their own, they have relatively few
employees and a high proportion of owners or highly compensated
individuals. As such, were a small business to create a cafeteria plan
and violate the non-discrimination rules, certain workers within the
company would be subject to a penalty and would be required to include
a substantial portion of their contributions in their taxable income.
Consequently, many small companies simply do not even bother to
implement a cafeteria plan for fear that they will violate the non-
discrimination rules. According to the Employer's Council on Flexible
Compensation, while 38.36 million U.S. workers had access to cafeteria
plans in 1999, only 19 percent of those workers were employees of small
businesses.
To improve the current situation, the bill I am introducing today
will allow and encourage more small businesses to offer employees the
opportunity to purchase health insurance with tax-free dollars just as
larger companies and the federal government do. My bill accomplishes
this by creating a Simple Cafeteria Plan, which is modeled after the
Savings Incentive Match Plan for Employees (SIMPLE) pension plan. As
with the SIMPLE pension plan, a small business employer that is willing
to make a minimum contribution for all employees or who is willing to
match contributions will be permitted to waive the non-discrimination
rules that currently prevent these owners from otherwise offering these
benefits. This structure has worked extraordinarily well in the pension
area with little risk of abuse, and I am confident that it will be just
as successful when it comes to broad-based benefits offered through
cafeteria plans.
Under the SIMPLE Cafeteria Plan, small companies will not have to
struggle with satisfying the burdensome non-discrimination rules that
often prevent them from offering valuable employee benefits to their
workers. As a result, more small business employers will be able to
provide their workers with the employee benefits that are often
reserved for larger employers and that are otherwise unavailable
because of the non-discrimination rules.
In addition my bill will expand the types of qualified benefits that
will be able to be offered under ALL cafeteria plans--both those that
qualify under existing law as well as the new SIMPLE cafeteria plans
that will be created. Specifically, my bill modifies the rules
governing benefits offered under cafeteria plans, such as flexible
spending accounts and dependent-care assistance plans that many larger
employers offer their employees. These modifications will increase the
likelihood that employees of small businesses will utilize the
available benefits and that will increase the benefits provided for all
employees.
For example, current rules impose a ``use it or lose it'' requirement
with respect to flexible spending arrangement contributions. This means
that the employee forfeits any money he or she contributes to the
account but does not use during the plan. My bill would change that
rule and allow employees to carry over up to $500 remaining in their
account to the next plan year. The bill would also permit employees to
carry-over any unused funds to a retirement account such as a 401(k)
plan.
In either case, any carried over contributions will reduce the amount
that the employee otherwise would be able to contribute to the spending
arrangement in the following year so that the carry-over option will
not produce a greater dollar benefit for any employee. As a result,
more employees are likely to participate in these spending arrangements
because they will ultimately be able to use any funds that they
contribute without any fear of forfeiting them simply because the funds
were not used in the year of contribution.
Additionally, this legislation modifies rules that pertain to
employer-provided, dependent-care assistance plans. First, it would
increase the current $5,000 annual contribution limitation of these
plans to $10,000 if the contributing employee claims two or more
dependents on his or her tax return. This increase is significant
because it will provide these taxpayers with an opportunity to care for
not only their children but also an elderly family member who is a
dependent of an employee--a scenario that will become increasingly more
likely as the current baby-boomer generation continues to age.
Second, this bill would amend the current non-discrimination rules
that dependent-care assistance plans must satisfy. As is often the case
with the majority of small business owners who cannot, through any
fault of their own, satisfy the non-discrimination rules for
establishing a cafeteria plan, these rules often prevent the owner from
offering this valuable benefit to their employees. To remedy this
inequity, this bill would change the current mechanical thresholds such
that more small businesses can provide dependent-care assistance plans
to their employees but in a manner that does not encourage the type of
abuse that the non-discrimination rules are intended to prevent.
Small businesses are the backbone of the American economy. According
to the Small Business Administration, small businesses represent 99
percent of all employers, employ 51 percent of the private-sector
workforce, and contribute 51 percent of the private-sector output. It
is therefore critical that small businesses owners are able to offer
their employees the benefits that cafeteria plans provide so that more
of our nation's workers have the opportunity to purchase quality
healthcare and provide security for their families.
The ``SIMPLE Cafeteria Plan Act of 2005'' achieves those objectives,
and it does so in a manner that the employers and employees are able to
afford. Although the use of pre-tax dollars to acquire these benefits
reduces current federal revenues, the opportunity to provide small
business employees these same benefits to workers and their families
rather than relying on the public sector more than justifies this
minimal investment. Therefore, I urge my colleagues to join me in
supporting this important legislation as we work with you to enact this
bill into law.
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. 723
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) Short Title.--This Act may be cited as the ``SIMPLE
Cafeteria Plan Act of 2005'' .
(b) Amendment of 1986 Code.--Except as otherwise expressly
provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a
section or other provision, the reference shall be considered
to be made to a section or other provision of the Internal
Revenue Code of 1986.
SEC. 2. ESTABLISHMENT OF SIMPLE CAFETERIA PLANS FOR SMALL
BUSINESSES.
(a) In General.--Section 125 (relating to cafeteria plans)
is amended by redesignating
[[Page S3292]]
subsections (h) and (i) as subsections (i) and (j),
respectively, and by inserting after subsection (g) the
following new subsection:
``(h) Simple Cafeteria Plans for Small Businesses.--
``(1) In general.--An eligible employer maintaining a
simple cafeteria plan with respect to which the requirements
of this subsection are met for any year shall be treated as
meeting any applicable nondiscrimination requirement with
respect to benefits provided under the plan during such year.
``(2) Simple cafeteria plan.--For purposes of this
subsection, the term `simple cafeteria plan' means a
cafeteria plan--
``(A) which is established and maintained by an eligible
employer, and
``(B) with respect to which the contribution requirements
of paragraph (3), and the eligibility and participation
requirements of paragraph (4), are met.
``(3) Contributions requirements.--
``(A) In general.--The requirements of this paragraph are
met if, under the plan--
``(i) the employer makes matching contributions on behalf
of each employee who is eligible to participate in the plan
and who is not a highly compensated or key employee in an
amount equal to the elective plan contributions of the
employee to the plan to the extent the employee's elective
plan contributions do not exceed 3 percent of the employee's
compensation, or
``(ii) the employer is required, without regard to whether
an employee makes any elective plan contribution, to make a
contribution to the plan on behalf of each employee who is
not a highly compensated or key employee and who is eligible
to participate in the plan in an amount equal to at least 2
percent of the employee's compensation.
``(B) Matching contributions on behalf of highly
compensated and key employees.--The requirements of
subparagraph (A)(i) shall not be treated as met if, under the
plan, the rate of matching contribution with respect to any
elective plan contribution of a highly compensated or key
employee at any rate of contribution is greater than that
with respect to an employee who is not a highly compensated
or key employee.
``(C) Special rules.--
``(i) Time for making contributions.--An employer shall not
be treated as failing to meet the requirements of this
paragraph with respect to any elective plan contributions of
any compensation, or employer contributions required under
this paragraph with respect to any compensation, if such
contributions are made no later than the 15th day of the
month following the last day of the calendar quarter which
includes the date of payment of the compensation.
``(ii) Form of contributions.--Employer contributions
required under this paragraph may be made either to the plan
to provide benefits offered under the plan or to any person
as payment for providing benefits offered under the plan.
``(iii) Additional contributions.--Subject to subparagraph
(B), nothing in this paragraph shall be treated as
prohibiting an employer from making contributions to the plan
in addition to contributions required under subparagraph (A).
``(D) Definitions.--For purposes of this paragraph--
``(i) Elective plan contribution.--The term `elective plan
contribution' means any amount which is contributed at the
election of the employee and which is not includible in gross
income by reason of this section.
``(ii) Highly compensated employee.--The term `highly
compensated employee' has the meaning given such term by
section 414(q).
``(iii) Key employee.--The term `key employee' has the
meaning given such term by section 416(i).
``(4) Minimum eligibility and participation requirements.--
``(A) In general.--The requirements of this paragraph shall
be treated as met with respect to any year if, under the
plan--
``(i) all employees who had at least 1,000 hours of service
for the preceding plan year are eligible to participate, and
``(ii) each employee eligible to participate in the plan
may, subject to terms and conditions applicable to all
participants, elect any benefit available under the plan.
``(B) Certain employees may be excluded.--For purposes of
subparagraph (A)(i), an employer may elect to exclude under
the plan employees--
``(i) who have less than 1 year of service with the
employer as of any day during the plan year,
``(ii) who have not attained the age of 21 before the close
of a plan year,
``(iii) who are covered under an agreement which the
Secretary of Labor finds to be a collective bargaining
agreement if there is evidence that the benefits covered
under the cafeteria plan were the subject of good faith
bargaining between employee representatives and the employer,
or
``(iv) who are described in section 410(b)(3)(C) (relating
to nonresident aliens working outside the United States).
A plan may provide a shorter period of service or younger age
for purposes of clause (i) or (ii).
``(5) Eligible employer.--For purposes of this subsection--
``(A) In general.--The term `eligible employer' means, with
respect to any year, any employer if such employer employed
an average of 100 or fewer employees on business days during
either of the 2 preceding years. For purposes of this
subparagraph, a year may only be taken into account if the
employer was in existence throughout the year.
``(B) Employers not in existence during preceding year.--If
an employer was not in existence throughout the preceding
year, the determination under subparagraph (A) shall be based
on the average number of employees that it is reasonably
expected such employer will employ on business days in the
current year.
``(C) Growing employers retain treatment as small
employer.--If--
``(i) an employer was an eligible employer for any year (a
`qualified year'), and
``(ii) such employer establishes a simple cafeteria plan
for its employees for such year, then, notwithstanding the
fact the employer fails to meet the requirements of
subparagraph (A) for any subsequent year, such employer shall
be treated as an eligible employer for such subsequent year
with respect to employees (whether or not employees during a
qualified year) of any trade or business which was covered by
the plan during any qualified year. This subparagraph shall
cease to apply if the employer employs an average of 200 more
employees on business days during any year preceding any such
subsequent year.
``(D) Special rules.--The rules of section 220(c)(4)(D)
shall apply for purposes of this paragraph.
``(6) Applicable nondiscrimination requirement.--For
purposes of this subsection, the term `applicable
nondiscrimination requirement' means any requirement under
subsection (b) of this section, section 79(d), section
105(h), or paragraph (2), (3), (4), or (8) of section 129(d).
``(7) Compensation.--The term `compensation' has the
meaning given such term by section 414(s).''
(b) Effective Date.--The amendments made by this section
shall apply to years beginning after December 31, 2004.
SEC. 3. MODIFICATIONS OF RULES APPLICABLE TO CAFETERIA PLANS.
(a) Application to Self-Employed Individuals.--
(1) In general.--Section 125(d) (defining cafeteria plan)
is amended by adding at the end the following new paragraph:
``(3) Employee to include self-employed.--
``(A) In general.--The term `employee' includes an
individual who is an employee within the meaning of section
401(c)(1) (relating to self-employed individuals).
``(B) Limitation.--The amount which may be excluded under
subsection (a) with respect to a participant in a cafeteria
plan by reason of being an employee under subparagraph (A)
shall not exceed the employee's earned income (within the
meaning of section 401(c)) derived from the trade or business
with respect to which the cafeteria plan is established.''
(2) Application to benefits which may be provided under
cafeteria plan.--
(A) Group-term life insurance.--Section 79 (relating to
group-term life insurance provided to employees) is amended
by adding at the end the following new subsection:
``(f) Employee Includes Self-Employed.--
``(1) In general.--For purposes of this section, the term
`employee' includes an individual who is an employee within
the meaning of section 401(c)(1) (relating to self-employed
individuals).
``(2) Limitation.--The amount which may be excluded under
the exceptions contained in subsection (a) or (b) with
respect to an individual treated as an employee by reason of
paragraph (1) shall not exceed the employee's earned income
(within the meaning of section 401(c)) derived from the trade
or business with respect to which the individual is so
treated.''
(B) Accident and health plans.--Section 105(g) is amended
to read as follows:
``(g) Employee Includes Self-Employed.--
``(1) In general.--For purposes of this section, the term
`employee' includes an individual who is an employee within
the meaning of section 401(c)(1) (relating to self-employed
individuals).
``(2) Limitation.--The amount which may be excluded under
this section by reason of subsection (b) or (c) with respect
to an individual treated as an employee by reason of
paragraph (1) shall not exceed the employee's earned income
(within the meaning of section 401(c)) derived from the trade
or business with respect to which the accident or health
insurance was established.''
(C) Contributions by employers to accident and health
plans.--
(i) In general.--Section 106, as amended by subsection (b),
is amended by adding after subsection (b) the following new
subsection:
``(c) Employer to Include Self-Employed.--
``(1) In general.--For purposes of this section, the term
`employee' includes an individual who is an employee within
the meaning of section 401(c)(1) (relating to self-employed
individuals).
``(2) Limitation.--The amount which may be excluded under
subsection (a) with respect to an individual treated as an
employee by reason of paragraph (1) shall not exceed the
employee's earned income (within the meaning of section
401(c)) derived from the trade or business with respect to
which the accident or health insurance was established.''
(ii) Clarification of limitations on other coverage.--The
first sentence of section 162(l)(2)(B) is amended to read as
follows:
[[Page S3293]]
``Paragraph (1) shall not apply to any taxpayer for any
calendar month for which the taxpayer participates in any
subsidized health plan maintained by any employer (other than
an employer described in section 401(c)(4)) of the taxpayer
or the spouse of the taxpayer.
(b) Long-Term Care Insurance Permitted to Be Offered Under
Cafeteria Plans and Flexible Spending Arrangements.--
(1) Cafeteria plans.--The last sentence of section 125(f)
(defining qualified benefits) is amended to read as follows:
``Such term shall include the payment of premiums for any
qualified long-term care insurance contract (as defined in
section 7702B) to the extent the amount of such payment does
not exceed the eligible long-term care premiums (as defined
in section 213(d)(10)) for such contract''.
(2) Flexible spending arrangements.--Section 106 (relating
to contributions by employer to accident and health plans) is
amended by striking subsection (c).
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2004.
SEC. 4. MODIFICATION OF RULES APPLICABLE TO FLEXIBLE SPENDING
ARRANGEMENTS.
(a) In General.--Section 125, as amended by section 2, is
amended by redesignating subsections (i) and (j) as
subsections (j) and (k), respectively, and by inserting after
subsection (h) the following new subsection:
``(i) Special Rules Applicable to Flexible Spending
Arrangements.--
``(1) In general.--For purposes of this title, a plan or
other arrangement shall not fail to be treated as a flexible
spending or similar arrangement solely because under the plan
or arrangement--
``(A) the amount of the reimbursement for covered expenses
at any time may not exceed the balance in the participant's
account for the covered expenses as of such time,
``(B) except as provided in paragraph (4)(A)(ii), a
participant may elect at any time specified by the plan or
arrangement to make or modify any election regarding the
covered benefits, or the level of covered benefits, of the
participant under the plan, and
``(C) a participant is permitted access to any unused
balance in the participant's accounts under such plan or
arrangement in the manner provided under paragraph (2) or
(3).
``(2) Carryovers and rollovers of unused benefits in health
and dependent care arrangements.--
``(A) In general.--A plan or arrangement may permit a
participant in a health flexible spending arrangement or
dependent care flexible spending arrangement to elect--
``(i) to carry forward any aggregate unused balances in the
participant's accounts under such arrangement as of the close
of any year to the succeeding year, or
``(ii) to have such balance transferred to a plan described
in subparagraph (E).
Such carryforward or transfer shall be treated as having
occurred within 30 days of the close of the year.
``(B) Dollar limit on carryforwards.--
``(i) In general.--The amount which a participant may elect
to carry forward under subparagraph (A)(i) from any year
shall not exceed $500. For purposes of this paragraph, all
plans and arrangements maintained by an employer or any
related person shall be treated as 1 plan.
``(ii) Cost-of-living adjustment.--In the case of any
taxable year beginning in a calendar year after 2005, the
$500 amount under clause (i) shall be increased by an amount
equal to--
``(I) $500, multiplied by
``(II) the cost-of-living adjustment determined under
section 1(f)(3) for such calendar year, determined by
substituting `2004' for `1992' in subparagraph (B) thereof.
If any dollar amount as increased under this clause is not a
multiple of $100, such amount shall be rounded to the next
lowest multiple of $100.
``(C) Exclusion from gross income.--No amount shall be
required to be included in gross income under this chapter by
reason of any carryforward or transfer under this paragraph.
``(D) Coordination with limits.--
``(i) Carryforwards.--The maximum amount which may be
contributed to a health flexible spending arrangement or
dependent care flexible spending arrangement for any year to
which an unused amount is carried under this paragraph shall
be reduced by such amount.
``(ii) Rollovers.--Any amount transferred under
subparagraph (A)(ii) shall be treated as an eligible rollover
under section 219, 223(f)(5), 401(k), 403(b), or 457,
whichever is applicable, except that--
``(I) the amount of the contributions which a participant
may make to the plan under any such section for the taxable
year including the transfer shall be reduced by the amount
transferred, and
``(II) in the case of a transfer to a plan described in
clause (ii) or (iii) of subparagraph (E), the transferred
amounts shall be treated as elective deferrals for such
taxable year.
``(E) Plans.--A plan is described in this subparagraph if
it is--
``(i) an individual retirement plan,
``(ii) a qualified cash or deferred arrangement described
in section 401(k),
``(iii) a plan under which amounts are contributed by an
individual's employer for an annuity contract described in
section 403(b),
``(iv) an eligible deferred compensation plan described in
section 457, or
``(v) a health savings account described in section 223.
``(3) Distribution upon termination.--
``(A) In general.--A plan or arrangement may permit a
participant (or any designated heir of the participant) to
receive a cash payment equal to the aggregate unused account
balances in the plan or arrangement as of the date the
individual is separated (including by death or disability)
from employment with the employer maintaining the plan or
arrangement.
``(B) Inclusion in income.--Any payment under subparagraph
(A) shall be includible in gross income for the taxable year
in which such payment is distributed to the employee.
``(4) Terms relating to flexible spending arrangements.--
``(A) Flexible spending arrangements.--
``(i) In general.--For purposes of this subsection, a
flexible spending arrangement is a benefit program which
provides employees with coverage under which specified
incurred expenses may be reimbursed (subject to reimbursement
maximums and other reasonable conditions).
``(ii) Elections required.--A plan or arrangement shall not
be treated as a flexible spending arrangement unless a
participant may at least 4 times during any year make or
modify any election regarding covered benefits or the level
of covered benefits.
``(B) Health and dependent care arrangements.--The terms
`health flexible spending arrangement' and `dependent care
flexible spending arrangement' means any flexible spending
arrangement (or portion thereof) which provides payments for
expenses incurred for medical care (as defined in section
213(d)) or dependent care (within the meaning of section
129), respectively.''
(b) Conforming Amendment.--
(1) The heading for section 125 is amended by inserting
``And flexible spending arrangements'' after ``Plans''.
(2) The item relating to section 125 in the table of
sections for part III of subchapter B of chapter 1 is amended
by inserting ``and flexible spending arrangements'' after
``plans''.
(c) Effective Date.--The amendments made by this section
shall apply to years beginning after December 31, 2004.
SEC. 5. RULES RELATING TO EMPLOYER-PROVIDED HEALTH AND
DEPENDENT CARE BENEFITS.
(a) Health Benefits.--Section 106, as amended by section 3,
is amended by adding at the end the following new subsection:
``(e) Limitation on Contributions to Health Flexible
Spending Arrangements.--
``(1) In general.--Gross income of an employee for any
taxable year shall include employer-provided coverage
provided through 1 or more health flexible spending
arrangements (within the meaning of section 125(i)) to the
extent that the amount otherwise excludable under subsection
(a) with regard to such coverage exceeds the applicable
dollar limit for the taxable year.
``(2) Applicable dollar limit.--For purposes of this
subsection--
``(A) In general.--The applicable dollar limit for any
taxable year is an amount equal to the sum of--
``(i) $7,500, plus
``(ii) if the arrangement provides coverage for 1 or more
individuals in addition to the employee, an amount equal to
one-third of the amount in effect under clause (i) (after
adjustment under subparagraph (B)).
``(B) Cost-of-living adjustment.--In the case of taxable
years beginning in any calendar year after 2005, the $7,500
amount under subparagraph (A) shall be increased by an amount
equal to--
``(i) $7,500, multiplied by
``(ii) the cost-of-living adjustment determined under
section 1(f)(3) for the calendar year, determined by
substituting `2004' for `1992' in subparagraph (B) thereof.
If any dollar amount as increased under this subparagraph is
not a multiple of $100, such dollar amount shall be rounded
to the next lowest multiple of $100.''
(b) Dependent Care.--
(1) Exclusion limit.--
(A) In general.--Section 129(a)(2) (relating to limitation
on exclusion) is amended--
(i) by striking ``$5,000'' and inserting ``the applicable
dollar limit'', and
(ii) by striking ``$2,500'' and inserting ``one-half of
such limit''.
(B) Applicable dollar limit.--Section 129(a) is amended by
adding at the end the following new paragraph:
``(3) Applicable dollar limit.--For purposes of this
subsection--
``(A) In general.--The applicable dollar limit is $5,000
($10,000 if dependent care assistance is provided under the
program to 2 or more qualifying individuals of the employee).
``(B) Cost-of-living adjustments.--
``(i) $5,000 amount.--In the case of taxable years
beginning after 2005, the $5,000 amount under subparagraph
(A) shall be increased by an amount equal to--
``(I) $5,000, multiplied by
``(II) the cost-of-living adjustment determined under
section 1(f)(3) for the calendar year in which the taxable
year begins, determined by substituting `2004' for `1992' in
subparagraph (B) thereof.
If any dollar amount as increased under this clause is not a
multiple of $100, such dollar amount shall be rounded to the
next lowest multiple of $100.
``(ii) $10,000 amount.--The $10,000 amount under
subparagraph (A) for taxable years beginning after 2005 shall
be increased to an
[[Page S3294]]
amount equal to twice the amount the $5,000 amount is
increased to under clause (i).''
(2) Average benefits test.--
(A) In general.--Section 129(d)(8)(A) (relating to
benefits) is amended--
(i) by striking ``55 percent'' and inserting ``60
percent'', and
(ii) by striking ``highly compensated employees'' the
second place it appears and inserting ``employees receiving
benefits''.
(B) Salary reduction agreements.--Section 129(d)(8)(B)
(relating to salary reduction agreements) is amended--
(i) by striking ``$25,000'' and inserting ``$30,000'', and
(ii) by adding at the end the following: ``In the case of
years beginning after 2005, the $30,000 amount in the first
sentence shall be adjusted at the same time, and in the same
manner, as the applicable dollar amount is adjusted under
subsection (a)(3)(B).''
