Congressional Record, Volume 151 Issue 154 (Friday, November 18, 2005)

[Congressional Record Volume 151, Number 154 (Friday, November 18, 2005)]
[Senate]
[Pages S13363-S13394]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mrs. CLINTON (for herself, Mr. DeWine, Mr. Obama, and Mr.
Smith):
S. 2053. A bill to amend to amend the Internal Revenue Code of 1986
to provide a tax credit for property owners who remove lead-based paint
hazards; to the Committee on Finance
Mrs. CLINTON. 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. 2053

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

SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

(a) Short Title.--This Act may be cited as the ``Home Lead
Safety Tax Credit Act of 2005''.
(b) Findings.--Congress finds that:
(1) Of the 98,000,000 housing units in the United States,
38,000,000 have lead-based paint.
(2) Of the 38,000,000 housing units with lead-based paint,
25,000,000 pose a hazard, as defined by Environmental
Protection Agency and Department of Housing and Urban
Development standards, due to conditions such as peeling
paint and settled dust on floors and windowsills that contain
lead at levels above Federal safety standards.
(3) Though the number of children in the United States ages
1 through 5 with blood levels higher than the Centers for
Disease Control action level of 10 micrograms per deciliter
has declined to 300,000, lead poisoning remains a serious,
entirely preventable threat to a child's intelligence,
behavior, and learning.
(4) The Secretary of Health and Human Services has
established a national goal of ending childhood lead
poisoning by 2010.
(5) Current Federal lead abatement programs, such as the
Lead Hazard Control Grant Program of the Department of
Housing and Urban Development, only have resources sufficient
to make approximately 7,000 homes lead-safe each year. In
many cases, when State and local public health departments
identify a lead-poisoned child, resources are insufficient to
reduce or eliminate the hazards.
(6) Old windows typically pose significant risks because
wood trim is more likely to be painted with lead-based paint,
moisture causes paint to deteriorate, and friction generates
lead dust. The replacement of old windows that contain lead
based paint significantly reduces lead poisoning hazards in
addition to producing significant energy savings.
(7) Childhood lead poisoning can be dramatically reduced by
the abatement or complete removal of all lead-based paint.
Empirical studies also have shown substantial reductions in
lead poisoning when the affected properties have undergone
so-called ``interim control measures'' that are far less
costly than abatement.
(c) Purpose.--The purpose of this section is to encourage
the safe removal of lead hazards from homes and thereby
decrease the number of children who suffer reduced
intelligence, learning difficulties, behavioral problems, and
other health consequences due to lead-poisoning.

SEC. 2. HOME LEAD HAZARD REDUCTION ACTIVITY TAX CREDIT.

(a) In General.--Subpart B of part IV of subchapter A of
chapter 1 of the Internal Revenue Code of 1986 (relating to
foreign tax credit, etc.) is amended by adding at the end the
following new section:

``SEC. 30D. HOME LEAD HAZARD REDUCTION ACTIVITY.

[[Page S13364]]

``(iii) the cost for performing interim lead control
measures to reduce exposure or likely exposure to lead-based
paint hazards, including specialized cleaning, repairs,
maintenance, painting, temporary containment, ongoing
monitoring of lead-based paint hazards, and the establishment
and operation of management and resident education programs,
but only if such measures are evaluated and completed by a
certified lead abatement supervisor using accepted methods,
are conducted by a qualified contractor, and have an expected
useful life of more than 10 years,
``(iv) the cost for a certified lead abatement supervisor,
those working under the supervision of such supervisor, or a
qualified contractor to perform all preparation, cleanup,
disposal, and clearance testing activities associated with
the lead abatement measures or interim lead control measures,
and
``(v) costs incurred by or on behalf of any occupant of
such dwelling unit for any relocation which is necessary to
achieve occupant protection (as defined under section 35.1345
of title 24, Code of Federal Regulations).
``(B) Limitation.--The term `lead hazard reduction activity
cost' does not include any cost to the extent such cost is
funded by any grant, contract, or otherwise by another person
(or any governmental agency).
``(2) Eligible dwelling unit.--
``(A) In general.--The term `eligible dwelling unit' means,
with respect to any taxable year, any dwelling unit--
``(i) placed in service before 1960,
``(ii) located in the United States,
``(iii) in which resides, for a total period of not less
than 50 percent of the taxable year, at least 1 child who has
not attained the age of 6 years or 1 woman of child-bearing
age, and
``(iv) each of the residents of which during such taxable
year has an adjusted gross income of less than 185 percent of
the poverty line (as determined for such taxable year in
accordance with criteria established by the Director of the
Office of Management and Budget).
``(B) Dwelling unit.--The term `dwelling unit' has the
meaning given such term by section 280A(f)(1).
``(3) Lead-based paint hazard.--The term `lead-based paint
hazard' has the meaning given such term by section 745.61 of
title 40, Code of Federal Regulations.
``(4) Certified lead abatement supervisor.--The term
`certified lead abatement supervisor' means an individual
certified by the Environmental Protection Agency pursuant to
section 745.226 of title 40, Code of Federal Regulations, or
an appropriate State agency pursuant to section 745.325 of
title 40, Code of Federal Regulations.
``(5) Certified inspector.--The term `certified inspector'
means an inspector certified by the Environmental Protection
Agency pursuant to section 745.226 of title 40, Code of
Federal Regulations, or an appropriate State agency pursuant
to section 745.325 of title 40, Code of Federal Regulations.
``(6) Certified risk assessor.--The term `certified risk
assessor' means a risk assessor certified by the
Environmental Protection Agency pursuant to section 745.226
of title 40, Code of Federal Regulations, or an appropriate
State agency pursuant to section 745.325 of title 40, Code of
Federal Regulations.
``(7) Qualified contractor.--The term `qualified
contractor' means any contractor who has successfully
completed a training course on lead safe work practices which
has been approved by the Department of Housing and Urban
Development and the Environmental Protection Agency.
``(8) Documentation required for credit allowance.--No
credit shall be allowed under subsection (a) with respect to
any eligible dwelling unit for any taxable year unless--
``(A) after lead hazard reduction activity is complete, a
certified inspector or certified risk assessor provides
written documentation to the taxpayer that includes--
``(i) evidence that--

``(I) the eligible dwelling unit passes the clearance
examinations required by the Department of Housing and Urban
Development under part 35 of title 40, Code of Federal
Regulations,
``(II) the eligible dwelling unit does not contain lead
dust hazards (as defined by section 745.227(e)(8)(viii) of
such title 40), or
``(III) the eligible dwelling unit meets lead hazard
evaluation criteria established under an authorized State or
local program, and

``(ii) documentation showing that the lead hazard reduction
activity meets the requirements of this section, and
``(B) the taxpayer files with the appropriate State agency
and attaches to the tax return for the taxable year--
``(i) the documentation described in subparagraph (A),
``(ii) documentation of the lead hazard reduction activity
costs paid or incurred during the taxable year with respect
to the eligible dwelling unit, and
``(iii) a statement certifying that the dwelling unit
qualifies as an eligible dwelling unit for such taxable year.
``(9) Basis reduction.--The basis of any property for which
a credit is allowable under subsection (a) shall be reduced
by the amount of such credit (determined without regard to
subsection (d)).
``(10) No double benefit.--Any deduction allowable for
costs taken into account in computing the amount of the
credit for lead-based paint abatement shall be reduced by the
amount of such credit attributable to such costs.
``(d) Limitation Based on Amount of Tax.--The credit
allowed under subsection (a) for the taxable year shall not
exceed the excess of--
``(1) the sum of the regular tax liability (as defined in
section 26(b)) plus the tax imposed by section 55, over
``(2) the sum of the credits allowable under subpart A and
sections 27, 29, 30, 30A, 30B, and 30C for the taxable year.
``(e) Carryforward Allowed.--
``(1) In general.--If the credit amount allowable under
subsection (a) for a taxable year exceeds the amount of the
limitation under subsection (d) for such taxable year
(referred to as the `unused credit year' in this subsection),
such excess shall be allowed as a credit carryforward for
each of the 20 taxable years following the unused credit
year.
``(2) Rules.--Rules similar to the rules of section 39
shall apply with respect to the credit carryforward under
paragraph (1).''.
(b) Conforming Amendments.--
(1) Section 1016(a) of the Internal Revenue Code of 1986 is
amended by striking ``and'' in paragraph (36), by striking
the period and inserting ``, and'' in paragraph (37), and by
inserting at the end the following new paragraph:
``(38) in the case of an eligible dwelling unit with
respect to which a credit for any lead hazard reduction
activity cost was allowed under section 30D, to the extent
provided in section 30D(c)(9).''.
(2) The table of sections for subpart B of part IV of
subchapter A of chapter 1 of such Code is amended by
inserting after the item relating to section 30C the
following new item:

``Sec. 30D. Home lead hazard reduction activity.''.

(c) Effective Date.--The amendments made by this section
shall apply to lead hazard reduction activity costs incurred
after December 31, 2005, in taxable years ending after that
date.
Mr. OBAMA. Mr. President, today I rise in support of Senator
Clinton's bill which would provide tax credits of $1,000 to $3,000 to
property owners who eliminate or contain lead-based paint hazards in
homes where low-income young children or women of childbearing age
live.
Children who eat lead paint chips ingest a highly toxic substance
that can produce a range of health effects including reduced IQ,
reading and learning disabilities, reduced attention spans, kidney
damage, and hyperactivity. The sad fact is that there are still over
400,000 children suffering from lead poisoning in this country, many of
them poor and many of them minorities. My home State, Illinois, is the
State with the highest number of these children.
The loss of IQ and ability to learn affects these children and their
families for the rest of their lives and imposes an economic burden on
the rest of us because of their reduced productivity.
I urge my colleagues to join Senators Clinton, Smith, DeWine, and me
in preventing future lead poisonings by giving property owners a tax
incentive to eliminate this problem.
______

By Mr. KERRY:
S. 2055. A bill to amend titles 10 and 14, United States Code, to
provide for the use of gold in the metal content of the Medal of Honor;
to the Committee on Banking, Housing, and Urban Affairs.
Mr. KERRY. Mr. President, today I introduce a bill requiring that the
Congressional Medal of Honor be made out of 90 percent gold instead of
gold-plated brass as is currently the case.
The Congressional Medal of Honor is the highest award our country
bestows for valor in action against an enemy force. Its recipients are
ordinary Americans who perform extraordinary deeds in battle, often
giving their lives.
This is the medal awarded posthumously to Sergeant First Class Paul
R. Smith. Under attack at Baghdad International Airport, Sergeant Smith
quickly organized the defense of his position, engaging a company-sized
enemy force. He showed no concern for his own personal safety when in
the face of hostile-fire he mounted an armored personnel carrier and
manned a .50 caliber machine gun. As the citations accompanying his
award put it, ``In total disregard for his own life, he maintained his
exposed position in order to engage the attacking enemy force. During
this action, he was mortally wounded. His courageous actions helped
defeat the enemy attack, and resulted in as many as 50 enemy soldiers
killed, while allowing the safe withdrawal of numerous wounded
soldiers.''

[[Page S13365]]

This is the medal won by Captain Humbert Roque Versace. During an
intense attack by the Viet Cong in the Xuyen Province, Captain Versace
was wounded twice while engaging the enemy but continued to fight until
exhaustion and lack of ammunition led to his capture. The citation
accompanying his award reads: ``Taken prisoner by the Viet Cong, he
exemplified the tenets of the Code of Conduct from the time he entered
into Prisoner of War status. Captain Versace assumed command of his
fellow American soldiers, scorned the enemy's exhaustive interrogation
and indoctrination efforts, and made three unsuccessful attempts to
escape, despite his weakened condition which was brought about by his
wounds and the extreme privation and hardships he was forced to endure.
During his captivity, Captain Versace was segregated in an isolated
prisoner of war cage, manacled in irons for prolonged periods of time,
and placed on extremely reduced ration. The enemy was unable to break
his indomitable will, his faith in God, and his trust in the United
States of America. Captain Versace, an American fighting man who
epitomized the principles of his country and the Code of Conduct, was
executed by the Viet Cong on 26 September 1965.''
This is the medal won by Marine Corps Second Lieutenant Robert Dale
Reem, who on the night of November 6, 1950, after leading three
separate assaults on an enemy position in the vicinity of Chinhung-ni,
Korea, threw himself on top of an enemy grenade that landed amidst his
men.
This is the medal won by Lieutenant, Junior Grade, Donald Gary, who,
while serving aboard the U.S.S. Franklin on July 23, 1945, calmly led
his crewmates to safety after their ship was attacked. His citation
reads: ``Stationed on the third deck when the ship was rocked by a
series of violent explosions set off in her own ready bombs, rockets,
and ammunition by the hostile attack, Lt. (j.g.) Gary unhesitatingly
risked his life to assist several hundred men trapped in a messing
compartment filled with smoke, and with no apparent egress. As the
imperiled men below decks became increasingly panic stricken under the
raging fury of incessant explosions, he confidently assured them he
would find a means of effecting their release and, groping through the
dark, debris-filled corridors, ultimately discovered an escapeway.
Staunchly determined, he struggled back to the messing compartment
three times despite menacing flames, flooding water, and the ominous
threat of sudden additional explosions, on each occasion calmly leading
his men through the blanketing pall of smoke until the last one had
been saved.''
As I have said previously, those who earned these medals are the
stuff of legend. But they are more than legends. They are actual people
whose deeds inspire humility and gratitude in all of us. In bestowing
the Congressional Medal of Honor, the president enrolls the recipient
in a sacred club of heroes.
The medal itself, however, while invaluable in significance and
tribute, does not do enough to show our appreciation. The medal is gold
in color but is actually brass plated with gold and only costs
approximately $30 to produce. Other Congressional medals given to
foreign dignitaries, famous entertainers, and other worthy citizens can
cost $30,000 to produce. Now I will be the first to tell you that I
believe the value of this medal is found in the deeds of every American
who has earned it. But also believe that we can do better.
Put simply, this legislation will forge a medal more worthy of the
esteem with which the Nation holds those few who have earned the
Congressional Medal of Honor through valor and heroism beyond compare.
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. 2055

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

SECTION 1. GOLD CONTENT FOR MEDAL OF HONOR.

(a) Requirement for Gold Content.--Sections 3741, 6241, and
8741 of title 10, United States Code, and section 491 of
title 14, United States Code, are each amended by inserting
after ``appropriate design,'' the following: ``the metal
content of which is 90 percent gold and 10 percent alloy
and''.
(b) Effective Date.--The amendments made by subsection (a)
shall apply with respect to any Medal of Honor awarded after
the date of the enactment of this Act.
______

By Mr. ALLEN (for himself and Mr. Warner):
S. 2056. A bill to require the Secretary of the Treasury to redesign
$1 Federal reserve notes so as to incorporate the preamble of the
Constitution of the United States, a list describing the Articles of
the Constitution, and a list describing the amendments to the
Constitution, on the reverse side of such note; to the Committee on
Banking, Housing, and Urban Affairs.
Mr. ALLEN. Mr. President, I rise today to introduce a piece of
legislation that is designed to honor the document allows us to all be
here today. The document I am referring to is the Constitution of the
United States of America, the greatest and longest lasting political
document in the history of the world. Drafted in part by the great
patriot Thomas Jefferson, this document sets forth both the structure
of our government and the fundamental freedoms we enjoy every day.
Ingenious by its simplicity, the Constitution is a living breathing
document that has allowed our country to evolve from 13 colonies who
banded together to win her independence from Great Britain to the most
powerful Nation in the world. While this document has created a strong
national government that is unrivaled in the world, it has also kept
the power in the States to decide how to govern themselves. As governor
of the Commonwealth of Virginia and now as United States Senator I have
had the unique opportunity to experience how this ingenious system of
federalism plays out in every action we take as leaders.
This legislation that I am introducing today will serve to remind all
Americans of the freedoms embodied in the Constitution. For many of us,
it has been a long time since we have had the opportunity to sit down
and actually read this historic document. By placing the headings of
the articles and the amendments on the back of the dollar bill, all
people will have the chance to look at the provisions. I sincerely hope
that when children take a look at the reverse side of a dollar bill,
they will take the time to ask their parents about what they are
reading so they can gain a better understanding of our great Nation and
the principals our country was founded.
By looking at the order of the amendments to the constitution,
students can also trace the history of our country. The amendments to
the constitution embody the four pillars of a free and just society.
The first of these pillars is freedom of religion, this important
freedom is protected by the First Amendment which allows all people of
all religions to freely practice their chosen religion without fear of
government interference. The second pillar is the freedom of
expression, which again is protected in the First Amendment. The third
pillar is the private ownership of property. This important freedom is
protected by the Fifth Amendment which limits the government's power to
take private property. This freedom is also protected in the Third. The
fourth Amendment which protects citizens from being forced to quarter
solders in their homes and protects private property from unreasonable
searches and seizures respectively. The fourth pillar is the rule of
law. Protection of the rule of law runs throughout the Constitution,
most notably in the Sixth Amendment which guarantees the right to a
speedy trial and the Fifth and Fourteenth Amendments which require due
process of law.
Looking at the remaining amendments one can trace the evolution of
the Constitution and the United States from the Thirteenth Amendment
prohibiting slavery, to the Fifteenth Amendment providing for the right
to vote regardless of race, the Nineteenth Amendment granting women the
right to vote and the Twenty Fourth Amendment prohibiting the poll tax.
Throughout our history, hundreds of thousands of brave men and women
have laid down their lives protecting the freedoms granted to us in the
constitution. Having it been Veterans Day a few days ago, I feel it is
high time

[[Page S13366]]

that we do all we can to publicize what these freedom are that we hold
so dearly.
Before I yield the floor I would like to recognize the contributions
of one of my constituents, Mr. Randy Wright who teaches at Liberty
Middle School in Hanover, VA. Mr. Wright brought this idea to my
attention several years ago and he along with his students over the
years have been instrumental is providing support for this piece of
legislation. I therefore urge my colleagues to join me in support this
legislation.
______

By Mrs. CLINTON (for herself, Mr. Harkin, Mr. Durbin, Mr.
Kennedy, Mr. Kerry, Ms. Landrieu, Mr. Lautenberg, and Mr.
Inouye):
S. 2057. A bill to establish State infrastructure banks for
education, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mrs. CLINTON. Mr. President, I rise today to introduce legislation
co-sponsored with Senator Harkin that would begin to rebuild America's
schools. If approved, the Investing for Tomorrow's Schools Act would
enable states to develop State Infrastructure Banks--a flexible and
inexpensive way to finance school construction and renovation. This
approach offers an innovative solution to the urgent problem of fixing
deteriorating schools. Every dollar invested to create State
Infrastructure Banks would be reused to support project after project
in the form of loans and credit support.
According to the National Center for Education Statistics, three in
four schools in America need assistance to come into ``good overall
condition.'' Repairs and modernizations will cost, according to the
National Education Association, $322 billion. New York State has a
greater need than any other state--estimated at $51 billion. Just in
New York City, schools are estimated to need $21 billion. The city's
schools are so old that they would nearly qualify for social security,
averaging 61-years-old.
Acute need for school repair and modernization exists nationwide.
Need is estimated at $33 billion in California, $25 billion in Ohio,
$22 billion in New Jersey, $13 billion in Texas, and $10 billion each
in Illinois, Massachusetts, Michigan, Pennsylvania, and Utah. Nation-
wide costs add up to $322 billion.
In 2005, an estimated $19.6 billion was spent nation-wide on school
construction. At that rate, it will take more than 16 years to
modernize school buildings. Last year in New York, $984 million was
spent on school construction. At that rate, it will take more than 50
years to modernize New York's schools--and that's assuming that in the
meantime we don't need to build more new schools and that no schools
fall apart!
When students attend schools in disrepair, the consequences are all
too clear.
An article from 2004 in the Poughkeepsie Journal described how, in
Hyde Park, New York along the Hudson River, ventilation problems at the
45-year-old Franklin D. Roosevelt High School sickened students and
staff causing watery eyes, headaches, nausea, and dizziness. I would
like to include this article in the Congressional Record. State
Infrastructure Banks would make funding available to address
environmental hazards including poor ventilation and bad air quality.
They would help more schools become healthy and high-performing.
An article in Newsday newspaper described how, in Hempstead New York,
on Long Island, Prospect Elementary, a 100-year-old school, was closed
in the fall of 2003 after administrators discovered a rodent problem,
mold in the cafeteria, and a crumbling chimney in a classroom.
The Marguerite Golden Rhodes Elementary School was closed after state
education officials found a gap between where the paint on the walls
ended and where the ceiling began--an indication that either the wall
or the ceiling was moving.
Hempstead High School was closed for a week, after a blackboard fell
off a wall exposing asbestos left over from a botched cleanup in 1990.
1'd like to include this article in the Congressional Record.
The school closures worsened overcrowding, as parents Celia Ridely
and Olive Warner pointed out to Newsday and the New York Times. With
schools in such poor condition, is it surprising that just 38 percent
of students in Hempstead graduate from high school?
In Washingtonville, 54 miles north of New York City, the roof over a
classroom in 44-year-old Taft Elementary collapsed. Fortunately the
catastrophic collapse occurred in August of 2004, before the school
year began, and no one was injured.
Unfortunately, the U-shaped joist which contributed to the collapse
was popular in school construction across New York and throughout
America from 1900 to the early 1970s. Many of these schools are still
in operation. New York's Department of Education took the precaution of
advising school districts to check similar joists to make sure they are
in good condition.
The lack of funding for school construction can lead school districts
to put off maintenance. Paul Abramson, a consultant based in
Westchester County, New York told a school construction website, ``What
happens, unfortunately, is [that] school districts cut down on
maintenance.''
Barbara Knisely-Michelman of the American Association of School
Administrators said, ``It comes down to the issue of resource. If
school administrators had unlimited resources, [maintenance] would be
at the top of the agenda.''
We can do better. Schoolchildren should not have to contend with
falling-down schools. The lack of adequate school buildings hampers
today' s most promising and innovative efforts to boost student
achievement.
Charter schools hold the promise of expanding the supply of high-
quality public schools, especially in disadvantaged communities. But
most charter schools have limited credit histories and lack access to
public school facilities or traditional funding streams such as bonds.
One in three charter school operators report that school construction
costs are a major obstacle to their schools' success.
The No Child Left Behind Act promised that children in
underperforming schools would have the opportunity to transfer to
better public schools. But in many communities, more students seek
transfers than are spaces available. In New York City last year, 33,000
students applied to transfer out of underperforming schools but only
7,000 could be accommodated.
Charter school operators should have access to affordable financing
for school construction. Schoolchildren promised public school choice
should be able to exercise that right. Innovative reforms should not be
blocked by inadequate school buildings.
In 2004, an editorialist for Newsday newspaper on Long Island wrote,
``School construction is one area where the federal government could do
more. Little . . . has been heard on the subject since the late 90s--
that's a shame. . . . Money must be found to keep schools safe,
functional, and welcoming places.''
Senator Harkin and I agree. That's why today we are introducing the
Investing for Tomorrow's Schools Act. At the heart of our proposal is
the creation of State Infrastructure Banks, which would improve
financing for school construction. This financing mechanism has been
used since the Reagan Administration to help local communities fund
water treatment and clean water facilities and transportation projects.
For example, my own State of New York received $2.48 billion in Federal
support for its Clean Water State Revolving Fund between 1989 and 2004.
It leveraged that money into more than $10 billion of loans to local
communities.
For example, State Infrastructure Banks would offer school districts
a flexible menu of loan and credit enhancement assistance, such as low
interest loans, bond-financing security, loan guarantees, and credit
support for financing projects, which result in lower interest rates.
State Infrastructure Banks would not strain Federal Treasury or the
American taxpayer. After initial funding, they would require no ongoing
federal appropriations. As each loan is repaid, the money can be
offered as a new loan.
Passage of this bill would lay the groundwork for a robust system of
State Infrastructure Banks that provide immediate aid to the neediest
schools and help local communities

[[Page S13367]]

fund affordable construction far into the future.
This modest proposal is one piece of the school construction
solution. I ask my Senate colleagues to join me today to pass this
legislation without delay.
Mr. President, I ask unanimous consent that 2 articles be printed in
the Record.
There being no objection, the articles were ordered to be printed in
the Record, as follows:

[From Poughkeepsie Journal, Dec. 9, 2004.]

Ventilation Blamed for FDR High Illnesses

(By John Davis)

Ventilation problems were the cause of a rash of complaints
about the air at Franklin D. Roosevelt High School in October
and November, according to health officials.
After weeks of testing and monitoring conditions at the
Hyde Park high school, Dutchess County Health Commissioner
Dr. Michael Caldwell recently relayed his findings in a
letter to Hyde Park schools Superintendent Carole Pickering.
``The reported symptoms and effects among students and
staff in the school are consistent with those reported in a
building with inadequate ventilation,'' Caldwell wrote.
In response to the complaints by students and staff
reporting headaches, dizziness and watery eyes, the county
health department considered a number of factors as being the
source of the problem.
The health department has ruled out mold, toxic agents or
germs as being the culprit.
``Recent modifications made to the school's ventilation
system appear to have had a beneficial effect upon the FDR
high school community,'' Caldwell noted in his letter.
Pickering expressed sympathy Wednesday for those who
suffered during the period of the air problem.
``I regret that even one single person was ill due to the
air quality problems over the last seven weeks,'' Pickering
said in a prepared statement Wednesday. ``We will continue to
monitor FDR and to proactively assess heating and ventilation
systems in all our buildings.''
____

[From Daily News (New York), Nov. 21, 2004.]

It's a Foul School Stew--Firings, Probes and Lawsuits in Hempstead

(By Laura Williams)

It already seemed more than the Hempstead School District
could bear. Asbestos and mold forced school closings. The
school board abruptly fired the superintendent. Board members
were suing each other amid accusations of corruption.
Then last week came word that the State Education
Department is launching an investigation into financial
hanky-panky by school board members. That revelation, in
fact, was welcome news to fed-up parents.
Board members ``cannot get through a school board meeting
without arguing about which friend is going to benefit and
how they're going to get money back from the district,'' said
Ron Mazile, co-chairman of Hempstead Parents Community
United.
The investigation will be conducted in addition to an in-
depth audit of the district's books being done by State
Controller Alan Hevesi.
As if all that weren't enough, a Hempstead High student was
stabbed to death near the school Tuesday. A former gang
member was arrested, and cops were seeking two more suspects
last week.
And there's still more: the school district is facing $100
million worth of lawsuits, included in these are suits filed
by school employees making charges of sexual harassment and
discrimination. In addition, school board member Thomas
Parsley is suing colleague Ralph Schneider over something
personal.
Parsley himself was charged in September with stealing an
ATM card from a principal, though he has said the charge was
politically motivated.
Neither the district superintendent nor any of the five
board members returned repeated calls.
The 6,800-student district is struggling with the problems
that plague so many financially-strapped communities. Almost
three-quarters of the Hempstead district's students qualify
for free lunch.
Less than 40% of its high school students graduate,
compared to wealthy next-door neighbor Garden City, where 99%
graduate. Reading and math scores continue to lag behind the
county average.
And school buildings have not been properly maintained.
Prospect Elementary was closed last year after mold was
discovered in the cafeteria. Marguerite Golden Rhodes
Elementary School also was closed after it appeared the
building was shifting dangerously. Both schools' students are
attending classes held in trailers.
Last year, a problem with the hot water heater sickened
staffers and students at Alverta Bray Schultz Middle School,
which also was found to be serving spoiled food in its
cafeteria. And Hempstead High was shut down for a week last
year after a chalkboard fell, exposing asbestos.
Amid all these problems, the school board last month fired
Superintendent Nathaniel Clay, replacing him with Susan
Johnson.
Johnson, who was fired as the district's director of
personnel just two months before getting the top job, had
launched her own lawsuit against the district, charging
wrongful termination.
Parents are planning a Dec. 4 rally and march--from Village
Hall to school district offices--in an attempt to get local
school leaders to perform dutifully.
``Taxpayers, parents and students are fuming,'' Mazile
said. ``We're going to hold their feet to fire.''
______

By Mr. FEINGOLD:
S. 2058. A bill to promote transparency and reduce anti-competitive
practices in the radio and concert industries; to the Committee on
Commerce, Science, and Transportation.
Mr. FEINGOLD. Mr. President, I am pleased to introduce legislation
today that will promote openness and fair competition in the radio and
concert industries.
I have followed the changes in the radio and concert industries since
the 1996 Telecommunication Act with great concern. For years, I have
heard complaints from my constituents about the increasing
concentration of ownership in the radio and concert industries and, in
turn, the increasingly uneven playing field for small radio stations
and independent concert promoters. For consumers this has meant less
diversity, less local content and growing dissatisfaction with the
radio and concerts they are offered.
Most recently in the last Congress, I introduced broad legislation to
address ownership consolidation and the anti-competitive practices
common in the industry. These practices include tacit or explicit pay-
for-play, or ``payola,'' payments, and corporate radio stations putting
untoward pressure on artists to play at the same corporation's venues
use affiliated concert promoters. While I continue to be concerned by
consolidation and believe this centralization exacerbates the potential
for abuse, the bill I introduce today focuses instead on the anti-
competitive practices, whether they occur at a radio station group of a
handful of stations or one that owns thousands of stations.
Some might question why we need added scrutiny and accountability for
the radio and concert industries specifically. Besides the unique role
radio plays for communication and entertainment in each American's
life, radio also is, in a sense, a public-private partnership. With
radio's use of the public airwaves, it also has a responsibility to
serve the public good.
The abuses within the radio and concert industry are not entirely
new. In fact, problems have occasionally sprung up almost throughout
the entire history of the medium. There almost seems to be a cyclical
pattern as the payola is rooted out and then several years later is
reincarnated in slightly different form to grow to become pervasive
again. So while the original payola practices predated the recent rapid
consolidation in the industry, the concentration of power has made the
problem more widespread and its effects possibly more severe on local
stations, promoters, artists and consumers.
While paying a radio station or radio station employee to play a
certain song without telling the audience has a long history in radio,
this does not make the fraud and bribery any more acceptable. In the
1950s, the practice was relatively simple. Artists, their labels or
managers would often directly bribe DJs to play their songs either in
cash or through other consideration. When this practice became public,
there were investigations and Congress and the Federal Communications
Commission (FCC) took actions to block this payola.
The most recent incarnation of payola takes a more complicated and
sophisticated--corporate, if you will--approach to skirt the current
rules that prevent direct pay-for-play. Indirect payments through
independent music promoters have been an open secret, as have more
direct payments, as the ground-breaking investigation of New York
Attorney General Eliot Spitzer demonstrates. While the Spitzer
investigation is ongoing, he has already uncovered significant abuses
and this summer reached a $10 million settlement with a record label.
While not traditionally considered payola, there are other abuses of
power over airplay decisions by radio stations and their corporate
parents, especially when the conglomerate also owns concert promoters
and venues. This cross-

[[Page S13368]]

ownership sets up a situation where the same corporation that is
negotiating a contract for an artist to perform at its concert also
controls the lifeblood of that artist's success--airplay of his or her
songs. The result can be intense pressure on artists to play radio
station-promoted shows and, often, to do so for less than the normal
rate. This practice hurts the artist, hurts competing independent
stations and promoters and, ultimately, hurts the listening public,
which ends up choosing from songs on the radio that have been selected
based on where and for whom the artist is performing a concert, and for
the songs' artistic merit. Moreover, for any artist who deigns to
refuse the direct or implied extortion from the conglomerate, as Don
Henley's courageous testimony in a 2003 Commerce Committee hearing
clearly explained, there is the risk of retaliation--either immediately
or by boycotting the next single or album the artist produces. And with
the consolidation in the industry, that boycott might not just be in
one station in one market; it could be forty stations in many markets.
Facing this kind of potential threat, you can see why even the most
popular acts are afraid to speak publicly.
The bill I introduce today proposes a multi-faceted approach to the
various entrenched forms of payola. The bill would simultaneously
strengthen the FCC's ability to prove and punish violators, close the
loophole allowing indirect payola, prevent cross-ownership from
hindering fair competition, and, perhaps most importantly, increase
transparency through disclosure of the payments to radio stations from
artists, labels, promoters and others who may have an interest in
improperly influencing airplay decisions.
The bill improves the FCC's ability to enforce payola violations
through several means. It requires radio stations to make transactions
with entities like record labels that might have an interest in
influencing airplay on an ``arm's length basis.'' Moreover the bill
requires record-keeping of such transactions and makes the records
available to the FCC in the event of an investigation. In addition, the
bill significantly increases penalties for payola violations and allows
the FCC to consider revoking a station's license. As we have seen in
the realm of indecency, multimillion dollar companies do not blink at
the current fines of $10,000 per violation, but the prospect of putting
a license in jeopardy will get their attention.
As I've already mentioned, the current payola rules were put in place
for an earlier, simpler incarnation of the practice--the direct bribing
of DJs and stations. Payola has changed, often going through third
parties such as independent music promoters or under the guise of a
legitimate transaction. The bill broadens the current rules to include
these indirect payments, so no matter what tortured path money or other
consideration travels, if it is for airplay and not disclosed, it is
payola.
Cross-ownership of radio stations and concert promoters or venues
poses a serious problem for fair competition. Without controls, the
relationship injects the profitability of a concert and not artistic
merit into airplay decisions. The bill would either prohibit this, in
the case of cross-ownership, or place controls to ensure fair
competition in the concert promotion industry.
The final element of the bill--increased transparency--hopefully will
have the biggest impact by deterring payola in all its past, present
and future incarnations. The bill requires radio stations to disclose
all receipts of payments or consideration that could be used as a front
for payola along with a list of the songs played every month, broken
down by label and artist. While corporations may not fear the current
hard-to-prove $10,000 fines, they do understand public relations. The
potential for consumers and the media to use these records to connect
the dots should have a chilling effect on the practice and may mean
that the FCC Enforcement Bureau will rarely even need to be involved.
But if problems persist, this bill will provide the Bureau with better
powers and evidence to combat payola in all its forms.
Finally let me put this in context and remind my colleagues that
radio stations use a public resource, the airwaves, to reach their
listeners. With this use comes a responsibility to the public and an
understanding that they accept a degree of increased scrutiny. My
legislation strives to ensure that the public knows when it hears a
song on the radio that it is because the station, the DJ, the public,
or even a focus group, believes it has artistic merit and that it is
something the listeners will enjoy. Too often, today's radio listeners
are left to wonder whether a song was played because the station
manager got a new laptop or because the station's parent company is
producing the artist's upcoming concert.
It boils down to choices. This bill will reinstate choices, the
fundamental basis of competition; choice for the artists to pick which
concerts to play and who they want to promote their concerts; choices
for the radio stations to play songs based on merit, or at least not
based on narrow financial interests; and ultimately choices for
consumers as artistic merit instead of the ability to pay carefully
disguised bribes broadens the field of artists who can compete.
I am pleased that my bill has been endorsed by the following groups,
and I am grateful for the input they have provided about problems in
the radio and concert industries: the American Association of
Independent Music/A2IM; the American Federation of Television and Radio
Artists; the American Federation of Musicians of the United States and
Canada; Consumers Union; Free Press; the Future of Music Coalition; the
National Academy of Recording Arts and Sciences, Inc.; and the
Recording Artists' Coalition. I urge my colleagues to join me and
support this legislation to promote fair competition in the radio and
concert industries. I urge my colleagues to join me and support this
legislation to promote fair competition in the radio and concert
industries.
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. 2058

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 ``Radio and Concert Disclosure
and Competition Act of 2005''.

SEC. 2. DISCLOSURE REGULATIONS.

(a) Modification of Regulations.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act, the Federal Communications
Commission shall modify its regulations under sections 317
and 507 of the Communications Act of 1934 (47 U.S.C. 317 and
508), to prohibit the licensee or permittee of any radio
station, including any employee or affiliate of such licensee
or permittee, from receiving money, services, or other
valuable consideration, whether directly or indirectly, from
a record company, recording artist, concert promoter, music
promoter, or music publisher, or an agent or representative
thereof, unless the licensee or permittee discloses at least
monthly the receipt of such money, services, or other
consideration to the Federal Communications Commission (in
this Act referred to as the ``Commission'') and the public in
a manner that the Commission shall specify.
(2) Exception.--The Commission in modifying its regulations
as required under paragraph (1) may create an exception to
the prohibition described under paragraph (1) for--
(A) transactions provided at nominal cost; or
(B) paid broadcasting disclosed under section 317 of the
Communications Act of 1934 (47 U.S.C. 317), if the monthly
disclosure described in paragraph (1) includes the proportion
of total airplay considered paid broadcasting.
(b) Playlist.--The monthly disclosure by a radio station
licensee or permittee required under subsection (a) shall
include a list of songs and musical recordings aired during
the disclosure period, indicating the artist, record label,
and number of times the song was aired.

SEC. 3. ARM'S LENGTH TRANSACTIONS.

(a) In General.--Not later than 1 year after the date of
the enactment of this Act, the Federal Communications
Commission shall modify its regulations under sections 317
and 507 of the Communications Act of 1934 (47 U.S.C. 317 and
508), to require that all transactions between a licensee or
permittee of any radio station, including any employee or
affiliate of such licensee or permittee, and a record
company, recording artist, concert promoter, music promoter,
or music publisher, or an agent or representative thereof,
shall be conducted at an arm's length basis with any such
transaction reduced to writing and retained by the licensee
or permittee for the period of the license term or 5 years,
whichever is greater.
(b) Records.--A record of each transaction described under
subsection (a) shall be--
(1) made available upon request to--

[[Page S13369]]

(A) the Commission; and
(B) any State enforcement agency; and
(2) subject to a random audit by the Commission to ensure
compliance on a basis to be determined by the Commission.
(c) Exemption.--The Commission may create an exemption to
the record keeping requirement described in subsection (b)--
(1) for a transaction that is of a nominal value; and
(2) for a radio station that is a small business, as
recognized by the Commission and established by the Small
Business Administration under section 121 of title 13, Code
of Federal Regulations, if the Commission determines that
such record keeping poses an undue burden to that small
business.

SEC. 4. COMPETITION REGULATIONS.

Not later than 1 year after the date of the enactment of
this Act, the Federal Communications Commission shall modify
its regulations under sections 317 and 507 of the
Communications Act of 1934 (47 U.S.C. 317 and 508), to
accomplish the following:
(1) General prohibition.--To prohibit the licensee of any
radio station, including any parent, subsidiary, or
affiliated entity of such licensee, from using its control
over any non-advertising matter broadcast by such licensee to
extract or receive money or any other form of consideration,
whether directly or indirectly, from a record company,
artist, concert promoter, or any agent or representative
thereof.
(2) Radio station concerts.--
(A) In general.--To prohibit a licensee or permittee of a
commercial radio station, or affiliate thereof, from--
(i) engaging, receiving, making an offer for, or directly
profiting from concert services of any musician or recording
artist unless the licensee or permittee does not
discriminate, in whole or in part, about the broadcast of
non-advertising matter, including any sound recording, by
that particular artist upon whether or not that artist
performs at the radio station affiliated concert; and
(ii) engaging or receiving concert services of any musician
or recording artist unless the licensee or permittee provides
the musician or recording artist with compensation for such
services at the fair market value for the performance.
(B) Definition.--For purposes of subparagraph (A), the term
``fair market value'' shall include such factors as--
(i) the rate typically charged by the musician or recording
artist for a concert of the size being put on for the
station;
(ii) the expenses of the musician or recording artist to
travel to, and perform at, the concert location; and
(iii) the length of the performance in relation to the
standard duration for a concert by the musician or recording
artist.
(C) Limitations and exclusions.--The provisions of this
paragraph shall not--
(i) prohibit consideration for the concert services being
made in the form of promotional value, cash, or a combination
of both; or
(ii) apply to--

(I) a radio station that is a small business, as recognized
by the Commission and established by the Small Business
Administration under section 121 of title 13, Code of Federal
Regulations;
(II) in-studio live interviews and performances; or
(III) concerts whose proceeds are intended and provided for
charitable purposes.

(3) Radio and concert cross-ownership.--
(A) In general.--To prohibit a licensee or permittee of a
radio station, or affiliate thereof, from owning or
controlling a concert promoter or venue primarily used for
live concert performances.
(B) Waiver.--The Commission may waive the prohibition
required under subparagraph (A) if--
(i) the Commission determines that because of the nature of
the cross-ownership and market served--

(I) the affected radio station, concert promoter, or venue
would be subjected to undue economic distress or would not be
economically viable if such provisions were enforced; and
(II) the anti-competitive effects of the proposed
transaction are clearly outweighed in the public interest by
the probable effect of the transaction in meeting the needs
of the community to be served; and

(ii) the affected radio station, concert promoter, or venue
demonstrates to the Commission that decisions regarding the
broadcast of matter, including any sound recording, will be
made at arm's length and not based, in whole or in part, upon
whether or not the creator, producer, or promoter of such
matter engages the services of the licensee or permittee, or
an affiliate thereof.

SEC. 5. REVIEW OF TRANSACTIONS.

(a) In General.--Upon petition by a musician, recording
artist, or interested party, the Commission shall review any
transaction entered into under section 3 or section 4.
(b) Copy of Petition.--A copy of any petition submitted to
Commission under subsection (a) shall be provided by the
person filing such petition to the licensee or permittee, or
musician or recording artist, as applicable.
(c) Public Disclosure.--If the Commission, after reviewing
a petition submitted under subsection (a) finds a transaction
violated any provision of this paragraph or section 3, the
Commission shall publicly, after all parties have had a
reasonable opportunity to comment, disclose its finding and
grant appropriate relief.

SEC. 6. PENALTIES.

The regulations promulgated under sections 2, 3 and 4 shall
set forth appropriate penalties for violations including an
immediate hearing before the Commission upon the issuance of
a notice of apparent liability or violation, with possible
penalties to include license revocation.

SEC. 7. REPORT.

Not later than 2 years after the date of enactment of this
Act, and every 2 years thereafter, the Commission shall issue
a report to Congress and the public that--
(1) summarizes the disclosures made by licensees and
permittees as required under section 2;
(2) summarizes the audits conducted by the Commission as
required under section 3(b)(2);
(3) summarizes the cross-ownership waivers, if any, awarded
by the Commission under section 4(3)(B);
(4) evaluates ownership concentration and market power in
the radio industry in a manner similar to the most recent in
the discontinued series of FCC reports, ``Radio Industry
Review 2002: Trends in Ownership, Format, and Finance''; and
(5) describes any violations of section 2, 3, or 4, and
penalty proceedings under section 6, and includes
recommendations for any additional statutory authority the
Commission determines would improve compliance with
regulations issued under this Act.

SEC. 8. LICENSE REVOCATION.

Section 312(a) of the Communications Act of 1934 (47 U.S.C.
312) is amended--
(1) in paragraph (6), by striking ``; or'' and inserting a
semicolon;
(2) in paragraph (7), by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(8) for violation of or failure to follow any regulation
established in accordance with section 2, 3, 4, or 6 of the
Radio and Concert Disclosure and Competition Act of 2005.''.

SEC. 9. INCREASED MAXIMUM PENALTIES.

(a) Penalties for Disclosure of Payments to Individuals
Connected With Broadcasts.--Section 507(g)(1) of the
Communications Act of 1934 (47 U.S.C. 508(g)(1)) is amended
by striking ``$10,000'' and inserting ``$50,000''.
(b) Penalties for Prohibited Practices in Contests of
Knowledge, Skill, or Chance.--Section 508(c)(1) of the
Communications Act of 1934 (47 U.S.C. 509(c)(1)) is amended--
(1) by striking ``$10,000'' and inserting ``$50,000''; and
(2) by inserting ``, for each violation'' before the
period.
______

By Mr. VOINOVICH (for himself and Mr. Akaka):
S. 2060. A bill to extend the District of Columbia College Access Act
of 1999 and make certain improvements; to the Committee on Homeland
Security and Governmental Affairs.
Mr. VOINOVICH. Mr. President, today I rise to introduce legislation
to reauthorize the District of Columbia Tuition Assistance Grant (D.C.
TAG) program for five additional years. This program has had a
tremendously beneficial impact on promoting higher education for high
school graduates in our Nation's capital.
The aim of this program is to assist District students, who do not
have access to state-supported education systems, in attending college.
D.C. TAG scholarships are used by District residents to pay the
difference between in-State and out-of-State tuition at State
universities nationwide, up to $10,000 per student per school year,
with a cumulative cap of $50,000 per student. In addition, since March
2002, District students attending private institutions in Maryland and
Virginia, as well as Historically Black Colleges and Universities
nationwide, started receiving tuition grants under the program of
$2,500 per student per school year, with a cumulative cap of $12,500
per student.
Since the first grants were awarded in 2000, the program has
dispersed over $98 million to 8,454 District students; many are the
first in their family to attend college. Moreover, District high school
graduating seniors have seen a 28 percent increase in college
attendance. Seventy five percent of District students said that D.C.
TAG made a difference in their decision to continue their education
beyond high school. Sixty five percent of District students have
indicated that D.C. TAG has enabled them to choose a college that best
suits their educational needs.
Because of the great success and positive impact of this program, I
propose to expand the program to private schools nationwide, thereby
creating greater equity between all private colleges, while
establishing a cap on program funding at the current appropriation of
$33.2 million annually. In addition, this legislation will require the
Mayor of the District of Columbia to submit an annual report to
Congress on the program's status.