(3) Principal shareholders or owners.--Section 129(d)(4)
(relating to principal shareholders and owners) is amended by
adding at the end the following: ``In the case of any failure
to meet the requirements of this paragraph for any year,
amounts shall only be required by reason of the failure to be
included in gross income of the shareholders or owners who
are members of the class described in the preceding
sentence.''
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2004.
______
By Mr. DODD (for himself, Mr. Durbin, and Mr. Salazar):
S. 724. A bill to improve the No Child Left Behind Act of 2001, and
for other purposes; to the Committee on Health, Education, Labor, and
Pensions.
Mr. DODD. Mr. President, today I am pleased to introduce with
Senators Durbin and Salazar a very important piece of legislation,
``The No Child Left Behind Reform Act.'' This legislation makes three
basic changes to the No Child Left Behind Act which was signed into law
in January of 2002.
The No Child Left Behind Act received the support of this Senator and
eighty-six of our colleagues. Like most, if not all, of our colleagues
who supported this bill, I supported it because I care about improving
the quality of education in America for all of our children. I believed
that this law would help to achieve that goal by establishing more
rigorous standards for measuring student achievement, by helping
teachers do a better job of instructing students, and last but not
least, by providing the resources desperately needed by our schools for
even the most basic necessities to help put the reforms we passed into
place.
Regrettably, the high hopes that I and many others had for this law
have not been realized. The law is being implemented by the
Administration in a manner that is inflexible, unreasonable and
unhelpful to students. Furthermore, the law is not only failing to help
teachers do their best in the classroom, it also reflects, along with
other Administration policies and pronouncements, a neglect and even
hostility towards members of the teaching profession.
Worse still, the Administration's promise of sufficient resources to
implement No Child Left Behind's much needed reforms is a promise that
has yet to be kept. Indeed, the current budget proposed by the Bush
Administration underfunds No Child Left Behind by $12 billion. Since
passage three years ago, the law has been funded at a level that is
more than $39 billion below what was promised when the President signed
the Act into law.
As a result of the failures of the current Administration to fulfill
its commitment to our nation's school children under this law, those
children and their teachers are today shouldering new and noteworthy
hardships. Throughout the State of Connecticut, for example, students,
teachers, administrators and parents are struggling to implement
requirements that are often confusing, inflexible and unrealistic. And
they are struggling to do so without the additional resources they were
promised to put them into place. According to a recent report put
together by the Connecticut State Department of Education, through
2008, it will cost the State of Connecticut $41.6 million over and
above what the Federal Government is going to supply to meet the
requirements of No Child Left Behind. Of that $41.6 million, $8 million
will need to spent on testing alone. That is a significant amount of
money--a significant amount of money that is going to fall on
Connecticut taxpayers trying to simultaneously pay for their mortgage,
basic health care and the rising cost of their children's tuition.
As I have said on numerous occasions in the past, resources without
reforms are a waste of money. By the same token, reforms without
resources are a false promise--a false promise that has left students
and their teachers grappling with new burdens and little help to bear
them.
The legislation I am introducing today proposes to make three changes
to the No Child Left Behind Act. These changes will ease current
burdens on our students, our teachers and our administrators without
dismantling the fundamental underpinnings of the law.
First, the No Child Left Behind Reform Act will allow schools to be
given credit for performing well on measures other than test scores
when calculating student achievement. Test scores are an important
measure of student knowledge. However, they are not the only measure.
There are others. These include dropout rates, the number of students
who participate in advanced placement courses, and individual student
improvement over time. Unfortunately, current law does not allow
schools to use these additional ways to gauge school success in a
constructive manner. Additional measures can only be used to further
indicate how a school is failing, not how a school is succeeding. This
legislation will allow schools to earn credit for succeeding.
Second, the No Child Left Behind Reform Act will allow schools to
target school choice and supplemental services to the students that
actually demonstrate a need for them. As the current law is being
implemented by the Administration, if a school is in need of
improvement, it is expected to offer school choice and supplemental
services to all students--even if not all students have demonstrated a
need for them. That strikes me as a wasteful and imprecise way to help
a school improve student performance. For that reason, this legislation
will allow schools to target resources to the students that actually
demonstrate that they need them. Clearly, this is the most efficient
way to maximize their effect.
Finally, the No Child Left Behind Reform Act introduces a greater
degree of reasonableness to the teacher certification process. As it is
being implemented, the law requires teachers to be ``highly qualified''
to teach every subject that they teach. Certainly none of us disagree
with this policy as a matter of principle. But as a matter of practice,
it is causing confusion and hardship for teachers, particularly
secondary teachers and teachers in small school districts. For example,
as the law is being implemented by the Administration, a high school
science teacher could be required to hold degrees in biology, physics
and chemistry to be considered highly qualified. In small schools where
there may be only one 7th or 8th grade teacher teaching all subjects,
these teachers could similarly be required to hold degrees in every
subject area.
Such requirements are unreasonable at a time when excellent teachers
are increasingly hard to find. The legislation I introduce today will
allow states to create a single assessment to cover multiple subjects
for middle grade level teachers and allow states to issue a broad
certification for science and social studies.
In my view, the changes I propose will provide significant assistance
to schools struggling to comply with the No Child Left Behind law all
across America. As time marches on and more deadlines set by this law
approach--including additional testing, a highly qualified teacher in
every classroom and 100% proficiency for all students--we have a
responsibility to reassess the law and do what we can to make sure that
it is implemented in a reasonable manner. In doing so, we must also
preserve the basic tenets of the law--providing a world class education
for all American students and closing the achievement gap across
demographic and socioeconomic lines. Again, no child should left
behind--no special education student, no English language learning
student, no minority student and no low-income student. I stand by this
commitment.
Obviously, funding this law is beyond the scope of this bill. I would
note, however, that efforts to increase education funding to authorized
levels have thus far been unsuccessful. Despite this, I remain
committed to work to change this outcome as well. Clearly, our children
deserve the resources
[[Page S3295]]
needed to make their dreams for a better education a reality.
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. 724
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 ``No Child Left Behind Reform
Act''.
SEC. 2. ADEQUATE YEARLY PROGRESS.
(a) Definition of Adequate Yearly Progress.--Section
1111(b)(2) of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 6311(b)(2)) is amended--
(1) in subparagraph (C)(vii)--
(A) by striking ``such as'';
(B) by inserting ``such as measures of individual or cohort
growth over time based on the academic assessments
implemented in accordance with paragraph (3),'' after
``described in clause (v),''; and
(C) by striking ``attendance rates,''; and
(2) in subparagraph (D)--
(A) by striking clause (ii);
(B) by striking ``the State'' and all that follows through
``ensure'' and inserting ``the State shall ensure''; and
(C) by striking ``; and'' and inserting a period.
(b) Academic Assessment and Local Educational Agency and
School Improvement.--Section 1116(a)(1)(B) of the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 6316(a)(1)(B))
is amended by striking ``, except that'' and all that follows
through ``action or restructuring''.
SEC. 3. GRANTS FOR INCREASING DATA CAPACITY FOR PURPOSES OF
AYP.
Subpart 1 of part A of title I of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6311 et seq.) is
amended by adding at the end the following:
``SEC. 1120C. GRANTS FOR INCREASING DATA CAPACITY FOR
PURPOSES OF AYP.
``(a) Grant Authority.--The Secretary may award grants, on
a competitive basis, to State educational agencies to enable
the State educational agencies--
``(1) to develop or increase the capacity of data systems
for accountability purposes; and
``(2) to award subgrants to increase the capacity of local
educational agencies to upgrade, create, or manage
information databases for the purpose of measuring adequate
yearly progress.
``(b) Priority.--In awarding grants under this section the
Secretary shall give priority to State educational agencies
that have created, or are in the process of creating, a
growth model or proficiency index as part of their adequate
yearly progress determination.
``(c) State Use of Funds.--Each State that receives a grant
under this section shall use--
``(1) not more than 20 percent of the grant funds for the
purpose of increasing the capacity of, or creating, State
databases to collect information related to adequate yearly
progress; and
``(2) not less than 80 percent of the grant funds to award
subgrants to local educational agencies within the State to
enable the local educational agencies to carry out the
authorized activities described in subsection (d).
``(d) Authorized Activities.--Each local educational agency
that receives a subgrant under this section shall use the
subgrant funds to increase the capacity of the local
educational agency to upgrade databases or create unique
student identifiers for the purpose of measuring adequate
yearly progress, by--
``(1) purchasing database software or hardware;
``(2) hiring additional staff for the purpose of managing
such data;
``(3) providing professional development or additional
training for such staff; and
``(4) providing professional development or training for
principals and teachers on how to effectively use such data
to implement instructional strategies to improve student
achievement.
``(e) State Application.--Each State educational agency
desiring a grant under this section shall submit an
application to the Secretary at such time, in such manner,
and containing such information as the Secretary may require.
``(f) LEA Application.--Each local educational agency
desiring a subgrant under this section shall submit an
application to the State educational agency at such time, in
such manner, and containing such information as the State
educational agency may require. Each such application shall
include, at a minimum, a demonstration of the local
educational agency's ability to put such a database in place.
``(g) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this part
$80,000,000 for each of fiscal years 2006, 2007, and 2008.''
SEC. 4. TARGETING TRANSFER OPTIONS AND SUPPLEMENTAL SERVICES.
(a) Targeting Transfer Options and Supplemental Services.--
Section 1116 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 6316) is amended--
(1) in paragraphs (1)(E)(i), (5)(A), (7)(C)(i), and
(8)(A)(i) of subsection (b), by striking the term ``all
students enrolled in the school'' each place such term
appears and inserting ``all students enrolled in the school,
who are members of a group described in section
1111(b)(2)(C)(v) that fails to make adequate yearly progress
as defined in the State's plan under section 1111(b)(2),'';
(2) in subsection (b)(1), by adding at the end the
following:
``(G) Maintenance of least restrictive environment.--A
student who is eligible to receive services under the
Individuals with Disabilities Education Act and who uses the
option to transfer under subparagraph (E), paragraph (5)(A),
(7)(C)(i), or (8)(A)(i), or subsection (c)(10)(C)(vii), shall
be placed and served in the least restrictive environment
appropriate, in accordance with the Individuals with
Disabilities Education Act.'';
(3) in clause (vii) of subsection (c)(10)(C), by inserting
``, who are members of a group described in section
1111(b)(2)(C)(v) that fails to make adequate yearly progress
as defined in the State's plan under section 1111(b)(2),''
after ``Authorizing students''; and
(4) in subparagraph (A) of subsection (e)(12), by inserting
``, who is a member of a group described in section
1111(b)(2)(C)(v) that fails to make adequate yearly progress
as defined in the State's plan under section 1111(b)(2)''
after ``under section 1113(c)(1)''.
(b) Student Already Transferred.--A student who transfers
to another public school pursuant to section 1116(b) of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
6316(b)) before the effective date of this section and the
amendments made by this section, may continue enrollment in
such public school after the effective date of this section
and the amendments made by this section.
(c) Effective Date.--This section and the amendments made
by this section shall be effective for each fiscal year for
which the amount appropriated to carry out title I of the
Elementary and Secondary Education Act of 1965 for the fiscal
year, is less than the amount authorized to be appropriated
to carry out such title for the fiscal year.
SEC. 5. DEFINITION OF HIGHLY QUALIFIED TEACHERS.
Section 9101(23)(B)(ii) of the Elementary and Secondary Act
of 1965 (20 U.S.C. 7801(23)(B)(ii)) is amended--
(1) in subclause (I), by striking ``or'' after the
semicolon;
(2) in subclause (II), by striking ``and'' after the
semicolon; and
(3) by adding at the end the following:
``(III) in the case of a middle school teacher, passing a
State approved middle school generalist exam when the teacher
receives the teacher's license to teach middle school in the
State;
``(IV) obtaining a State social studies certificate that
qualifies the teacher to teach history, geography, economics,
and civics in middle or secondary schools, respectively, in
the State; or
``(V) obtaining a State science certificate that qualifies
the teacher to teach earth science, biology, chemistry, and
physics in middle or secondary schools, respectively, in the
State; and''.
______
By Mr. DODD (for himself, Ms. Snowe, Mr. Kennedy, Ms. Collins, Mrs.
Murray, Mr. Durbin, Mrs. Clinton, Mr. Inouye, Mr. Levin, Mr.
Lautenberg, and Mr. Johnson):
S. 725. A bill a improve the Child Care Access Means Parents in
School Program; to the Committee on Health, Education, Labor, and
Pensions.
Mr. DODD. Mr. PresIdent, I am pleased to rise today with Senators
Snowe, Kennedy, Collins, Murray, Durbin, Clinton, Inouye, Levin,
Lautenberg and Johnson to introduce legislation which would supply
greatly needed support to college students struggling to balance their
roles as parents with their roles as students. The Child Care Access
Means Parents in School Act (CCAMPIS) would increase access to, support
for, and retention of low-income, nontraditional students who are
struggling to complete college degrees while caring for their children.
The typical college student is no longer an 18-year-old recent high
school graduate. According to a 2002 study by the National Center for
Education Statistics, only 27 percent of undergraduates meet the
``traditional'' undergraduate criteria of earning a high school
diploma, enrolling full-time, depending on parents for financial
support and not working or working part-time. This means that 73
percent of today's students are considered non-traditional in some way.
Clearly, non-traditional students--older students, students with
children and students with various job and life experiences--are
filling the ranks of college classes. Why? Because they recognize the
importance of college to future success. It is currently estimated that
a full-time worker with a bachelor's degree earns about 60 percent more
than a full-time worker with only a high school diploma. This amounts
to a lifetime gap in earnings of more than $1 million.
[[Page S3296]]
Today's non-traditional students face barriers unheard of by
traditional college students of earlier years. Many are parents and
must provide for their children while in school. Access to affordable,
quality and convenient child care is a necessity for these students.
But obtaining the child care that they need is often difficult because
of their limited income and non-traditional schedules, compounded by
declining assistance for child care through other supports. Campus-
based child care can fill the gap. It is conveniently located,
available during the right hours, and of high quality and lower cost.
Unfortunately, it is unavailable at many campuses. Even when programs
do exist, they are often available to only a fraction of the eligible
students. That is where the Dodd-Snowe CCAMPIS Act comes in.
The Dodd-Snowe CCAMPIS Act increases and expands the availability of
campus-based child care in three ways. First, it raises the minimum
grant amount from $10,000 to $30,000. For most institutions of higher
education, $10,000 has proven too small relative to the cost and effort
required to complete a federal application.
Second, the Dodd-Snowe CCAMPIS Act ensures that a wider range of
students are able to access services. Present language defines low-
income students as students eligible to receive a Federal Pell Grant.
This language excludes graduate students, international students, and
students who may be low-income but make slightly more than is allowed
to qualify for Pell grants. CCAMPIS will open eligibility for these
additional populations.
Third, the CCAMPIS Act raises the program's current authorization
level from $45 million to $75 million so that we not only expand
existing programs, but create new ones as well.
Research demonstrates that campus-based child care is of high quality
and that it increases the educational success of both parents and
students. Furthermore, recipients of campus-based child care assistance
who are on public assistance are more likely to never return to welfare
and to obtain jobs paying good wages.
Currently, there are approximately 1,850 campus-based child care
programs but over 6,000 colleges and universities eligible to
participate in the CCAMPIS program. Currently, CCAMPIS funds only 427
programs in states and the District of Columbia. Meanwhile, the number
of non-traditional students across America is increasing. As these
numbers increase, the need for campus-based child care will increase as
well.
Just last week in Connecticut, I went to Eastern Connecticut State
University where I met a number of students who would benefit from this
legislation. One woman is attending part-time as an accounting major.
She works as a restaurant supervisor and just gave birth to her first
child. She is balancing work, family and school. Another woman is a
junior social work major with two children. Having already received an
associate's degree, she is now working towards a bachelor's degree to
increase her competitiveness in the job market. A third woman is
pursuing her second degree in physical and health education. A stay-at-
home mom prior to re-enrolling, she has three children at home. These
are the students that need our assistance--hard working parents trying
to improve their lot in life for the good of their children.
This is a modest measure that will make a major difference to
students. It will offer them new hope for starting and staying in
school. I am hopeful that it can be considered and enacted as part of
the Higher Education Act. I look forward to working with my colleagues
to move this important measure forward.
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. 725
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. CHILD CARE ACCESS MEANS PARENTS IN SCHOOL PROGRAM.
(a) Minimum Grant.--Section 419N(b)(2)(B) of the Higher
Education Act of 1965 (20 U.S.C. 1070e(b)(2)(B)) is amended
by striking ``$10,000'' and inserting ``$30,000''.
(b) Definition of Low-Income Student.--Section 419N(b)(7)
of such Act is amended to read as follows:
``(7) Definition of low-income student.--For the purpose of
this section, the term `low-income student' means a student
who--
``(A) is eligible to receive a Federal Pell Grant for the
fiscal year for which the determination is made; or
``(B) would otherwise be eligible to receive a Federal Pell
Grant for the fiscal year for which the determination is
made, except that the student fails to meet the requirements
of--
``(i) section 401(c)(1) because the student is enrolled in
a graduate or first professional course of study; or
``(ii) section 484(a)(5) because the student is in the
United States for a temporary purpose.''.
(c) Authorization of Appropriations.--Section 419N(g) of
such Act is amended by striking ``$45,000,000 for fiscal year
1999'' and inserting ``$75,000,000 for fiscal year 2006''.
______
By Mr. ALEXANDER (for himself and Mr. Johnson):
S. 726. A bill to promote the conservation and production of natural
gas; to the Committee on Energy and Natural Resources.
______
By Mr. ALEXANDER (for himself and Mr. Johnson):
S. 727. A bill to provide tax incentives to promote the conservation
and production of natural gas; to the Committee on Finance.
Mr. ALEXANDER. Mr. President, today I am introducing the Natural Gas
Price Reduction Act of 2005 and the ``Tax Provisions for Natural Gas
Price Reduction Act of 2005.'' I send to the desk two pieces of
legislation. One is the substantive provisions of the bill and one is
the tax provisions of the bill.
Mr. President, I offer the legislation on behalf of myself and the
Senator from South Dakota, Mr. Johnson, who is the lead Democratic
sponsor on the legislation. I do so with appreciation to the chairman
of our Energy and Natural Resources Committee, Chairman Pete Domenici,
and the staff of that committee who have worked very closely with us on
the development of this comprehensive piece of legislation, and with
thanks to my own staff, Sharon Segner, who has worked on it for several
months.
This is a piece of legislation to address aggressively and
comprehensively the rising cost of natural gas in the United States.
This is legislation for the blue-collar worker, for the American
farmer, and for the American homeowner.
Natural gas prices in the United States are at record levels. We have
gone from having the lowest natural gas prices in the industrial world
to the highest. These high prices are threatening millions of our jobs.
Our farmers are getting a 10-percent pay cut. Homeowners are having a
hard time paying their heating and cooling bills because of our
contradictory policies.
Our policies boil down to this: We are restricting the supply of
natural gas, and we are encouraging the use of natural gas. You do not
have to go very far in an economics class at the University of Oklahoma
or the University of Tennessee to know that if you restrict supply and
encourage demand, the inevitable result is higher prices. And higher
prices is a very serious problem for U.S. workers, U.S. homeowners, and
U.S. farmers.
Only an ambitious and comprehensive approach that both increases
supply and controls demand can lower the price of natural gas and keep
our economy growing. This is not a question of tweaking our natural gas
policy. It is time, aggressively, to revamp it. We need aggressive
conservation. We need aggressive use of alternative fuels. We need
aggressive research and development. We need aggressive production.
And, for the time being, we need aggressive importation of liquefied
natural gas from other parts of the world.
Here on this chart is an idea of where we are today. This is the
United States of America: $7 per unit for natural gas--the highest in
the industrialized world. Until recently, we had the lowest natural gas
prices in the world.
What that means is large parts of our industries--the chemical
industry, for example--were built on the idea of $1.50 or $2 for
natural gas, but today it is $7.
A million Americans work in those blue-collar manufacturing jobs in
every State in our country. Now, if they are paying $7 here, and it is
$5.55 in Canada and $5.15 in the United Kingdom and $2.65 in Turkey and
$1.70 in the Ukraine, where do you suppose,
[[Page S3297]]
though, a million blue-collar jobs are going to be 5 years from now, if
we do not do something about the $7 price? They are not going to be in
the United States. They are going to be moving out of the United
States, to the United Kingdom, to Germany, to the Ukraine, to other
parts of the world. And people are going to be writing their
Congressmen and saying: Why didn't you do something?
So here is what we can do. By aggressive conservation, I mean setting
stronger appliance and equipment standards for natural gas efficiency
so that a commercial air conditioner will cool the same while using
less natural gas doing it. Those standards have been generally agreed
upon by environmental groups with the industry. If they were put in
place, by a rough estimate, they might save the equivalent energy that
could be produced by 30 or 35 powerplants.
By aggressive use of alternative fuels, I mean, for example, fully
commercializing coal gasification. Coal gasification is taking this
abundant supply of coal we have in the United States--we are the
``OPEC,'' the ``Saudi Arabia'' of coal; we have a 400- or 500-year
supply--and finding a clean way to use it instead of importing oil from
a part of the world where people are blowing each other up.
That means starting with support so we can have six coal gasification
plants in this country by the year 2013. Coal gasification means, you
burn the coal to create gas, and then you burn the gas to create power.
If we can do that commercially, we will not only be passing a clean
energy bill, we will be passing a clean air bill, because if you do
that, you remove most of the mercury, most of the nitrogen, most of the
sulfur. And by additional research, we may be able to find a way to
recapture the carbon that is produced and put that in the ground and
solve the carbon problems that a lot of people are talking about around
the world.
In addition to helping ourselves, we would help ourselves by helping
others. China and India and other parts of the world are building
hundreds of coal plants. We would much rather them build a coal
gasification plant, one that is clean and does not contribute to air
pollution. Because if China and India and Brazil build dirty coal
plants, that air blows around the world, and it blows into Tennessee
and it blows into South Carolina. It blows into Oklahoma.
So aggressive alternative fuels is a part of a natural gas supply.
Aggressive research and development includes investment and research in
gas hydrates. Gas hydrates is gas that is in the ground. Methane
hydrates hold tremendous potential to provide abundant supplies of
natural gas. Hydrates are like ice solid structures, consisting of
water and gases, mainly methane, compressed to greater than normal
densities.
Coastal U.S. areas are rich in this resource. The United States is
estimated to contain one-fourth of the world's supply. We need to find
a way to use that gas so we do not have $7 per unit natural gas prices.
That sends millions of jobs overseas. That cuts the income of farmers.