[[Page S13370]]

As Chairman of the District of Columbia authorizing subcommittee,
leveling the playing field for high school graduates in the District
and enhancing their educational opportunities continues to be a top
priority. I urge all of my colleagues to support this legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2060

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

SECTION 1. 5-YEAR REAUTHORIZATION OF TUITION ASSISTANCE
PROGRAMS.

(a) Public School Program.--Section 3(i) of the District of
Columbia College Access Act of 1999 (sec. 38-2702(i), D.C.
Official Code) is amended by striking ``each of the 7
succeeding fiscal years'' and inserting ``each of the 11
succeeding fiscal years''.
(b) Private School Program.--Section 5(f) of such Act (sec.
38-2704(f), D.C. Official Code) is amended by striking ``each
of the 7 succeeding fiscal years'' and inserting ``each of
the 11 succeeding fiscal years''.

SEC. 2. EXPANSION TO PRIVATE SCHOOLS NATIONWIDE.

Section 5(c)(1)(A)(i) of the District of Columbia College
Access Act of 1999 (sec. 38-2704(c)(1)(A)(i); D.C. Official
Code) is amended by striking ``the main campus'' through the
end and inserting ``located in the United States;''.

SEC. 3. CAPPED FUNDING.

Section 7 of the District of Columbia College Access Act of
1999 (sec. 38-2706; D.C. Official Code) is amended--
(1) in paragraph (2), by striking ``or'' after the
semicolon;
(2) in paragraph (3), by striking the period and inserting
``; or''; and
(3) by adding at the end the following:
``(4) $33,200,000, in the case of the aggregate amount for
fiscal year 2006 and each succeeding fiscal year.''.

SEC. 4. MAYOR'S REPORT.

Section 3(g) of the District of Columbia College Access Act
of 1999 (sec. 38-2703(g); D.C. Official Code) is amended to
read as follows:
``(g) Mayor's Report.--Not later than August 1, the Mayor
shall report to Congress annually regarding:
``(1) The number of students applying for the program and
the number of students graduating from the program.
``(2) The number of eligible students attending each
eligible institution and the amount of the grant awards paid
to those institutions on behalf of the eligible students.
``(3) The extent, if any, to which a ratable reduction was
made in the amount of tuition and fee payments made on behalf
of eligible students.
``(4) The progress in obtaining recognized academic
credentials of the cohort of eligible students for each
year.''.
______

By Mr. ENZI (for himself, Mr. Isakson, Mr. Craig, Mr. Burr, Mr.
Roberts, Mr. Sessions, Mr. Warner, and Mr. Gregg):
S. 2065. A bill to amend the Occupational Safety and Health Act of
1970 to further improve the safety and health of working environments,
and for other purposes; to the Committee on Health, Education, Labor,
and Pensions.
______

By Mr. ENZI (for himself, Mr. Isakson, Mr. Craig, Mr. Burr, Mr.
Roberts, Mr. Sessions, Mr. Gregg, Mr. Warner, and Mr. DeMint):
S. 2066. A bill to amend the Occupational Safety and Health Act of
1970 to further improve the safety and health of working environments,
and for other purposes; to the Committee on Health, Education, Labor,
and Pensions.
______

By Mr. ENZI (for himself, Mrs. Murray, Mr. Isakson, Mr. Burr, Mr.
Sessions, and Mr. Gregg):
S. 2067. A bill to assist chemical manufacturers and importers in
preparing material safety data sheets pursuant to the requirements of
the Hazard Communication standard and to establish a Commission to
study and make recommendations regarding the implementation of the
Globally Harmonized System of Classification and Labeling of Chemicals;
to the Committee on Health, Education, Labor, and Pensions.
Mr. ENZI. Mr. President, I am pleased today to announce the
introduction of legislation designed to improve our workplace health
and safety. The Senate Committee on Health, Education, Labor and
Pensions, that I Chair, has a broad range of responsibilities. None of
them is more important than the oversight of our occupational safety
and health laws.
In the past decade or so we have witnessed steady progress toward
safer and healthier workplaces. For example, in 1992, approximately 9
out of every 100 American workers suffered a workplace injury. By 2003,
that injury rate had been cut nearly in half. Over the same period we
have seen more than a 20 percent decline in the annual rate of
fatalities from workplace injuries.
As encouraging as this progress is, however, it should not be cause
for anyone to become complacent. The number of work-related deaths and
injuries remains unacceptably high. For example, last year, despite the
efforts of all concerned, some 4.4 million workers suffered work-
related injuries, with 1.3 million of those injuries involving lost
work days. Such workplace injuries continue to bring hardship to
employees and their families and to impose significant burdens on our
economy. We need to continue our efforts to improve workplace safety.
If we are to be successful in our efforts we must be prepared to cast
aside old assumptions, be willing to embrace new ideas, and be candid
enough to agree on some fundamental realities. First among these
realities is that the overwhelming number of employers are concerned
about the welfare of their employees and are fully prepared to comply
with laws aimed at enhancing their safety on the job. The notion that
employers care little about worker safety, or are prepared to sacrifice
worker health in the pursuit of higher profits is a dangerously
inaccurate myth. It is dangerous because it promotes and perpetuates an
adversarial relationship between employers and government safety
agencies at the very time that we need precisely the opposite.
Cooperation, not confrontation is essential in making our workplaces
safer.
It is fortunate that most employers want to do the right thing since
without the cooperation of the employer community there is little
realistic hope of continuing to improve workplace safety. That is the
second fundamental reality we must accept. Where the vast majority of
employers are committed to establishing and maintaining a safe
workplace, it makes little sense to perpetuate a system built largely
on a system of inspections and sanctions. Any system aimed at fostering
workplace safety that relies principally on such measures is not only
improperly focused; it cannot, as a practical matter, even hope to
achieve its intended goal.
Simple mathematics makes it clear that we cannot inspect or sanction
our way to greater job safety. Today, the total number of OSHA
inspectors, including those employed by the states, as well as those
employed by the Federal Government, is less than 2,400. Each of these
individuals conducts an average of about 40 inspections a year. In
other words, there will be less than 100,000 work sites inspected by
State and Federal OSHA combined in any given year. At the present time,
there are well over seven million worksites in the United States. At
current inspection rates, we would need nearly 170,000 OSHA inspectors
in order to inspect all U.S. work sites just once a year. In addition,
since most industrial accidents occur in a split second, and since many
are caused by unsafe acts rather than unsafe conditions, even an army
of inspectors could not adequately address the issue.

It is my view that any practical approach to addressing the issue of
workplace safety must recognize these realities and be designed to
encourage and assist employers in achieving this end--not merely punish
them for failing to do so. For these reasons, the legislation that I
have introduced today contains a number of provisions designed to
enhance voluntary compliance, and to provide technical assistance to
the vast majority of employers that strive every day to ensure the
health and safety of their employees. Thus, these bills contain
provisions that encourage employers to engage the services of highly
qualified third-party safety consultants to assist them in creating
safer workplaces. The legislation also seeks to extend the benefits of
such worthwhile initiatives as the current Voluntary Protection Plan to
smaller employers; and it increases the level of government outreach
and technical help to employers seeking assistance in making their
workplaces safer. It also provides for increased training of OSHA
personnel and fosters a greater understanding of specific workplace

[[Page S13371]]

safety issues through a unique cross- training and exchange program
between OSHA and the business community. These last two initiatives are
predicated on the common sense notion that the more we know and the
more we collaborate toward a common goal, the more likely it is that we
will achieve the desired result.
While I believe that the interests of workplace safety compel us to
dramatically increase our efforts at encouraging voluntary compliance,
we cannot be unmindful that the Occupational Safety and Health Act is a
regulatory statute; and that, like all regulation, there are points at
which the process becomes adversarial. I certainly believe there should
be a less adversarial process, however, when it does occur I believe it
needs to be fair and regular. In the regulatory context, the power and
resources of the Federal Government can be overwhelming, particularly
to small businesses. We need to make sure that the adversarial playing
field is a level one, and that the legitimate expectations of fairness
and regularity of process are adequately met. For this reason, the
bills which I have introduced today contain a number of provisions
aimed at ensuring this result. Thus, the bill provides for the recovery
of attorney's fees by small businesses that prevail in litigation
against the government in an OSHA claim, and codifies procedural
flexibility and fairness in the issuance and processing of disputed
claims. The legislation also recognizes that no one, least of all
employees, are well served by lengthy delays in the resolution of
contested claims by increasing the size of the Review Commission and
making additional changes designed to insure the issuance of more
timely decisions. The legislation also returns the Review Commission to
the status of a fully independent adjudicatory body as envisioned in
the original OSHA legislation by insuring that its decisions are
accorded appropriate legal deference. The legislation also injects some
much needed flexibility into the administration and enforcement of the
statute by permitting the use of alternative, site-specific compliance
methods, giving inspectors a degree of compliance discretion, and
encouraging the prompt correction of certain non-serious violations.
In addition to these changes that are based upon procedural and
regulatory fairness, the legislation also contains provisions designed
to address the root cause of many industrial injuries, and others aimed
at bringing a much-needed measure of simplicity and uniformity to our
workplace safety laws.
In the first instance, for too long we have held the one-dimensional
view that work conditions and employer practices are the principal, if
not exclusive, factors in workplace safety. The reality is that unsafe
individual behavior also has an extraordinary impact. For example, it
is estimated that 47 percent of all serious workplace accidents, and 40
percent of all workplace fatalities involve drugs or alcohol. Some 38
to 50 percent of all workers' compensation claims are related to drug
or alcohol abuse in the workplace. An industrial accident typically
takes only a split second to occur. The safest conceivable conditions
and systems can be rendered useless in that instant by an employee
whose judgment or reactions are impaired.

Apart from substance abuse, we also cannot ignore the fact that any
employer's safety policies and procedures can be rendered useless
whenever someone breaks the rules.
If we are serious about workplace safety we have to understand that
the employer is not the only factor in the equation. And, if we propose
to achieve workplace safety solely by regulating employer conduct, then
we fail to adequately address the entire issue. At a minimum, we need
to provide employers some tools and encouragement to control the
safety-related behavior of others. We cannot mandate that employers
take disciplinary action against their employees who violate safety
rules, but we can encourage them to enforce such rules appropriately
and consistently. We likewise cannot compel employers to institute drug
and alcohol testing programs, but we can remove the legal barriers to
their doing so. Today's legislation, by codifying the third party
misconduct defense, and authorizing the establishment of substance
testing, provides exactly the type of tools and encouragement that are
necessary.
It may be the employer's workplace, but workplace safety is
everybody's job. We need laws that reflect the fact that a safer
workplace is everybody's responsibility. For this reason today's
legislation also contains a provision that allows OSHA to issue
citations and impose limited fines on employees that violate rules and
procedures regarding the use of company-supplied personal protective
equipment. As noted, the authority here, although limited, is
nonetheless intended to make clear the notion that safety is
everybody's responsibility.
Lastly, our current law provides that employers must communicate
workplace hazards to their employees. This is an important, and
appropriate goal. ``Communication,'' however, requires the delivery of
clear, and meaningful information to the recipient. Unfortunately, in
many respects our hazard communication efforts have become so
complicated that the complexity stands in the way of the original
notion that employees need plain information about workplace hazards so
that they can take adequate precautions to protect themselves. This
process has become even more complicated by the globalization of our
economy, and the fact that many hazardous substances routinely in use
in our workplaces originate outside our borders. These are likewise
realities that we must address, and that the legislation offered today
does. Thus, the HazCom Simplification and Modernization Act that is a
part of the legislative package introduced today provides for the
simplification of current hazard communication standards and it creates
a commission designed to review and make recommendations regarding the
implementation of the global harmonization of chemical labeling, hazard
communication and a variety of related issues. I am particularly proud
of the fact that this bill is the product of considerable bi-partisan
effort, and I am particularly pleased to have Senator Murray as its
cosponsor. I am deeply grateful for all her efforts in bringing this
legislation to this point.
It is my belief that the three bills introduced today reflect the
correct and balanced approach to the goal of increased work place
safety that all of us want to achieve.
I ask unanimous consent that the text of the bills be printed in the
Record.
There being no objection, the bills were ordered to be printed in the
Record, as follows:

S. 2065

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

SECTION 1. SHORT TITLE; REFERENCES.

(a) Short Title.--This Act may be cited as the
``Occupational Safety Partnership Act''.
(b) Reference.--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
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et
seq.).

SEC. 2. PURPOSE.

Section 2(b) of the Act (29 U.S.C. 651(b)) is amended--
(1) in paragraph (13), by striking the period and inserting
``; and''; and
(2) by adding at the end the following:
``(14) by increasing the joint cooperation of employers,
employees, and the Secretary of Labor in the effort to ensure
safe and healthful working conditions for employees.''.

SEC. 3. THIRD PARTY CONSULTATION SERVICES PROGRAM.

(a) Program.--The Act (29 U.S.C. 651 et seq.) is amended by
inserting after section 8 the following:

``SEC. 8A. THIRD PARTY CONSULTATION SERVICES PROGRAM.

``(a) Purpose.--It is the purpose of this section to
encourage employers to conduct voluntary safety and health
audits using the expertise of qualified safety and health
consultants and to proactively seek individualized solutions
to workplace safety and health concerns.
``(b) Establishment of Program.--
``(1) In general.--Not later than 18 months after the date
of enactment of this section, the Secretary shall establish
and implement, by regulation, a program that qualifies
individuals to provide consultation services to employers to
assist employers in the identification and correction of
safety and health hazards in the workplaces of employers.
``(2) Eligibility.--The following individuals shall be
eligible to be qualified under this program as certified
safety and health consultants:
``(A) An individual who is licensed by a State authority as
a physician, industrial hygienist, professional engineer,
safety engineer, safety professional, or registered nurse.

[[Page S13372]]

``(B) An individual who has been employed as an inspector
for a State plan State or as a Federal occupational safety
and health inspector for not less than a 5-year period.
``(C) An individual who is qualified in an occupational
health or safety field by an organization whose program has
been accredited by a nationally recognized private
accreditation organization or by the Secretary.
``(D) An individual who has not less than 10 years
experience in workplace safety and health.
``(E) Other individuals determined to be qualified by the
Secretary.
``(3) Geographical scope of consultation services.--A
consultant qualified under this program may provide
consultation services in any State.
``(4) Limitation based on expertise.--A consultant
qualified under this program may only provide consultation
services to an employer with respect to a worksite if the
work performed at that worksite coincides with the particular
expertise of the individual.
``(c) Safety and Health Registry.--The Secretary shall
develop and maintain a registry that includes all consultants
that are qualified under the program under subsection (b)(1)
to provide the consultation services described in subsection
(b) and shall publish and make such registry readily
available to the general public.
``(d) Disciplinary Actions.--The Secretary may revoke the
status of a consultant, or the participation of an employer
in the third party consultation program, if the Secretary
determines that the consultant or employer--
``(1) has failed to meet the requirements of the program;
or
``(2) has committed malfeasance, gross negligence,
collusion or fraud in connection with any consultation
services provided by the qualified consultant.
``(e) Program Requirements.--
``(1) General requirements.--The consultation services
described in subsection (b), and provided by a consultant
qualified under this program shall, at a minimum, consist of
the following elements:
``(A) A comprehensive, on-site, survey and audit of the
participating employer's workplace and operations by the
consultant.
``(B) The preparation of a consultation report by the
consultant.

The Secretary may, by regulation, prescribe additional
requirements for qualifying services.
``(2) Consultation report.--
``(A) In general.--Following the consultant's physical
survey of the employer's workplace and operations, the
consultant shall prepare and deliver to the employer a
written report summarizing the consultant's health and safety
findings and recommendations. Such consultation report shall,
at a minimum, contain the following elements:
``(i) The findings of the consultant's health and safety
audit, and, where applicable, appropriate remedial
recommendations.
``(ii) A recommended health and safety program and an
action plan as described in this paragraph.

The Secretary may, by regulation, prescribe additional
required elements for qualifying reports.
``(B) Audit and recommendations.--The consultation report
shall include an evaluation of the workplace of the
participating employer to determine if the employer is in
compliance with the requirements of this Act, including any
regulations promulgated pursuant to this Act. The report
shall identify any practice or condition the consultant
believes to be a violation of this Act, and will set out any
appropriate corrective measures to address such identified
practice or condition.
``(C) Safety and health program.--The consultation report
shall contain a recommended safety and health plan designed
to reduce injuries, illness, and fatalities and to otherwise
manage workplace health and safety. Such safety and health
program shall--
``(i) be appropriate to the conditions of the workplace
involved;
``(ii) be in writing, and contain policies, procedures, and
practices designed to recognize and protect employees from
occupational safety and health hazards, such procedures to
include provisions for the identification, evaluation, and
prevention or control of workplace hazards;
``(iii) be based upon the professional judgment of the
consultant and include such elements as are necessary to the
specific worksite involved as determined by the consultant
and employer;
``(iv) contain provisions for the periodic review and
modification of the program as circumstances warrant;
``(v) be developed and implemented with the participation
of affected employees;
``(vi) make provision for the effective safety and health
training of all personnel, and the dissemination of
appropriate health and safety information to all personnel;
and
``(vii) contain appropriate procedures for the reporting of
potential hazards, accidents and near accidents

.The Secretary may, by regulation, prescribe additional
specific elements that may be required for any qualifying
program.
``(D) Action plan.--The consultation report shall also
contain a written action plan that shall--
``(i) outline the specific steps that must be accomplished
by the employer prior to receiving a certificate of
compliance;
``(ii) be established in consultation with the employer;
and
``(iii) address in detail--

``(I) the employer's correction of all identified safety
and health conditions or practices that are in violation of
this Act, with applicable timeframes; and
``(II) the steps necessary for the employer to implement an
effective safety and health program, with applicable
timeframes.

``(3) Certificate of compliance.--Upon completion of the
steps described in the Action Plan the qualified consultant
shall issue to the employer a Certificate of Compliance in a
form prescribed by the Secretary.
``(f) Exemption From Civil Penalties for Compliance.--
``(1) In general.--If an employer receives a certificate of
compliance, the employer shall be exempt from the assessment
of any civil penalty under section 17 for a period of 2 years
after the date on which the employer receives such
certificate.
``(2) Exceptions.--An employer shall not be exempt under
paragraph (1)--
``(A) if the employer has not made a good faith effort to
remain in compliance as required under the certificate of
compliance; or
``(B) if there has been a fundamental change in the hazards
of the workplace after the issuance of the certificate.
``(g) Right To Inspect.--Nothing in this section shall be
construed to affect the rights of the Secretary to inspect
and investigate worksites covered by a certificate of
compliance.
``(h) Renewal Requirements.--An employer that is granted a
certificate of compliance under this section may receive a 2
year renewal of the certificate if a qualified consultant
conducts a complete onsite safety and health survey to ensure
that the safety and health program has been effectively
maintained or improved, workplace hazards are under control,
and elements of the safety and health program are operating
effectively.
``(i) Non-Fixed Worksites.--With respect to employer
worksites that do not have a fixed location, a certificate of
compliance shall only apply to that worksite which satisfies
the criteria under this section and such certificate shall
not be portable to any other worksite. This section shall not
apply to employers that perform essentially the same work,
utilizing the same equipment, at each non-fixed worksite.
``(j) Access to Records.--Any records relating to
consultation services provided by an individual qualified
under this program, or records, reports, or other information
prepared in connection with safety and health inspections,
audits, or reviews conducted by or for an employer and not
required under this Act, shall not be admissible in a court
of law or administrative proceeding or enforcement proceeding
against the employer except that such records may be used as
evidence for purposes of a disciplinary action under
subsection (d).''.

SEC. 4. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.

The Act (29 U.S.C. 651 et seq.) is amended by adding at the
end the following:

``SEC. 34. ALCOHOL AND SUBSTANCE ABUSE TESTING.