And that raises home heating prices and cooling prices for residential
Americans.
Aggressive production means, among other things, allowing States to
selectively waive the Federal moratoria on offshore production of gas
and collect significant revenues from such production. Let me give you
an example. Within the last few weeks, the legislature of Virginia
decided it might like to explore the idea of drilling for gas offshore.
Now, why would Virginia want to do that? Because there is probably a
lot of gas offshore. What would that mean for Virginia? Well, they
could put a gas rig out in the ocean, beyond 20 miles, so nobody in
Virginia or North Carolina could see it, run a pipeline underground to
Virginia, and take their share of the revenues. And they can lower
taxes in Virginia and put the rest of the money in a trust fund to
build the best colleges and universities in America. That is what they
could do in Virginia.
If Tennessee had a coastline, and I were Governor of Tennessee, that
is what I would be asking the Congress to let me do.
I think as other Governors and other legislatures and other people
look at Texas and Louisiana and Alabama and see what they are doing and
decide that they can in an environmentally sensitive way exercise a
State option to drill for gas in Federal waters so far out you can't
see it, that they will find that a good option because it will help
lower the price of gas. It can build up the schools and keep taxes
down, and it can avoid other worse forms of energy.
For example, you would have to have 46 square miles of windmills,
these things that are 100 yards tall, in order to equal one gas rig
that you couldn't see out in the ocean. This is a State option.
Aggressive importation of liquefied natural gas starts with giving the
Federal Energy Regulatory Commission exclusive authority for siting and
regulating what we call LNG terminals. This means importing liquefied
natural gas from other parts of the world. There is a lot of it around
the world. They freeze it and put it in tankers, and they bring it here
and put it in our pipelines, and then we have it.
That seems like a pretty big waste of effort when we have plenty of
natural gas here in the United States that we don't have access to. But
if we want an adequate supply of natural gas, we are going to have to
import some from around the world, and that means we are going to need
terminals to which to bring it. Some of them may be offshore. They
might be 10, 12, 14 miles offshore. Some of them, like the four we have
today, may need to be onshore. There is no silver bullet. There is no
single answer. That is why we need aggressive conservation. If, for
example, the United States adopted the conservation attitudes towards
natural gas that California did a few years ago, it might equal what 50
powerplants could produce in the United States. If that is so, we ought
to do it today. That would begin to bring this $7 figure down.
Aggressive use of alternative fuels such as coal gasification. I also
would say nuclear power is the most obvious alternative fuel to natural
gas. If we had more nuclear power, we would use less natural gas. In
our country today, what do you suppose we are using to create
electricity when we need more electricity even though the cost of it is
$7 a unit, the highest in the world? Natural gas, because natural gas
plants can be built for a few hundred million dollars, and we have
created an environment where we can't use nuclear.
We haven't built a new nuclear plant since the 1970s, even though we
invented the technology, even though France has 80 percent of its power
now produced by nuclear power, even though Japan builds a new nuclear
plant every year or so. We invented it. Our Navy has operated nuclear
reactors since the 1950s without ever having a single accident. It is a
clean, obvious alternative to $7 natural gas, and we haven't built a
plant since the 1970s. So we need to think seriously about aggressive
conservation, aggressive use of alternative fuels, aggressive research
and development for solar, for methane hydrates, aggressive production,
and that includes giving States the option of deciding whether they
would like to drill offshore and take some of the revenues and put some
of the revenues into a conservation fund, and aggressive importation of
liquefied natural gas from overseas at least for the time being.
In March of 2002, the Secretary of Energy requested that the National
Petroleum Council undertake an extensive study on the natural gas
crisis. That advisory council produced a study. It talked about the
results I have described. Our Senate Energy Committee, under the
chairman, Senator Domenici, has paid a lot of attention to that report.
Senator Domenici hosted what we called a natural gas roundtable that
was well attended by Senators and went on for 3 or 4 hours. There were
more than 100 proposals presented.
I am chairman of the subcommittee of that full committee, and so my
purpose today is to take many of the ideas that we heard that made the
most sense, some of which people haven't been willing to advocate, and
put them into the discussion. Again, because I do not want to be a
Senator who 10 years from now somebody comes up to and says: How did
you let farmers get a 20-percent pay cut because of $7, $8, $9 natural
gas; how did you let millions of jobs in the chemical industry, the
auto industry go overseas because of $7, $8, and $9 natural gas; how
did you let prices of natural gas for home heating
[[Page S3298]]
or cooling get so high that middle-income Americans can't even afford
to heat their homes? I don't want to be that kind of Senator. So I am
here today with a comprehensive proposal across the board even though
some of the ideas will create that kind of controversy.
I have summarized in a few words the provisions of a 250-page piece
of legislation.
We were ambushed in the United States on September 11, 2001. Even
though you could argue that we might have known it was coming,
terrorism wasn't new on September 11, 2001.
I remember being in a meeting with Prime Minister Rabin of Israel in
1994. At the end of a long day, I asked him: What is the greatest
challenge threatening the world? And he said terrorism. That was many
years before we were attacked. He was right. He was dead within a few
months at the hands of terrorists within his own country. We didn't see
the terrorism coming. We were ambushed, and we have paid a terrible
price--in lives, in dollars. We have had to create whole new
departments. We have had to interrupt the lives of thousand of national
guardsmen and Army reservists and send them overseas, some to die and
some to be wounded, because of terrorism. Maybe we couldn't have seen
exactly that act coming, but we knew it was out there.
We are about to have another big surprise. That is to our standard of
living. We are 5 to 6 percent of all the people in the world. Yet we
produce a third of all the money in the world. We could wake up 10
years from now and that picture could be very changed. One way is if we
lose our brainpower advantage. And we could lose it. Half of our new
jobs have been created by science and technology since the end of World
War II. And if we go through our budget balancing, deficit controlling
exercise for the next 10 years and we don't double investments for the
physical sciences and retake the lead in advanced computing, and if we
don't see that we have plenty of graduate students in science and
engineering, we are going to find most of the R&D will be done in other
parts of the world. We are going to find most of the engineers who
produce this brainpower that creates jobs in other parts of the world.
They are thinking in China, and they are thinking in India. There is
no real good reason why the United States should make a third of all
the money in the world every year with just 5 or 6 percent of the
people, and we have so little. So they are keeping their bright people
home. They are building up their universities. They are doing what we
need to keep doing. That is one place we could get a big surprise.
But the other is in energy. We have taken energy for granted for a
long time. I know I come from Tennessee. We have had the Tennessee
Valley Authority. It has sat there since the 1930s, and it has produced
reliable, low-cost electricity. Homes that have never been lit, barns
that have never been lit, rural areas that have never been lit have
enjoyed that. That is within my lifetime.
And then while I was Governor in the 1990s, I remember that one of
the big attractions for Saturn and Nissan and the automobile industry
coming into Tennessee was low-cost reliable power. But when I had a
natural gas roundtable last fall in Tennessee, there was the president
of Saturn, the president of Nissan, the head of the Tennessee Farm
Bureau. There was the head of the University of Tennessee. They were
all saying: We can't live in Tennessee on $7 natural gas. What do they
do if they can't? It is very easy what they do. They don't have to have
those jobs in Tennessee or South Carolina. They can move them to
Germany, they can move them to Mexico, they can move them to Canada,
and they are doing it every day.
And Tennessee Eastman in the upper part of east Tennessee, which we
think is just like the great Smokey Mountains, has been there so long.
There are 12,000 people there, real good incomes. What do they use to
make chemicals there? They use natural gas.
How long are they going to be there? If we have $7 gas and they have
$3 and $4 gas in other parts of the world, I am afraid they are not
going to be there too long. And somebody is going to say to me: What
did you do about it? At least my answer is I stood up on the floor of
the Senate and said this is not the time to tweak our natural gas
policy.
We do not need to sit around and wait for a big surprise on energy
like we had a big surprise on September 11 on terrorism. We need an
aggressive policy. We need a comprehensive policy. We need aggressive
conservation. That is where we should start. We need aggressive
alternative fuels. That means nuclear and that means coal gasification.
We need aggressive research and development, whether it is hydrogen or
whether it is solar, or whether it is methane gas hydrates. We need
aggressive production. We have lots of gas in the United States. We
should be using it if we have $7 gas.
For the time being, we need to create the terminals that will permit
us to import enough liquefied natural gas to get that $7 price down to
$6 or $5 or $4.
Mr. President, I thank Senator Johnson from South Dakota for joining
me in this comprehensive aggressive approach. I thank Senator Domenici
for taking the lead on an energy bill. I thank Senator Bingaman, who is
the ranking Democrat on our committee, because I notice on our
committee a greater sense of urgency, a greater sense of bipartisan
cooperation on coming up with an energy bill this year. Our blue-collar
workers, our farmers, our homeowners in Tennessee and across this
country expect it from us.
Senator Johnson's and my contribution today is to introduce this
comprehensive 250-page bill and to get on the table all the aggressive
ideas we can think of that make sense about how to reduce the price of
natural gas for workers, for farmers, and for homeowners. We hope it
contributes to the discussion. We hope we find lots of these provisions
in an ambitious energy bill.
I look forward to working with my colleagues, as I know Senator
Johnson does, on a bipartisan basis to help lower the price of natural
gas, keep our jobs, keep our homes cool and warm, and make it possible
for farmers to make a living.
Natural gas prices are at record levels and the highest of any
industrialized country. High natural gas prices are threatening our
jobs, our farms, and hurting Americans who are trying to heat and cool
their homes. Only an ambitious, comprehensive approach that both
increases supply and controls demand can lower the price of natural gas
and keep our growing economic recovery from becoming recent history.
This is not a question of tweaking our natural gas policy. It is time
to aggressively revamp it. We need aggressive conservation, aggressive
use of alternative fuels, aggressive research and development,
aggressive production and for the time being, aggressive imports of
liquefied natural gas.
Aggressive conservation, for example, means setting stronger
appliance and equipment standards for natural gas efficiency so that a
commercial air conditioner will cool the same while using less natural
gas to do it.
Aggressive use of alternative fuels, for example, means fully
commercializing coal gasification, starting with support for the
deployment of six coal gasification plants by 2013. Coal gasification
means that you burn coal to produce power but get the much lower
pollution output of using natural gas.
Aggressive research and development includes investment in research
of gas hydrates. Methane hydrates hold tremendous potential to provide
abundant supplies of natural gas. Hydrates are ice-like solid
structures consisting of water and gases, mainly methane, compressed to
greater than normal densities. Coastal U.S. areas are rich in this
resource. The U.S. is estimated to contain one-fourth of the world's
supply.
Aggressive production means, among other changes, allowing states to
selectively waive the federal moratoria on off-shore production and
collect significant revenues from such production.
And aggressive importation of liquefied natural gas starts with
giving the Federal Energy Regulatory Commission exclusive authority for
siting and regulating LNG terminals, while still preserving states'
authorities under the Coastal Zone Management Act and other acts.
In March 2002, Secretary of Energy Abraham requested that the
National Petroleum Council undertake an extensive study on the natural
gas crisis.
[[Page S3299]]
That council, a Federal advisory committee to the Secretary of Energy,
produced in late 2003 one of the most extensive policy studies and
recommendations on the natural gas crisis to date. Since that time,
other prominent groups, such as the National Commission on Energy
Policy, have also produced extensive studies on the natural gas crisis.
In October 2004, I held a roundtable on the impact of soaring natural
gas prices on Tennessee farmers and jobs. The Senate Energy Committee
has held numerous hearings over the last 2 years and recently held an
extensive natural gas roundtable on the subject on January 24,
2005. Over 100 proposals were submitted to the Senate Energy Committee
on natural gas issues.
The conclusion of all of these forums has been clear.
High natural gas prices are threatening our country's economic
competitiveness and costing us jobs. For example, high natural gas
prices have been the equivalent of a 10 percent pay cut to American
farmers.
The situation is urgent.
There are no silver bullets. We cannot conserve our way out of this
problem, nor can we drill our way out of this problem. We will need to
be aggressive on all fronts, in order to keep our industries
competitive.
High natural gas costs are also tied to high oil prices. We need to
address both natural gas and oil prices in order to lower natural gas
costs.
Our country has contradictory policies on natural gas--on one hand,
we encourage its use. On the other hand, we limit access to its supply.
We need to amend our contradictory natural gas and environmental
policies.
That's why I am introducing the ``Natural Gas Price Reduction Act.''
It is an aggressive, bold approach to tackle this issue. This 250-page
legislation is an attempt to start a very difficult, but balanced,
legislative discussion in the United States Senate on natural gas
prices. I have taken the best ideas that I have heard in these
roundtable discussions and from the various policy studies. I have met
with hundreds of people in the past year discussing natural gas prices.
This legislation is an attempt to be more aggressive on all areas
impacting natural gas prices--energy efficiency and fuel diversity,
natural gas supply, and improved infrastructure for importation of
liquefied natural gas.
Half our Nation's increase in natural gas demand in the last decade
has come from the power sector. So to conserve natural gas, one must
not only reduce consumption of gas itself, but also of electricity.
And, as I noted, since oil prices affect natural gas prices, conserving
oil is also important. My bill addresses conservation in five ways.
The bill creates a 4-year national consumer education program on the
urgent need for energy conservation. A statewide California effort to
educate energy consumers resulted in savings of 10 percent at peak
usage--the equivalent of five-and-a-half 1,000 Megawatt coal-powered
power plants. My bill aims to take that effort to the entire nation.
The legislation sets higher appliance and equipment standards for
natural gas efficiency. These standards have been negotiated between
consumer and industry representatives and are codified in the bill. For
example, the standards would require a new kitchen oven to produce the
same heat while using less natural gas to do it. The American Council
for an Energy-Efficient Economy estimates that these standards will
reduce natural gas use by about 125 BCF in 2010 and 525 BCF in 2020. In
addition these standards will reduce peak electric demand by about
33,500 MW in 2020, equivalent to 34 coal power plants of 1000 MW each,
and will save consumers and businesses more than $60 billion.
The bill creates tax incentives and provides regulatory relief to
enable manufacturing facilities to more easily produce their own power
and steam from a single source--a process called cogeneration or CHP
which saves money and energy while also reducing pollutants. A CHP
system can produce the same electrical and thermal output at 75 percent
fuel conversion efficiency as compared to 49 percent separate steam and
power. This is a 50 percent gain in overall efficiency, resulting in a
35 percent fuel savings. Large industrial plants, such as International
Paper, Alcoa and Eastman in my home State of Tennessee all use
cogeneration in their manufacturing processes. More companies could do
the same, and the bill particularly focuses on providing incentive for
smaller cogeneration projects.
The Alexander bill provides incentive for public utilities to utilize
their natural gas plants based on efficiency. The process of activating
different power plants to meet demand during a given day is called
``dispatching.'' For example, on a hot summer day in Tennessee, the
demand for electricity, for air conditioning, might be highest in the
early afternoon, so then a power company would have to dispatch the
most power plants to provide the energy. But during the cooler night,
they might dispatch less plants since less power is needed. If power
companies dispatched their most efficient plants first, this would save
us a significant amount of natural gas. As you can see, the highest
saving will be in the medium-term--2010-2015--but real savings continue
for many years.
Our reliance on foreign oil is the silent elephant in the room when
it comes to high natural gas prices. My legislation includes a
provision that requires the President report to Congress annually on
efforts to reduce U.S. dependence on imported petroleum 1.75 million
barrels a day from projected 2013 levels, almost 10 percent. As I noted
earlier, oil and gas are usually produced together; and, typically,
there is a 6:1 ratio between natural gas and oil prices. Reducing
dependence on foreign oil will help bring natural gas prices down.
Conservation of natural gas and related energy sources is critical to
lowering prices and keeping our manufacturing and farming jobs here in
the United States. But conservation alone is not enough. The second
focus must be to develop alternative sources of energy. The ``Keep
Manufacturing and Farming Jobs in the United States Act'' encourages
the use of three alternative fuels:
The bill initiates a national coal gasification strategy. Eastman
Chemical in Kingsport, TN, has been using coal gasification with a 95%
availability factor for the past 20 years. Tampa Electric has
successfully demonstrated large-scale coal gasification. It is time for
this process to be more widely used. Coal gasification is a process
whereby gas derived from burning coal is used as a source of energy or
a raw material. When used in a power plant, coal gasification means
that you burn coal but get the much lower pollution output of using
natural gas. My legislation provides up to $2 billion in tax or other
incentives to support the construction of six new coal gasification
power plants. Similarly, the legislation provides up to $2 billion in
assistance for industrial gasification projects. The bill also provides
streamlined permitting for coal gasification facilities. Coal is an
abundant resource in the United States; we should use it to produce
clean energy and raw material for industrial applications.
Solar energy is another clean, alternative fuel source that could be
developed further. Solar energy can be used directly for heating as
well as to create electricity. To push an aggressive solar energy
strategy, the Alexander legislation provides tax incentives for
investment in solar power generation. Specifically, it provides
businesses a tax credit for investing in geothermal or solar heating
and/or power generation--10 percent heating, 25 percent for generating
or displacing electricity.
My bill also contains language to invest in new technologies to use
hydrogen to power fuel cell vehicles. The language in this bill mirrors
language I offered in the last session of Congress on the Energy Bill
that would have enacted President Bush's Hydrogenl/Fuel Cell
Initiative. When I visited Japan last year, I visited a hydrogen fuel
station--that looked much like a gas station--and saw fuel cell
vehicles that range from small cars to SUVs. These cars not only allow
us to use an alternative fuel source but are also great for the
environment--their only byproduct is water vapor. The bill invests in
research and development of technologies and infrastructure for 2
hydrogen and fuel cell vehicles.
Methane hydrates hold tremendous potential to provide abundant
supplies of natural gas. Hydrates are ice-like solid structures
consisting of water and
[[Page S3300]]
gases--mainly methane--compressed to greater than normal densities.
Coastal US areas are rich in this resource--the U.S. is estimated to
contain one-fourth of the world's supply. My bill invests $200 million
over the next 4 years in research for this promising new resource, a
number consistent with recommendations from the National Commission on
Energy Policy.
Conserving natural gas and using alternative fuels will take us a
long way to reducing gas prices and keeping jobs here in the U.S., but
we must also address the other side of the equation: supply. As Energy
Committee members learned at our Natural Gas Roundtable, our current
policy encourages consumption of natural gas while restricting the
supply. We need to stop putting unnecessary restrictions on production
and supply of natural gas, and my legislation does so by addressing
production off-shore and in the Rocky Mountains as well as the
importation of liquid natural gas from abroad.
We have plenty of natural gas here in the U.S., we just cannot get to
it. There are large fields off the coasts, especially the Atlantic, and
in the Rocky Mountains. There is no reason for natural gas prices here
in the U.S. to be so high when we have so much available here--if only
we would use it.
Today, there are two moratoria on our outer continental shelf, OCS--a
congressional moratorium and a Presidential moratorium. The Atlantic
Coast--40 miles off the coast is believed to be largely natural gas-
prone. The Pacific Coast is believed--to be mainly oil-prone. The Gulf
of Mexico is both. Today, when production is greater than 9 miles
offshore, a State that has oil and gas production gets zero percent of
the production revenues. This is radically different than onshore
production; on Federal lands, States get 50 percent of the production
revenues. Alaska gets 90 percent of the production revenues. In order
to have a constructive dialogue on OCS production, the right framework
needs to be established.
My legislation provides the Department of the Interior with the legal
authority to issue natural gas only leases. Currently, Interior can
only issue combination gas and oil leases. Since there is greater
hesitation about the environmental impact of producing oil off-shore,
issuing natural gas-only leases may alleviate some concerns.
It also instructs the Secretary of the Interior to draw the state
boundary between Alabama and Florida regarding Lease 181--a disputed
area off the coast of both states in the Gulf of Mexico in which
Alabama may wish to permit production while Florida may not. The
boundaries shall be drawn using established international law. Under my
bill, portions of Lease 181, which are not in the state of Florida and
greater than 30 miles off of the coast of Alabama, shall be leased by
December 31, 2007. However, of those portions of Lease 181 that are in
the State of Florida, the State of Florida may keep the moratoria.
Leasing would not be allowed to interfere with U.S. military operations
in the Gulf Coast.
Finally, under the bill, States will have the authority to request
studies of natural gas resources off their coasts and be permitted to
waive Federal moratoria on offshore production. The states shall not
have the authority to lift the moratoria at National Marine Sanctuaries
or National Wildlife Refuge Area. The State of Virginia recently
engaged on this issue, and the state ought to have the ability to
license off-shore production--especially if it is far enough off-shore
that you cannot even see it from land. My bill also allows States to
collect significant revenue from such production, and designates that a
portion of revenues also go to a conservation royalty. The conservation
royalty would be shared equally by the Federal land and water
conservation fund, state land and water conservation fund and wildlife
grants.
Importing liquefied natural gas--LNG--requires the infrastructure to
receive it. LNG comes to the U.S. by ship, and terminals to receive
these ships and unload LNG must be built and appropriate infrastructure
developed to transport gas from those terminals to users across the
country.
My bill streamlines the development of offshore liquefied natural gas
terminals. The siting of LNG terminals has become a difficult issue
since we all want cheaper natural gas, but no one seems to want an LNG
terminal in ``their backyard.'' The Alexander legislation gives FERC
clear authority for regulating liquid natural gas terminals, but,
unlike a related House bill, still preserves States' authorities under
the Coastal Zone Management Act and other acts. I hope this will
provide some balance so that LNG terminals can be sited, but
environmental concerns will play a significant role in choosing their
sites. In an effort to speed the siting of pipelines that allow natural
gas to reach all parts of the country, the bill also requires that FERC
grant or deny a terminal or pipeline application within one year.
Our country is facing an energy crisis. We are consuming more and
more electricity. Gasoline prices are poised to reach all time highs.
The price of oil is up. And so, too, is the price of natural gas.
The bill I introduce today, the ``Natural Gas Price Reduction Act,''
addresses high natural gas prices. Natural gas is not just used for
heating homes, a source of electricity, it is a raw material for
industries, and it is an important component in fertilizers used by
farmers. High natural gas prices have cost farmers a 10-percent pay cut
and are shipping manufacturing and chemical jobs overseas. We can not
afford to let this problem fester any longer.
Bold action is required, and that is what my legislation provides.
This bill takes a comprehensive approach to addressing the problem by
encouraging conservation, developing alternative fuel sources, and
reducing roadblocks to the production and importation of natural gas. I
urge my colleagues to support it.
______
By Mr. BOND (for himself, Mr. Inhofe, Mr. Vitter, Mr. Warner, Mr.