``(a) Program Purpose.--In order to secure a safe
workplace, employers may establish and carry out an alcohol
and substance abuse testing program in accordance with
subsection (b).
``(b) Federal Guidelines.--
``(1) Requirements.--An alcohol and substance abuse testing
program described in subsection (a) shall meet the following
requirements:
``(A) Substance abuse.--A substance abuse testing program
shall permit the use of onsite or offsite testing.
``(B) Alcohol.--The alcohol testing component of the
program shall take the form of alcohol breath analysis and
shall conform to any guidelines developed by the Secretary of
Transportation for alcohol testing of mass transit employees
under the Department of Transportation and Related Agencies
Appropriations Act, 1992.
``(2) Definition.--For purposes of this section the term
`alcohol and substance abuse testing program' means any
program under which test procedures are used to take and
analyze blood, breath, hair, urine, saliva, or other body
fluids or materials for the purpose of detecting the presence
or absence of alcohol or a drug or its metabolites. In the
case of urine testing, the confirmation tests must be
performed in accordance with the mandatory guidelines for
Federal workplace testing programs published by the
Secretary of Health and Human Services on April 11, 1988,
at section 11979 of title 53, Code of Federal Regulations
(including any amendments to such guidelines). Proper
laboratory protocols and procedures shall be used to
assure accuracy and fairness, and, laboratories must be
subject to the requirements of subpart B of the mandatory
guidelines, State certification, the Clinical Laboratory
Improvements Act of the College of American Pathologists.
``(c) Test Requirements.--This section shall not be
construed to prohibit an employer from requiring--
``(1) an applicant for employment to submit to and pass an
alcohol or substance abuse test before employment by the
employer; or
``(2) an employee, including managerial personnel, to
submit to and pass an alcohol or substance abuse test--
``(A) on a for-cause basis or where the employer has
reasonable suspicion to believe

[[Page S13373]]

that such employee is using or is under the influence of
alcohol or a controlled substance;
``(B) where such test is administered as part of a
scheduled medical examination;
``(C) in the case of an accident or incident, involving the
actual or potential loss of human life, bodily injury, or
property damage;
``(D) during the participation of an employee in an alcohol
or substance abuse treatment program, and for a reasonable
period of time (not to exceed 5 years) after the conclusion
of such program; or
``(E) on a random selection basis in work units, locations,
or facilities.
``(d) Construction.--Nothing in this section shall be
construed to require an employer to establish an alcohol and
substance abuse testing program for applicants or employees
or make employment decisions based on such test results.
``(e) Preemption.--The provisions of this section shall
preempt any provision of State law to the extent that such
State law is inconsistent with this section.
``(f) Investigations.--The Secretary is authorized to
conduct testing of employees (including managerial personnel)
of an employer for use of alcohol or controlled substances
during any investigations of a work-related fatality or
serious injury. Such testing shall be done as soon as
practicable after the incident giving rise to such work-
related fatality or serious injury.''.

SEC. 5. VOLUNTARY PROTECTION PROGRAMS.

(a) Cooperative Agreements.--The Secretary of Labor shall
establish cooperative agreements with employers to encourage
the establishment of comprehensive safety and health
management systems that include--
(1) requirements for systematic assessment of hazards;
(2) comprehensive hazard prevention, mitigation, and
control programs;
(3) active and meaningful management and employee
participation in the voluntary program described in
subsection (b); and
(4) employee safety and health training.
(b) Voluntary Protection Program.--
(1) In general.--The Secretary of Labor shall establish and
carry out a voluntary protection program (consistent with
subsection (a)) to encourage excellence and recognize the
achievement of excellence in both the technical and
managerial protection of employees from occupational hazards.
(2) Program requirement.--The voluntary protection program
shall include the following:
(A) Application.--Employers who volunteer under the program
shall be required to submit an application to the Secretary
of Labor demonstrating that the worksite with respect to
which the application is made meets such requirements as the
Secretary of Labor may require for participation in the
program.
(B) Onsite evaluations.--There shall be onsite evaluations
by representatives of the Secretary of Labor to ensure a high
level of protection of employees. The onsite visits shall not
result in enforcement of citations under the Occupational
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.).
(C) Information.--Employers who are approved by the
Secretary of Labor for participation in the program shall
assure the Secretary of Labor that information about the
safety and health program shall be made readily available to
the Secretary of Labor to share with employees.
(D) Reevaluations.--Periodic reevaluations by the Secretary
of Labor of the employers shall be required for continued
participation in the program.
(3) Exemptions.--A site with respect to which a program has
been approved shall, during participation in the program be
exempt from inspections or investigations and certain
paperwork requirements to be determined by the Secretary of
Labor, except that this paragraph shall not apply to
inspections or investigations arising from employee
complaints, fatalities, catastrophes, or significant toxic
releases.

SEC. 6. EXPANDED ACCESS TO VVP FOR SMALL BUSINESSES.

The Secretary of Labor shall establish and implement, by
regulation, a program to increase participation by small
businesses (as the term is defined by the Administrator of
the Small Business Administration) in the voluntary
protection program through outreach and assistance
initiatives and the development of program requirements that
address the needs of small businesses.

SEC. 7. TECHNICAL ASSISTANCE PROGRAM.

(a) In General.--Section 21(c) of the Act (29 U.S.C.
670(c)) is amended--
(1) by striking ``(c) The'' and inserting ``(c)(1) The'';
(2) by striking ``(1) provide'' and inserting ``(A)
provide'';
(3) by striking ``(2) consult'' and inserting ``(B)
consult''; and
(4) by adding at the end the following:
``(2)(A) The Secretary shall, through the authority granted
under section 7(c) and paragraph (1), enter into cooperative
agreements with States for the provision of consultation
services by such States to employers concerning the provision
of safe and healthful working conditions.
``(B)(i) As provided in clause (ii), the Secretary shall
reimburse a State that enters into a cooperative agreement
under subparagraph (A) in an amount that equals 90 percent of
the costs incurred by the State for the provision of
consultation services under such agreement.
``(ii) A State shall be reimbursed by the Secretary for 90
percent of the costs incurred by the State for the provision
of--
``(I) training approved by the Secretary for State
personnel operating under a cooperative agreement; and
``(II) specified out-of-State travel expenses incurred by
such personnel.
``(iii) A reimbursement paid to a State under this
subparagraph shall be limited to costs incurred by such State
for the provision of consultation services under this
paragraph and the costs described in clause (ii).''.
(b) Pilot Program.--Section 21 of the Act (29 U.S.C. 670)
is amended by adding at the end the following:
``(e)(1) Not later than 90 days after the date of enactment
of this subsection, the Secretary shall establish and carry
out a pilot program in 3 States to provide expedited
consultation services, with respect to the provision of safe
and healthful working conditions, to employers that are small
businesses (as the term is defined by the Administrator of
the Small Business Administration). The Secretary shall carry
out the program for a period not to exceed 2 years.
``(2) The Secretary shall provide consultation services
under paragraph (1) not later than 4 weeks after the date on
which the Secretary receives a request from an employer.
``(3) The Secretary may impose a nominal fee to an employer
requesting consultation services under paragraph (1). The fee
shall be in an amount determined by the Secretary. Employers
paying a fee shall receive priority consultation services by
the Secretary.
``(4) In lieu of issuing a citation under section 9 to an
employer for a violation found by the Secretary during a
consultation under paragraph (1), the Secretary shall permit
the employer to carry out corrective measures to correct the
conditions causing the violation. The Secretary shall conduct
not more than 2 visits to the workplace of the employer to
determine if the employer has carried out the corrective
measures. The Secretary shall issue a citation as prescribed
under section 5 if, after such visits, the employer has
failed to carry out the corrective measures.
``(5) Not later than 90 days after the termination of the
program under paragraph (1), the Secretary shall prepare and
submit a report to the appropriate committees of Congress
that contains an evaluation of the implementation of the
pilot program.''.

SEC. 8. CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION
FOR CERTAIN OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION PERSONNEL.

Section 8 of the Act (29 U.S.C. 657) is amended by adding
at the end the following:
``(i) Any Federal employee responsible for enforcing this
Act shall, not later than 2 years after the date of enactment
of this subsection or 2 years after the initial employment of
the employee involved, meet the eligibility requirements
prescribed under subsection (b)(2) of section 8A.
``(j) The Secretary shall ensure that any Federal employee
responsible for enforcing this Act who carries out
inspections or investigations under this section, receive
professional education and training at least every 5 years as
prescribed by the Secretary.''.

SEC. 9. OSHA AND INDUSTRY TRAINING EXCHANGE DEMONSTRATION
PROGRAM.

(a) In General.--The Secretary of Labor, acting through the
Occupational Safety and Health Administration, is authorized
to develop and implement at least one training and
educational exchange program with a specialty trade in the
construction industry for the purpose of--
(1) facilitating the exchange of expertise and ideas
related to the interpretation, application, and
implementation of Federal occupational safety and health
standards and regulations applicable to the specialty trade
involved (referred to in this section as ``OSHA Rules'');
(2) improving collaboration and coordination between the
Occupational Safety and Health Administration and such
specialty trade regarding OSHA Rules;
(3) identifying OSHA Rules which the specialty trade and
Occupational Safety and Health Administration compliance
officers have repeatedly found to be difficult to interpret,
apply, or implement;
(4) allowing qualified safety directors from the specialty
trade to train such compliance officers and others within the
Administration responsible for writing and interpreting OSHA
Rules, both on the jobsite and off, on the unique nature of
the specialty trade and the difficulties contractors and
safety directors encounter when attempting to comply with
OSHA Rules as well as the best practices within the specialty
trade;
(5) seeking the means to ensure greater compliance with the
identified OSHA Rules, and reducing the number of citations
based on any misunderstanding by such compliance officers as
to the scope and application of an OSHA Rule or the unique
nature of the workplace construction; and
(6) establishing within the Occupational Safety and Health
Administration Training Institute a trade-specific curriculum
to be taught jointly by qualified trade safety directors and
compliance officers.
(b) Initial Program.--The initial training and educational
exchange program shall be established under subsection (a)
with the masonry construction industry.

[[Page S13374]]

(c) Reports.--Upon the expiration of the 2-year program
under subsection (a), the Administrator of the Occupational
Safety and Health Administration, jointly with specialty
trades that participate in programs under such subsection,
shall prepare and submit to the Committee on Health,
Education, Labor, and Pensions of the Senate and the
Committee on Education and Workforce of the House of
Representatives a report on the activities and results of the
training and educational exchange program.
(d) Definition.--In this section, the term ``qualified
safety director'' means an individual who has, at a minimum,
taken the 10-hour Occupational Safety and Health
Administration course and been employed a minimum of 5 years
as a safety director in the construction industry.
(e) Authorization of Appropriations.--There are authorized
to be appropriated, such sums as may be necessary to carry
out this section.
(f) Termination.--The programs established under subsection
(a) shall terminate on the date that is 2 years after the
date on which the first program is so established.

S. 2066

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

SECTION 1. SHORT TITLE; REFERENCES.

(a) Short Title.--This Act may be cited as the
``Occupational Safety Fairness Act''.
(b) Reference.--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
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et
seq.).

SEC. 2. WORKSITE-SPECIFIC COMPLIANCE METHODS.

Section 9 of the Act (29 U.S.C. 658) is amended by adding
at the end the following:
``(d) A citation issued under subsection (a) to an employer
who violates section 5, any standard, rule, or order
promulgated pursuant to section 6, or any regulation
promulgated under this Act shall be vacated if such employer
demonstrates that the employees of such employer were
protected by alternative methods that are substantially
equivalent or more protective of the safety and health of the
employees than the methods required by such standard, rule,
order, or regulation in the factual circumstances underlying
the citation.
``(e) Subsection (d) shall not be construed to eliminate or
modify other defenses that may exist to any citation.''.

SEC. 3. DISCRETIONARY COMPLIANCE ASSISTANCE.

Subsection (a) of section 9 of the Act (29 U.S.C. 658(a))
is amended--
(1) by striking the last sentence;
(2) by striking ``If, upon'' and inserting ``(1) If,
upon''; and
(3) by adding at the end the following:
``(2) Nothing in this Act shall be construed as prohibiting
the Secretary or the authorized representative of the
Secretary from providing technical or compliance assistance
to an employer in correcting a violation discovered during an
inspection or investigation under this Act without issuing a
citation, as prescribed in this section.
``(3) The Secretary or the authorized representative of the
Secretary--
``(A) may issue a warning in lieu of a citation with
respect to a violation that has no significant relationship
to employee safety or health; and
``(B) may issue a warning in lieu of a citation in cases in
which an employer in good faith acts promptly to abate a
violation if the violation is not a willful or repeated
violation.''.

SEC. 4. EXPANDED INSPECTION METHODS.

(a) Purpose.--It is the purpose of this section to empower
the Secretary of Labor to achieve increased employer
compliance by using, at the Secretary's discretion, more
efficient and effective means for conducting inspections.
(b) General.--Section 8(f) of the Act (29 U.S.C. 657(f) is
amended--
(1) by adding at the end the following:
``(3) The Secretary or an authorized representative of the
Secretary may, as a method of investigating an alleged
violation or danger under this subsection, attempt, if
feasible, to contact an employer by telephone, facsimile, or
other appropriate methods to determine whether--
``(A) the employer has taken corrective actions with
respect to the alleged violation or danger; or
``(B) there are reasonable grounds to believe that a hazard
exists.
``(4) The Secretary is not required to conduct an
inspection under this subsection if the Secretary believes
that a request for an inspection was made for reasons other
than the safety and health of the employees of an employer or
that the employees of an employer are not at risk.''.

SEC. 5. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

(a) Increase in Number of Members and Requirement for
Membership.--Section 12 of the Act (29 U.S.C. 661) is
amended--
(1) in the second sentence of subsection (a)--
(A) by striking ``three members'' and inserting ``five
members''; and
(B) by inserting ``legal'' before ``training'';
(2) in the first sentence of subsection (b), by striking
``except that'' and all that follows through the period and
inserting the following: ``except that the President may
extend the term of a member for no more than 365 consecutive
days to allow a continuation in service at the pleasure of
the President after the expiration of the term of that member
until a successor nominated by the President has been
confirmed to serve. Any vacancy caused by the death,
resignation, or removal of a member before the expiration of
a term for which a member was appointed shall be filled only
for the remainder of such term.''; and
(3) by striking subsection (f), and inserting the
following:
``(f) For purposes of carrying out its functions under this
Act, two members of the Commission shall constitute a quorum
and official action can be taken only on the affirmative vote
of at least a majority of the members participating but in no
case fewer than two.''.
(b) New Positions.--Of the two vacancies for membership on
the Occupational Safety and Health Review Commission created
by subsection (a)(1)(A), one shall be appointed by the
President for a term expiring on April 27, 2009, and the
other shall be appointed by the President for a term expiring
on April 27, 2011.
(c) Effective Date for Legal Training Requirement.--The
amendment made by subsection (a)(1)(B), requiring a member of
the Commission to be qualified by reason of a background in
legal training, shall apply beginning with the two vacancies
referred to in subsection (b) and all subsequent appointments
to the Commission.

SEC. 6. AWARD OF ATTORNEYS' FEES AND COSTS.

The Act (29 U.S.C. 651 et seq.) is amended by redesignating
sections 32, 33, and 34 as sections 33, 34, and 35,
respectively, and by inserting after section 31 the following
new section:

``Award of attorneys' fees and costs

``Sec. 32.
``(a) Administrative Proceedings.--An employer who--
``(1) is the prevailing party in any adversary adjudication
instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $7,000,000 at the time the adversary
adjudication was initiated,

shall be awarded fees and other expenses as a prevailing
party under section 504 of title 5, United States Code, in
accordance with the provisions of that section, but without
regard to whether the position of the Secretary was
substantially justified or special circumstances make an
award unjust. For purposes of this section the term
`adversary adjudication' has the meaning given that term in
section 504(b)(1)(C) of title 5, United States Code.
``(b) Proceedings.--An employer who--
``(1) is the prevailing party in any proceeding for
judicial review of any action instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $7,000,000 at the time the action addressed
under subsection (1) was filed,

shall be awarded fees and other expenses as a prevailing
party under section 2412(d) of title 28, United States Code,
in accordance with the provisions of that section, but
without regard to whether the position of the United States
was substantially justified or special circumstances make an
award unjust. Any appeal of a determination of fees pursuant
to subsection (a) of this subsection shall be determined
without regard to whether the position of the United States
was substantially justified or special circumstances make an
award unjust.
``(c) Applicability.--
``(1) Commission proceedings.--Subsection (a) shall apply
to proceedings commenced on or after the date of enactment of
this section.
``(2) Court proceedings.--Subsection (b) shall apply to
proceedings for judicial review commenced on or after the
date of enactment of this section.''.

SEC. 7. JUDICIAL DEFERENCE.

Section 11(a) of the Act (29 U.S.C. 660(a)) is amended in
the sixth sentence by inserting before the period the
following: ``, and the conclusions of the Commission with
respect to questions of law that are subject to agency
deference under governing court precedent shall be given
deference if reasonable''.

SEC. 8. CONTESTING CITATIONS UNDER THE OCCUPATIONAL SAFETY
AND HEALTH ACT OF 1970.

(a) In General.--Section 10 of the Act (29 U.S.C. 659) is
amended--
(1) in the second sentence of subsection (a), by inserting
after ``assessment of penalty'' the following: ``(unless such
failure results from mistake, inadvertence, surprise, or
excusable neglect)''; and
(2) in the second sentence of subsection (b), by inserting
after ``assessment of penalty'' the following: ``(unless such
failure results from mistake, inadvertence, surprise, or
excusable neglect)''.
(b) Effective Date.--The amendments made by this section
shall apply to a citation or proposed assessment of penalty
issued by the Occupational Safety and Health Administration
that is issued on or after the date of the enactment of this
Act.

SEC. 9. RIGHT TO CORRECT VIOLATIVE CONDITION.

Section 9 of the Act (29 U.S.C. 658), as amended by section
2, is amended by adding at the end the following:
``(f) The Commission may not assess a penalty under section
17(c) for a non-serious violation that is not repeated or
willful if the

[[Page S13375]]

employer corrects the violative condition and provides the
Secretary an abatement certification within 72 hours.''.

SEC. 10. WRITTEN STATEMENT TO EMPLOYER FOLLOWING INSPECTION.

Section 8 of the Act (29 U.S.C. 657) is amended by adding
at the end the following:
``(i) At the closing conference after the completion of an
inspection, the inspector shall--
``(1) inform the employer or a representative of the
employer of the right of such employer to request a written
statement described in paragraph (2); and
``(2) provide to the employer or a representative of the
employer, upon the request of such employer or
representative, with a written statement that clearly and
concisely provides the following information:
``(A) The results of the inspection, including each alleged
hazard, if any, and each citation that will be issued, if
any.
``(B) The right of the employer to contest a citation, a
penalty assessment, an amended citation, and an amended
penalty assessment.
``(C) An explanation of the procedure to follow in order to
contest a citation and a penalty assessment, including when
and where to contest a citation and the required contents of
the notice of intent to contest.
``(D) The Commission's responsibility to affirm, modify, or
vacate the citation and proposed penalty, if any.
``(E) The informal review process.
``(F) The procedures before the Occupational Safety and
Health Review Commission.
``(G) The right of the employer to seek judicial review.
``(j) No monetary penalty may be assessed with respect to
any violation not identified in the written statement
requested under subsection (i).''.

SEC. 11. TIME PERIODS FOR ISSUING CITATIONS.

Section--
(1) 9(a) of the Act (29 U.S.C. 658(a)) is amended--
(A) by striking ``upon inspection'' and inserting ``upon
the initiation of inspection'';
(B) by striking ``with reasonable promptness'' and
inserting ``within thirty working days''; and
(C) by inserting after the first sentence, the following:
``Such 30 day period may be waived by the Secretary for good
cause shown, including, but not limited to, cases involving
death, novel issues, large or complex worksites, or pursuant
to an agreement by the parties to extend such period.''; and
(2) 10(a) of the Act (29 U.S.C. 659(a)) is amended--
(B) by striking ``within a reasonable time'' and inserting
``within thirty days''; and
(C) by inserting after the first sentence, the following:
``Such 30 days period may be waived by the Secretary for good
cause shown, including, but not limited to, cases involving
death, novel issues, large or complex worksites, or pursuant
to an agreement by the parties to extend such period.''.

SEC. 12. TIME PERIODS FOR CONTESTING CITATIONS.

Section 10 of the Act (29 U.S.C. 659) is amended by
striking ``fifteen'' each place it appears and inserting
``thirty''.

SEC. 13. PENALTIES.

Section 17 of the Act (29 U.S.C. 666) is amended by
inserting the following:
``(m) The Secretary shall not use `other than serious'
citations as a basis for issuing repeat or willful
citations.''.

SEC. 14. UNANTICIPATED CONDUCT.

Section 9 of the Act (29 U.S.C. 658) is amended by adding
at the end the following:
``(d) No citation may be issued under this section for any
violation that is the result of actions by any person that
are contrary to established, communicated, and enforced work
rules that would have prevented the violation. This
subsection shall not be construed to eliminate or modify
elements of proof currently required to support a
citation.''.

SEC. 15. ADOPTION OF NON-GOVERNMENTAL STANDARDS.

The Act (29 U.S.C. 651 et seq.) is amended by adding after
section 4 the following:

``SEC. 4A. ADOPTION OF NON-GOVERNMENTAL STANDARDS.

``The Secretary shall not promulgate or enforce any
finding, guideline, standard, limit, rule, or regulation that
is subject to incorporation by reference, or modification, as
the result of a determination reached by any organization,
unless the Secretary affirmatively finds that the
determination has been made by an organization and procedure
that complies with the requirements of section 3(9). Such
finding and a summary of its basis shall be published in the
Federal Register and shall be deemed a final agency action
subject to review by a United States District Court in
accordance with section 706 of title 5, United States
Code.''.

SEC. 16. EMPLOYEE RESPONSIBILITY.

The Act (29 U.S.C. 651 et seq.) is amended by adding after
section 9 the following:

``SEC. 9A. EMPLOYEE RESPONSIBILITY.

``(a) In General.--Notwithstanding any other provision of
this Act, an employee who, with respect to employer-provided
personal protective equipment, willfully violates any
requirement of section 5 or any standard, rule, or order
promulgated pursuant to section 6, or any regulation
prescribed pursuant to this Act, may be assessed a civil
penalty, as determined by the Secretary, but not to exceed
$50 for each violation.
``(b) Citations.--If, upon inspection or investigation, the
Secretary or the authorized representative of the Secretary
believes that an employee of an employer has, with respect to
employer-provided personal protective equipment, violated any
requirement of section 5 or any standard, rule, or order
promulgated pursuant to section 6, or any regulation
prescribed pursuant to this Act, the Secretary shall within
30 days issue a citation to the employee. Each citation shall
be in writing and shall describe with particularity the
nature of the violation, including a reference to the
provision of this Act, standard, rule, regulation, or order
alleged to have been violated. No citation may be issued
under this section after the expiration of 6 months following
the occurrence of any violation.
``(c) Notification.--
``(1) In general.--The Secretary shall notify an employee--
``(A) by certified mail of a citation under subsection (b)
and the proposed penalty; and
``(B) that such employee has 30 working days within which
to notify the Secretary that the employee wishes to contest
the citation or proposed penalty.
``(2) Final order.--If an employee does not file a
notification described in paragraph (1)(B) with the Secretary
within 30 working days, the citation and proposed penalty
shall--
``(A) be deemed a final order of the Commission; and
``(B) not be subject to review by any court or agency.
``(d) Contesting of citation.--
``(1) In general.--If an employee files a notification
described in paragraph (1)(B) with the Secretary within 30
working days, the Secretary shall immediately advise the
Commission of such notification, and the Commission shall
afford the employee an opportunity for a hearing in
accordance with section 554 of title 5, United States Code.
``(2) Issuance of final order.--The Commission, after a
hearing described in paragraph (1), shall issue an order,
based on findings of fact, affirming, modifying, or vacating
the Secretary's citation or proposed penalty, or directing
other appropriate relief. Such order shall become final 30
days after issuance of the order.''.

S. 2067

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 ``HazCom Simplification and
Modernization Act of 2005''.

SEC. 2. PURPOSE.

It is the purpose of this Act to assist chemical
manufacturers and importers in preparing material safety data
sheets pursuant to the requirements of the Hazard
Communication standard published at section 1910.1200 of
title 29, Code of Federal Regulations, and the Hazard
Communication standard published at part 47 of title 30, Code
of Federal Regulations, and to improve the accuracy,
consistency, and comprehensibility of such material safety
data sheets and to establish a Commission for the purpose of
studying and making recommendations regarding the
implementation of the United Nations' Globally Harmonized
System of Classification and Labeling of Chemicals.

SEC. 3. HAZARD COMMUNICATION.

(a) In General.--
(1) Model material safety data sheets for highly hazardous
chemicals.--The Secretary of Labor shall develop model
material safety data sheets for the list of highly hazardous
chemicals contained in Appendix A to the Process Safety
Management of Highly Hazardous Chemicals standard published
at section 1910.119 of title 29, Code of Federal Regulations.
Such model material safety data sheets shall--
(A) comply with the requirements of the Hazard
Communication standard published at section 1910.100 of such
title 29 and the Hazard Communication standard published at
part 47 of title 30, Code of Federal Regulations;
(B) be presented in a consistent format that enhances the
reliability and comprehensibility of information about
chemical hazards in the workplace and protective measures;
and
(C) be made available to the public, including through
posting on the Occupational Safety and Health
Administration's website and the Mine Safety and Health
Administration's website, within 18 months after the date of
enactment of this Act.
(2) Construction.--Nothing in this subsection shall be
construed to--
(A) modify or amend the Hazard Communication standard
published at section 1910.1200 of title 29, Code of Federal
Regulations, the Process Safety Management of Highly
Hazardous Chemicals standard published at section 1910.119 of
such title 29, the Hazard Communication standard published at
part 47 of title 30, Code of Federal Regulations, or any
other provision of law; and
(B) authorize the Secretary of Labor to include in the
model material safety data sheet developed under this
subsection any suggestion or recommendation as to permissible
or appropriate workplace exposure levels for these chemicals,
except as required by the Hazard Communication standard
published at section 1910.1200 of such title 29, and the
Hazard Communication standard published at part 47 of title
30, Code of Federal Regulations.
(3) Authorization of appropriations.--There are authorized
to be appropriated to

[[Page S13376]]

the Department of Labor such sums as may be necessary to
carry out this subsection.
(b) Globally Harmonized System Commission.--
(1) Establishment.--Not later than 6 months after the date
of enactment of this Act, there shall be established a
commission, to be known as the Global Harmonization
Commission (referred to in this subsection as the
``Commission''), to consider the implementation of the United
Nations Globally Harmonized System of Classification and
Labeling of Chemicals to improve chemical hazard
communication and to make recommendations to Congress.
(2) Membership.--The Commission shall be composed of 17
members of whom--
(A) 1 shall be the Secretary of Labor (referred to in this
Act as the ``Secretary'');
(B) 1 shall be the Secretary of Transportation;
(C) 1 shall be the Secretary of Health and Human Services;
(D) 1 shall be the Administrator of the Environmental
Protection Agency;
(E) 1 shall be the Chairman of the Consumer Product Safety
Commission;
(F) 1 shall be the Chairman of the Chemical Safety and
Hazard Investigation Board (or his or her designee);
(F) 11 shall be appointed by the Secretary of Labor, of
whom--
(i) 2 shall be representatives of manufacturers of
hazardous chemicals, including a representative of small
businesses;
(ii) 2 shall be representatives of employers who are
extensive users of hazardous chemicals supplied by others,
including a representative of small businesses;
(iii) 2 shall be representatives of labor organizations;
(iv) 2 shall be individuals who are qualified in an
occupational health or safety field by an organization whose
program has been accredited by a nationally recognized
private accreditation organization or by the Secretary, who
have expertise in chemical hazard communications;
(v) 1 shall be a representative of mining industry
employers;
(vi) 1 shall be a representative of mining industry
employees; and
(vii) 1 shall be a safety and health professional with
expertise in mining.
(3) Chair and vice-chair.--The members of the Commission
shall select a chair and vice-chair from among its members.
(4) Duties.--
(A) Study and recommendations.--The Commission shall
conduct a thorough study of, and shall develop
recommendations on, the following issues relating to the
global harmonization of hazardous chemical communication:
(i) Whether the United States should adopt any or all of
the elements of the United Nation's Globally Harmonized
System of Classification and Labeling of Chemicals (referred
to in this subsection and the ``Globally Harmonized
System'').
(ii) How the Globally Harmonized System should be
implemented by the Federal agencies with relevant
jurisdiction, taking into consideration the role of the
States acting under delegated authority.
(iii) How the Globally Harmonized System compares to
existing chemical hazard communication laws and regulations,
including the Hazard Communication standard published at
section 1910.1200 of title 29, Code of Federal Regulations
and the Hazard Communication standard published at part 47 of
title 30, Code of Federal Regulations.
(iv) The impact of adopting the Globally Harmonized System
on the consistency, effectiveness, comprehensiveness, timing,
accuracy, and comprehensibility of chemical hazard
communication in the United States.
(v) The impact of adopting the Globally Harmonized System
on occupational safety and health in the United States.
(vi) The impact of adopting the Globally Harmonized System
on tort, insurance, and workers compensation laws in the
United States.
(vii) The impact of adopting the Globally Harmonized System
on the ability to bring new products to the market in the
United States.
(viii) The cost and benefits of adopting the Globally
Harmonized System to businesses, including small businesses,
in the United States.
(ix) How effective compliance assistance, training, and
outreach can be used to help chemical manufacturers,
importers, and users, particularly small businesses,
understand and comply with the Globally Harmonized System.
(B) Report.--Not later than 18 months after the date of
enactment of this Act, the Commission shall submit to the
appropriate committees of Congress a report containing a
detailed statement of the findings and conclusions of the
Commission, together with its recommendations for such
legislation as the Commission considers appropriate.
(5) Powers.--
(A) Hearings.--The Commission shall hold at least one
public hearing, and may hold additional hearings, sit and act
at such times and places, take such testimony, and receive
such evidence as the Commission considers advisable to carry
out this section. The Commission shall, to the maximum extent
possible, use existing data and research to carry out this
section.
(B) Information from federal agencies.--The Commission may
secure directly from any Federal department or agency such
information as the Commission considers necessary to carry
out this section. Upon request by the Commission, the head of
such department or agency shall promptly furnish such
information to the Commission.
(C) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(6) Personnel matters.--
(A) Compensation; travel expenses.--Each member of the
Commission shall serve without compensation but shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(B) Staff and equipment.--The Department of the Labor shall
provide all financial, administrative, and staffing
requirements for the Commission including--
(i) office space;
(ii) furnishings; and
(iii) equipment.
(7) Termination.--The Commission shall terminate on the
date that is 90 days after the date on which the Commission
submits the report required under paragraph (3)(B).
(8) Authorization of appropriations.--There are authorized
to be appropriated to the Department of Labor, such sums as
may be necessary to carry out this subsection.
(c) Hazard Communication Demonstration Projects.--
(1) In general.--Section 20(a) of the Act (29 U.S.C.
670(a)) is amended by adding at the end the following:
``(8) Subject to the availability of appropriations, the
Secretary, after consultation with others, as appropriate,
shall award grants to one or more qualified applicants in
order to carry out a demonstration project to develop,
implement, or evaluate strategies or programs to improve
chemical hazard communication in the workplace through the
use of technology, which may include electronic or Internet-
based hazard communication systems.''.
(2) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
the amendment made by paragraph (1).
______

By Ms. COLLINS (for herself, Mr. Voinovich, and Mr. Akaka):
S. 2068. A bill to preserve existing judgeships on the Superior Court
of the District of Columbia; to the Committee on Homeland Security and
Governmental Affairs.
Ms. COLLINS. Mr. President, today I am pleased to introduce
legislation that would preserve existing seats on the District of
Columbia Superior Court. I am pleased to be joined in this effort by
Senators Voinovich and Akaka.
The Superior Court is the trail court of general jurisdiction over
local matters in the District of Columbia. The associate judges on the
court are selected through a two-step review process. When a vacancy on
the court occurs, usually because of a retiring judge, the District of
Columbia Judicial Nominations Commission solicits applicants to fill
the vacancy. The commission narrows the possible number of candidates
to three and sends those three names to the President. The President
then selects one of those three candidates and sends the nominee to the
Senate for confirmation. Existing law caps the total number of judges
on the superior court at 59.
Unfortunately, two nominees currently pending in the Committee on
Homeland Security and Governmental Affairs and an additional candidate
expected to be nominated in the coming months may not be able to be
seated on the court even if they are confirmed by the Senate. The three
seats that these candidates are intended to fill were left open by
retiring judges, so they are not new seats on the court.
The cause of this unusual problem is the District of Columbia Family
Court Act, enacted during the 107th Congress. That act created three
new seats for the family court, which is a division of the superior
court, but failed to increase the overall cap on the number of judges
seated on the court. As a result, the Family Court Act effectively
eliminated three existing seats in the other divisions of the court,
including the criminal and civil divisions.

As a result of this situation, the Committee on Homeland
Security and Governmental Affairs currently has two
nominations pending for the superior court but no seats left
to fill. I also understand that there is yet another
nomination expected in the coming months. Since existing law
sets strict requirements on both the DC Judicial Nominations
Commission as well as the White House on how quickly they
must process potential candidates and make a nomination, it
is unclear whether they have legal grounds to halt their
processes.

This is a highly unusual situation for this body to have nominations
pending

[[Page S13377]]

before it for which there are no open positions. The bill I introduce
today would rectify this problem by amending the District of Columbia
Code to increase the cap on the number of associate judges on the
superior court. This is not intended to create new seats on the Court;
that was already done when the DC Family Court Act was enacted.
Instead, this would preserve existing seats on the court and remedy a
problem that is affecting not only the court but the Senate as well.
I believe that it is also important to not only remedy the immediate
problem before the Senate but also to ensure that all of the divisions
of the superior court are fully staffed. This is more than just a
procedural issue. It is also important for the citizens of the District
of Columbia to know that all of the divisions, including criminal and
civil, are operating at full capacity. Eliminating existing seats in
the criminal and civil divisions will not improve the administration of
justice in the District, but can only result an increased judicial
caseload and delays at the courthouse.
The legislation I introduce today is similar to legislation that was
favorably reported by the Committee on Governmental Affairs and
subsequently passed by the Senate by unanimous consent during the 108th
Congress. I hope that my colleagues will join me in supporting this
important legislation.
______

By Ms. SNOWE (for herself, Mr. Bingaman, Ms. Collins, Mr. Dorgan,
and Mr. Rockefeller):
S. 2071. A bill to amend title XVIII of the Social Security Act to
clarify congressional intent regarding the counting of residents in the
nonhospital setting under the medicare program; to the Committee on
Finance.
Ms. SNOWE. Mr. President, I rise today to introduce the Community and
Rural Medical Residency Preservation Act of 2005, which will serve to
ensure the continued viability of medical residency training programs
in our local communities. I am particularly pleased to introduce this
bill with several of my colleagues, Senators Bingaman, Collins, Dorgan,
and Rockefeller, who share my concerns about the need to clarify
congressional intent so that teaching hospitals will be able to offer
these essential residency training programs in the community and so
that medical residents, as well as many who live in these communities,
will be able to continue to benefit from these programs.
Many medical residency training programs have traditionally operated
in sites located outside the hospital setting for their educational
programs. These nonhospital settings are, in fact, where most of this
type of physician training occurs. The community and rural sites which
operate these programs include physician offices, nursing homes, and
community health centers--cornerstones of ambulatory training for
graduate medical education, GME, programs. These programs often rely
upon volunteer physician faculty to provide educational opportunities
in practice settings which are similar to those in which these
physicians in training will ultimately practice.
Congress clearly stated support for this concept as part of the
Balanced Budget Act of 1997, when they reformed the GME funding
formulas to allow funding for residents training in nonhospital
settings. However, recent rulemaking, agency interpretations, and
guidance issued by the Centers for Medicare and Medicaid Services, CMS,
are creating a chilling effect on these training programs. Teaching
programs across the Nation are facing audits and scrutiny as a result
of confusing and unclear CMS policies and guidance on this issue. This
has happened in my State, as well as many others, and is posing a
serious threat to our future physician workforce and to teaching
hospitals and medical schools which offer these programs.

If these agency policies are not halted and reversed, teaching
hospitals throughout the country will be forced to train all residents
in the hospital setting or potentially eliminate their residency
programs. Not only does this do a disservice to medical residents who
are able to obtain practical experience and be exposed to settings
where they may ultimately practice, but these programs provide
individuals living in medically underserved and rural areas with access
to health care which might otherwise not be available.
Training medical residents outside the hospital setting is sound
educational policy and a worthwhile public policy goal that Congress
clearly mandated in 1997. In an effort to preserve the utilization of
nonhospital training sites, I am therefore introducing legislation
today which would clarify the meaning of the term ``all, or
substantially all, of the costs for the training program,'' a phrase
which has been subject to differing, and confusing, interpretations by
CMS.
My legislation would clarify that, for teaching hospitals and
entities operating training programs outside the hospital setting, the
teaching hospital shall not be required to pay the entity operating the
nonhospital setting any amounts other than those determined by the
hospital and the entity for the hospital to be considered to have
incurred all, or substantially all, of the costs for the training
program. Medical associations, teaching hospitals, and academic
medicine all strongly support this legislation.
This language will also make clear that hospitals shall not be
required to pay an entity operating a nonhospital setting for any
actual or imputed costs of time voluntarily spent supervising interns
or residents as a condition for computing residents for purposes of
receiving either direct graduate medical education payments or indirect
medical education payments.
We have received strong support from a number of organizations who
are in the forefront of training America's future physicians and who
have confirmed the critical need for this legislation, including the
Association of American Medical Colleges, the Academic Family Medicine
Advocacy Alliance, representing the Society of Teachers of Family
Medicine, the Association of Departments of Family Medicine, the
Association of Family Medicine Residency Directors, and the North
American Primary Care Research Group, and the American Osteopathic
Association.
I ask unanimous consent that the text of the bill and the letters of
support from these organizations printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 2071

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 ``Community and Rural Medical
Residency Preservation Act of 2005''.

SEC. 2. CLARIFICATION OF CONGRESSIONAL INTENT REGARDING THE
COUNTING OF RESIDENTS IN A NONHOSPITAL SETTING.

(a) D-GME.--Section 1886(h)(4)(E) (42 U.S.C.
1395ww(h)(4)(E)) is amended by adding at the end the
following new sentences: ``For purposes of the preceding
sentence, the term `all, or substantially all, of the costs
for the training program' means the stipends and benefits
provided to the resident and other amounts, if any, as
determined by the hospital and the entity operating the
nonhospital setting. The hospital is not required to pay the
entity any amounts other than those determined by the
hospital and the entity in order for the hospital to be
considered to have incurred all, or substantially all, of the
costs for the training program in that setting.''.
(b) IME.--Section 1886(d)(5)(B)(iv) (42 U.S.C.
1395ww(d)(5)(B)(iv)) is amended by adding at the end the
following new sentences: ``For purposes of the preceding
sentence, the term `all, or substantially all, of the costs
for the training program' means the stipends and benefits
provided to the resident and other amounts, if any, as
determined by the hospital and the entity operating the
nonhospital setting. The hospital is not required to pay the
entity any amounts other than those determined by the
hospital and the entity in order for the hospital to be
considered to have incurred all, or substantially all, of the
costs for the training program in that setting.''.
(c) Effective Date.--The amendments made by this section
shall take effect on January 1, 2005.
____

American Osteopathic Association,

Department of Government Relations,

Washington, DC, November 2, 2005.
Hon. Olympia J. Snowe,
Russell Senate Office Building,
Washington, DC.
Dear Senator Snowe: As President of the American
Osteopathic Association (AOA), I write to express our strong
support for the ``Community and Rural Medical Residency
Preservation Act of 2005.'' On behalf of the

[[Page S13378]]

56,000 osteopathic physicians represented by the AOA, thank
you for your tireless efforts to protect and promote quality
graduate medical education.
A majority of osteopathic residency programs, in all
specialties, use non-hospital settings in their educational
programs. These non-hospital sites, which consist of
physician offices, nursing homes, community health centers,
and other ambulatory settings, provide resident physicians
with valuable educational experiences in settings similar to
those in which they ultimately will practice. This concept is
a cornerstone of osteopathic graduate medical education.
The training of residents in non-hospital settings is sound
educational policy and a worthwhile public policy goal that
Congress clearly mandated in 1997. It continues to enjoy
strong Congressional support. Congress endorsed this concept
as part of the Balanced Budget Act of 1997, when the graduate
medical education, GME, funding formulas were reformed to
allow funding for residents training in non-hospital settings
with volunteer faculty.
However, recent rule-making, agency interpretations, and
guidance issued by the Centers for Medicare and Medicaid
Services, CMS, create a chilling effect on residency training
programs. If CMS policy is not halted, hospitals will be
forced to train all residents in the hospital setting or
potentially eliminate programs. Teaching programs across the
nation face audits and scrutiny as a result of confusing and
unclear CMS policy on this issue.
Your legislation establishes, in statute, clear and concise
guidance on the use of ambulatory sites in teaching programs.
If enacted, it will preserve the quality education of
resident physicians originally envisioned by Congress in
1997. The AOA and our members stand ready to use all
available resources to ensure enactment of this important
legislation.
Sincerely,
Philip Shettle, D.O.,
President.
____

Association of American Medical Colleges,

Washington, DC, November 18, 2005.
Hon. Olympia Snowe,
Russell Senate Office Building,
Washington, DC.
Dear Senator Snowe: On behalf of the Association of the
American Medical Colleges, AAMC, I write to endorse the
``Community and Rural Medical Residency Preservation Act of
2005.'' The AAMC represents 125 accredited U.S. medical
schools; approximately 400 major teaching hospitals and
health systems, 94 academic and professional societies,
representing 109,000 faculty members; and the nation's 67,000
medical students and 104,000 residents.
Your bill would ensure that CMS regulations and guidance no
longer impede the ability of teaching programs to train
resident physicians in ambulatory and rural settings. As you
know, ambulatory training is a vital aspect of every
resident's training and is designed to expose residents to a
variety of rural, suburban and urban settings in which they
ultimately choose to practice such as physicians offices,
nursing homes, and community health centers. Such training is
coordinated by program directors at teaching hospitals in
conjunction with community physicians--many of whom volunteer
their time as a professional commitment to train the next
generation of physicians.
Specifically, your bill clarifies that supervising
physicians in non-hospital settings would be allowed to
volunteer their teaching time. It also ensures that any
teaching costs associated with supervising physicians who are
not volunteers would be based on negotiations between the
hospital and the nonhospital setting, rather than a
complicated formula requiring unreasonable administrative
burdens on both the teaching programs and nonhospital
training settings.
We appreciate your continued interest in this issue and
your efforts to ensure the viability of community and rural
residency training. The AAMC looks forward to continuing to
work with you and your staff to advance this important
legislation.
Sincerely,

Jordan Cohen, M.D.
____

Academic Family Medicine Advocacy Alliance,

November 11, 2005.
Hon. Olympia J. Snowe,
Russell Senate Office Building,
Washington, DC.
Dear Senator Snowe: On behalf of the undersigned academic
family medicine organizations I would like to commend you for
introducing the ``Community and Rural Medical Residency
Preservation Act of 2005'', legislation intended to solve a
longstanding problem in Medicare regulations that deals with
volunteer teachers of residents in nonhospital settings.
We have appreciated your support through the years on this
issue, and value your continued efforts to find a solution to
the problem. As you know, the Balanced Budget Act, BBA,
included a change in statute that allowed forthe counting of
training time in non-hospital settings to be included in
Medicare cost reports forboth IME and DME FTE counts. As part
of that change, the statute, stated that a hospital must
incur ``all pr substantially all'' the costs ofthe training
in that setting. In the implementing regulations CMS (then
HCFA) added the faculty costs to the already included
residents' salary and benefits, and required a written
agreement between the hospital and the non hospital site.
This change in regulation, and the interpretations of it
that CMS has used during audits have caused many hospitals to
lose the ability to count residents that train in non-
hospital settings, and required them to refund large sums of
IMEand DME money to CMS.
Congress made the change in statute. to encourage training
in rural and underserved settings. Unfortunately. CMS's,
actions have had just the opposite effect. It has had a
dampening effect on training in the non-hospital setting--
including rural rotations. It has resulted in much training
being brought back into the hospital, ironically both at a
time when accrediting bodies are requiring more training
outside the hospital, and contrary to the wishes of Congress.
As you are well aware, several of the Family Medicine
residency programs in Maine are at risk of closing due to the
financial implications of CMS's interpretations. We are also
aware of similar situations throughout the United States. For
example, if the current situation continues, we have heard
that in Iowa, four of the eight Family Medicine training
programs are at risk of closing in the next couple of years.
In Oregon, several residencies are at risk of losing many
FTE's, including Internal Medicine, Surgery, OB-Gyn, and
Emergency Medicine. In Montana, the only Family Medicine
residency program in the state is in danger of losing funding
oJ all it's outside rotations due to CMS's unreasonable
requirements related to non-hospital rotations. Across the
country, residency programs are at risk. CMS has had several
years to solve the problem. The report of the Office of
Inspector General (OIG) that was required by Congress in the
MMA has given CMS several options, and yet nothing has been
done.
We appreciate your efforts to put an end to this war of
attrition. Please count on us to support your efforts at
resolving this situation legislatively. Thank you for your
help in this area. We look forward to your moving this
legislation forward.
Sincerely,
William K. Mygdal, EdD,
President, Society of Teachers of Family Medicine.
Penny Tenzer, MD,
President, Association of Family Practice Residency
Directors.
Warren Newton, MD,
President, Association of Departments of Family Medicine.
Perry Dickinson, MD,
President, North American Primary Care Research Group.
______

By Mr. REID:
S. 2072. A bill to provide for the conveyance of certain public lands
in and around historic mining townsites in Nevada, and for other
purposes; to the Committee on Energy and Natural Resources.
Mr. REID. Mr. President, I rise today to introduce the Nevada Mining
Townsite Conveyance Act, which addresses an important public land issue
in rural Nevada. As you may know, the Federal Government controls more
than 87 percent of the land in Nevada. That is more than 61 million
acres of land. This fact makes it necessary for our State and our
communities to pursue Federal remedies for problems that in other
States can be handled in a much more expeditious manner.
The residents of Ione and Gold Point in Nevada have asked for our
help in settling longstanding trespass issues that affect these
historic mining communities. These communities have been continuously
occupied for over 100 years. Many residents live on land that their
families have ostensibly owned for several decades. These citizens have
paid their property taxes and made improvements to their properties,
rehabilitated historic structures and built new ones.
The documents by which many of these people claim possession of the
properties date back many years. In fact, some of the deeds are
historic documents themselves. Yet because many of these documents do
not satisfy modern requirements for demonstrating land title, they have
been deemed invalid. In other words, the Bureau of Land Management has
determined that some of the residents of Ione and Gold Point are
trespassing on Federal land. This unfortunate situation puts the BLM at
odds with the local residents and county governments and is hampering
efforts to improve basic community services such as fire protection,
and water supply and treatment facilities.
Nye County, Esmeralda County, and the BLM have worked together for
nearly a decade to solve this problem. All of these parties support the
legislation that we offer today as a solution to these land ownerships
conflicts, and

[[Page S13379]]

as a means of promoting responsible resource management. All of the
land included in this bill has been identified by the BLM for disposal.
This legislation represents the first of a two-part solution. Under
this bill, specified lands within the historic mining townsites of Ione
and Gold Point would be conveyed to the respective counties. Under the
provisions of a State law passed several years ago in Nevada, the
counties will then reconvey the land to these people or entities who
can demonstrate ownership or longstanding occupancy of specific land
parcels.
My bill conveys, for no consideration, approximately 760 acres in the
communities of Ione and Gold Point from the BLM to Nye and Esmeralda
Counties. As a condition of the conveyance, all historic and cultural
resources contained in the townsites shall be preserved and protected
under applicable Federal and State law. It should also be noted that
approximately 145 acres of the total land conveyed to Nye County will
stay in county hands in order to simplify management of a cemetery, a
landfill and an airstrip. These conveyances will benefit the agencies
that manage Nevada's vast Federal lands as well as the proud citizens
of our rural communities.
I sincerely hope that my colleagues will support this legislation. It
is a practical solution that deserves swift passage. We salute the
Bureau of Land Management, the counties, and the local residents for
their cooperation and hard work in crafting a reasonable solution to
this problem.
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. 2072

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 ``Nevada Mining Townsite
Conveyance Act''.