Voinovich, Mr. Isakson, Mr. Thune, Ms. Murkowski, Mr. Obama,
Ms. Landrieu, Mr. Grassley, Mr. Harkin, Mr. Talent, Mr. Cornyn,
Mr. Cochran, Mr. Domenici, and Mr. Coleman):
S. 728. A bill to provide for the consideration and development of
water and related resources, to authorize the Secretary of the Army to
construct various projects for improvements to rivers and harbors of
the United States, and for other purposes; to the Committee on
Environment and Public Works.
Mr. BOND. Mr. President, I rise today to introduce, with Senators
Inhofe, Vitter, Warner, Voinovich, Isakson, Thune, Murkowski, Obama,
Landrieu, Grassley, Harkin, Talent, Cornyn, Cochran, Domenici, and
Coleman, the 2005 Water Resources Development Act.
The programs administered by the U.S. Army Corps of Engineers are
invaluable to this Nation. They provide drinking water, electric power
production, river transportation, environmental protection and
restoration, protection from floods, emergency response, and
recreation. Few agencies in the Federal Government touch so many
citizens and they do it on a relatively small budget. They provide one-
quarter of our Nation's total hydropower output; operate 456 lakes in
43 States hosting 33 percent of all freshwater lake fishing; move 630
million tons of cargo valued at over $73 billion annually through our
inland system; manage over 12 million acres of land and water; provide
3 trillion gallons of water for use by local communities and business;
and have prevented an estimated $706 billion in flood damage within the
past 25 years with an investment one-seventh that value. During the
1993 flood alone, an estimated $19.1 billion in flood damage was
prevented by flood control facilities in place at that time. Our ports
move over 95 percent of U.S. overseas trade by weight and 75 percent by
value. Between 1970 and 2003, the value of U.S. trade increased 24
fold, and 70 percent since 1994. That was an average annual growth rate
of 10.2 percent, which was nearly double the pace of the Gross Domestic
Product growth during the same period. Unfortunately, the American
Society of Civil Engineers grades navigable waterways infrastructure D-
with over 50 percent of the locks ``functionally obsolete'' despite
increased demand.
This bipartisan bill is one that traditionally is produced by the
Congress
[[Page S3301]]
every two years, however, we have not passed a WRDA bill since 2000 and
the longer we wait, the more unmet needs pile up and the more
complicated the demands upon the bill become making it harder and
harder to win approval. For some, this bill is too small and for
others, too big. For some, the new regulations are too onerous and for
others, the new regulations are not onerous enough. Nevertheless, I
believe we have struck a balance here that disciplines the new projects
to criteria fairly applied while addressing a great number of water
resources priorities.
With the new regulations, we have embraced a common sense bipartisan
proposal by Senators Landrieu and Cochran similar to the bi-partisan
House agreement that requires major projects to be subject to
independent peer review and requires that necessary mitigation for
projects be completed at the same time the project is completed, or, in
special cases, no longer than one year after project completion. This
will impose a cost on communities, particularly smaller communities,
but it is not as onerous as the new regulations proposed last year
which ultimately prevented a final agreement from being reached between
the House and Senate.
The commanding feature of the bill is its landmark environmental and
ecosystem restoration authorities. Nearly 60 percent of the bill
authorizes such efforts, including environmental restoration of the
Everglades, Coastal Louisiana, Chesapeake Bay, Missouri River, Long
Island Sound, Salton Sea, Upper Connecticut, and the Illinois and
Mississippi Rivers, and others.
Additionally, it is important to understand the budget implications
of this legislation in the real world. We are contending with difficult
budget realities currently and it is critical that we be mindful of
those realities as we make investments in the infrastructure that
supports the people in our nation who make and grow and buy and sell
things so that we can grow our economy, create jobs, and secure our
future. This is an authorization bill. It does not spend one dollar. I
repeat, it does not spend one dollar. It makes projects eligible for
funding through the appropriations process that operates within the
restrictions of the budget Congress provides it. With the allocation
provided, the Appropriations Committee and the Congress and the
President will fund such projects deemed of the highest priority and
those remaining will not be funded because the budget will not permit
it. This WRDA process simply permits project consideration during the
process of appropriations and I expect some will measure up and others
will not. I hear some suggest that we should not authorize anything new
until all other previously-authorized projects are funded. That, of
course, is nonsense because it assumes falsely that all projects
authorized five and 10 and 50 years ago are higher priority than those
in this package. We have de-authorized a great number of projects in
this bill and I expect there will be more added as we proceed and then
the remainder will have to face the stingy budget process that will
prioritize the rest.
While the majority of this legislation is for environmental
protection and restoration, a key bipartisan economic initiative we
include provides transportation efficiency and environmental
sustainability on the Mississippi and Illinois Rivers.
As the world becomes more competitive, we must also. In the
heartland, the efficiency, reliability, capacity, and safety of our
transportation options are critical--often make-or-break. In Missouri
alone, we ship 34.7 million tons of commodities with a combined value
of more than $4 billion which include coal, petroleum, aggregates,
grain, chemicals, iron, steel, minerals and other commodities.
As we look 50 years into the future, and as we anticipate and try to
promote commercial and economic growth, we have to ask ourselves a
fundamental question: should we have a system that permits and promotes
growth, or should we be satisfied to restrict our growth to the
confines of a transportation straight jacket designed not for 2050, but
for 1950 for paddle wheel boats?
Further, we must ask ourselves if dramatic investments should be made
to address environmental problems and opportunities that exist on these
great waterways. In both cases, the answer is, ``Of course we should
modernize and improve.''
We have a system which is in environmental and economic decline. Jobs
and markets and the availability of habitat for fish and wildlife are
at stake. We cannot be for increased trade, commercial growth, and job
creation without supporting the basic transportation infrastructure
necessary to move goods from buyers to sellers. New efficiency helps
give our producers an edge that can make or break opportunities in the
international marketplace.
Seventy years ago, some argued that a transportation system on the
Mississippi River was not justified. Congress decided that its role was
not to try to predict the future but to shape the future and decided to
invest in a system despite the naysayers. Over 84 million tons per year
later, it is clear that the decision was wise.
Now, that system that was designed for paddlewheel boats and to last
50 years is nearly 70 years old and we must make decisions that will
shape the next 50-70 years. As we look ahead, we must promote growth
policies that help Americans who produce and employ.
We must work for policies that promote economic growth, job creation,
and environmental sustainability. We know that trade and economic
growth can be fostered or it can be discouraged by policies and other
realities which include the quality of our transportation
infrastructure.
So in 20 and 30 and 40 and 50 years, where will the growth in
transportation occur to accommodate the growth in demand for commercial
shipping? The Department of Transportation suggests that congestion on
our roads and rails will double in the next quarter century. The fact
of the matter is that the great untapped capacity is on our water.
This is good news because water transportation is efficient, it is
safe, it conserves fuel, and it protects the air and the environment.
One medium-sized barge tow can carry the freight of 870 trucks. That
fact alone speaks volumes to the benefits of water. If we can, would we
rather have 870 diesel engines on the roads of downtown St. Louis, or
two diesel engines on the water.
The veteran Chief Economist at USDA testified that transportation
efficiency and the ability of farmers to win markets are higher prices
are ``fundamentally related.'' He predicts that corn exports over the
next 10 years will rise 45 percent, 70 percent of which will travel
down the Mississippi.
Over the past 35 years, waterborne commerce on the Upper Mississippi
River has more than tripled. The system currently carries 60 percent of
our Nation's corn exports and 45 percent of our Nation's soybean
exports and it does so at two-thirds the cost of rail--when rail is
available.
Over the previous 12 years, the U.S. Army Corps of Engineers have
spent $70 million completing a six year study. During that period,
there have been 35 meetings of the Governors Liaison Committee, 28
meetings on the Economic Coordinating Committee, among the States along
the Upper Mississippi and Illinois waterways, and there have been 44
meetings of the Navigation and Environmental Coordination Committee.
Additionally, there have been 130 briefings for special interest
groups, 24 newsletters. There have been six sets of public meetings in
46 locations with over 4,000 people in attendance. To say the least,
this has been a very long, very transparent, and very representative
process.
However, while we have been studying, our competitors have been
building. Given the extraordinary delay so far, and given the reality
that large scale construction takes not weeks or months, but decades,
further delay is no longer an option. This is why I am pleased to be
joined by a bipartisan group of Senators who agree that we must improve
the efficiency and the environmental sustainability of our great
resources.
This plan gets the Corps back in the business of building the future,
rather than just haggling about predicting the future. More will need
to be done later on ecosystem and lock expansions further upstream, but
this begins the improvement schedule underway.
[[Page S3302]]
In this legislation, we authorize $1.58 billion for ecosystem
restoration-almost 2 times the federal cost of lock capacity expansion
which we authorize on locks 20-25 on the Mississippi River and Peoria
and LaGrange on the Illinois. The new 1,200 foot locks on the
Mississippi River will provide equal capacity in the bottleneck region
below the 1,200 foot lock 19 at Keokuk and above locks 26 and 27 near
St. Louis. Half the cost of the new locks will be paid for by private
users who pay into the Inland Waterways Trust fund. Additional funds
will be provided for mitigation and small scale and nonstructural
measures to improve efficiency.
As we look ahead, the locks at 14-18 will have to be addressed as
will further investments to ecosystem restoration efforts.
This effort is supported by a broad-based group of the States, farm
groups, shippers, labor, and those who pay taxes into the Trust Fund
for improvements. Of particular note, I appreciate the strong support
from the carpenters, corngrowers, farm bureau, soybeans, the diverse
membership of MARC2000.
I thank my colleagues and their staff for the hard work devoted to
this difficult matter and I thank particularly chairman Inhofe for his
forbearance. I believe that if members work cooperatively and aim for
the center and not the fringe, that we can get a bill completed this
year. If demands exist that the bill be away from the center toward the
fringe, we will go another Congress without completing our work as we
witnessed last year.
Mr. INHOFE. Mr. President, first, I would like to thank Senator Bond
for the leadership he and his subcommittee staff have demonstrated in
bringing this piece of legislation together.
I have great hopes for getting a WRDA bill passed this session. We
have not enacted a WRDA bill since 2000, and the water resources are in
much need of this authorization. We made great progress and were very
close to finishing a bill at the end of the 108th Congress. That effort
has provided a great stepping stone toward quick completion this year.
The Army Corps of Engineers has provided a valuable service to the
Nation for over 200 years. It has been instrumental in creating one of
the most dynamic inland waterway systems in the world. For example, the
Corps activities have provided Tulsa, OK with one of the Nation's most
inland ports and provides the dredging needed to keep the San Francisco
Bay navigable. There is not a State in the Union that does not reap the
benefits of the Army Corps.
I am well aware of the stacks of requests that have come in from
every State for projects to be included in the bill. While it is
important that we insure the Corps is capable of meeting our future
water resource needs, it is also very important that we do not demand
more of the Corps than it is capable of providing. No Federal agency
could complete all of the projects requested by all of the Senators.
Considering the limited staff and budget of the Corps, an ``authorize
everything'' approach may leave everyone with nothing. While I know
that each Senator has his or her own priorities, we all must understand
the limitations with which we reside. I look forward to working with my
colleagues to ensure that we give clear direction to the Corps to focus
on completing the highest priority and most beneficial projects.
______
By Mr. DURBIN:
S. 729. A bill to establish the Food Safety Administration to protect
the public health by preventing food-borne illness, ensuring the safety
of food, improving research on contaminants leading to food-borne
illness, and improving security of food from intentional contamination,
and for other purposes; to the Committee on Agriculture, Nutrition, and
Forestry.
Mr. DURBIN. Mr. President, a single food safety agency with authority
to protect the food supply based on sound scientific principles would
provide this country with the greatest hope of reducing foodborne
illnesses and preventing or minimizing the harm from a bioterrorist
attack on our food supply. Right now, our food is the safest in the
world, but there are widening gaps in our food safety net due to
emerging threats and the fact that food safety oversight has evolved
over time to spread across several agencies. This mismatched, piecemeal
approach to food safety could spell disaster if we do not act quickly
and decisively.
But don't take it from me. Former HHS Secretary Tommy Thompson told
reporters in December as he resigned that he worries ``every single
night'' about a massive attack on the U.S. food supply. ``I, for the
life of me, cannot understand why the terrorists have not, you know,
attacked our food supply, because it is so easy to do,'' Thompson said.
``And we are importing a lot of food from the Middle East, and it would
be easy to tamper with that,'' he said.
No wonder he feels that way. Several Federal agencies, all with
different and conflicting missions, work to ensure our food is safe.
For example, there is no standardization for inspections--processed
food facilities may see a Food and Drug Administration inspector once
every 5 to 6 years, while meat and poultry operations are inspected
daily by the U.S. Department of Agriculture.
The Centers for Disease Control and Prevention (CDC) estimates that
as many as 76 million people suffer from food poisoning each year. Of
those individuals, approximately 325,000 will be hospitalized, and more
than 5,000 will die. Factors such as emerging pathogens, an aging
population at high risk for foodborne illnesses, an increasing volume
of food imports, and people eating outside their homes more often
underscore the need for us to take charge and shed the old bureaucratic
shackles that have tied us to the overlapping and inefficient ad
hoc food safety system of the past.
That is why I come to the Senate floor today to introduce the Safe
Food Act of 2005. My House counterpart, Representative Rosa DeLauro, is
introducing the bill in the other body. This legislation would create a
single, independent Federal food safety agency to administer all
aspects of Federal food safety inspections, enforcement, standards-
setting and research in order to protect public health. The components
of the agencies now charged with protecting the food supply, primarily
housed at the Food and Drug Administration and the Agriculture
Department, would be transferred to this new agency.
The new Food Safety Administrator would be responsible for the safety
of the food supply, and would fulfill that charge by implementing the
registration and recordkeeping requirements of the 2002 bioterrorism
law; ensuring slaughterhouses and food processing plants have
procedures in place to prevent and reduce food contamination; regularly
inspecting domestic food facilities, with inspection frequency based on
risk; and centralizing the authority to detain, seize, condemn and
recall food that is adulterated or misbranded. The Administrator would
be charged with requiring food producers to code their products so
those products could be traced in the event of a foodborne illness
outbreak in order to minimize the health impact of such an event.
The Administrator would also have the power examine the food safety
practices of foreign countries and work with the states to impose
various civil and criminal penalties for serious violations of the food
safety laws. The Administrator would also actively oversee public
education and research programs on foodborne illness.
It is time to create a single food safety agency in this country. I
am encouraged by a February 2005 Government Accountability Office
report in which government officials in seven other high-income
countries who have consolidated their food safety systems consistently
state that the benefits of consolidation outweigh the costs.
In this era of limited budgets, it is our responsibility to
streamline the Federal food safety system. The United States simply
cannot afford to continue operating multiple redundant systems. This is
not about more regulation, a super agency, or increased bureaucracy. It
is about common sense and the more effective marshaling of our existing
resources.
I urge my colleagues to join me in cosponsoring this legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
[[Page S3303]]
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 729
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Safe Food
Act of 2005''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings; purposes.
Sec. 3. Definitions.
TITLE I--ESTABLISHMENT OF FOOD SAFETY ADMINISTRATION
Sec. 101. Establishment of Food Safety Administration.
Sec. 102. Consolidation of separate food safety and inspection services
and agencies.
Sec. 103. Additional duties of the Administration.
TITLE II--ADMINISTRATION OF FOOD SAFETY PROGRAM
Sec. 201. Administration of national program.
Sec. 202. Registration of food establishments and foreign food
establishments.
Sec. 203. Preventative process controls to reduce adulteration of food.
Sec. 204. Performance standards for contaminants in food.
Sec. 205. Inspections of food establishments.
Sec. 206. Food production facilities.
Sec. 207. Federal and State cooperation.
Sec. 208. Imports.
Sec. 209. Resource plan.
Sec. 210. Traceback.
TITLE III--RESEARCH AND EDUCATION
Sec. 301. Public health assessment system.
Sec. 302. Public education and advisory system.
Sec. 303. Research.
TITLE IV--ENFORCEMENT
Sec. 401. Prohibited Acts.
Sec. 402. Food detention, seizure, and condemnation.
Sec. 403. Notification and recall.
Sec. 404. Injunction proceedings.
Sec. 405. Civil and criminal penalties.
Sec. 406. Presumption.
Sec. 407. Whistleblower protection.
Sec. 408. Administration and enforcement.
Sec. 409. Citizen civil actions.
TITLE V--IMPLEMENTATION
Sec. 501. Definition.
Sec. 502. Reorganization plan.
Sec. 503. Transitional authorities.
Sec. 504. Savings provisions.
Sec. 505. Conforming amendments.
Sec. 506. Additional technical and conforming amendments.
Sec. 507. Regulations.
Sec. 508. Authorization of appropriations.
Sec. 509. Limitation on authorization of appropriations.
Sec. 510. Effective date.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--Congress finds that--
(1) the safety of the food supply of the United States is
vital to the public health, to public confidence in the food
supply, and to the success of the food sector of the Nation's
economy;
(2) lapses in the protection of the food supply and loss of
public confidence in food safety are damaging to consumers
and the food industry, and place a burden on interstate
commerce;
(3) the safety and security of the food supply requires an
integrated, system-wide approach to preventing food-borne
illness, a thorough and broad-based approach to basic and
applied research, and intensive, effective, and efficient
management of the Nation's food safety program;
(4) the task of preserving the safety of the food supply of
the United States faces tremendous pressures with regard to--
(A) emerging pathogens and other contaminants and the
ability to detect all forms of contamination;
(B) an aging and immune compromised population, with a
growing number of people at high-risk for food-borne
illnesses, including infants and children;
(C) an increasing volume of imported food, without adequate
monitoring and inspection; and
(D) maintenance of rigorous inspection of the domestic food
processing and food service industries;
(5) Federal food safety standard setting, inspection,
enforcement, and research efforts should be based on the best
available science and public health considerations and food
safety resources should be systematically deployed in ways
that most effectively prevent food-borne illness;
(6) the Federal food safety system is fragmented, with at
least 12 Federal agencies sharing responsibility for food
safety, and operates under laws that do not reflect current
conditions in the food system or current scientific knowledge
about the cause and prevention of food-borne illness;
(7) the fragmented Federal food safety system and outdated
laws preclude an integrated, system-wide approach to
preventing food-borne illness, to the effective and efficient
operation of the Nation's food safety program, and to the
most beneficial deployment of food safety resources;
(8) the National Academy of Sciences recommended in the
report ``Ensuring Safe Food from Production to Consumption''
that Congress establish by statute a unified and central
framework for managing Federal food safety programs, and
recommended modifying Federal statutes so that inspection,
enforcement, and research efforts are based on scientifically
supportable assessments of risks to public health; and
(9) the lack of a single focal point for food safety
leadership in the United States undercuts the ability of the
United States to exert food safety leadership
internationally, which is detrimental to the public health
and the international trade interests of the United States.
(b) Purposes.--The purposes of this Act are--
(1) to establish a single agency to be known as the ``Food
Safety Administration'' to--
(A) regulate food safety and labeling to strengthen the
protection of the public health;
(B) ensure that food establishments fulfill their
responsibility to produce food in a manner that protects the
public health of all people in the United States;
(C) lead an integrated, system-wide approach to food safety
and to make more effective and efficient use of resources to
prevent food-borne illness;
(D) provide a single focal point for food safety
leadership, both nationally and internationally; and
(E) provide an integrated food safety research capability,
utilizing internally-generated, scientifically and
statistically valid studies, in cooperation with academic
institutions and other scientific entities of the Federal and
State governments, to achieve the continuous improvement of
research on food-borne illness and contaminants;
(2) to transfer to the Food Safety Administration the food
safety, labeling, inspection, and enforcement functions that,
as of the day before the effective date of this Act, are
performed by other Federal agencies; and
(3) to modernize and strengthen the Federal food safety
laws to achieve more effective application and efficient
management of the laws for the protection and improvement of
public health.
SEC. 3. DEFINITIONS.
In this Act:
(1) Administration.--The term ``Administration'' means the
Food Safety Administration established under section
101(a)(1).
(2) Administrator.--The term ``Administrator'' means the
Administrator of Food Safety appointed under section
101(a)(3).
(3) Adulterated.--
(A) In general.--The term ``adulterated'' has the meaning
described in subsections (a) through (c) of section 402 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342).
(B) Inclusion.--The term ``adulterated'' includes bearing
or containing a contaminant that causes illness or death
among sensitive populations.
(4) Agency.--The term ``agency'' has the meaning given that
term in section 551 of title 5, United States Code.
(5) Category 1 food establishment.--The term ``category 1
food establishment'' means a food establishment that
slaughters animals for food.
(6) Category 2 food establishment.--The term ``category 2
food establishment'' means a food establishment that
processes raw meat, poultry, seafood products, regardless of
whether the establishment also has a kill step, and animal
feed and other products that the Administrator determines by
regulation to be at high risk of contamination and the
processes of which do not include a step validated to destroy
contaminants.
(7) Category 3 food establishment.--The term ``category 3
food establishment'' means a food establishment that
processes meat, poultry, seafood products, and other products
that the Administrator determines by regulation to be at high
risk of contamination and whose processes include a step
validated to destroy contaminants.
(8) Category 4 food establishment.--The term ``category 4
food establishment'' means a food establishment that
processes all other categories of food products not described
in paragraphs (5) through (7).
(9) Category 5 food establishment.--The term ``category 5
food establishment'' means a food establishment that stores,
holds, or transports food products prior to delivery for
retail sale.
(10) Contaminant.--The term ``contaminant'' includes a
bacterium, chemical, natural or manufactured toxin, virus,
parasite, prion, physical hazard, or other human pathogen
that when found on or in food can cause human illness,
injury, or death.
(11) Contamination.--The term ``contamination'' refers to a
presence of a contaminant in food.
(12) Food.--
(A) In general.--The term ``food'' means a product intended
to be used for food or drink for a human or an animal.
(B) Inclusions.--The term ``food'' includes any product
(including a meat food product, as defined in section 1(j) of
the Federal Meat Inspection Act (21 U.S.C. 601(j))), capable
for use as human food that is made in whole or in part from
any animal, including cattle, sheep, swine, or goat, or
poultry (as defined in section 4 of the Poultry Products
Inspection Act (21 U.S.C. 453)), and animal feed.
(C) Exclusion.--The term ``food'' does not include dietary
supplements, as defined in section 201(ff) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 321(ff)).
(13) Food establishment.--
[[Page S3304]]
(A) In general.--The term ``food establishment'' means a
slaughterhouse, factory, warehouse, or facility owned or
operated by a person located in any State that processes food
or a facility that holds, stores, or transports food or food
ingredients.
(B) Exclusions.--For the purposes of registration, the term
``food establishment'' does not include a farm, restaurant,
other retail food establishment, nonprofit food establishment
in which food is prepared for or served directly to the
consumer, or fishing vessel (other than a fishing vessel
engaged in processing, as that term is defined in section
123.3 of title 21, Code of Federal Regulations).