SEC. 2. DISPOSAL OF PUBLIC LANDS IN MINING TOWNSITES,
ESMERALDA AND NYE COUNTIES, NEVADA.

(a) Findings.--Congress finds the following:
(1) The Federal Government owns real property in and around
historic mining townsites in the counties of Esmeralda and
Nye in the State of Nevada.
(2) While the real property is under the jurisdiction of
the Secretary of the Interior, acting through the Bureau of
Land Management, some of the real property land has been
occupied for decades by persons who took possession by
purchase or other documented and putatively legal
transactions, but whose continued occupation of the real
property constitutes a ``trespass'' upon the title held by
the Federal Government.
(3) As a result of the confused and conflicting ownership
claims, the real property is difficult to manage under
multiple use policies and creates a continuing source of
friction and unease between the Federal Government and local
residents.
(4) All of the real property is appropriate for disposal
for the purpose of promoting administrative efficiency and
effectiveness, and the Bureau of Land Management has already
identified certain parcels of the real property for disposal.
(5) Some of the real property contains historic and
cultural values that must be protected.
(6) To promote responsible resource management of the real
property, certain parcels should be conveyed to the county in
which the property is situated in accordance with land use
management plans of the Bureau of Land Management so that the
county can, among other things, dispose of the property to
persons residing on or otherwise occupying the property.
(b) Mining Townsite Defined.--In this section, the term
``mining townsite'' means real property in the counties of
Esmeralda and Nye, Nevada, that is owned by the Federal
Government, but upon which improvements were constructed
because of a mining operation on or near the property and
based upon the belief that--
(1) the property had been or would be acquired from the
Federal Government by the entity that operated the mine; or
(2) the person who made the improvement had a valid claim
for acquiring the property from the Federal Government.
(c) Conveyance Authority.--
(1) In general.--Notwithstanding sections 202 and 203 of
the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1712, 1713), the Secretary of the Interior, acting through
the Bureau of Land Management, shall convey, without
consideration, all right, title, and interest of the United
States in and to mining townsites (including improvements
thereon) identified for conveyance on the maps entitled
``Original Mining Townsite, Ione, Nevada'' and ``Original
Mining Townsite, Gold Point, Nevada'' and dated October 17,
2005.
(2) Availability of maps.--The maps referred to in
paragraph (1) shall be on file and available for public
inspection in the appropriate offices of the Secretary of the
Interior, including the office of the Bureau of Land
Management located in the State of Nevada.
(d) Recipients.--
(1) Original recipient.--Subject to paragraph (2), the
conveyance of a mining townsite under subsection (c) shall be
made to the county in which the mining townsite is situated.
(2) Reconveyance to occupants.--In the case of a mining
townsite conveyed under subsection (c) for which a valid
interest is proven by one or more persons, under the
provisions of Nevada Revised Statutes Chapter 244, the county
that received the mining townsite under paragraph (1) shall
reconvey the property to that person or persons by
appropriate deed or other legal conveyance as provided in
that State law. The county is not required to recognize a
claim under this paragraph submitted more than 10 years after
the date of the enactment of this Act.
(e) Protection of Historic and Cultural Resources.--As a
condition on the conveyance or reconveyance of a mining
townsite under subsection (c), all historic and cultural
resources (including improvements) on the mining townsite
shall be preserved and protected in accordance with
applicable Federal and State law.
(f) Valid Existing Rights.--The conveyance of a mining
townsite under this section shall be subject to valid
existing rights, including any easement or other right-of-way
or lease in existence as of the date of the conveyance. All
valid existing rights and interests of mining claimants shall
be maintained, unless those rights or interests are deemed
abandoned and void or null and void under--
(1) section 2320 of the Revised Statutes (30 U.S.C. 21 et
seq.);
(2) the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.); or
(3) subtitle B of title X of the Omnibus Budget
Reconciliation Act of 1993 (30 U.S.C. 28(f)-(k)), including
regulations promulgated under section 3833.1 of title 43,
Code of Federal Regulations or any successor regulation.
(g) Survey.--A mining townsite to be conveyed by the United
States under this section shall be sufficiently surveyed to
legally describe the land for patent conveyance.
(h) Release.--On completion of the conveyance of a mining
townsite under subsection (c), the United States shall be
relieved from liability for, and shall be held harmless from,
any and all claims arising from the presence of improvements
and materials on the conveyed property.
(i) Authorization of Appropriations.--There is authorized
to be appropriated to the Secretary of the Interior such
amounts as may be necessary to carry out the conveyances
required by this section, including funds to cover the costs
of cadastral and mineral surveys, mineral potential reports,
hazardous materials, biological, cultural and archaeological
clearances, validity examinations and other expenses
incidental to the conveyances.
______

By Mrs. CLlNTON:
S. 2073. A bill to amend the Internal Revenue Code of 1986 to provide
a tax credit for property owners who remove lead-based paint hazards;
to the Committee on Finance.
Mrs. CLINTON. Mr. President, I rise today to discuss a serious,
persistent, and entirely preventable threat to the health and well-
being of our children.
Lead is highly toxic and continues to be a major environmental health
problem in the United States, especially for infants, children, and
pregnant women. A CDC survey conducted between 1999-2002, estimated
that 310,000 American children under 6 were at risk for exposure to
harmful lead levels in United States. Childhood lead poisoning has been
linked to impaired growth and function of vital organs and problems
with intellectual and behavioral development. A study from the New
England Journal of Medicine also found that children suffered up to a
7.4-percent decrease in IQ at lead levels that CDC considers safe. At
very high levels, lead poisoning can cause seizures, coma, and even
death.
The most common source of lead exposure for children today is lead
paint in older housing and the contaminated lead dust it generates.
Despite a ban on lead paint in 1978, there are still over 24 million
housing units in the United States that have lead paint hazards, with
about 1.2 million in New York State alone. According to 2000 census
data, New York State has over 37 percent of homes that were built prior
to 1950 and more pre-1950 housing units available for occupancy than
any other State.
Though New York State has made considerable progress in prevention
and early identification of childhood lead poisoning, more needs to be
done to minimize the risk of lead exposure in the home, by our kids.
About 5 percent of New York children screened for lead

[[Page S13380]]

poisoning at age 2 were found to have elevated levels of lead in the
blood, more than twice the national average. Minority and poor children
are disproportionately at risk, as these groups are more likely to live
in older housing with poor building maintenance, where the risk of lead
paint hazards are greater. Low-income children are eight times more
likely to develop lead poisoning than more affluent children, and
African-American and Mexican-American children are five and two times
more likely, respectively, to have toxic blood lead levels than white
children. In New York City, about 95 percent of children with elevated
blood levels were African American, Hispanic or Asian.
I am glad that the U.S. Department of Health and Human Services
considers lead poisoning to be a priority, and established a national
goal of ending childhood lead poisoning by 2010. However, Federal
programs only have resources to remove lead-based paint hazards from
less than 0.1 percent of the 24 million housing units that have these
hazards. At this pace, we will not be able to end childhood lead
poisoning by 3010, let alone 2010.
We will never stop childhood lead poisoning unless we get lead out of
the buildings in which children live, work, and play. In Brooklyn, more
than a third of the buildings in one community have a lead-based paint
hazard. Parents of children with lead poisoning are being told that
nothing can be done until their children's lead poisoning becomes
worse. How can we ask parents to watch and wait while their sons and
daughters suffer from lead poisoning before we remove the lead from
their homes?

That is why today, I am proud to introduce the Home Lead Safety Tax
Credit Act of 2005 with my colleagues, Senators DeWine, Obama, and
Smith. This legislation would provide a tax credit to aide and
encourage homeowners and landlords to engage in the safe removal of
lead-based paint hazards from their homes and rental units.
Specifically, it would change the IRS Code of 1986 to provide a tax
credit for 50 percent of the allowable costs paid by the taxpayer, up
to a maximum of $3000 and $1000 for lead abatement and interim control
measures, respectively. Interim control measures, which can include
replacement of windows, specialized maintenance, safe repainting and
renovation work practices to eliminate lead hazards, are a cost-
effective means of protecting the largest number of children in the
near term. While total elimination of lead paint in housing is the most
desirable, interim control measures typically cost three to nine times
less and can be equally effective at removing the lead hazard.
The credit is targeted to homes that contain children less than 6
years of age or a woman of childbearing age, low-income residents, and
to buildings built before 1960, as these include more than 96 percent
of all units where lead-based paint is prevalent. In Massachusetts, a
similar tax credit helped reduce the number of new cases of childhood
lead poisoning by almost two-thirds in a decade.
The Home Lead Safety Tax Credit Act of 2005 would help homeowners
make over 80,000 homes each year safe from lead, which is more than 10
times the number of homes made lead safe by current Federal programs.
It would greatly accelerate our progress in ridding our Nation of the
significant problem of childhood lead poisoning. I ask my colleagues to
join me in supporting this legislation, which will provide needed
incentives for property owners to ensure that our homes are safeguarded
against environmental hazards that detrimentally affect the health and
safety of our children.
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. 2073

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

SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

SEC. 2. HOME LEAD HAZARD REDUCTION ACTIVITY TAX CREDIT.

``SEC. 30D. HOME LEAD HAZARD REDUCTION ACTIVITY.

``(a) Allowance of Credit.--There shall be allowed as a
credit against the tax imposed by this chapter for the
taxable year an amount equal to 50 percent of the lead hazard
reduction activity cost paid or incurred by the taxpayer
during the taxable year for each eligible dwelling unit.
``(b) Limitation.--The amount of the credit allowed under
subsection (a) for any eligible dwelling unit for any taxable
year shall not exceed--
``(1) either--
``(A) $3,000 in the case of lead hazard reduction activity
cost including lead abatement measures described in clauses
(i), (ii), (iv) and (v) of subsection (c)(1)(A), or
``(B) $1,000 in the case of lead hazard reduction activity
cost including interim lead control measures described in
clauses (i), (iii), (iv), and (v) of subsection (c)(1)(A),
reduced by
``(2) the aggregate lead hazard reduction activity cost
taken into account under subsection (a) with respect to such
unit for all preceding taxable years.
``(c) Definitions and Special Rules.--For purposes of this
section:
``(1) Lead hazard reduction activity cost.--
``(A) In general.--The term `lead hazard reduction activity
cost' means, with respect to any eligible dwelling unit--
``(i) the cost for a certified risk assessor to conduct an
assessment to determine the presence of a lead-based paint
hazard,
``(ii) the cost for performing lead abatement measures by a
certified lead abatement supervisor, including the removal of
paint and dust, the permanent enclosure or encapsulation of
lead-based paint, the replacement of painted surfaces,
windows, or fixtures, or the removal or permanent covering of
soil when lead-based paint hazards are present in such paint,
dust, or soil,
``(iii) the cost for performing interim lead control
measures to reduce exposure or likely exposure to lead-based
paint hazards, including specialized cleaning, repairs,
maintenance, painting, temporary containment, ongoing
monitoring of lead-based paint hazards, and the establishment
and operation of management and resident education programs,
but only if such measures are evaluated and completed by a
certified lead abatement supervisor using accepted methods,
are conducted by a qualified contractor, and have an expected
useful life of more than 10 years,
``(iv) the cost for a certified lead abatement supervisor,
those working under the supervision of such supervisor, or a
qualified contractor to perform all preparation, cleanup,
disposal, and clearance testing activities associated with
the lead abatement measures or interim lead control measures,
and
``(v) costs incurred by or on behalf of any occupant of
such dwelling unit for any relocation which is necessary to
achieve occupant protection (as defined under section 35.1345
of title 24, Code of Federal Regulations).

[[Page S13381]]

``(B) Limitation.--The term `lead hazard reduction activity
cost' does not include any cost to the extent such cost is
funded by any grant, contract, or otherwise by another person
(or any governmental agency).
``(2) Eligible dwelling unit.--
``(A) In general.--The term `eligible dwelling unit' means,
with respect to any taxable year, any dwelling unit--
``(i) placed in service before 1960,
``(ii) located in the United States,
``(iii) in which resides, for a total period of not less
than 50 percent of the taxable year, at least 1 child who has
not attained the age of 6 years or 1 woman of child-bearing
age, and
``(iv) each of the residents of which during such taxable
year has an adjusted gross income of less than 185 percent of
the poverty line (as determined for such taxable year in
accordance with criteria established by the Director of the
Office of Management and Budget).
``(B) Dwelling unit.--The term `dwelling unit' has the
meaning given such term by section 280A(f)(1).
``(3) Lead-based paint hazard.--The term `lead-based paint
hazard' has the meaning given such term by section 745.61 of
title 40, Code of Federal Regulations.
``(4) Certified lead abatement supervisor.--The term
`certified lead abatement supervisor' means an individual
certified by the Environmental Protection Agency pursuant to
section 745.226 of title 40, Code of Federal Regulations, or
an appropriate State agency pursuant to section 745.325 of
title 40, Code of Federal Regulations.
``(5) Certified inspector.--The term `certified inspector'
means an inspector certified by the Environmental Protection
Agency pursuant to section 745.226 of title 40, Code of
Federal Regulations, or an appropriate State agency pursuant
to section 745.325 of title 40, Code of Federal Regulations.
``(6) Certified risk assessor.--The term `certified risk
assessor' means a risk assessor certified by the
Environmental Protection Agency pursuant to section 745.226
of title 40, Code of Federal Regulations, or an appropriate
State agency pursuant to section 745.325 of title 40, Code of
Federal Regulations.
``(7) Qualified contractor.--The term `qualified
contractor' means any contractor who has successfully
completed a training course on lead safe work practices which
has been approved by the Department of Housing and Urban
Development and the Environmental Protection Agency.
``(8) Documentation required for credit allowance.--No
credit shall be allowed under subsection (a) with respect to
any eligible dwelling unit for any taxable year unless--
``(A) after lead hazard reduction activity is complete, a
certified inspector or certified risk assessor provides
written documentation to the taxpayer that includes--
``(i) evidence that--

``Sec. 30D. Home lead hazard reduction activity.''.
(c) Effective Date.--The amendments made by this section
shall apply to lead hazard reduction activity costs incurred
after December 31, 2005, in taxable years ending after that
date.
______

By Mr. BINGAMAN (for himself, Mr. Baucus, Mr. Dorgan, Mrs.
Murray, Ms. Cantwell, and Mr. Johnson):
S. 2074. A bill to amend title XIX of the Social Security Act to
provide for fair treatment of services furnished to Indians under the
medicaid program, and for other purposes; to the Committee on Finance.
Mr. BINGAMAN. Mr. President, I am pleased to be introducing the
Indian Medicaid Health Act of 2005 with Senators Baucus, Dorgan,
Murray, Cantwell and Johnson.
This legislation addresses a number of technical but critically
important provisions within the Medicaid Program that devote special
attention to Native Americans, the Indian Health Service, IHS, tribal
health organizations, and urban Indian health organizations. These
provisions would:
No. 1, codify protections that American Indians and Alaska Natives
have obtained over the years in the Medicaid program, such as the
requirement that states consult with tribes and tribal health
organizations prior to seeking a federal Medicaid waiver;
No. 2, clarify that American Indians and Alaska Natives are not
subject to additional cost sharing or benefit limitations within
Medicaid that will result in nothing more than a cost-shift from the
Medicaid program to IHS or tribal health providers;
No. 3, codify critically important provisions that provide
protections against states or the federal government taking Indian
property or tribal lands in exchange for medical services delivered
through Medicaid; and,
No. 4, eliminate certain inequities such as the lack of 100 percent
federal matching payments within Medicaid for care delivered to Native
Americans at urban Indian health clinics.
American Indians and Alaska Natives continue to suffer enormous
disparities in the health and medical care they receive. It should not
come as a surprise to anyone at the Federal level that health care
funding for American Indians and Alaska Natives, AI/AN, is well below
what it should be and, consequently, Native Americans received rationed
health care services that deny them access to the quality and medically
necessary health care services.
However, year after year, budget and appropriations amendments are
offered to more fully fund health care for Native Americans but both
the administration and Congress routinely fail to provide adequate
funding. The result is a continued and growing divide between the
health of American Indians and Alaska Natives compared to that of the
general population.
The U.S. Commission on Civil Rights, USCCR, held meetings in
Albuquerque, NM, and visited the Gallup Indian Medical Center in 2003
as part of a factfinding mission to review the current disparities in
the health status and outcomes of Native Americans. What they found
served as a basis for the release of their report in September 2004
entitled Broken Promises: Evaluating the Native American Health Care
System. The opening line in that report reads, ``Today, in Indian
Country, health-related problems and the lack of adequate health care
are the enemy.''
This is in large part due to the fact that the IHS operates on just
57 percent of the budget it needs and had more than $3 billion in unmet
needs in 2003. USCCR cites estimates by the Department of Health and
Human Services, HHS, that per capita health spending for all Americans
at $4,065, while IHS spent about $1,914 per person and average spending
on Navajo patients is just $1,187.

[[Page S13382]]

The USCCR adds, ``In fact, the federal government spends nearly twice
as much money for a federal prisoner's health care than it does for an
American Indian or Alaska Native.''
Consequently and not surprisingly, this disparity in funding
translates into severe health disparities for Native Americans. For
example, life expectancy is 6 years less than the rest of the U.S.
citizens. Tuberculosis rates are four times the national average.
Complications due to diabetes are almost three times the national
average and death rates exceed the Healthy People 2010 targets by 233
percent. Infant mortality rates are 1.7 times higher than the rate for
white infants.
In recognition of these facts, the National Indian Health Board has
said, ``The travesty in looking at the deplorable health of American
Indians and Alaska Natives is recognizing that the poor health
indicators could be improved if funding was available to provide even a
basic level of care.''
The U.S. Commission on Civil Rights adds, ``In this light, this
report should be considered a clarion call to those who inexplicably
fail to acknowledge the present state of Native American health care
and to those who lack a commitment necessary to address the
overwhelming need for clear and decisive action. Such a call is
certainly appropriate for our political leadership and the message is
clear--it is finally time to honor our nation's commitment to
protecting the health of Native Americans.''
Such an agenda is actually a fairly simple one. It would include:
No. 1, full funding for the Indian Health Service and tribal health
organizations, which should include conversion of IHS into an
entitlement program;
No. 2, increased numbers and funding of urban Indian health
organizations;
No. 3, reauthorization of the Indian Health Care Improvement Act;
No. 4, coverage of as many American Indians and Alaska Natives who
qualify for federal health programs, such as Medicare and Medicaid, as
possible to ensure they are enrolled and receiving benefits in order to
augment funding to IHS facilities; and,
No. 5, targeted efforts to address health disparities in Indian
Country, such as diabetes.
For this reason, I strongly support the annual budget and
appropriations efforts, which have been led by Senator Daschle in the
past and Senator Dorgan this year, to increase funding for the Indian
Health Service. Unfortunately, those efforts continue to be voted down
in the Congress.
I also strongly support reauthorization of the Indian Health Care
Improvement Act, IHCIA, which is led by Senators McCain and Dorgan.
This effort has been ongoing for 6 years and it is long past time for
the Congress to take up and pass IHCIA. Unfortunately, due to
continued opposition to certain provisions by the administration, the
legislation continues to be bottled up in the Congress and has not even
been reintroduced in the House of Representatives.