(14) Food production facility.--The term ``food production
facility'' means any farm, ranch, orchard, vineyard,
aquaculture facility, or confined animal-feeding operation.
(15) Food safety law.--The term ``food safety law'' means--
(A) the provisions of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 301 et seq.) related to and requiring the
safety, labeling, and inspection of food, infant formulas,
food additives, pesticide residues, and other substances
present in food under that Act;
(B) the provisions of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 301 et seq.) and of any other Act that are
administered by the Center for Veterinary Medicine of the
Food and Drug Administration;
(C) the Poultry Products Inspection Act (21 U.S.C. 451 et
seq.);
(D) the Federal Meat Inspection Act (21 U.S.C. 601 et
seq.);
(E) the Egg Products Inspection Act (21 U.S.C. 1031 et
seq.);
(F) the Sanitary Food Transportation Act of 1990 (49 U.S.C.
App. 2801 et seq.);
(G) the provisions of the Humane Methods of Slaughter Act
of 1978 (Public Law 95-448) administered by the Food Safety
and Inspection Service;
(H) the provisions of this Act; and
(I) such other provisions of law related to and requiring
food safety, labeling, inspection, and enforcement as the
President designates by Executive order as appropriate to
include within the jurisdiction of the Administration.
(16) Foreign food establishment.--The term ``foreign food
establishment'' means a slaughterhouse, factory, warehouse,
or facility located outside the United States that processes
food for consumption that is imported into the United States
or food ingredients.
(17) Interstate commerce.--The term ``interstate commerce''
has the meaning given that term in section 201(b) of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(b)).
(18) Misbranded.--The term ``misbranded'' has the meaning
given that term in section 403 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 343).
(19) Process.--The term ``process'' or ``processing'' means
the commercial harvesting, slaughter, packing, preparation,
or manufacture of food.
(20) Safe.--The term ``safe'' refers to human and animal
health.
(21) State.--The term ``State'' means--
(A) a State;
(B) the District of Columbia;
(C) the Commonwealth of Puerto Rico; and
(D) any other territory or possession of the United States.
(22) Validation.--The term ``validation'' means the
obtaining of evidence that the food hygiene control measure
or measures selected to control a hazard in food is capable
of effectively and consistently controlling the hazard.
(23) Statistically valid.--With respect to a study, the
term ``statistically valid'' means evaluated and conducted
under standards set by the National Institute of Standards
and Technology.
TITLE I--ESTABLISHMENT OF FOOD SAFETY ADMINISTRATION
SEC. 101. ESTABLISHMENT OF FOOD SAFETY ADMINISTRATION.
(a) Establishment.--
(1) In general.--There is established in the executive
branch an agency to be known as the ``Food Safety
Administration''.
(2) Status.--The Administration shall be an independent
establishment (as defined in section 104 of title 5, United
States Code).
(3) Head of administration.--The Administration shall be
headed by the Administrator of Food Safety, who shall be
appointed by the President, by and with the advice and
consent of the Senate.
(b) Duties of Administrator.--The Administrator shall--
(1) administer and enforce the food safety law;
(2) serve as a representative to international food safety
bodies and discussions;
(3) promulgate regulations to ensure the security of the
food supply from all forms of contamination, including
intentional contamination; and
(4) oversee--
(A) implementation of Federal food safety inspection,
enforcement, and research efforts, to protect the public
health;
(B) development of consistent and science-based standards
for safe food;
(C) coordination and prioritization of food safety research
and education programs with other Federal agencies;
(D) prioritization of Federal food safety efforts and
deployment of Federal food safety resources to achieve the
greatest possible benefit in reducing food-borne illness;
(E) coordination of the Federal response to food-borne
illness outbreaks with other Federal and State agencies; and
(F) integration of Federal food safety activities with
State and local agencies.
SEC. 102. CONSOLIDATION OF SEPARATE FOOD SAFETY AND
INSPECTION SERVICES AND AGENCIES.
(a) Transfer of Functions.--For each Federal agency
specified in subsection (b), there are transferred to the
Administration all functions that the head of the Federal
agency exercised on the day before the effective date of this
Act (including all related functions of any officer or
employee of the Federal agency) that relate to administration
or enforcement of the food safety law, as determined by the
President.
(b) Transferred Agencies.--The Federal agencies referred to
in subsection (a) are--
(1) the Food Safety and Inspection Service of the
Department of Agriculture;
(2) the Center for Food Safety and Applied Nutrition of the
Food and Drug Administration;
(3) the part of the Agriculture Marketing Service that
administers shell egg surveillance services established under
the Egg Products Inspection Act (21 U.S.C. 1031 et seq.);
(4) the resources and facilities of the Office of
Regulatory Affairs of the Food and Drug Administration that
administer and conduct inspections of food establishments and
imports;
(5) the resources and facilities of the Office of the
Commissioner of the Food and Drug Administration that
support--
(A) the Center for Food Safety and Applied Nutrition;
(B) the Center for Veterinary Medicine; and
(C) the Office of Regulatory Affairs facilities and
resources described in paragraph (4);
(6) the Center for Veterinary Medicine of the Food and Drug
Administration;
(7) the resources and facilities of the Environmental
Protection Agency that control and regulate pesticide
residues in food;
(8) the part of the Research, Education, and Economics
mission area of the Department of Agriculture related to food
safety and animal feed research;
(9) the part of the National Marine Fisheries Service of
the National Oceanic and Atmospheric Administration of the
Department of Commerce that administers the seafood
inspection program;
(10) the Animal and Plant Inspection Health Service of the
Department of Agriculture; and
(11) such other offices, services, or agencies as the
President designates by Executive order to carry out this
Act.
SEC. 103. ADDITIONAL DUTIES OF THE ADMINISTRATION.
(a) Officers and Employees.--The Administrator may--
(1) appoint officers and employees for the Administration
in accordance with the provisions of title 5, United States
Code, relating to appointment in the competitive service; and
(2) fix the compensation of those officers and employees in
accordance with chapter 51 and with subchapter III of chapter
53 of that title, relating to classification and General
Schedule pay rates.
(b) Experts and Consultants.--The Administrator may--
(1) procure the services of temporary or intermittent
experts and consultants as authorized by section 3109 of
title 5, United States Code; and
(2) pay in connection with those services the travel
expenses of the experts and consultants, including
transportation and per diem in lieu of subsistence while away
from the homes or regular places of business of the
individuals, as authorized by section 5703 of that title.
(c) Bureaus, Offices, and Divisions.--The Administrator may
establish within the Administration such bureaus, offices,
and divisions as the Administrator determines are necessary
to perform the duties of the Administrator.
(d) Advisory Committees.--
(1) In general.--The Administrator shall establish advisory
committees that consist of representatives of scientific
expert bodies, academics, industry specialists, and
consumers.
(2) Duties.--The duties of an advisory committee
established under paragraph (1) may include developing
recommendations with respect to the development of new
processes, research, communications, performance standards,
and inspection.
TITLE II--ADMINISTRATION OF FOOD SAFETY PROGRAM
SEC. 201. ADMINISTRATION OF NATIONAL PROGRAM.
(a) In General.--The Administrator shall--
(1) administer a national food safety program (referred to
in this section as the ``program'') to protect public health;
and
(2) ensure that persons who produce or process food meet
their responsibility to prevent or minimize food safety
hazards related to their products.
(b) Comprehensive Analysis.--The program shall be based on
a comprehensive analysis of the hazards associated with
different food and with the processing of different food,
including the identification and evaluation of--
(1) the severity of the potential health risks;
(2) the sources and specific points of potential
contamination extending from the farm or ranch to the
consumer that may render food unsafe;
[[Page S3305]]
(3) the potential for persistence, multiplication, or
concentration of naturally occurring or added contaminants in
food;
(4) opportunities across the food production, processing,
distribution, and retail system to reduce potential health
risks; and
(5) opportunities for intentional contamination.
(c) Program Elements.--In carrying out the program, the
Administrator shall--
(1) adopt and implement a national system for the
registration of food establishments and foreign food
establishments and regular unannounced inspection of food
establishments;
(2) enforce the adoption of process controls in food
establishments, based on best available scientific and public
health considerations and best available technologies;
(3) establish and enforce science-based standards for--
(A) substances that may contaminate food; and
(B) safety and sanitation in the processing and handling of
food;
(4) implement a statistically valid sampling program to
ensure that industry programs and procedures that prevent
food contamination are effective on an ongoing basis and that
food meets the standards established under this Act;
(5) implement procedures and requirements to ensure the
safety and security of imported food;
(6) coordinate with other agencies and State or local
governments in carrying out inspection, enforcement,
research, and monitoring;
(7) have access to the surveillance data of the Centers for
Disease Control and Prevention, and other Federal Government
agencies, in order to implement a national surveillance
system to assess the health risks associated with the human
consumption of food or to create surveillance data and
studies;
(8) develop public education risk communication and
advisory programs;
(9) implement a basic and applied research program to
further the purposes of this Act; and
(10) coordinate and prioritize food safety research and
educational programs with other agencies, including State or
local agencies.
SEC. 202. REGISTRATION OF FOOD ESTABLISHMENTS AND FOREIGN
FOOD ESTABLISHMENTS.
(a) In General.--The Administrator shall by regulation
require that any food establishment or foreign food
establishment engaged in processing food in the United States
be registered with the Administrator.
(b) Registration Requirements.--
(1) In general.--To be registered under subsection (a)--
(A) in the case of a food establishment, the owner,
operator, or agent in charge of the food establishment shall
submit a registration to the Administrator; and
(B) in the case of a foreign food establishment, the owner,
operator, or agent in charge of the foreign food
establishment shall--
(i) submit a registration to the Administrator; and
(ii) provide the name, address, and emergency contact
information of the United States agent for the foreign food
establishment.
(2) Registration.--A food establishment or foreign food
establishment shall submit a registration under paragraph (1)
to the Administrator that--
(A) identifies the name, address, and emergency contact
information of each food establishment or foreign food
establishment that the registrant operates under this Act and
all trade names under which the registrant conducts business
relating to food;
(B) lists the primary purpose and business activity of each
food establishment or foreign food establishment, including
the dates of operation if the food establishment or foreign
food establishment is seasonal;
(C) lists the types of food processed or sold at each food
establishment or, for foreign food establishments selling
food for consumption in the United States, identifies the
specific food categories of that food as listed under section
170.3 of title 21, Code of Federal Regulations; and
(D) not later than 30 days after a change in the products,
function, or legal status of the food establishment or
foreign food establishment (including cessation of business
activities), notifies the Administrator of the change.
(3) Procedure.--Upon receipt of a completed registration
described in paragraph (1), the Administrator shall notify
the registrant of the receipt of the registration, designate
each establishment as a category 1, 2, 3, 4, or 5 food
establishment, and assign a registration number to each food
establishment and foreign food establishment.
(4) List.--The Administrator shall compile and maintain an
up-to-date list of food establishments and foreign food
establishments that are registered under this section. The
Administrator may establish regulations by which such list
may be shared with other governmental authorities.
(5) Disclosure exemption.--The disclosure requirements
under section 552 of title 5, United States Code, shall not
apply to--
(A) the list compiled under paragraph (4); and
(B) information derived from the list under paragraph (4),
to the extent that it discloses the identity or location of a
specific registered person.
(6) Suspension of registration.--
(A) In general.--The Administrator may suspend the
registration of a food establishment or foreign food
establishment, including the facility of an importer, for
violation of a food safety law.
(B) Notice and opportunity for hearing.--The Administrator
shall provide notice to a registrant immediately upon the
suspension of the registration of the facility and provide
registrant with an opportunity for a hearing within 3 days of
the suspension.
(7) Reinstatement.--A registration that is suspended under
this section may be reinstated pursuant to criteria published
in the Federal Register by the Administrator.
SEC. 203. PREVENTATIVE PROCESS CONTROLS TO REDUCE
ADULTERATION OF FOOD.
(a) In General.--The Administrator shall, upon the basis of
best available public health, scientific, and technological
data, promulgate regulations to ensure that food
establishments carry out their responsibilities to--
(1) process food in a sanitary manner so that it is free of
dirt and filth;
(2) limit the presence of potentially harmful contaminants
in food;
(3) implement appropriate measures of preventative process
control to minimize and reduce the presence and growth of
contaminants in food and meet the performance standards
established under section 204;
(4) process all fully processed or ready-to-eat food in a
sanitary manner, using reasonably available techniques and
technologies to eliminate any potentially harmful
contaminants; and
(5) label food intended for final processing outside
commercial food establishments with instructions for handling
and preparation for consumption that will destroy
contaminants.
(b) Regulations.--Not later than 1 year after the effective
date of this Act, the Administrator shall promulgate
regulations that--
(1) require all food establishments to adopt preventative
process controls that are--
(A) adequate to protect the public health;
(B) meet relevant regulatory and food safety standards; and
(C) limit the presence and growth of contaminants in food
prepared in a food establishment;
(2) set standards for sanitation;
(3) meet any performance standards for contaminants
established under section 204;
(4) require recordkeeping to monitor compliance;
(5) require sampling and testing at a frequency and in a
manner sufficient to ensure that process controls are
effective on an ongoing basis and that regulatory standards
are being met; and
(6) provide for agency access to records kept by food
establishments and submission of copies of the records to the
Administrator, as the Administrator determines appropriate.
(c) Processing Controls.--The Administrator may require any
person with responsibility for or control over food or food
ingredients to adopt process controls, if the process
controls are needed to ensure the protection of the public
health.
SEC. 204. PERFORMANCE STANDARDS FOR CONTAMINANTS IN FOOD.
(a) In General.--To protect the public health, the
Administrator shall establish by regulation and enforce
performance standards that define, with respect to specific
food-borne contaminants and foods, the level of food safety
performance that a person responsible for producing,
processing, or selling food shall meet.
(b) Identification of Contaminants; Performance
Standards.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the Administrator shall identify the
food-borne contaminants and food that contribute
significantly to the risk of food-borne illness.
(2) Performance standards.--As soon as practicable after
the identification of the contaminants under paragraph (1),
the Administrator shall establish appropriate performance
standards to protect against all food-borne contaminants.
(3) Significant contaminants.--The Administrator shall
establish performance standards for the 5 contaminants that
contribute to the greatest number of illnesses or deaths
associated with raw meat, poultry, and seafood not later than
3 years after the date of enactment of this Act. The
Administrator shall revise such standards not less often than
every 3 years.
(c) Performance Standards.--
(1) In general.--The performance standards established
under this section shall include--
(A) health-based standards that set the level of a
contaminant that can safely and lawfully be present in food;
(B) zero tolerances, including zero tolerances for fecal
matter, in addition to any zero-tolerance standards in effect
on the day before the date of enactment of this Act, when
necessary to protect against significant adverse health
outcomes;
(C) process standards, such as log reduction criteria for
cooked products, when sufficient to ensure the safety of
processed food; and
(D) in the absence of data to support a performance
standard described in subparagraph (A), (B), or (C),
standards that define required performance in terms of ``best
reasonably achievable performance'', using best
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available technologies, interventions, and practices.
(2) Best reasonably achievable performance standards.--In
developing best reasonably achievable performance standards,
the Administrator shall collect, or contract for the
collection of, data on current best practices and food safety
outcomes related to the contaminants and foods in question,
as the Administrator determines necessary.
(3) Revocation by administrator.--All performance
standards, tolerances, action levels, or other similar
standards in effect on the date of enactment of this Act
shall remain in effect until revised or revoked by the
Administrator.
(d) Enforcement.--
(1) In general.--Not later than 1 year after the
promulgation of a performance standard under this section,
the Administrator shall implement a statistically significant
sampling program to determine whether food establishments are
complying with the performance standards promulgated under
this section. The program established under this paragraph
shall be at least as stringent as the Hazard Analysis and
Critical Control Point System requirements established under
part 417 of title 9, Code of Federal Regulations (or
successor regulation).
(2) Inspections.--If the Administrator determines that a
food establishment fails to meet a standard promulgated under
this section, and such establishment fails to take
appropriate corrective action as determined by the
Administrator, the Administrator shall, as appropriate--
(A) detain, seize, or condemn food from the food
establishment under section 402;
(B) order a recall of food from the food establishment
under section 403;
(C) increase the inspection frequency for the food
establishment;
(D) withdraw the mark of inspection from the food
establishment, if in use; or
(E) take other appropriate enforcement action concerning
the food establishment, including withdrawal of registration.
(e) Newly Identified Contaminants.--Notwithstanding any
other provision of this section, the Administrator shall
promulgate interim performance standards for newly identified
contaminants as necessary to protect the public health.
SEC. 205. INSPECTIONS OF FOOD ESTABLISHMENTS.
(a) In General.--The Administrator shall establish an
inspection program, which shall include sampling and testing
of food and food establishments, to determine if each food
establishment--
(1) is operating in a sanitary manner;
(2) has continuous systems, interventions, and processes in
place to minimize or eliminate contaminants in food;
(3) is in compliance with applicable performance standards
established under section 203, and other regulatory
requirements;
(4) is processing food that is safe and not adulterated or
misbranded;
(5) maintains records of process control plans under
section 203, and other records related to the processing,
sampling, and handling of food; and
(6) is in compliance with the requirements of the food
safety law.
(b) Establishment Categories and Inspection Frequencies.--
The resource plan required under section 209, including the
description of resources required to carry out inspections of
food establishments, shall be based on the following
categories and inspection frequencies, subject to subsections
(c), (d), and (e):
(1) Category 1 food establishments.--A category 1 food
establishment shall be subject to antemortem, postmortem, and
continuous inspection of each slaughter line during all
operating hours, and other inspection on a daily basis,
sufficient to verify that--
(A) diseased animals are not offered for slaughter;
(B) the food establishment has successfully identified and
removed from the slaughter line visibly defective or
contaminated carcasses, has avoided cross-contamination, and
destroyed or reprocessed them in a manner acceptable to the
Administrator; and
(C) that applicable performance standards and other
provisions of the food safety law, including those intended
to eliminate or reduce pathogens, have been satisfied.
(2) Category 2 food establishments.--A category 2 food
establishment shall be randomly inspected at least daily.
(3) Category 3 food establishments.--A category 3 food
establishment shall--
(A) have ongoing verification that its processes are
controlled; and
(B) be randomly inspected at least monthly.
(4) Category 4 food establishments.--A category 4 food
establishment shall be randomly inspected at least quarterly.
(5) Category 5 food establishments.--A category 5 food
establishment shall be randomly inspected at least annually.
(c) Establishment of Inspection Procedures.--The
Administrator shall establish procedures under which
inspectors or safety officers shall take random samples,
photographs, and copies of records in food establishments.
(d) Alternative Inspection Frequencies.--With respect to a
category 2, 3, 4, or 5 food establishment, the Administrator
may establish alternative increasing or decreasing inspection
frequencies for subcategories of food establishments or
individual establishments, to foster risk-based allocation of
resources, subject to the following criteria and procedures:
(1) Subcategories of food establishments and their
alternative inspection frequencies shall be defined by
regulation, subject to paragraphs (2) and (3).
(2) Regulations of alternative inspection frequencies for
subcategories of food establishments under paragraph (1) and
for a specific food establishment under paragraph (4) shall
provide that--
(A) category 2 food establishments shall be inspected at
least monthly; and
(B) category 3, 4, and 5 food establishments shall be
inspected at least annually.
(3) In defining subcategories of food establishments and
their alternative inspection frequencies under paragraphs (1)
and (2), the Administrator shall consider--
(A) the nature of the food products being processed,
stored, or transported;
(B) the manner in which food products are processed,
stored, or transported;
(C) the inherent likelihood that the products will
contribute to the risk of food-borne illness;
(D) the best available evidence concerning reported
illnesses associated with the foods produced in the proposed
subcategory of establishments; and
(E) the overall record of compliance with the food safety
law among establishments in the proposed subcategory,
including compliance with applicable performance standards
and the frequency of recalls.
(4) The Administrator may adopt alternative inspection
frequencies for increased or decreased inspection for a
specific establishment, subject to paragraphs (2) and (5) and
shall periodically publish a list of establishments subject
to alternative inspections.
(5) In adopting alternative inspection frequencies for a
specific establishment, the Administrator shall consider--
(A) the criteria in paragraph (3);
(B) whether products from the specific establishment have
been associated with a case or an outbreak of food-borne
illness; and
(C) the record of the establishment of compliance with the
food safety law, including compliance with applicable
performance standards and the frequency of recalls.
(6) Before establishing decreased alternative inspection
frequencies for subcategories of establishments or individual
establishments, the Administrator shall--
(A) determine, based on the best available evidence, that
the alternative uses of the resources required to carry out
the inspection activity would make a greater contribution to
protecting the public health and reducing the risk of food-
borne illness than the use of resources described in
subsection (b);
(B) describe the alternative uses of resources in general
terms when issuing the regulation or order that establishes
the alternative inspection frequency;
(C) consider the supporting evidence that an individual
food establishment shall submit related to whether an
alternative inspection frequency should be established for
such establishment by the Administrator; and
(D) include a description of the alternative uses in the
annual resource plan required in section 209.
(e) Inspection Transition.--The Administrator shall manage
the transition to the inspection system described in this Act
as follows:
(1) In the case of a category 1 or 2 food establishment,
the Administrator shall continue to implement the applicable
inspection mandates of the Federal Meat Inspection Act (21
U.S.C. 601 et seq.), the Poultry Products Inspection Act (21
U.S.C. 451 et seq.), and the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 301 et seq.) until--
(A) regulations required to implement this section have
been promulgated;
(B) the performance standards required by section 204(c)
have been promulgated and implemented for 1 year; and
(C) the establishment has achieved compliance with the
other applicable provisions of the food safety law.
(2) In the case of a category 1 or 2 food establishment
that, within 2 years after the promulgation of the
performance standards required by section 204(c), has not
achieved compliance with the food safety law, the
Administrator shall--
(A) issue an order prohibiting the establishment from
operating pending a demonstration by the establishment that
sufficient changes in facilities, procedures, personnel, or
other aspects of the process control system have been made
such that the Administrator determines that compliance with
the food safety law is achieved; and
(B) following the demonstration required in subparagraph
(A), issue an order authorizing the food establishment to
operate subject, at a minimum, to--
(i) the inspection requirement applicable to the
establishment under subsection (b) (1) or (2); and
(ii) such other inspection or compliance measures
determined by the Administrator necessary to assure
compliance with the applicable food safety law.
(3) In the case of a category 3 food establishment, the
Administrator shall continue to implement the applicable
inspection mandates of the Federal Meat Inspection Act (21
U.S.C. 601 et seq.), the Poultry Products Inspection Act (21
U.S.C. 451 et seq.), and the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 301 et seq.) until--
(A) the regulations required to implement this section have
been promulgated;
(B) the first resource plan under section 209 has been
submitted; and
[[Page S3307]]
(C) for individual establishments, compliance with the food
safety law has been demonstrated.