As a member of the Senate Finance Committee, one area that I have
been able to focus on in recent years is to improve coverage for Native
Americans in both Medicare and Medicaid. I was able to pass
legislation, the Native American Breast and Cervical Cancer Treatment
Technical Amendment Act of 2001 or Public Law 107-121, to correct
problems whereby Native American women had previously been wrongly
denied coverage under Medicaid's breast and cervical cancer treatment
option. After a year of work, we were able to pass legislation to
correct that outrageous and discriminatory error.
I was also able to pass two provisions in 2003 from my bill, the
Medicare Indian Health Fairness Act of 2003, that expanded
reimbursement to IHS and tribal health providers for all Medicare Part
B services and limited the amount that providers outside the IHS system
can charge for services delivered to Native Americans through the
contract health services, CHS, program. As with anything related to
Native Americans in this Administration, the Department of Health and
Human Services, HHS, continues to fail to publish regulations necessary
to implement the latter provision, even though the law required
publishing of those regulations in December 2004.
Although most involved in Indian health feel frustrated and argue
that we are taking one step forward and two steps back with respect to
Indian health care policy, it is in the area of Medicare, Medicaid and
the State Children's Health Insurance Program, SCHIP, policy that we
have been making some progress. The legislation I am introducing today,
the Medicaid Indian Health Care Act of 2005, seeks to protect the gains
that have been made and to take another few steps forward.
For one, while IHS funding continues to fall further and further
behind what is needed, the one bright spot is that collections from
third party payers has increased over time with Medicaid playing a
fundamental role in that growth.
IHS was first authorized to seek Medicaid payment for services
delivered in Indian health facilities, whether operated by the IHS
directly or by tribes as part of the Indian Health Care Improvement Act
of 1976 or Public Law 94-437.
As Indian health experts Mim Dixon and Kris Locke said, ``This
entitlement funding was expected to provide critical resources to
improve the quality of health care for AI/AN and to reduce the health
status disparities. To support this outcome, there is an additional
provision in the IHCIA that Medicaid and Medicare revenues shall not
offset Congressional appropriations for the IHS, so that the total
amount of funding for Indian health care would increase and not merely
be shifted from one funding stream to another.''
With regard to that requirement, however, the U.S. Commission on
Civil Rights adds, ``. . . Congress included language to articulate the
express intent that increased collections not be used to justify lower
appropriations levels. Congress has failed to abide by this clear
mandate. Only enhanced collection efforts have made up for shortfalls
created by inflation and population growth, and prevented a continuous
decline from 1991 until today.''
Growth in Medicaid collections has been used to partially offset the
dramatic decline in IHS purchasing power over the years, despite the
Federal provision stating that such revenues should not reduce overall
IHS spending.
The U.S. Commission on Civil Rights noted that `` . . . collections
from third parties increased 453 percent from 1991 to 2003.'' Without
that increase, the fate of IHS and health care services for Native
Americans would even be more severe.
According to the Government Accountability Office, GAO, in its August
2005 report entitled ``Indian Health Service: Health Care Services Are
Not Always Available to Native Americans'', ``In fiscal year 2004, IHS-
funded facilities obtained approximately $628 million in
reimbursements, with 92 percent collected from Medicare and Medicaid
and 8 percent from private insurance.''
Medicaid collections, alone, have by 2004 ``grown to $446 million,
which is 71 percent of the total third party collections reported by
IHS In FY 2004, . . . Medicaid collections provided about 16.8 percent
of the IHS budget for clinical services,'' according to Dixon and
Locke.
Consequently, the administration's own congressional justification
document for its IHS budget proposes just a 2.1-percent increase, or
$62.9 million, in additional IHS funding in fiscal year 2006 while
noting that the IHS will increase their Medicare and Medicaid
collections by another $8.4 million in fiscal year 2006. The Northwest
Portland Area Indian Health Board estimates it will take $371 million
to maintain current services for IHS and tribally operated health
programs. Therefore, the administration's ridiculously low proposed
increase for IHS combined with their estimated increase in Medicare and
Medicaid collections will still fall $300 million short of providing
current services.
Whether intentional or not, as direct IHS funding continues to fail
to cover inflation or population growth year after year, Medicaid
collections are now a growing and critical component to providing basic
health care services by IHS and tribal health organizations. Yet, while
Medicaid has become critically important to the health of American
Indians and Alaska Natives, Native Americans constitute a small share
of overall Medicaid costs. As the Northwest Portland Area Indian Health
Board has found, Medicaid accounts for almost 20 percent of the IHS

[[Page S13383]]

budget but less than 0.5 percent of Medicaid expenditures go to Indian
health.
Consequently, the legislation I am introducing today with Senators
Baucus, Dorgan, Murray, Cantwell, and Johnson entitled the ``Medicaid
Indian Health Act of 2005'' is primarily an attempt to prevent the
Federal Government and States from inflicting harm on the health and
well-being of American Indians and Alaska Natives, but it also seeks to
take a few steps forward as well.
What is at stake? First, from the ``do no harm'' prescriptive, both
the National Governors' Association, NGA, and the House of
Representatives budget reconciliation legislation contemplate major
changes to the Medicaid program to achieve $10 billion or more in
proposed budget cuts to Medicaid and Medicare. Unfortunately, it is
clear that neither the NGA nor the House of Representatives considered
the tremendous impact that the cuts they are proposing will have on the
health and well-being of Native Americans across this Nation.

For example, both the NGA and the House budget reconciliation package
provide for States being able to impose additional premiums,
copayments, and other forms of cost-sharing on low-income Medicaid
beneficiaries, including Native Americans. Such changes can have
enormous consequences for AI/ANs as well as the Indian Health Service,
tribal, and urban Indian, I/T/U providers from whom many Native
Americans receive health services.
As Andy Schneider of Medicaid Policy, LLC, stated at a meeting in
August of this year on Medicaid and Indian health care, ``Regrettably,
the NGA recommendations [which have been adopted as part of the House
budget reconciliation package] could well make matters even worse for
AI/ANs and the I/T/U providers that serve them. The NGA proposal to
increase beneficiary cost-sharing could impose additional financial
burdens on IHS and tribal health budgets. The NGA proposal for more
benefits package `flexibility' could result in significant
reimbursement losses to I/T/U providers.''
How would this occur? With respect to additional cost sharing,
evidence shows that additional cost sharing either results in reduced
use of medical services, which could result in further a decline in the
health status of AI/ANs, or that the I/T/U providers will pick up the
added cost sharing burden. As Schneider points out, ``These costs
include not only the amounts of the copayments and deductibles but also
the administrative expense of processing them and tracking the
cumulative out-of-pocket payments, particularly if the services subject
to cost-sharing are delivered by a non-I/T/U provider.''
Even if you subscribe to the ideology that Medicaid beneficiaries
should pay more for their health care, as Dixon and Locke point out,
``The intended outcome of enrollee cost sharing is not achieved in the
Indian health system and actually acts to further deplete funding.''
Put simply, added copayments in Medicaid would result in the
unintended effect of shifting Medicaid costs directly upon the already
horribly underfunded IHS system. In other words, the imposition of
consumer cost-sharing provisions by Medicaid on Native American
populations would effectively reduce the level and quality of health
care services in Indian communities.
With respect to benefit flexibility as proposed by NGA and adopted in
the House budget reconciliation package, according to Schneider, ``The
effect of reducing Medicaid coverage will be to reduce Medicaid
revenues to the I/T/U providers that furnish covered services to this
population. Services for which the I/T/U could previously collect
Medicaid revenues will no longer be reimburseable because the patient
is no longer eligible for Medicaid.''
To address these concerns, the Northwest Portland Area Indian Health
Board has recommended, ``The Medicaid program could be a more effective
means of financial Indian health programs if it would exempt American
Indians and Alaska Natives from cost sharing including co-pays,
premiums and any form of cost sharing. It makes little sense to Indian
people to sign up for a health program that charges them for health
care services that their tribe gave up lands and others considerations
to secure for all generations. The practical effect is that they will
not sign up for Medicaid and the IHS funded programs will end up paying
all the costs of their health care. If this becomes the case, CMS will
save the federal government millions of dollars, but renege on rights
guaranteed by law and treaties.''
In order to address these important points, one need look no further
than the State Children's Health Insurance Program, SCHIP, rules and
regulations. As Schneider adds, ``Federal regulations prohibit states
from imposing premiums, deductibles, coinsurance, or copayments or AI/
AN children enrolled in their SCHIP programs. There is no comparable
regulatory protection for AI/AN children or adults enrolled in
Medicaid.''
Consequently, to prevent harm to the health and well-being of Native
Americans, section 3 of the Medicaid Indian Health Act of 2005 would
explicitly prohibit imposing such things as premiums or other forms of
cost sharing on Native Americans within Medicaid, just as SCHIP already
does. Section 4 adds a prohibition on the recovery of the estates of
AI/AN Medicaid beneficiaries or tribal property by States through the
Medicaid Program. Furthermore, section 8 of the legislation allows
States to include special provisions exempting Native Americans from
additional cost sharing or from benefit reductions in recognition of
the special circumstances of Native Americans in the Medicaid Program.
In light of the failure of the NGA to consider the special
circumstances of American Indians and Alaska Natives with respect to
Medicaid policy, section 5 of the legislation recognizes the Federal
trust responsibility and requires the Secretary, prior to the approval
of any State Medicaid waivers, to assure that there has been
consultation with tribes whose members or tribal health programs could
be adversely affected by the waiver. Otherwise, the current waiver
process can result in the approval of waivers that may include
reductions in Medicaid eligibility, benefits and/or reimbursement or
increases in cost sharing that can have a negative impact on Native
Americans or tribal health programs.
In short, sections 3, 4, 5, and 8 seek to adopt a policy of ``do no
harm'' by preventing changes in Medicaid policy from having negative
consequences for Native Americans. Meanwhile, sections 2, 6, and 7 in
the bill seek to make some additional progress on behalf of Native
Americans through the Medicaid Program.
Foremost among those provisions in section 2, which provides for 100
percent Federal Medicaid matching funds for services delivered to AI/AN
Medicaid beneficiaries at urban Indian health programs. Although the
Medicaid statute currently provides for 100 percent Federal Medicaid
matching funds for Medicaid services delivered to AI/ANs through IHS
facilities and a subsequent Memorandum of Agreement, MOA, in 1996
clarified those payments also apply to services provided through
tribally owned facilities, the 100 Percent Federal Medical Assistance
Percentage, FMAP, does not apply to urban Indian clinics.
In short, if an AI/AN Medicaid beneficiary received services from an
IHS or tribal facility, the Federal Government is paying 100 percent of
the cost, but if the same individual received the same services from an
urban Indian health program funded by the IHS, the Federal Government
shifts part of the costs of that care to the State in proportion to the
State's share of the FMAP. There is no justification for this cost
shift. Just as IHS and tribal facilities are part of the I/T/U delivery
system for Native Americans, so are urban Indian health programs and,
as part of the ``Federal trust responsibility,'' States should not be
required to subsidize any element of this system.

Section 6 of the legislation would simply ensure that I/T/U providers
that do not have the status of federally qualified health centers,
FQHCs, receive the same level of reimbursement from Medicaid managed
care organizations, MCOs, as they would if they were a FQHC. If
Medicaid MCOs are continued to be allowed to pay I/T/U providers less
for the same services that they pay other network providers, the I/T/U
providers will, effectively, be subsidizing the MCO or other network
providers, which is not an appropriate use of limited federal IHS
resources.

[[Page S13384]]

And finally, section 7 of the Medicaid Indian Health Act of 2005
ensures that IHS spending on behalf of a Native American does not
disqualify them for Medicaid coverage under the ``medically needy
option.'' Current policy prohibits such care from counting toward the
``spend down'' requirements for qualifying as ``medically needy'' in
Medicaid. Receiving services at an IHS facility should certainly not
disqualify anybody from Medicaid coverage and, once again, IHS should
not be subsidizing the Medicaid program.
In total, the provisions in the Medicaid Indian Health Act of 2005
might at first glance appear to be a hodge podge set of provisions
related to both Medicaid and Indian health. However, they are not. They
reflect a concerted effort on behalf of Native American people to
protect the gains that have already been made within the Medicaid
Program for American Indians and Alaska Natives and the need to make
additional strides to improve the delivery of health services
throughout to Native people, including those in urban areas, through
Medicaid.
Furthermore, this is just the first in a series of bills addressing
Indian issues within the Medicaid and Medicare Programs. The next two
will focus, respectively, on improving the Medicare Program and fixing
problems with respect to the Medicare prescription drug program for
Native Americans and Indian health providers.
As part of the Indian Health Care Improvement Act of 1976 report, the
Congress said, ``The most basic human right must be the right to enjoy
decent health. Certainly, any effort to fulfill Federal
responsibilities to the Indian people must begin with the provision of
health services. In fact, health services must be the cornerstone upon
which rest all the other Federal programs for the benefit of Indians.
Without a proper health status, the Indian people will be unable to
fully avail themselves of the many economic, educational, and social
programs already directed to them or which this Congress and future
Congresses will provide them.''
The Federal Government has a ``Federal trust responsibility'' to
Indian people that it is simple not fulfilling. This administration and
this Congress can and simply must do better. Part of that multipronged
agenda should include passage of the Medicaid Indian Health Act of
2005.
This could occur in a variety of ways. First, the provision from this
bill could be incorporated in any budget reconciliation conference
report package. Consequently, during Finance Committee consideration of
the Senate's version of the budget reconciliation package on October
25, 2005, I offered an amendment that included a number of the
provisions from this bill. Opponents of the amendment, which failed on
a 9-to-11 party-line vote with Democrats in favor and Republicans
opposing it, argued at the time that the budget reconciliation package
was not the right vehicle but that we should look to the
reauthorization bill for the Indian Health Care Improvement Act to
attach these provisions instead.
Two days later, on October 27, 2005, the Committee on Indian Affairs
took up and passed S. 1057, the Indian Health Care Improvement Act
Amendments of 2005, but did not include any of the Medicaid provisions
I have been discussing as part of this bill. They were told that
inclusion of Medicaid provisions within IHCIA was objected to by both
the administration and the Senate Finance Committee. However, in light
of the Senate Finance Committee's failure to take up the amendment
earlier this month, another possible vehicle should be the
reauthorization bill for the Indian Health Care Improvement Act when it
comes to the Senate floor.
And finally, if we fail to get these provisions included in either of
those legislative vehicles, we will push to get the Medicaid Indian
Health Act of 2005 passed as a free standing piece of legislation.
Medicaid has become such a crucial and necessary piece in maintaining
and improving the health and well-being of American Indians and Alaska
Natives that it is unacceptable that the various Senate committees
point to each other as being in charge while not taking the necessary
responsibility to get this important protections for Native Americans
passed into law.
The Federal Government and the States also point figures at each
other as to who is in charge. As Jim Crouch, executive director of the
California Rural Indian Health Board, has said, ``The joint operation
of the Medicaid program by federal and state authorities often ignores
the governmental status of Tribes and the unique needs of Tribal
citizens. It is always appropriate for the federal government to
establish special provisions that are in the best interest of Tribes
and American Indians due to the governmental status of federally
recognized tribes.''
Mr. President, it is well past time to enact legislative initiatives
such as the Medicaid Indian Health Act of 2005 and reauthorization of
IHCIA. Years of broken promises to Indian Country must come to an end.
Passage of the provisions in both the Medicaid Indian Health Act of
2005 and IHCIA reauthorization are just two of the pieces that the
Federal Government must take in order to fulfill the Federal trust
responsibility and make real progress at providing the full array of
medically necessary health services that have been long promised to
American Indians.
I ask unanimous consent that the text of the bill and a fact sheet
describing the various provisions in the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 2074

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 ``Medicaid Indian Health Act
of 2005''.

SEC. 2. APPLICATION OF 100 PERCENT FMAP FOR SERVICES
FURNISHED TO AN INDIAN BY AN URBAN INDIAN
HEALTH PROGRAM.

(a) In General.--The third sentence of section 1905(b) of
the Social Security Act (42 U.S.C. 1396d(b)), is amended by
inserting before the period at the end the following: ``, or
through an urban Indian health program receiving funds under
title V of the Indian Health Care Improvement Act''.
(b) Conforming Amendment.--Section 1911(c) of such Act (42
U.S.C. 1396j(c)), is amended by inserting ``, or through an
urban Indian health program receiving funds under title V of
the Indian Health Care Improvement Act'' after
``facilities''.

SEC. 3. PROHIBITION ON IMPOSITION OF PREMIUMS, DEDUCTIBLES,
COPAYMENTS, AND OTHER COST-SHARING ON INDIANS.

Section 1916 of the Social Security Act (42 U.S.C. 1396o)
is amended--
(1) in subsection (a)(3), by inserting ``(other than such
individuals who are Indians (as defined in section 4 of the
Indian Health Care Improvement Act)'' after ``other such
individuals'';
(2) in subsection (b), in the matter preceding paragraph
(1), by inserting ``or who are Indians (as defined in section
4 of the Indian Health Care Improvement Act)'' after
``section 1902(a)(10)''; and
(3) in subsection (c)(1), by inserting ``(other than such
an individual who is an Indian (as defined in section 4 of
the Indian Health Care Improvement Act))'' after ``section
1902(l)(1)''.

SEC. 4. PROHIBITION ON RECOVERY AGAINST ESTATES OF INDIANS.

Section 1917(b)(1) of the Social Security Act (42 U.S.C.
1396p(b)(1)) is amended, in the matter preceding subparagraph
(A), by inserting `` who is not an Indian (as defined in
section 4 of the Indian Health Care Improvement Act)'' after
``an individual'' the second place it appears.

SEC. 5. REQUIREMENT FOR CONSULTATION WITH INDIAN TRIBES PRIOR
TO APPROVAL OF SECTION 1115 WAIVERS.

Section 1115 of the Social Security Act (42 U.S.C. 1315) is
amended by adding at the end the following:
``(g) In the case of an application for a waiver of
compliance with the requirements of section 1902 (or a
renewal or extension of such a waiver) that is likely to
affect members of an Indian tribe (as defined in section 4 of
the Indian Health Care Improvement Act) or a tribal health
program (whether operated by an Indian tribe or a tribal
organization (as so defined) serving such members, the
Secretary shall, prior to granting such a waiver under
subsection (a) or renewing or extending such a waiver under
subsection (e), consult with each such Indian tribe.''.

SEC. 6. REQUIREMENT FOR FAIR PAYMENT BY MEDICAID MANAGED CARE
ENTITIES TO INDIAN HEALTH PROGRAM PROVIDERS.

Section 1903(m)(2)(A)(ii) of the Social Security Act (42
U.S.C. 1396b(m)(2)(A)(ii)) is amended to read as follows:
``(ii) such contract provides, in the case of entity that
has entered into a contract for the provision of services
with a facility or program of the Indian Health Service,
whether operated by the Service or an Indian tribe or tribal
organization (as defined in

[[Page S13385]]

section 4 of the Indian Health Care Improvement Act) or an
urban Indian health program receiving funds under title V of
the Indian Health Care Improvement Act , that is not a
Federally-qualified health center or a rural health clinic,
that the entity shall provide payment that is not less than
the highest level and amount of payment that the entity would
make for the services if the services were furnished by a
provider that is not a facility or program of the Indian
Health Service;''.

SEC. 7. TREATMENT OF MEDICAL EXPENSES PAID BY OR ON BEHALF OF
AN INDIAN BY AN INDIAN HEALTH PROGRAM AS COSTS
INCURRED FOR MEDICAL CARE FOR PURPOSES OF
DETERMINING MEDICALLY NEEDY ELIGIBILITY.

Section 1902(a)(17)(D) of the Social Security Act (42
U.S.C. 1396a(a)(17)(D)) is amended by inserting ``or by the
Indian Health Service or an Indian tribe or tribal
organization (as defined in section 4 of the Indian Health
Care Improvement Act)'' after ``political subdivision
thereof''.

SEC. 8. STATE OPTION TO EXEMPT INDIANS FROM REDUCTIONS IN
ELIGIBILITY OR BENEFITS.

Section 1902 of the Social Security Act (42 U.S.C. 1396a))
is amended by inserting after subsection (j) the following:
``(k) The Secretary shall not disapprove a State plan
amendment, or deny a State request for a waiver under section
1115 (or a renewal or extension of such a waiver), on the
grounds that the amendment or waiver would exempt Indians (as
defined in section 4 of the Indian Health Care Improvement
Act) eligible for medical assistance from--
``(1) any restriction on eligibility for medical assistance
under this title that would otherwise apply under the
amendment or waiver;
``(2) any imposition of premiums, deductibles, copayments,
or other cost-sharing that would otherwise apply under the
amendment or waiver; or
``(3) any reduction in covered services or supplies that
would otherwise apply under the amendment or waiver.''.

SEC. 9. EFFECTIVE DATE.

(a) In General.--Except as provided in subsection (b), this
Act and the amendments made by this Act apply to items or
services furnished on or after January 1, 2006.
(b) Extension of Effective Date for State Law Amendment.--
In the case of a State plan under title XIX of the Social
Security Act which the Secretary of Health and Human Services
determines requires State legislation in order for the plan
to meet the additional requirements imposed by the amendments
made by a provision of this Act, the State plan shall not be
regarded as failing to comply with the requirements of this
Act solely on the basis of its failure to meet these
additional requirements before the first day of the first
calendar quarter beginning after the close of the first
regular session of the State legislature that begins after
the date of enactment of this Act. For purposes of the
previous sentence, in the case of a State that has a 2-year
legislative session, each year of the session shall be
considered to be a separate regular session of the State
legislature.
____

Fact Sheet--``Medicaid Indian Health Act of 2005''

Senators Bingaman, Baucus, Dorgan, Murray, Cantwell, and
Johnson are introducing legislation entitled the ``Medicaid
Indian Health Act of 2005'' that would make technical but
important changes to the Medicaid program to address the
unique issues confronting Native Americans and Indian Health
Service (IHS) providers within that program.
The provisions within this legislation are as follows:

Sec. 2. 100% FMAP for Services to AI/AN Medicaid Patients of Urban
Indian Health Programs

Current Law
The cost of covered services to AI/AN Medicaid
beneficiaries is matched by the federal government at a 100%
rate if the services are received through an IHS facility,
whether operated by the IHS or a tribe or tribal
organization. However, the federal government matches the
cost of covered services furnished to AI/AN Medicaid
beneficiaries by urban Indian health programs funded by the
IHS only at a state's regular federal matching rate, which
varies from 50% to 77%. Thus, states must pay a share of the
cost of Medicaid services furnished to AI/AN beneficiaries by
urban Indian health programs.
Proposed Change
Extend the 100% federal matching rate to services received
through an urban Indian health program receiving funds under
Title V of the Indian Health Care Improvement Act.
Justification
Under current policy, if an AI/AN Medicaid beneficiary
receives covered services from an IHS or tribal hospital or
clinic, the federal government pays 100% of the cost, but if
the same individual receives covered services from an urban
Indian health program funded by the IHS, the federal
government shifts part of the costs to the state in
proportion to the state's share of Medicaid spending
generally. There is no principled justification for this cost
shift. Just as IHS and tribal facilities receive IHS funds,
so do urban Indian health programs. The urban Indian health
programs are part of the same ``I/T/U'' delivery system as
are IHS and tribal facilities. States should not be required
to subsidize any element of this system.