(4) In the case of a category 3 food establishment that,
within 1 year after the promulgation of the regulations
required to implement this section, have not demonstrated
compliance with the food safety law, the Administrator
shall--
(A) issue an order prohibiting the establishment from
operating, pending a demonstration by the establishment that
sufficient changes in facilities, procedures, personnel, or
other aspects of the process control system have been made
such that the Administrator determines that compliance with
the food safety law is achieved; and
(B) following the demonstration required in subparagraph
(A), issue an order authorizing the establishment to operate
subject, at a minimum, to--
(i) the inspection requirement applicable to the
establishment under subsection (b)(3); and
(ii) such other inspection or compliance measures
determined by the Administrator necessary to assure
compliance with the food safety law.
(5) In the case of a category 4 or 5 food establishment,
the inspection requirements of this Act shall be implemented
as soon as possible after--
(A) the promulgation of the regulations required to
implement this section;
(B) the publication of the first resource plan under
section 209; and
(C) the commencement of the first fiscal year in which the
Administration is operating with budgetary resources that
Congress has appropriated following consideration of the
resource plan under section 209.
(f) Official Mark.--
(1) In general.--
(A) Establishment.--Before the completion of the transition
process under paragraphs (1) through (3) of subsection (e),
the Administrator shall by regulation establish an official
mark that shall be affixed to a food product produced in a
category 1, 2, or 3 establishment, subject to subparagraph
(B).
(B) Prerequisite.--The official mark required under
subparagraph (A) shall be affixed to a food product by the
Administrator if the establishment has been inspected by the
Administrator in accordance with the inspection frequencies
under this section and the establishment is in compliance
with the food safety law.
(C) Removal of official mark.--The Administrator shall
promulgate regulations that provide for the removal of the
official mark under this subsection if the Administrator
makes a finding that the establishment is not in compliance
with the food safety law.
(2) Category 1, 2, or 3 food establishments.--In the case
of products produced in a category 1, 2, or 3 food
establishment--
(A) products subject to Federal Meat Inspection Act (21
U.S.C. 601 et seq.), the Poultry Products Inspection Act (21
U.S.C. 451 et seq.), the Egg Products Inspection Act (21
U.S.C. 1031 et seq.), and the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301 et seq.) as of the date of
enactment of this Act shall remain subject to the requirement
under those Acts that they bear the mark of inspection
pending completion of the transition process under paragraphs
(1) through (3) of subsection (e);
(B) the Administrator shall publicly certify on a monthly
basis that the inspection frequencies required under this Act
have been achieved; and
(C) a product from an establishment that has not been
inspected in accordance with the required frequencies under
this section shall not bear the official mark and shall not
be shipped in interstate commerce.
(3) Category 4 and 5 food establishments.--In the case of a
product produced in a category 4 or 5 food establishment the
Administrator shall provide by regulation for the voluntary
use of the official mark established under paragraph (1),
subject to--
(A) such minimum inspection frequencies as determined
appropriate by the Administrator;
(B) compliance with applicable performance standards and
other provisions of the food safety law; and
(C) such other requirements the Administrator considers
appropriate.
(g) Implementation.--Not later than 1 year after the
effective date of this Act, the Administrator shall issue
regulations to implement subsections (b) through (e).
(h) Maintenance and Inspection of Records.--
(1) In general.--
(A) Records.--A food establishment shall--
(i) maintain such records as the Administrator shall
require by regulation, including all records relating to the
processing, distributing, receipt, or importation of any
food; and
(ii) permit the Administrator, in addition to any authority
of the food safety agencies in effect on the day before the
date of enactment of this Act, upon presentation of
appropriate credentials and at reasonable times and in a
reasonable manner, to have access to and copy all records
maintained by or on behalf of such food establishment
representative in any format (including paper or electronic)
and at any location, that are necessary to assist the
Administrator--
(I) to determine whether the food is contaminated or not in
compliance with the food safety law; or
(II) to track the food in commerce.
(B) Required disclosure.--A food establishment shall have
an affirmative obligation to disclose to the Administrator
the results of testing or sampling of food, equipment, or
material in contact with food, that is positive for any
contaminant.
(2) Maintenance of records.--The records in paragraph (1)
shall be maintained for a reasonable period of time, as
determined by the Administrator.
(3) Requirements.--The records in paragraph (1) shall
include records describing--
(A) the origin, receipt, delivery, sale, movement, holding,
and disposition of food or ingredients;
(B) the identity and quantity of ingredients used in the
food;
(C) the processing of the food;
(D) the results of laboratory, sanitation, or other tests
performed on the food or in the food establishment;
(E) consumer complaints concerning the food or packaging of
the food;
(F) the production codes, open date codes, and locations of
food production; and
(G) other matters reasonably related to whether food is
unsafe, is adulterated or misbranded, or otherwise fails to
meet the requirements of this Act.
(i) Protection of Sensitive Information.--
(1) In general.--The Administrator shall develop and
maintain procedures to prevent the unauthorized disclosure of
any trade secret or confidential information obtained by the
Administrator.
(2) Limitation.--The requirement under this subsection does
not--
(A) limit the authority of the Administrator to inspect or
copy records or to require the establishment or maintenance
of records under this Act;
(B) have any legal effect on section 1905 of title 18,
United States Code;
(C) extend to any food recipe, financial data, pricing
data, personnel data, or sales data (other than shipment
dates relating to sales);
(D) limit the public disclosure of distribution records or
other records related to food subject to a voluntary or
mandatory recall under section 403; or
(E) limit the authority of the Administrator to promulgate
regulations to permit the sharing of data with other
governmental authorities.
(j) Bribery of or Gifts to Inspector or Other Officers and
Acceptance of Gifts.--Section 22 of the Federal Meat
Inspection Act (21 U.S.C. 622) shall apply under this Act.
SEC. 206. FOOD PRODUCTION FACILITIES.
In carrying out the duties of the Administrator and the
purposes of this Act, the Administrator shall have the
authority, with respect to food production facilities, to--
(1) visit and inspect food production facilities in the
United States and in foreign countries to investigate
bioterrorism threats and for other critical food safety
purposes;
(2) review food safety records as required to be kept by
the Administrator to carry out traceback and for other
critical food safety purposes;
(3) set good practice standards to protect the public and
animal health and promote food safety;
(4) conduct monitoring and surveillance of animals, plants,
products, or the environment, as appropriate; and
(5) collect and maintain information relevant to public
health and farm practices.
SEC. 207. FEDERAL AND STATE COOPERATION.
(a) In General.--The Administrator shall work with the
States to carry out activities and programs that create a
national food safety program so that Federal and State
programs function in a coordinated and cost-effective manner.
(b) State Action.--The Administrator shall work with States
to--
(1) continue, strengthen, or establish State food safety
programs, especially with respect to the regulation of retail
commercial food establishments, transportation, harvesting,
and fresh markets;
(2) continue, strengthen, or establish inspection programs
and requirements to ensure that food under the jurisdiction
of the State is safe; and
(3) support recall authorities at the State and local
levels.
(c) Assistance.--To assist in planning, developing, and
implementing a food safety program, the Administrator may
provide and continue to a State--
(1) advisory assistance;
(2) technical and laboratory assistance and training
(including necessary materials and equipment); and
(3) financial, in kind, and other aid.
(d) Service Agreements.--
(1) In general.--The Administrator may, under agreements
entered into with Federal, State, or local agencies, use on a
reimbursable basis or otherwise, the personnel and services
of those agencies in carrying out this Act.
(2) Training.--Agreements with a State under this
subsection may provide for training of State employees.
(3) Maintenance of agreements.--The Administrator shall
maintain any agreement that is in effect on the day before
the date of enactment of this Act until the Administrator
evaluates such agreement and determines whether to maintain
or substitute such agreement.
(e) Audits.--
(1) In general.--The Administrator shall annually conduct a
comprehensive review of each State program that provides
services to
[[Page S3308]]
the Administrator in carrying out the responsibilities under
this Act, including mandated inspections under section 205.
(2) Requirements.--The review shall--
(A) include a determination of the effectiveness of the
State program; and
(B) identify any changes necessary to ensure enforcement of
Federal requirements under this Act.
(f) No Federal Preemption.--Nothing in this Act shall be
construed to preempt the enforcement of State food safety
laws and standards that are at least as stringent as those
under this Act.
SEC. 208. IMPORTS.
(a) In General.--Not later than 2 years after the effective
date of this Act, the Administrator shall establish a system
under which a foreign government or foreign food
establishment seeking to import food to the United States
shall submit a request for certification to the
Administrator.
(b) Certification Standard.--A foreign government or
foreign food establishment requesting a certification to
import food to the United States shall demonstrate, in a
manner determined appropriate by the Administrator, that food
produced under the supervision of a foreign government or by
the foreign food establishment has met standards for food
safety, inspection, labeling, and consumer protection that
are at least equivalent to standards applicable to food
produced in the United States.
(c) Certification Approval.--
(1) Request by foreign government.--Prior to granting the
certification request of a foreign government, the
Administrator shall review, audit, and certify the food
safety program of a requesting foreign government (including
all statutes, regulations, and inspection authority) as at
least equivalent to the food safety program in the United
States, as demonstrated by the foreign government.
(2) Request by foreign food establishment.--Prior to
granting the certification request of a foreign food
establishment, the Administrator shall certify, based on an
onsite inspection, the food safety programs and procedures of
a requesting foreign firm as at least equivalent to the food
safety programs and procedures of the United States.
(d) Limitation.--A foreign government or foreign firm
approved by the Administrator to import food to the United
States under this section shall be certified to export only
the approved food products to the United States for a period
not to exceed 5 years.
(e) Withdrawal of Certification.--The Administrator may
withdraw certification of any food from a foreign government
or foreign firm--
(1) if such food is linked to an outbreak of human illness;
(2) following an investigation by the Administrator that
finds that the foreign government programs and procedures or
foreign food establishment is no longer equivalent to the
food safety programs and procedures in the United States; or
(3) following a refusal to allow United States officials to
conduct such audits and investigations as may be necessary to
fulfill the requirements under this section.
(f) Renewal of Certification.--The Administrator shall
audit foreign governments and foreign food establishments at
least every 5 years to ensure the continued compliance with
the standards set forth in this section.
(g) Required Routine Inspection.--The Administrator shall
routinely inspect food and food animals (via a physical
examination) before it enters the United States to ensure
that it is--
(1) safe;
(2) labeled as required for food produced in the United
States; and
(3) otherwise meets requirements under the food safety law.
(h) Enforcement.--The Administrator is authorized to--
(1) deny importation of food from any foreign government
that does not permit United States officials to enter the
foreign country to conduct such audits and inspections as may
be necessary to fulfill the requirements under this section;
(2) deny importation of food from any foreign government or
foreign firm that does not consent to an investigation by the
Administration when food from that foreign country or foreign
firm is linked to a food-borne illness outbreak or is
otherwise found to be adulterated or mislabeled; and
(3) promulgate rules and regulations to carry out the
purposes of this section, including setting terms and
conditions for the destruction of products that fail to meet
the standards of this Act.
(i) Detention and Seizure.--Any food imported for
consumption in the United States may be detained, seized, or
condemned pursuant to section 402.
SEC. 209. RESOURCE PLAN.
(a) In General.--The Administrator shall prepare and update
annually a resource plan describing the resources required,
in the best professional judgment of the Administrator, to
develop and fully implement the national food safety program
established under this Act.
(b) Contents of Plan.--The resource plan shall--
(1) describe quantitatively the personnel, financial, and
other resources required to carry out the inspection of food
establishments under section 205 and other requirements of
the national food safety program;
(2) allocate inspection resources in a manner reflecting
the distribution of risk and opportunities to reduce risk
across the food supply to the extent feasible based on the
best available information, and subject to section 205; and
(3) describe the personnel, facilities, equipment, and
other resources needed to carry out inspection and other
oversight activities, at a total resource level equal to at
least 50 percent of the resources required to carry out
inspections in food establishments under section 205--
(A) in foreign establishments;
(B) at the point of importation; and
(C) at the point of production on farms, ranches, and
feedlots.
(c) Grants.--The resource plan shall include
recommendations for funding to provide grants to States and
local governments to carry out food safety activities in
retail and food service facilities and the required
inspections in food establishments.
(d) Submission of Plan.--The Administrator shall submit
annually to the Committee on Appropriations of the Senate,
the Committee on Appropriations of the House of
Representatives, and other relevant committees of Congress,
the resource plan required under this section.
SEC. 210. TRACEBACK.
(a) In General.--The Administrator, in order to protect the
public health, shall establish requirements for a national
system for tracing food and food producing animals from point
of origin to retail sale, subject to subsection (b).
(b) Applicability.--Traceability requirements shall--
(1) be established in accordance with regulations and
guidelines issued by the Administrator; and
(2) apply to food production facilities and food
establishments.
(c) Relationship to Country of Origin Labeling.--Nothing
contained in this section prevents or interferes with
implementation of the country of origin labeling requirements
of subtitle D of the Agricultural Marketing Act of 1946 (7
U.S.C. 1638 et seq.).
TITLE III--RESEARCH AND EDUCATION
SEC. 301. PUBLIC HEALTH ASSESSMENT SYSTEM.
(a) In General.--The Administrator, acting in coordination
with the Director of the Centers for Disease Control and
Prevention and with the Research Education and Economics
mission area of the Department of Agriculture, shall--
(1) have access to the applicable data systems of the
Centers for Disease Control and Prevention and to the
databases made available by a State;
(2) maintain an active surveillance system of food, food
products, and epidemiological evidence submitted by States to
the Centers for Disease Control and Prevention based on a
representative proportion of the population of the United
States;
(3) assess the frequency and sources of human illness in
the United States associated with the consumption of food;
(4) maintain a state-of-the-art DNA matching system and
epidemiological system dedicated to food-borne illness
identification, outbreaks, and containment; and
(5) have access to the surveillance data created via
monitoring and statistical studies conducted as part of its
own inspection.
(b) Public Health Sampling.--
(1) In general.--Not later than 1 year after the effective
date of this Act, the Administrator shall establish
guidelines for a sampling system under which the
Administrator shall take and analyze samples of food--
(A) to assist the Administrator in carrying out this Act;
and
(B) to assess the nature, frequency of occurrence, and
quantities of contaminants in food.
(2) Requirements.--The sampling system described in
paragraph (1) shall provide--
(A) statistically valid monitoring, including market-based
studies, on the nature, frequency of occurrence, and
quantities of contaminants in food available to consumers;
and
(B) at the request of the Administrator, such other
information, including analysis of monitoring and
verification samples, as the Administrator determines may be
useful in assessing the occurrence of contaminants in food.
(c) Assessment of Health Hazards.--
(1) In general.--Through the surveillance system referred
to in subsection (a) and the sampling system described in
subsection (b), the Administrator shall--
(A) rank food categories based on the hazard to human
health presented by the food category;
(B) identify appropriate industry and regulatory approaches
to minimize hazards in the food supply; and
(C) assess the public health environment for emerging
diseases, including zoonosis, for their risk of appearance in
the United States food supply.
(2) Components of analysis.--The analysis under subsection
(b)(1) may include--
(A) a comparison of the safety of commercial processing
with the health hazards associated with food that is
harvested for recreational or subsistence purposes and
prepared noncommercially;
(B) a comparison of the safety of food that is domestically
processed with the health hazards associated with food that
is processed outside the United States;
(C) a description of contamination originating from
handling practices that occur prior to or after the sale of
food to consumers; and
[[Page S3309]]
(D) use of comparative risk assessments.
SEC. 302. PUBLIC EDUCATION AND ADVISORY SYSTEM.
(a) Public Education.--
(1) In general.--The Administrator, in cooperation with
private and public organizations, including the cooperative
extension services and building on the efforts of appropriate
State and local entities, shall establish a national public
education program on food safety.
(2) Requirements.--The program shall provide--
(A) information to the public regarding Federal standards
and best practices and promotion of public awareness,
understanding, and acceptance of those standards and
practices;
(B) information for health professionals--
(i) to improve diagnosis and treatment of food-related
illness; and
(ii) to advise individuals at special risk for food-related
illnesses; and
(C) such other information or advice to consumers and other
persons as the Administrator determines will promote the
purposes of this Act.
(b) Health Advisories.--The Administrator, in consultation
with other Federal departments and agencies as the
Administrator determines necessary, shall work with the
States and other appropriate entities--
(1) to develop and distribute regional and national
advisories concerning food safety;
(2) to develop standardized formats for written and
broadcast advisories;
(3) to incorporate State and local advisories into the
national public education program established under
subsection (a); and
(4) to present prompt, specific information regarding foods
found to pose a threat to the public health.
SEC. 303. RESEARCH.
(a) In General.--The Administrator shall conduct research
to carry out this Act, including studies to--
(1) improve sanitation and food safety practices in the
processing of food;
(2) develop improved techniques to monitor and inspect
food;
(3) develop efficient, rapid, and sensitive methods to
detect contaminants in food;
(4) determine the sources of contamination of contaminated
food;
(5) develop food consumption data;
(6) identify ways that animal production techniques could
improve the safety of the food supply;
(7) draw upon research and educational programs that exist
at the State and local level;
(8) utilize the DNA matching system and other processes to
identify and control pathogens;
(9) address common and emerging zoonotic diseases;
(10) develop methods to reduce or destroy harmful pathogens
before, during, and after processing;
(11) analyze the incidence of antibiotic resistence as it
pertains to the food supply and develop new methods to reduce
the transfer of antibiotic resistance to humans; and
(12) conduct other research that supports the purposes of
this Act.
(b) Contract Authority.--The Administrator may enter into
contracts and agreements with any State, university, Federal
Government agency, or person to carry out this section.
TITLE IV--ENFORCEMENT
SEC. 401. PROHIBITED ACTS.
It is prohibited--
(1) to manufacture, introduce, deliver for introduction, or
receive into interstate commerce any food that is
adulterated, misbranded, or otherwise unsafe;
(2) to adulterate or misbrand any food in interstate
commerce;
(3) for a food establishment or foreign food establishment
to fail to register under section 202, or to operate without
a valid registration;
(4) to refuse to permit access to a food establishment for
the inspection and copying of a record as required under
section 205(h);
(5) to fail to establish or maintain any record or to make
any report as required under section 205(h);
(6) to refuse to permit entry to or inspection of a food
establishment as required under section 205;
(7) to fail to provide to the Administrator the results of
a testing or sampling of a food, equipment, or material in
contact with contaminated food under section 205(i);
(8) to fail to comply with a provision, regulation, or
order of the Administrator under section 202, 203, 204, or
208;
(9) to slaughter an animal that is capable for use in whole
or in part as human food at a food establishment processing
any such food for commerce, except in compliance with the
food safety law;
(10) to transfer food in violation of an administrative
detention order under section 402 or to remove or alter a
required mark or label identifying the food as detained;
(11) to fail to comply with a recall or other order under
section 403; or
(12) to otherwise violate the food safety law.
SEC. 402. FOOD DETENTION, SEIZURE, AND CONDEMNATION.
(a) Administrative Detention of Food.--
(1) Expanded authority.--The Administrator shall have
authority under section 304 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 334) to administratively detain and
seize any food that the Administrator has reason to believe
is unsafe, is adulterated or misbranded, or otherwise fails
to meet the requirements of the food safety law.
(2) Detention authority.--If, during an inspection
conducted in accordance with section 205 or 208, an officer,
employee, or agent of the Administration making the
inspection has reason to believe that a domestic food,
imported food, or food offered for import is unsafe, is
adulterated or misbranded, or otherwise fails to meet the
requirements of this Act, the officer or employee may order
the food detained.
(3) Period of detention.--
(A) In general.--A food may be detained for a reasonable
period, not to exceed 20 days, unless a longer period, not to
exceed 30 days, is necessary for the Administrator to
institute a seizure action.
(B) Perishable food.--The Administrator shall provide by
regulation for procedures to institute a seizure action on an
expedited basis with respect to perishable food.
(4) Security of detained food.--
(A) In general.--A detention order--
(i) may require that the food be labeled or marked as
detained; and
(ii) shall require that the food be removed to a secure
facility, if appropriate.
(B) Food subject to an order.--A food subject to a
detention order shall not be transferred by any person from
the place at which the food is removed, until released by the
Administrator or until the expiration of the detention period
applicable under the order, whichever occurs first.
(C) Delivery of food.--This subsection does not authorize
the delivery of a food in accordance with execution of a bond
while the article is subject to the order.
(b) Appeal of Detention Order.--
(1) In general.--A person who would be entitled to be a
claimant for a food subject to a detention order if the food
were seized under section 304 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 334), may appeal the order to the
Administrator.
(2) Action by the administrator.--Not later than 5 days
after an appeal is filed under paragraph (1), the
Administrator, after providing an opportunity for an informal
hearing, shall confirm, modify, or terminate the order
involved.
(3) Final agency action.--Confirmation, modification, or
termination by the Administrator under paragraph (2) shall be
considered a final agency action for purposes of section 702
of title 5, United States Code.
(4) Termination.--The order shall be considered to be
terminated if, after 5 days, the Administrator has failed--
(A) to provide an opportunity for an informal hearing; or
(B) to confirm, modify, or terminate the order.
(5) Effect of instituting court action.--If the
Administrator initiates an action under section 302 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 332) or
section 304(a) of that Act (21 U.S.C. 334(a)), the process
for the appeal of the detention order shall terminate.
(c) Condemnation of Food.--
(1) In general.--After confirming a detention order, the
Administrator may order the food condemned.
(2) Destruction of food.--Any food condemned shall be
destroyed under the supervision of the Administrator.
(3) Release of food.--If the Administrator determines that,
through reprocessing, relabeling, or other action, a detained
food can be brought into compliance with this Act, the food
may be released following a determination by the
Administrator that the relabeling or other action as
specified by the Administrator has been performed.
(d) Temporary Holds at Ports of Entry.--
(1) In general.--If an officer or qualified employee of the
Administration has reason to believe that a food is unsafe,
is adulterated or misbranded, or otherwise fails to meet the
requirements of this Act, and the officer or qualified
employee is unable to inspect, examine, or investigate the
food when the food is offered for import at a port of entry
into the United States, the officer or qualified employee
shall request the Secretary of Homeland Security to hold the
food at the port of entry for a reasonable period of time,
not to exceed 24 hours, to enable the Administrator to
inspect or investigate the food as appropriate.
(2) Removal to secure facility.--The Administrator shall
work in coordination with the Secretary of Homeland Security
to remove a food held in accordance with paragraph (1) to a
secure facility as appropriate.
(3) Prohibition on transfer.--During the period in which
the food is held, the food shall not be transferred by any
person from the port of entry into the United States, or from
the secure facility to which the food has been removed.
(4) Delivery in accordance with a bond.--The delivery of
the food in accordance with the execution of a bond while the
food is held is not authorized.
(5) Prohibition on reexport.--A food found unfit for human
or animal consumption shall be prohibited from reexport
without further processing to remove the contamination and
reinspection by the Administration.
SEC. 403. NOTIFICATION AND RECALL.
(a) Notice to Administrator of Violation.--
(1) In general.--A person that has reason to believe that
any food introduced into or in
[[Page S3310]]
interstate commerce, or held for sale (whether or not the
first sale) after shipment in interstate commerce, may be in
violation of the food safety law shall immediately notify the
Administrator of the identity and location of the food.
(2) Manner of notification.--Notification under paragraph
(1) shall be made in such manner and by such means as the
Administrator may require by regulation.
(b) Recall and Consumer Notification.--
(1) Voluntary actions.--If the Administrator determines
that food is in violation of the food safety law when
introduced into or while in interstate commerce or while held
for sale (whether or not the first sale) after shipment in
interstate commerce and that there is a reasonable
probability that the food, if consumed, would present a
threat to public health, as determined by the Administrator,
the Administrator shall give the appropriate persons
(including the manufacturers, importers, distributors, or
retailers of the food) an opportunity to--
(A) cease distribution of the food;
(B) notify all persons--
(i) processing, distributing, or otherwise handling the
food to immediately cease such activities with respect to the
food; or
(ii) to which the food has been distributed, transported,
or sold, to immediately cease distribution of the food;
(C) recall the food;
(D) in conjunction with the Administrator, provide notice
of the finding of the Administrator--
(i) to consumers to whom the food was, or may have been,
distributed; and
(ii) to State and local public health officials; or
(E) take any combination of the measures described in this
paragraph, as determined by the Administrator to be
appropriate in the circumstances.
(2) Mandatory actions.--If a person referred to in
paragraph (1) refuses to or does not adequately carry out the
actions described in that paragraph within the time period
and in the manner prescribed by the Administrator, the
Administrator shall--
(A) have authority to control and possess the food,
including ordering the shipment of the food from the food
establishment to the Administrator--
(i) at the expense of the food establishment; or
(ii) in an emergency (as determined by the Administrator),
at the expense of the Administration; and
(B) by order, require, as the Administrator determines to
be necessary, the person to immediately--
(i) cease distribution of the food; and
(ii) notify all persons--
(I) processing, distributing, or otherwise handling the
food to immediately cease such activities with respect to the
food; or
(II) if the food has been distributed, transported, or
sold, to immediately cease distribution of the food.
(3) Notification to consumers by administrator.--The
Administrator shall, as the Administrator determines to be
necessary, provide notice of the finding of the Administrator
under paragraph (1)--
(A) to consumers to whom the food was, or may have been,
distributed; and
(B) to State and local public health officials.
(4) Nondistribution by notified persons.--A person that
processes, distributes, or otherwise handles the food, or to
which the food has been distributed, transported, or sold,
and that is notified under paragraph (1)(B) or (2)(B) shall
immediately cease distribution of the food.
(5) Availability of records to administrator.--Each person
referred to in paragraph (1) that processed, distributed, or
otherwise handled food shall make available to the
Administrator information necessary to carry out this
subsection, as determined by the Administrator, regarding--
(A) persons that processed, distributed, or otherwise
handled the food; and
(B) persons to which the food has been transported, sold,
distributed, or otherwise handled.
(c) Informal Hearings on Orders.--
(1) In general.--The Administrator shall provide any person
subject to an order under subsection (b) with an opportunity
for an informal hearing, to be held as soon as practicable
but not later than 2 business days after the issuance of the
order.
(2) Scope of the hearing.--In a hearing under paragraph
(1), the Administrator shall consider the actions required by
the order and any reasons why the food that is the subject of
the order should not be recalled.
(d) Post-Hearing Recall Orders.--
(1) Amendment of order.--If, after providing an opportunity
for an informal hearing under subsection (c), the
Administrator determines that there is a reasonable
probability that the food that is the subject of an order
under subsection (b), if consumed, would present a threat to
the public health, the Administrator, as the Administrator
determines to be necessary, may--
(A) amend the order to require recall of the food or other
appropriate action;
(B) specify a timetable in which the recall shall occur;
(C) require periodic reports to the Administrator
describing the progress of the recall; and
(D) provide notice of the recall to consumers to whom the
food was, or may have been, distributed.
(2) Vacation of orders.--If, after providing an opportunity
for an informal hearing under subsection (c), the
Administrator determines that adequate grounds do not exist
to continue the actions required by the order, the
Administrator shall vacate the order.
(e) Remedies Not Exclusive.--The remedies provided in this
section shall be in addition to, and not exclusive of, other
remedies that may be available.
SEC. 404. INJUNCTION PROCEEDINGS.
(a) Jurisdiction.--The district courts of the United
States, and the United States courts of the territories and
possessions of the United States, shall have jurisdiction,
for cause shown, to restrain a violation of section 202, 203,
204, 207, or 401 (or a regulation promulgated under that
section).
(b) Trial.--In a case in which violation of an injunction
or restraining order issued under this section also
constitutes a violation of the food safety law, trial shall
be by the court or, upon demand of the accused, by a jury.
SEC. 405. CIVIL AND CRIMINAL PENALTIES.
(a) Civil Sanctions.--
(1) Civil penalty.--
(A) In general.--Any person that commits an act that
violates the food safety law (including a regulation
promulgated or order issued under a Federal food safety law)
may be assessed a civil penalty by the Administrator of not
more than $10,000 for each such act.
(B) Separate offense.--Each act described in subparagraph
(A) and each day during which that act continues shall be
considered a separate offense.
(2) Other requirements.--
(A) Written order.--The civil penalty described in
paragraph (1) shall be assessed by the Administrator by a
written order, which shall specify the amount of the penalty
and the basis for the penalty under subparagraph (B)
considered by the Administrator.
(B) Amount of penalty.--Subject to paragraph (1)(A), the
amount of the civil penalty shall be determined by the
Administrator, after considering--
(i) the gravity of the violation;
(ii) the degree of culpability of the person;
(iii) the size and type of the business of the person; and
(iv) any history of prior offenses by the person under the
food safety law.
(C) Review of order.--The order may be reviewed only in
accordance with subsection (c).
(b) Criminal Sanctions.--
(1) In general.--Except as provided in paragraphs (2) and
(3), a person that knowingly produces or introduces into
commerce food that is unsafe or otherwise adulterated or
misbranded shall be imprisoned for not more than 1 year or
fined not more than $10,000, or both.
(2) Severe violations.--A person that commits a violation
described in paragraph (1) after a conviction of that person
under this section has become final, or commits such a
violation with the intent to defraud or mislead, shall be
imprisoned for not more than 3 years or fined not more than
$100,000, or both.
(3) Exception.--No person shall be subject to the penalties
of this subsection--
(A) for having received, proffered, or delivered in
interstate commerce any food, if the receipt, proffer, or
delivery was made in good faith, unless that person refuses
to furnish (on request of an officer or employee designated
by the Administrator)--
(i) the name, address and contact information of the person
from whom that person purchased or received the food;
(ii) copies of all documents relating to the person from
whom that person purchased or received the food; and
(iii) copies of all documents pertaining to the delivery of
the food to that person; or
(B) if that person establishes a guaranty signed by, and
containing the name and address of, the person from whom that
person received in good faith the food, stating that the food
is not adulterated or misbranded within the meaning of this
Act.
(c) Judicial Review.--
(1) In general.--An order assessing a civil penalty under
subsection (a) shall be a final order unless the person--
(A) not later than 30 days after the effective date of the
order, files a petition for judicial review of the order in
the United States court of appeals for the circuit in which
that person resides or has its principal place of business or
the United States Court of Appeals for the District of
Columbia; and
(B) simultaneously serves a copy of the petition by
certified mail to the Administrator.
(2) Filing of record.--Not later than 45 days after the
service of a copy of the petition under paragraph (1)(B), the
Administrator shall file in the court a certified copy of the
administrative record upon which the order was issued.
(3) Standard of review.--The findings of the Administrator
relating to the order shall be set aside only if found to be
unsupported by substantial evidence on the record as a whole.
(d) Collection Actions for Failure To Pay.--
(1) In general.--If any person fails to pay a civil penalty
assessed under subsection (a) after the order assessing the
penalty has become a final order, or after the court of
appeals described in subsection (b) has entered final
judgment in favor of the Administrator, the Administrator
shall refer the matter to the Attorney General, who shall
institute in a United States district court of competent
[[Page S3311]]
jurisdiction a civil action to recover the amount assessed.
(2) Limitation on review.--In a civil action under
paragraph (1), the validity and appropriateness of the order
of the Administrator assessing the civil penalty shall not be
subject to judicial review.
(e) Penalties Paid Into Account.--The Administrator--
(1) shall deposit penalties collected under this section in
an account in the Treasury; and
(2) may use the funds in the account, without further
appropriation or fiscal year limitation--
(A) to carry out enforcement activities under food safety
law; or
(B) to provide assistance to States to inspect retail
commercial food establishments or other food or firms under
the jurisdiction of State food safety programs.
(f) Discretion of the Administrator to Prosecute.--Nothing
in this Act requires the Administrator to report for
prosecution, or for the commencement of an action, the
violation of the food safety law in a case in which the
Administrator finds that the public interest will be
adequately served by the assessment of a civil penalty under
this section.
(g) Remedies Not Exclusive.--The remedies provided in this
section may be in addition to, and not exclusive of, other
remedies that may be available.
SEC. 406. PRESUMPTION.
In any action to enforce the requirements of the food
safety law, the connection with interstate commerce required
for jurisdiction shall be presumed to exist.
SEC. 407. WHISTLEBLOWER PROTECTION.
(a) In General.--No Federal employee, employee of a Federal
contractor or subcontractor, or any individual employed by a
company (referred to in this section as a ``covered
individual''), may be discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated
against, because of any lawful act done by the covered
individual to--
(1) provide information, cause information to be provided,
or otherwise assist in an investigation regarding any conduct
that the covered individual reasonably believes constitutes a
violation of any law, rule, or regulation, or that the
covered individual reasonably believes constitutes a threat
to the public health, when the information or assistance is
provided to, or the investigation is conducted by--
(A) a Federal regulatory or law enforcement agency;
(B) a Member or committee of Congress; or
(C) a person with supervisory authority over the covered
individual (or such other individual who has the authority to
investigate, discover, or terminate misconduct);
(2) file, cause to be filed, testify, participate in, or
otherwise assist in a proceeding or action filed or about to
be filed relating to a violation of any law, rule, or
regulation; or
(3) refused to violate or assist in the violation of any
law, rule, or regulation.
(b) Enforcement Action.--
(1) In general.--A covered individual who alleges discharge
or other discrimination by any person in violation of
subsection (a) may seek relief under subsection (c) by filing
a complaint with the Secretary of Labor. If the Secretary of
Labor has not issued a final decision within 180 days after
the date on which the complaint is filed and there is no
showing that such delay is due to the bad faith of the
claimant, the claimant may bring an action at law or equity
for de novo review in the appropriate district court of the
United States, which shall have jurisdiction over such an
action without regard to the amount in controversy.
(2) Procedure.--
(A) In general.--An action under paragraph (1) shall be
governed under the rules and procedures set forth in section
42121(b) of title 49, United States Code.
(B) Exception.--Notification under section 42121(b)(1) of
title 49, United States Code, shall be made to the person
named in the complaint and to the person's employer.
(C) Burdens of proof.--An action brought under paragraph
(1) shall be governed by the legal burdens of proof set for
in section 42121(b) of title 49, United States Code.
(D) Statute of limitations.--An action under paragraph (1)
shall be commenced not later than 90 days after the date on
which the violation occurs.
(c) Remedies.--
(1) In general.--A covered individual prevailing in any
action under subsection (b)(1) shall be entitled to all
relief necessary to make the covered individual whole.
(2) Compensatory damages.--Relief for any action described
in paragraph (1) shall include--
(A) reinstatement with the same seniority status that the
covered individual would have had, but for the
discrimination;
(B) the amount of any back pay, with interest; and
(C) compensation for any special damages sustained as a
result of the discrimination, including litigation costs,
expert witness fees, and reasonable attorney's fees.
(d) Rights Retained by the Covered Individual.--Nothing in
this section shall be construed to diminish the rights,
privileges, or remedies of any covered individual under any
Federal or State law, or under any collective bargaining
agreement.
SEC. 408. ADMINISTRATION AND ENFORCEMENT.
(a) In General.--For the efficient administration and
enforcement of the food safety law, the provisions (including
provisions relating to penalties) of sections 6, 8, 9, and 10
of the Federal Trade Commission Act (15 U.S.C. 46, 48, 49,
and 50) (except subsections (c) through (h) of section 6 of
that Act), relating to the jurisdiction, powers, and duties
of the Federal Trade Commission and the Attorney General to
administer and enforce that Act, and to the rights and duties
of persons with respect to whom the powers are exercised,
shall apply to the jurisdiction, powers, and duties of the
Administrator and the Attorney General in administering and
enforcing the provisions of the food safety law and to the
rights and duties of persons with respect to whom the powers
are exercised, respectively.
(b) Inquiries and Actions.--
(1) In general.--The Administrator, in person or by such
agents as the Administrator may designate, may prosecute any
inquiry necessary to carry out the duties of the
Administrator under the food safety law in any part of the
United States.
(2) Powers.--The powers conferred by sections 9 and 10 of
the Federal Trade Commission Act (15 U.S.C. 49 and 50) on the
United States district courts may be exercised for the
purposes of this chapter by any United States district court
of competent jurisdiction.
SEC. 409. CITIZEN CIVIL ACTIONS.
(a) Civil Actions.--A person may commence a civil action
against--
(1) a person that violates a regulation (including a
regulation establishing a performance standard), order, or
other action of the Administrator to ensure the safety of
food; or
(2) the Administrator (in his or her capacity as the
Administrator), if the Administrator fails to perform an act
or duty to ensure the safety of food that is not
discretionary under the food safety law.
(b) Court.--
(1) In general.--The action shall be commenced in the
United States district court for the district in which the
defendant resides, is found, or has an agent.
(2) Jurisdiction.--The court shall have jurisdiction,
without regard to the amount in controversy, or the
citizenship of the parties, to enforce a regulation
(including a regulation establishing a performance standard),
order, or other action of the Administrator, or to order the
Administrator to perform the act or duty.
(3) Damages.--The court may--
(A) award damages, in the amount of damages actually
sustained; and
(B) if the court determines it to be in the interest of
justice, award the plaintiff the costs of suit, including
reasonable attorney's fees, reasonable expert witness fees,
and penalties.
(c) Remedies Not Exclusive.--The remedies provided for in
this section shall be in addition to, and not exclusive of,
other remedies that may be available.
TITLE V--IMPLEMENTATION
SEC. 501. DEFINITION.
For purposes of this title, the term ``transition period''
means the 12-month period beginning on the effective date of
this Act.
SEC. 502. REORGANIZATION PLAN.
(a) Submission of Plan.--Not later than 180 days after the
effective date of this Act, the President shall transmit to
the appropriate congressional committees a reorganization
plan regarding the following:
(1) The transfer of agencies, personnel, assets, and
obligations to the Administration pursuant to this Act.
(2) Any consolidation, reorganization, or streamlining of
agencies transferred to the Administration pursuant to this
Act.
(b) Plan Elements.--The plan transmitted under subsection
(a) shall contain, consistent with this Act, such elements as
the President determines appropriate, including the
following:
(1) Identification of any functions of agencies designated
to be transferred to the Administration pursuant to this Act
that will not be transferred to the Administration under the
plan.
(2) Specification of the steps to be taken by the
Administrator to organize the Administration, including the
delegation or assignment of functions transferred to the
Administration among the officers of the Administration in
order to permit the Administration to carry out the functions
transferred under the plan.
(3) Specification of the funds available to each agency
that will be transferred to the Administration as a result of
transfers under the plan.
(4) Specification of the proposed allocations within the
Administration of unexpended funds transferred in connection
with transfers under the plan.
(5) Specification of any proposed disposition of property,
facilities, contracts, records, and other assets and
obligations of agencies transferred under the plan.
(6) Specification of the proposed allocations within the
Administration of the functions of the agencies and
subdivisions that are not related directly to ensuring the
safety of food.
(c) Modification of Plan.--The President may, on the basis
of consultations with the appropriate congressional
committees, modify, or revise any part of the plan until that
part of the plan becomes effective in accordance with
subsection (d).
(d) Effective Date.--
(1) In general.--The reorganization plan described in this
section, including any modifications or revisions of the plan
under
[[Page S3312]]
subsection (c), shall become effective for an agency on the
earlier of--
(A) the date specified in the plan (or the plan as modified
pursuant to subsection (c)), except that such date may not be
earlier than 90 days after the date the President has
transmitted the reorganization plan to the appropriate
congressional committees pursuant to subsection (a); or
(B) the end of the transition period.
(2) Statutory construction.--Nothing in this subsection may
be construed to require the transfer of functions, personnel,
records, balances of appropriations, or other assets of an
agency on a single date.
(3) Supercedes existing law.--Paragraph (1) shall apply
notwithstanding section 905(b) of title 5, United States
Code.
SEC. 503. TRANSITIONAL AUTHORITIES.
(a) Provision of Assistance by Officials.--Until the
transfer of an agency to the Administration, any official
having authority over or function relating to the agency
immediately before the effective date of this Act shall
provide the Administrator such assistance, including the use
of personnel and assets, as the Administrator may request in
preparing for the transfer and integration of the agency to
the Administration.
(b) Services and Personnel.--During the transition period,
upon the request of the Administrator, the head of any
executive agency may, on a reimbursable basis, provide
services or detail personnel to assist with the transition.
(c) Acting Officials.--
(1) In general.--During the transition period, pending the
advice and consent of the Senate to the appointment of an
officer required by this Act to be appointed by and with such
advice and consent, the President may designate any officer
whose appointment was required to be made by and with such
advice and consent and who was such an officer immediately
before the effective date of this Act (and who continues to
be in office) or immediately before such designation, to act
in such office until the same is filled as provided in this
Act.
(2) Compensation.--While acting pursuant to paragraph (1),
such officers shall receive compensation at the higher of--
(A) the rates provided by this Act for the respective
offices in which they act; or
(B) the rates provided for the offices held at the time of
designation.
(3) Limitation.--Nothing in this Act shall be construed to
require the advice and consent of the Senate to the
appointment by the President to a position in the
Administration of any officer whose agency is transferred to
the Administration pursuant to this Act and whose duties
following such transfer are germane to those performed before
such transfer.
(d) Transfer of Personnel, Assets, Obligations, and
Function.--
(1) In general.--Consistent with section 1531 of title 31,
United States Code, the personnel, assets, liabilities,
contracts, property, records, and unexpended balances of
appropriations, authorizations, allocations, and other funds
that relate to the functions transferred under subsection (a)
from a Federal agency shall be transferred to the
Administration.
(2) Unexpended funds.--Unexpended funds transferred under
this subsection shall be used by the Administration only for
the purposes for which the funds were originally authorized
and appropriated.
SEC. 504. SAVINGS PROVISIONS.
(a) Completed Administrative Actions.--The enactment of
this Act or the transfer of functions under this Act shall
not affect any order, determination, rule, regulation,
permit, personnel action, agreement, grant, contract,
certificate, license, registration, privilege, or other
administrative action issued, made, granted, or otherwise in
effect or final with respect to that agency on the day before
the transfer date with respect to the transferred functions
(b) Pending Proceedings.--Subject to the authority of the
Administrator under this Act--
(1) pending proceedings in an agency, including notices of
proposed rulemaking, and applications for licenses, permits,
certificates, grants, and financial assistance, shall
continue notwithstanding the enactment of this Act or the
transfer of the agency to the Administration, unless
discontinued or modified under the same terms and conditions
and to the same extent that such discontinuance could have
occurred if such enactment or transfer had not occurred; and
(2) orders issued in such proceedings, and appeals
therefrom, and payments made pursuant to such orders, shall
issue in the same manner on the same terms as if this Act had
not been enacted or the agency had not been transferred, and
any such order shall continue in effect until amended,
modified, superceded, terminated, set aside, or revoked by an
officer of the United States or a court of competent
jurisdiction, or by operation of law.
(c) Pending Civil Actions.--Subject to the authority of the
Administrator under this Act, any civil action commenced with
regard to that agency pending before that agency on the day
before the transfer date with respect to the transferred
functions shall continue notwithstanding the enactment of
this Act or the transfer of an agency to the Administration.
(d) References.--
(1) In general.--After the transfer of functions from a
Federal agency under this Act, any reference in any other
Federal law, Executive order, rule, regulation, directive,
document, or other material to that Federal agency or the
head of that agency in connection with the administration or
enforcement of the food safety laws shall be deemed to be a
reference to the Administration or the Administrator,
respectively.
(2) Statutory reporting requirements.--Statutory reporting
requirements that applied in relation to such an agency
immediately before the effective date of this Act shall
continue to apply following such transfer if they refer to
the agency by name.
SEC. 505. CONFORMING AMENDMENTS.
(a) Executive Schedule.--Section 5313 of title 5, United
States Code, is amended by inserting at the end the following
new item:
``Administrator of Food Safety.''.
(b) Repeal of Certain Provisions.--Section 18 of the
Poultry Products Inspection Act (21 U.S.C. 467), section 401
of the Federal Meat Inspection Act (21 U.S.C. 671), and
section 18 of the Egg Products Inspection Act (21 U.S.C.
1047) are repealed.
SEC. 506. ADDITIONAL TECHNICAL AND CONFORMING AMENDMENTS.
Not later than 60 days after the submission of the
reorganization plan under section 502, the President shall
prepare and submit proposed legislation to Congress
containing necessary and appropriate technical and conforming
amendments to the Acts listed in section 3(15) of this Act to
reflect the changes made by this Act.
SEC. 507. REGULATIONS.
The Administrator may promulgate such regulations as the
Administrator determines are necessary or appropriate to
perform the duties of the Administrator.
SEC. 508. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this Act.
SEC. 509. LIMITATION ON AUTHORIZATION OF APPROPRIATIONS.
For the fiscal year that includes the effective date of
this Act, the amount authorized to be appropriated to carry
out this Act shall not exceed--
(1) the amount appropriated for that fiscal year for the
Federal agencies identified in section 102(b) for the purpose
of administering or enforcing the food safety law; or
(2) the amount appropriated for those agencies for that
purpose for the preceding fiscal year, if, as of the
effective date of this Act, appropriations for those agencies
for the fiscal year that includes the effective date have not
yet been made.
SEC. 510. EFFECTIVE DATE.
This Act takes effect on the date of enactment of this Act.
______
By Mr. LEAHY (for himself and Ms. Snowe):
S. 730. A bill to amend the Clean Air Act to establish requirements
concerning the operation of fossil fuel-fired electric utility steam
generating units, commercial and industrial boiler units, solid waste
incineration units, medical waste incinerators, hazardous waste
combustors, chlor-alkali plants, and Portland cement plants to reduce
emissions of mercury to the environment, and for other purposes; to the
Committee on Environment and Public Works.
Mr. LEAHY. Mr. President, today I again will discuss mercury
pollution and the serious and immediate health risks it poses to the
health of citizens across our Nation.
This is not a new issue. We have known about mercury pollution for
decades, and it remains one of, if not the last, major toxic pollutant
without a comprehensive plan to control its release. We know where the
sources mercury pollution are, we know where the pollution deposits,
and we definitely know what harm it causes to people and to wildlife.
We need to confront mercury pollution because it is a threat to
pregnant women and children. The Environmental Protection Agency's own
scientists estimate that one of every six women of child-bearing age
has elevated levels of mercury in her body above safe thresholds.
Mercury can cause neurological harm to children exposed to increased
mercury levels while in the womb and during the first few years of
their lives, which can lead to increased risk for learning
disabilities, developmental delays, and other serious problems.
Just last year EPA scientists nearly doubled the previous estimate of
the number of children at increased risk from exposure to elevated
mercury levels in their mothers' wombs from 300,000 to over 600,000.
This finding should alarm all of us and spur this Administration to
promptly develop strong controls on mercury pollution from power plants
that meet the requirements of the Clean Air Act and that fully protect
women and children.
Yet unfortunately, this Administration has not done that. The
Administration's new mercury rule and the so-
[[Page S3313]]
called ``Clear Skies'' proposal turn back progress, ignore available
clean air technology, and will leave more toxic mercury in our air,
water, and fish and for a longer time than is necessary.
Because of this, on behalf of Senator Snowe and myself, I am
reintroducing legislation today that will confront this problem
directly and that will reduce mercury pollution from all sources.
Our bill will reduce mercury emissions from coal-fired power plants
by 90 percent by 2010. The cap-and-trade approach the Administration is
pushing for in both the mercury rule and the President's Clear Skies
proposal would only reduce emissions by less than 50 percent in the
near future and possibly 70 percent over the next 15 years.
I introduce this legislation on the heels of two recent reports about
the proposed EPA mercury rule, one from the Government Accountability
Office and one from the EPA Inspector General. Both the IG and GAO
reports severely criticize this Administration's mercury rulemaking
process, saying it violated EPA policy, OMB guidance, Presidential
Executive Orders and, in some instances, important provisions of the
Clean Air Act.
I find this extremely troublesome. These are serious problems that
greatly undermine the credibility of this Administration and that led
them to create policies that fail to adequately protect the children in
my state of Vermont and those all across the country. Rather than
develop unbiased science-based limits on mercury pollution, they
instead developed limits to fit predetermined numbers found in the
President's industry friendly Clear Skies proposal.
The GAO found critical flaws with the economic analysis that
basically prevent anyone from actually verifying the supposed benefits
of the cap-and-trade approach proposed in both EPA's rule and in the
Clear Skies plan. In simple terms you could call it another example of
the smoke and mirrors this Administration has used to support its
flawed dirty air pollution policies.
Not only were the supposed benefits of the cap-and-trade proposal
virtually undocumented, they did not even bother to analyze whatsoever
the health benefits to women and children from controlling toxic
mercury. If protecting the health of women and children is truly
important to this Administration, then why would they skip such an
important analysis?
Not surprisingly, the EPA Inspector General confirmed what the GAO
found. That EPA staff were directed to ignore the Clean Air Act and
instead write a mercury rule to fit the weak mercury caps in the
President's Clear Skies initiative.
Rather than let EPA's capable scientists and engineers do their jobs,
they decided to play politics and bow to special interest groups. How
else did industry favorable policies and analyses found in memos
written by industry lobbyists make it into the rule, verbatim?
Both the GAO and IG reports make it clear that EPA staff were
pressured to ignore parts of the Clean Air Act and to propose weaker
mercury reductions than what are technically feasible and required
under the law.
The President's Clear Skies proposal formed the basis for the flawed
mercury rule, so it obviously shares the same flaws. These two reports
confirm what many of us already suspected, that Clear Skies is based on
biased analyses, inadequate and faulty justifications.
This Administration must stop the shenanigans. They need to stop
downplaying the health risks of mercury pollution and stop catering to
the special interests of the power industry and their lobbyists.
The clarity and diversity of voices opposed to their poor mercury
policies are unprecedented in the 30-year history of EPA. Now is the
time for them to listen to the voices of more than 600,000 citizens and
more than one million sportsmen and women nationwide that sent EPA
letters opposing the weak mercury rule.
Now is the time to listen to the nearly 100 national and local church
leaders, representing dozens of denominations and millions of
congregants, who sent a letter to President Bush expressing ``grave
moral concern'' about his misleadingly titled Clear Skies Initiative.
I call on the Administration to take immediate action to correct the
serious problems in EPA's proposed power plant mercury rules. Instead,
I hope that we can begin to meet the targets set out in this bill and
start protecting the health of women and children.
I ask unanimous consent that a summary of the bill be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Overview of the Omnibus Mercury Emissions Reduction Act of 2005
Sponsored by Senators Patrick Leahy and Olympia Snowe
What will the Omnibus Mercury Emissions Reduction Act of 2005
do?
The Omnibus Mercury Emissions Reduction Act of 2005
mandates substantial reductions in mercury emissions from all
major sources in the United States. It is the only
comprehensive legislation to control mercury emissions from
all major sources. It directs EPA to issue new standards for
unregulated sources and to monitor and report on the progress
of currently regulated sources. It sets an aggressive
timetable for these reductions so that mercury emissions are
reduced as soon as possible.
With these emissions reductions, the bill requires the safe
disposal of mercury recovered from pollution control systems,
so that the hazards of mercury are not merely transferred
from one environmental medium to another. It requires annual
public reporting--in both paper and electronic form--of
facility-specific mercury emissions. It phases out mercury
use in consumer products, requires product labeling, and
mandates international cooperation. It supports research into
the retirement of excess mercury, the handling of mercury
waste, the effectiveness of fish consumption advisories, and
the magnitude of previously uninventoried sources.
Section 3. Mercury emission standards for fossil fuel-fired
electric utility steam generating units
The EPA's Mercury Study Report to Congress estimated 52
tons of mercury emissions occur per year from coal- and oil-
fired electric utility steam generating units. More recently,
an EPA inventory estimated 48 tons of mercury from coal-fired
power plants. Collectively, these power plants constitute the
largest source of mercury emissions in the United States. In
December 2000, the EPA issued a positive determination to
regulate these mercury emissions. But these rules will take
years to write and implement, and there is already vigorous
industry opposition. It is uncertain what form these rules
will take or how long they may be delayed. This section
requires EPA to set a Amaximum achievable control technology
(MACT) standard for these emissions, such that nationwide
emissions decrease by at least 90 percent.
Section 4. Mercury emission standards for coal- and oil-fired
commercial and industrial boiler units
The EPA's report on its study estimates that 29 tons of
mercury is emitted per year from coal- and oil-fired
commercial and industrial boiler units. This section requires
EPA to set a MACT standard for these mercury emissions, such
that nationwide emissions decrease by at least 90 percent.
Section 5. Reduction of mercury emissions from solid waste
incineration units
The EPA study estimates that 30 tons of mercury emissions
are released each year from municipal waste combustors. These
emissions result from the presence of mercury-containing
items such as fluorescent lamps, fever thermometers,
thermostats and switches, in municipal solid waste streams.
In 1995, EPA promulgated final rules for these emissions, and
these rules took effect in 2000. This section reaffirms those
rules and requires stricter rules for units that do not
comply. The most effective way to reduce mercury emissions
from incinerators is to reduce the volume of mercury-
containing items before they reach the incinerator. That is
why this section also requires the separation of mercury-
containing items from the waste stream, the labeling of
mercury-containing items to facilitate this separation, and
the phase-out of mercury in consumer products within three
years, allowing for the possibility of exceptions for
essential uses.
Section 6. Mercury emission standards for chlor-alkali plants
The EPA study estimates that 7 tons of mercury emissions
are released per year from chlor-alkali plants that use the
mercury cell process to produce chlorine. EPA has not issued
rules to regulate these emissions. This section requires each
chlor-alkali plant that uses the mercury cell process to
reduce its mercury emissions by 95 percent. The most
effective way to meet this standard would be to switch to the
more energy efficient membrane cell process, which many
plants already use.
Section 7. Mercury emission standards for Portland cement
plants
The EPA study estimates that 5 tons of mercury emissions
are released each year from Portland cement plants. In 1999
EPA promulgated final rules for emissions from cement plants,
but these rules did not include mercury. This section
requires each
[[Page S3314]]
Portland cement plant to reduce its mercury emissions by 95
percent.
Section 8. Report on implementation of mercury emission
standards for medical waste incinerators
The EPA study estimates that 16 tons of mercury emissions
are released per year from medical waste incinerators. In
1997 EPA issued final rules for emissions from hospital/
medical/infectious waste incinerators. This section requires
EPA to report on the success of these rules in reducing these
mercury emissions.
Section 9. Report on implementation of mercury emission
standards for hazardous waste combustors
The EPA study estimates that 7 tons of mercury emissions
are released each year from hazardous waste incinerators. In
1999 EPA promulgated final rules for these emissions. This
section requires EPA to report on the success of these rules
in reducing these mercury emissions.
Section 10. Defense activities
This section requires the Department of Defense to report
on its use of mercury, including the steps it is taking to
reduce mercury emissions and to stabilize and recycle
discarded mercury. This section also prohibits the Department
of Defense from returning the nearly 5,000 tons of mercury in
the National Defense Stockpile to the global market.
Section 11. International activities
This section directs EPA to work with Canada and Mexico to
study mercury pollution in North America, including the
sources of mercury pollution, the pathways of the pollution,
and options for reducing the pollution.
Section 12. Mercury research
This section supports a variety of mercury research
projects. First, it promotes accountability by mandating an
interagency report on the effectiveness of this act in
reducing mercury pollution. Second, it mandates an EPA study
on mercury sedimentation trends in major bodies of water.
Third, it directs EPA to evaluate and improve state-level
mercury data and fish consumption advisories. Fourth, it
mandates a National Academy of Sciences report on the
retirement of excess mercury, such as stockpiled industrial
mercury that is no longer needed due to plant closures or
process changes. Fifth, it mandates an EPA study of mercury
emissions from electric arc furnaces, a source not studied in
the EPA's study report. Finally, it authorizes $2,000,000 for
modernization and expansion of the Mercury Deposition
Network, plus $10,000,000 over ten years for operational
support of that network.
______
By Mr. CONRAD (for himself, Mr. Burns, Mr. Johnson, Mr. Dorgan,
Mr. Kohl, Mr. Domenici, Mr. Bingaman, and Mr. Thune):
S. 731. A bill to recruit and retain more qualified individuals to
teach in Tribal Colleges or Universities; to the Committee on Indian
Affairs.
Mr. CONRAD. Mr. President, three years ago, Senator Burns and I
formed the bipartisan Task Force on Tribal Colleges and Universities to
raise awareness of the important role that the tribal colleges and
universities play in their respective communities as educational,
economic, and cultural centers. The Task Force seeks to advance
initiatives that help improve the quality education the colleges
provide.
For more than three decades, tribal colleges have been providing a
quality education to help Native Americans of all ages reach their
fullest potential. More than 30,000 students from 250 tribes nationwide
attend tribal colleges. Tribal colleges serve young people preparing to
enter the job market, dislocated workers learning new skills, and
people seeking to move off welfare. I am a strong supporter of our
Nation's tribal colleges because, more than any other factor, they are
bringing hope and opportunity to America's Indian communities.
Over the years, I have met with many tribal college students, and I
am always impressed by their commitment to their education, their
families and their communities. Tribal colleges and universities have
been highly successful in helping Native Americans obtain a higher
education. Congress has recognized the importance of these institutions
and the significant gains they have achieved in helping more
individuals obtain their education. While Congress has steadily
increased its financial support of these institutions, many challenges
still remain.
One of the challenges that the tribal college presidents have
expressed to me is the frustration and difficulty they have in
attracting qualified individuals to teach at the colleges. Recruitment
and retention are difficult for many of the colleges because of their
geographic isolation and low faculty salaries.
To help tackle the challenges of recruiting and retaining qualified
teachers, I am introducing the Tribal Colleges and Universities Teacher
Loan Forgiveness Act. This legislation will provide student loan
forgiveness to individuals who commit to teach for up to five years in
one of the tribal colleges nationwide. Individuals who have Perkins,
Direct, or Guaranteed loans may qualify to receive up to $15,000 in
loan forgiveness. This program will provide these institutions with
extra help in attracting qualified teachers, and thus help ensure that
deserving students receive a quality education.
I would be remiss if I did not recognize that former Senator Daschle
was responsible for spearheading this initiative for a number of years.
The tribal colleges lost a true champion, but I am pleased to carry
forward his vision and support for the colleges.
I am pleased that Senators Burns, Johnson, Dorgan, Kohl, Domenici,
and Bingaman are original cosponsors of this bill, and I look forward
to working with my colleagues to pass this important legislation.
Mr. BURNS. Mr. President, I am pleased to join my colleague, Senator
Conrad, in sponsoring legislation to provide student loan forgiveness
to educators who commit to teaching in our tribal colleges. This
legislation will provide up to $15,000 in loan forgiveness--a strong
recruitment and retention tool for tribal colleges which often can't
pay the same salaries as larger institutions.
I am, and have been for years, a strong supporter of Montana's tribal
colleges as well as tribal colleges nationwide. They contribute greatly
to our Native American communities, providing the tools for our tribal
children to succeed in the world of higher education. Graduates often
continue their education at Montana State or the University of Montana
and take this knowledge and expertise back to their communities. These
students strengthen and improve both our tribal communities and our
State as a whole. They add to the social, economic, political and
cultural fabric that is unique to Indian Country.
I know how hard our tribal colleges work to achieve success and to
maintain high standards. A talented faculty is key to those goals, but
too often tight budgets for tribal colleges limit their ability to
recruit and retain faculty. Our tribal colleges and their students
deserve quality teachers, and providing loan forgiveness will help
attract and keep good faculty in what can be very rural areas.
In addition to forgiveness for Perkins, direct or guaranteed loans,
this legislation will also provide assistance for nursing faculty at
tribal colleges. The nursing shortage is a nationwide problem,
particularly in rural areas and specifically in Indian Country.
Graduates of tribal colleges often stay near or return home, and that
holds true for nursing graduates as well. Supporting nursing programs
at tribal colleges addresses that shortage by training professionals
who are familiar with the acute medical needs and cultural differences
in rural areas and are often willing to stay and wage the battles. This
legislation will provide nursing loan forgiveness to nursing
instructors at tribal colleges and will help strengthen a valuable
program in Montana and around the country.
______
By Mr. INHOFE:
S. 732. A bill to authorize funds to Federal aid highways, highway
safety programs, and transit programs, and for other purposes; from the
Committee on Environment and Public Works; placed on the calendar.
Mr. INHOFE. Mr. President, I am introducing today the Safe,
Accountable, Flexible and Efficient Transportation Equity Act of 2005,
SAFETEA, which the Committee on Environment and Public Works reported
out on March 16, 2005. This bill reauthorizes the Federal aid highway
program which has been operating on extensions since it expired on
September 30, 2003. The bill I am introducing today is essentially S.
1072 as passed by the Senate in the 108th Congress, with the exception
that the overall funding level has been changed from $318 billion over
6 years to reflect the President's proposed funding level of $283.9
billion over 6 years.
Last year, this body voted 76 to 21 to adopt S. 1072. Clearly, there
was overwhelming support for this measure
[[Page S3315]]
then, and in conversations with Members this year, I am confident that
there is a real desire to get this bill done. We are already to take
the bill up on the Senate floor just as soon as it is scheduled by the
leadership.
It has been nearly 18 months since the current program,
Transportation Equity Act for the 21 Century--TEA-21, expired. To date,
we have done a total of six extensions with the current extension due
to expire on May 31. This next deadline is fast approaching, and in
addition to completing action on the floor, we still must conference
with the House which has a very different formula program than proposed
last year. We will have more challenging issues to address and need as
much time as possible to do so.
Briefly, as in the bill passed by the Senate last year, the bill I am
introducing today will address several critical issues in our
transportation system. Specifically, the language improves on the
existing program in the following areas:
Safety: Nearly 43,000 people died in 2002 on our Nation's highways.
This represents the single greatest cause of accidental death in
America. The Environment and Public Works Committee bill addresses this
by creating a new core safety program and funding it accordingly.
Congestion: According to the Department of Transportation, time spent
in congestion increased from 31.7 percent in 1992 to 33.1 percent in
2000. Based on this rate, a typical ``rush hour'' in an urbanized area
is 5.3 hours per day. The problem is not in just urban areas; cities
with populations less than 500,000 have experienced the greatest growth
in travel delays, according to the DOT. Under this proposal, we would
address the congestion problem by establishing a new Transportation
Freight Gateway program which targets bottlenecks around ports and
intermodal facilities.
Environment: This bill addresses the need to reduce delays in project
delivery in several ways. The bill contains carefully balanced language
on incorporating environmental concerns into planning and project
review as early as practicable, while ensuring that disagreements over
such concerns don't indefinitely delay much needed transportation
projects. The language on the section 4(f) process will also help
reduce unnecessary delays by enabling projects with de minimis impacts
on 4(f) resources to proceed in a timely manner.
Also, the bill seeks to correct the inconsistencies between the
transportation planning and air quality planning that must take place
in areas in nonattainment under the Clean Air Act. The bill
rationalizes the schedules for developing transportation plans and
demonstrating conformity and aligns the length of the transportation
plan considered under conformity with the length of the air quality
plan.
Equity: The bill provides all States at least 10 percent growth over
TEA-21 while increasing the rate of return for donor States from the
current 90.5 percent to 92 percent by 2009. We maintain the TEA-21
scope of 92.5 percent.
The longer we delay enactment of a multiyear bill, we are negatively
affecting economic growth. According to DOT estimates, every $1 billion
of Federal Funds invested in highway improvements creates 47,000 jobs.
The same $1 billion investment yields $500 million in new orders for
the manufacturing sector and $500 million spread throughout other
sectors of the economy.
States contract awards for the 2005 spring and summer construction
season are going out to bid. If we fail to pass this bill soon, States
will not know what to expect in Federal funding and the uncertainty
will potentially force States to delay putting these projects out for
bid. According to the American Association of State Highway
Transportation Officials, AASHTO, an estimated 90,000 jobs are at
stake. This problem is exacerbated for northern States which have
shorter construction seasons. Many State transportation departments
have advanced State dollars to construct projects eligible for Federal
funding in anticipation of our action to reauthorize the program.
Without a new bill, States are essentially left ``holding the bag.''
Over the past 6 years under TEA-21, we have made great progress in
preserving and improving the overall physical condition and operation
of our transportation system; however, more needs to be done. A safe,
effective transportation system is the foundation of our economy. We
are past due to fulfill an obligation to this country and the American
people.
As mentioned earlier, the bill is essentially the same bill that was
passed on the Senate floor last year--a bipartisan product of many
months of hard work and compromise. It remains a very good piece of
legislation.
The most significant difference with this bill, of course, is that it
is drafted at the $283.9 billion level over 6 years. Since 2004 is
behind us, the Environment and Public Works Committee bill includes
only years 2005 to 2009 which is effectively $283.9 minus fiscal year
2004. S. 1072 passed the Senate last year and guaranteed all donor
States a rate of return of 95 percent. At a lower funding level, we
were able only to achieve a 92-percent rate of return but kept the 10
percent floor over TEA-21.
I am certain my colleagues share my strong desire to get a
transportation reauthorization bill passed and signed into law by the
President. I urge the leadership to schedule consideration of this bill
this month so we can get it done.
______
By Mr. SPECTER:
S. 738. A bill to provide relief for the cotton shirt industry; to
the Committee on Finance.
Mr. SPECTER. Mr. President, today I seek recognition to introduce
legislation entitled the ``Cotton Shirt Industry Tariff Relief and
Technical Corrections Act.'' This legislation will strengthen our
domestic dress shirt manufacturers and the pima cotton growers. My bill
is a technical correction that levels the playing field by correcting
an anomaly from previous trade agreements that has unfairly advantaged
foreign producers and sent hundreds of jobs offshore.
This legislation reduces duties levied on cotton shirting fabric that
is not made in the United States. Currently, U.S. law recognizes this
lack of fabric availability and grants special favorable trade
concessions to manufacturers in Canada, Mexico, the Caribbean, the
Andean region, and Africa. The U.S. has allowed shirts to enter this
country duty-free from many other countries, while we have failed to
reduce tariffs on those manufacturers that stayed in the U.S. and were
forced to compete on these uneven terms. My bill will correct this
inequity.
This legislation also recognizes the need to creatively promote the
U.S. shirting manufacturing and textiles sectors, and does so through
the creation of a Cotton Competitiveness grant program, which is funded
through a portion of previously collected duties.
Our country has experienced an enormous loss of jobs in the
manufacturing sector. It is critical that our domestic manufacturers
are able to compete on a level playing field. In the case of the
domestic dress shirt industry, the problem is our own government
imposing a tariff of up to eleven percent upon the import of fabric
made from U.S. pima cotton. My legislation is a concrete step that this
Congress can take to reduce the hemorrhaging of U.S. manufacturing
jobs.
One group of beneficiaries of this amendment is a Gitman Brothers
factory in Ashland, PA. The Ashland Shirt and Pajama factory was built
in 1948 and employs 265 workers. This factory in the Lehigh Valley
turns out world class shirts with such labels as Burberry and Saks
Fifth Avenue that are shipped across the U.S. Currently, Gitman pays an
average tariff of eleven percent on the fabric it imports to make
shirts. Their shirts are made of pima cotton that is grown in the
Southwestern U.S., but spun into fabric only by special mills in
Western Europe. Gitman must compete against Canadian shirt companies
that import the same fabric tariff-free and who can then ship their
shirts into the U.S. tariff-free under NAFTA. These workers and their
families deserve trade laws that do not chase their jobs offshore.
This legislation enjoys the support of the domestic shirting
industry, UNITE, and the Pima cotton associations. I offer this
legislation on behalf of the men and women of the Gitman factory in
Ashland, the domestic dress shirting industry, and the pima cotton
growers, so that for them free trade will indeed be fair trade as well.
[[Page S3316]]
____________________