Sec. 3. Prohibiting Imposition of Medicaid Premiums on AI/AN Medicaid
Beneficiaries

Current Law
State Medicaid programs are allowed to impose premiums only
on certain categories of Medicaid beneficiaries--principally
those who qualify as ``medically needy'' by incurring
high medical expenses that, when applied against their
income, enable them to ``spend down'' into eligibility.
Any premiums imposed on this group must be income-related,
as specified in federal regulations. In contrast, State
SCHIP programs are prohibited by regulation from imposing
premiums on AI/AN beneficiaries.
Proposed Change
Prohibit states from imposing any premiums, enrollment
fees, or similar charges in any amount on AI/AN
beneficiaries, regardless of the basis of eligibility for
Medicaid.
Justification
The Federal government, through the IHS, has the
responsibility for providing health care free of charge to
AI/ANs eligible for its services. Thus, if a state imposes a
premium requirement as a condition of Medicaid enrollment, in
the case of an AI/AN the premium must be paid by the IHS or
the contracting tribe from the limited federal funds
allocated to it. The effect is to reduce the appropriated
funds available to the IHS or tribal facility for serving
patients who are eligible for IHS services but are not
eligible for Medicaid. In this respect, Medicaid policy
should be conformed to SCHIP policy.

Sec. 3. Prohibiting Imposition of Medicaid Copayments or Other Cost-
Sharing on AI/AN Medicaid Beneficiaries

Current Law
States Medicaid programs may impose deductibles,
copayments, or co-insurance requirements on certain services
with respect to certain populations. Any cost-sharing imposed
must be ``nominal'' in amount, as defined in federal
regulations. States are prohibited from imposing any cost-
sharing, nominal or otherwise, on certain services (e.g.,
emergency services and family planning services and supplies)
and certain populations (e.g., children under 18). In
contrast, State SCHIP programs are prohibited by regulation
from imposing deductibles, copayments, or co-insurance
requirements on AI/AN beneficiaries.
Proposed Change
Prohibit states from imposing deductibles, copayments, or
co-insurance requirements in any amount on AI/AN Medicaid
beneficiaries.
Justification
The Federal government, through the IHS, has the
responsibility for providing health care free of charge to
AI/ANs eligible for its services. Thus, if a state imposes
deductibles, copayments, or co-insurance requirements, in the
case of an AI/AN beneficiary cost-sharing amount must be paid
by the IHS or the contracting tribe from the limited federal
funds allocated to it. The effect is to reduce the
appropriated funds available to the IHS or tribal facility
for serving patients who are eligible for IHS services but
are not eligible for Medicaid. In this respect, Medicaid
policy should be conformed to SCHIP policy.

Sec. 4. Prohibiting Recovery Against the Estates of AI/AN Medicaid
Beneficiaries

Current Law
States are required to recover from the estates of deceased
Medicaid beneficiaries the costs of long-term care services
(nursing facility services, home and community-based
services, and related hospital services and prescription
drugs) paid for by Medicaid when the individual was age 55 or
over. The state may not recover against an individual's
estate until the death of any surviving spouse and so long as
there is not a child under 21 or an adult child who is blind
or disabled. Under federal administrative guidance, certain
AI/AN property is exempt from estate recovery.
Proposed Change
Exempt the property/estates of deceased AI/AN beneficiaries
from recovery for costs correctly paid by Medicaid.
Justification
The Federal government, through the IHS, has the
responsibility for providing health care to AI/ANs eligible
for its services. Because the IHS, due to funding
limitations, generally does not have the capacity to furnish
long-term care services, low-income AI/ANs who are eligible
for IHS services must turn to Medicaid for coverage for this
care. To recover Medicaid costs correctly paid from the
estates of these individuals violates the Federal
government's responsibility to them. Tribal lands and
property should not be threatened by federal or state
governments.

Sec. 5. Requiring Tribal Consultation Prior to Approval of Section 1115
Waivers

Current Law
Under section 1115 of the Social Security Act, the
Secretary of HHS has the authority to waive certain
requirements of federal Medicaid law to enable states to
conduct demonstrations that, in his judgment, ``is likely to
assist in promoting the objectives of'' the Medicaid program.
Section 1115 contains no requirement that the Secretary
consult with Indian tribes prior to approval of Medicaid
demonstration waivers that may adversely affect their members
or their tribal health programs. The January 2005 HHS

[[Page S13386]]

tribal consultation policy does not specify that consultation
is required in these specific circumstances, although the
previous July 2001 guidance had.
Proposed Change
Require the Secretary, prior to approval of any new section
1115 waiver or renewal of any existing section 1115 waiver to
consult with tribes whose members or tribal health programs
could be affected by the waiver.
Justification
Section 1115 waivers are commonly negotiated by the
Secretary (acting through CMS) and the Governor of the state
seeking the waiver (through his Medicaid or Budget director).
Affected Indian tribes have no formal role in these
negotiations, even when those negotiations result in
reductions in Medicaid eligibility, benefits, and/or
reimbursement or increases in premiums and cost-sharing that
have an adverse impact on tribal members or tribal health
programs.

sec. 6. require fair payment by medicaid mcos to i/t/u providers

Current Law
Managed care organizations (MCOs) contracting with Medicaid
on a risk basis are required to pay health care providers,
whether in- or out-of-network, on a timely basis for covered
services furnished to Medicaid beneficiaries. Although there
are generally no minimum payment requirements, in the case of
federally qualified health centers (FQHCs) and rural health
clinics (RHCs), MCOs are required to pay the same amount for
a covered service as they would if the provider were not an
FQHC or RHC. In addition, the State Medicaid agency is
required to pay the difference, if any, between: (1) the
MCO's payment to the FQHC or RHC; and, (2) the prospective
payment amount to which the FQHC or RHC is entitled under
Medicaid law. There is no similar protection for I/T/U
providers that are not FQHCs or RHCs.
Proposed Change
Require that MCOs to pay I/T/U providers that are not FQHCs
or RHCs the same amount that the MCO would pay for the same
service to a non-I/T/U provider.
Justification
Current law protects I/T/U providers that are FQHCs or
Rural Health Clinics against underpayment by Medicaid MCOs.
This provision extends some of these protections to other I/
T/U providers. If Medicaid MCOs are allowed to pay I/T/U
providers less for the same services than they pay other
network providers, the I/T/U providers will, in effect, be
subsidizing the MCO or other network providers. This is not
an appropriate use of limited federal IHS resources.

Sec. 7. Treatment of IHS or Tribal Payments as Incurred Medical
Expenses

Current Law
States have the option of extending Medicaid coverage to
individuals who are ``medically needy''--that is, individuals
who ``spend-down'' by incurring high medical expenses that,
when subtracted from their incomes, reduce their incomes to
below the state eligibility threshold. If the IHS or a Tribe
pays the health care costs of an AI/AN, that individual is
not considered to have ``incurred'' the cost for purposes of
meeting the ``spend-down'' requirements for qualifying as
``medically needy.''
Proposal
Allow medical expenses paid by the IHS or a Tribe or tribal
organization on behalf of an AI/AN to count as costs
``incurred'' for medical care for purposes of establishing
eligibility for Medicaid in states with ``medically needy''
programs.
Justification
Current policy has the effect of disqualifying AI/ANs from
Medicaid eligibility as ``medically needy'' individuals.
This, in turn, results in IHS, Tribes, and tribal
organizations paying for services that Medicaid would
otherwise cover once these individuals established
``medically needy'' eligibility. Subsidizing Medicaid is not
an appropriate use of limited IHS and Tribal resources.

sec. 8. option for states to exempt indians from reductions in
eligibility or benefits

Current Law
CMS policy has been to acknowledge the federal government's
unique responsibilities under the trust obligation and to
take into account special circumstances of American Indians
and Alaska Natives in Medicaid and SCHIP programs. As such,
states have historically been allowed to include special
provisions with respect to Tribes and Indian people in their
Medicaid and SCHIP programs. However, in 2004, CMS informed
Oregon and Washington that it would not approve waiver
amendments containing special provisions for Indian
participation in the Medicaid program.
Proposed Change
Secretary shall not disapprove a state Plan amendment, or
deny a state request for a waiver under section 1115, on the
grounds that the amendment or waiver would exempt eligible
Indians (as defined in section 4 of the Indian Health Care
Improvement Act) from:
(1) any restriction on eligibility for medical assistance
under this Title that would otherwise apply under the
amendment or waiver;
(2) any imposition of premiums, deductibles, copayments or
other cost-sharing that would otherwise apply under the
amendment or waiver; or
(3) any reduction in covered services or supplies that
would otherwise apply under the amendment or waiver.''
Justification
The federal government should continue to acknowledge the
federal government's unique responsibilities under the trust
obligation and to take into account and allow states to take
into account the special circumstances of American Indians
and Alaska Natives in Medicaid and SCHIP programs.
______

By Mr. DURBIN (for himself, Mr. Hagel, Mr. Lugar, Mr. Kennedy,
Mr. McCain, Mr. Leahy, Mr. Coleman, Mr. Lieberman, Mr. Craig,
Mr. Feingold, Mr. DeWine, Mr. Obama, and Mr. Crapo):
S. 2075. A bill to amend the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 to permit States to determine State
residency for higher education purposes and to authorize the
cancellation of removal and adjustment of status of certain alien
students who are long-term United States residents and who entered the
United States as children, and for other purposes; to the Committee on
the Judiciary.
Mr. DURBIN. 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. 2075

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 ``Development, Relief, and
Education for Alien Minors Act of 2005'' or the ``DREAM Act
of 2005''.

SEC. 2. DEFINITIONS.

In this Act:
(1) Institution of higher education.--The term
``institution of higher education'' has the meaning given
that term in section 101 of the Higher Education Act of 1965
(20 U.S.C. 1001).
(2) Uniformed services.--The term ``uniformed services''
has the meaning given that term in section 101(a) of title
10, United States Code.

SEC. 3. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY
FOR PURPOSES OF HIGHER EDUCATION BENEFITS.

(a) In General.--Section 505 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.
1623) is repealed.
(b) Effective Date.--The repeal under subsection (a) shall
take effect as if included in the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996.

SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF
CERTAIN LONG-TERM RESIDENTS WHO ENTERED THE
UNITED STATES AS CHILDREN.

(a) Special Rule for Certain Long-Term Residents Who
Entered the United States as Children.--
(1) In general.--Notwithstanding any other provision of law
and except as otherwise provided in this Act, the Secretary
of Homeland Security may cancel removal of, and adjust to the
status of an alien lawfully admitted for permanent residence,
subject to the conditional basis described in section 5, an
alien who is inadmissible or deportable from the United
States, if the alien demonstrates that--
(A) the alien has been physically present in the United
States for a continuous period of not less than 5 years
immediately preceding the date of enactment of this Act, and
had not yet reached the age of 16 years at the time of
initial entry;
(B) the alien has been a person of good moral character
since the time of application;
(C) the alien--
(i) is not inadmissible under paragraph (2), (3), (6)(B),
(6)(C), (6)(E), (6)(F), or (6)(G) of section 212(a) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)), or, if
inadmissible solely under subparagraph (C) or (F) of
paragraph (6) of such subsection, the alien was under the age
of 16 years at the time the violation was committed; and
(ii) is not deportable under paragraph (1)(E), (1)(G), (2),
(3)(B), (3)(C), (3)(D), (4), or (6) of section 237(a) of the
Immigration and Nationality Act (8 U.S.C. 1227(a)), or, if
deportable solely under subparagraphs (C) or (D) of paragraph
(3) of such subsection, the alien was under the age of 16
years at the time the violation was committed;
(D) the alien, at the time of application, has been
admitted to an institution of higher education in the United
States, or has earned a high school diploma or obtained a
general education development certificate in the United
States; and
(E) the alien has never been under a final administrative
or judicial order of exclusion, deportation, or removal,
unless the alien has remained in the United States under
color of law or received the order before attaining the age
of 16 years.
(2) Waiver.--The Secretary of Homeland Security may waive
the grounds of ineligibility under section 212(a)(6) of the
Immigration and Nationality Act and the grounds of
deportability under paragraphs (1), (3), and (6) of section
237(a) of that Act for humanitarian purposes or family unity
or when it is otherwise in the public interest.
(3) Procedures.--The Secretary of Homeland Security shall
provide a procedure by

[[Page S13387]]

regulation allowing eligible individuals to apply
affirmatively for the relief available under this subsection
without being placed in removal proceedings.
(b) Termination of Continuous Period.--For purposes of this
section, any period of continuous residence or continuous
physical presence in the United States of an alien who
applies for cancellation of removal under this section shall
not terminate when the alien is served a notice to appear
under section 239(a) of the Immigration and Nationality Act
(8 U.S.C. 1229(a)).
(c) Treatment of Certain Breaks in Presence.--
(1) In general.--An alien shall be considered to have
failed to maintain continuous physical presence in the United
States under subsection (a) if the alien has departed from
the United States for any period in excess of 90 days or for
any periods in the aggregate exceeding 180 days.
(2) Extensions for exceptional circumstances.--The
Secretary of Homeland Security may extend the time periods
described in paragraph (1) if the alien demonstrates that the
failure to timely return to the United States was due to
exceptional circumstances. The exceptional circumstances
determined sufficient to justify an extension should be no
less compelling than serious illness of the alien, or death
or serious illness of a parent, grandparent, sibling, or
child.
(d) Exemption From Numerical Limitations.--Nothing in this
section may be construed to apply a numerical limitation on
the number of aliens who may be eligible for cancellation of
removal or adjustment of status under this section.
(e) Regulations.--
(1) Proposed regulations.--Not later than 180 days after
the date of enactment of this Act, the Secretary of Homeland
Security shall publish proposed regulations implementing this
section. Such regulations shall be effective immediately on
an interim basis, but are subject to change and revision
after public notice and opportunity for a period for public
comment.
(2) Interim, final regulations.--Within a reasonable time
after publication of the interim regulations in accordance
with paragraph (1), the Secretary of Homeland Security shall
publish final regulations implementing this section.
(f) Removal of Alien.--The Secretary of Homeland Security
may not remove any alien who has a pending application for
conditional status under this Act.

SEC. 5. CONDITIONAL PERMANENT RESIDENT STATUS.

(a) In General.--
(1) Conditional basis for status.--Notwithstanding any
other provision of law, and except as provided in section 6,
an alien whose status has been adjusted under section 4 to
that of an alien lawfully admitted for permanent residence
shall be considered to have obtained such status on a
conditional basis subject to the provisions of this section.
Such conditional permanent resident status shall be valid for
a period of 6 years, subject to termination under subsection
(b).
(2) Notice of requirements.--
(A) At time of obtaining permanent residence.--At the time
an alien obtains permanent resident status on a conditional
basis under paragraph (1), the Secretary of Homeland Security
shall provide for notice to the alien regarding the
provisions of this section and the requirements of subsection
(c) to have the conditional basis of such status removed.
(B) Effect of failure to provide notice.--The failure of
the Secretary of Homeland Security to provide a notice under
this paragraph--
(i) shall not affect the enforcement of the provisions of
this Act with respect to the alien; and
(ii) shall not give rise to any private right of action by
the alien.
(b) Termination of Status.--
(1) In general.--The Secretary of Homeland Security shall
terminate the conditional permanent resident status of any
alien who obtained such status under this Act, if the
Secretary determines that the alien--
(A) ceases to meet the requirements of subparagraph (B) or
(C) of section 4(a)(1);
(B) has become a public charge; or
(C) has received a dishonorable or other than honorable
discharge from the uniformed services.
(2) Return to previous immigration status.--Any alien whose
conditional permanent resident status is terminated under
paragraph (1) shall return to the immigration status the
alien had immediately prior to receiving conditional
permanent resident status under this Act.
(c) Requirements of Timely Petition for Removal of
Condition.--
(1) In general.--In order for the conditional basis of
permanent resident status obtained by an alien under
subsection (a) to be removed, the alien must file with the
Secretary of Homeland Security, in accordance with paragraph
(3), a petition which requests the removal of such
conditional basis and which provides, under penalty of
perjury, the facts and information so that the Secretary may
make the determination described in paragraph (2)(A).
(2) Adjudication of petition to remove condition.--
(A) In general.--If a petition is filed in accordance with
paragraph (1) for an alien, the Secretary of Homeland
Security shall make a determination as to whether the alien
meets the requirements set out in subparagraphs (A) through
(E) of subsection (d)(1).
(B) Removal of conditional basis if favorable
determination.--If the Secretary determines that the alien
meets such requirements, the Secretary shall notify the alien
of such determination and immediately remove the conditional
basis of the status of the alien.
(C) Termination if adverse determination.--If the Secretary
determines that the alien does not meet such requirements,
the Secretary shall notify the alien of such determination
and terminate the conditional permanent resident status of
the alien as of the date of the determination.
(3) Time to file petition.--An alien may petition to remove
the conditional basis to lawful resident status during the
period beginning 180 days before and ending 2 years after
either the date that is 6 years after the date of the
granting of conditional permanent resident status or any
other expiration date of the conditional permanent resident
status as extended by the Secretary of Homeland Security in
accordance with this Act. The alien shall be deemed in
conditional permanent resident status in the United States
during the period in which the petition is pending.
(d) Details of Petition.--
(1) Contents of petition.--Each petition for an alien under
subsection (c)(1) shall contain information to permit the
Secretary of Homeland Security to determine whether each of
the following requirements is met:
(A) The alien has demonstrated good moral character during
the entire period the alien has been a conditional permanent
resident.
(B) The alien is in compliance with section 4(a)(1)(C).
(C) The alien has not abandoned the alien's residence in
the United States. The Secretary shall presume that the alien
has abandoned such residence if the alien is absent from the
United States for more than 365 days, in the aggregate,
during the period of conditional residence, unless the alien
demonstrates that alien has not abandoned the alien's
residence. An alien who is absent from the United States due
to active service in the uniformed services has not abandoned
the alien's residence in the United States during the period
of such service.
(D) The alien has completed at least 1 of the following:
(i) The alien has acquired a degree from an institution of
higher education in the United States or has completed at
least 2 years, in good standing, in a program for a
bachelor's degree or higher degree in the United States.
(ii) The alien has served in the uniformed services for at
least 2 years and, if discharged, has received an honorable
discharge.
(E) The alien has provided a list of all of the secondary
educational institutions that the alien attended in the
United States.
(2) Hardship exception.--
(A) In general.--The Secretary of Homeland Security may, in
the Secretary's discretion, remove the conditional status of
an alien if the alien--
(i) satisfies the requirements of subparagraphs (A), (B),
and (C) of paragraph (1);
(ii) demonstrates compelling circumstances for the
inability to complete the requirements described in paragraph
(1)(D); and
(iii) demonstrates that the alien's removal from the United
States would result in exceptional and extremely unusual
hardship to the alien or the alien's spouse, parent, or child
who is a citizen or a lawful permanent resident of the United
States.
(B) Extension.--Upon a showing of good cause, the Secretary
of Homeland Security may extend the period of the conditional
resident status for the purpose of completing the
requirements described in paragraph (1)(D).
(e) Treatment of Period for Purposes of Naturalization.--
For purposes of title III of the Immigration and Nationality
Act (8 U.S.C. 1401 et seq.), in the case of an alien who is
in the United States as a lawful permanent resident on a
conditional basis under this section, the alien shall be
considered to have been admitted as an alien lawfully
admitted for permanent residence and to be in the United
States as an alien lawfully admitted to the United States for
permanent residence. However, the conditional basis must be
removed before the alien may apply for naturalization.

SEC. 6. RETROACTIVE BENEFITS UNDER THIS ACT.

If, on the date of enactment of this Act, an alien has
satisfied all the requirements of subparagraphs (A) through
(E) of section 4(a)(1) and section 5(d)(1)(D), the Secretary
of Homeland Security may adjust the status of the alien to
that of a conditional resident in accordance with section 4.
The alien may petition for removal of such condition at the
end of the conditional residence period in accordance with
section 5(c) if the alien has met the requirements of
subparagraphs (A), (B), and (C) of section 5(d)(1) during the
entire period of conditional residence.

SEC. 7. EXCLUSIVE JURISDICTION.

(a) In General.--The Secretary of Homeland Security shall
have exclusive jurisdiction to determine eligibility for
relief under this Act, except where the alien has been placed
into deportation, exclusion, or removal proceedings either
prior to or after filing an application for relief under this
Act, in which case the Attorney General shall have exclusive
jurisdiction and shall assume all the powers and duties of
the Secretary

[[Page S13388]]

until proceedings are terminated, or if a final order of
deportation, exclusion, or removal is entered the Secretary
shall resume all powers and duties delegated to the Secretary
under this Act.
(b) Stay of Removal of Certain Aliens Enrolled in Primary
or Secondary School.--The Attorney General shall stay the
removal proceedings of any alien who--
(1) meets all the requirements of subparagraphs (A), (B),
(C), and (E) of section 4(a)(1);
(2) is at least 12 years of age; and
(3) is enrolled full time in a primary or secondary school.
(c) Employment.--An alien whose removal is stayed pursuant
to subsection (b) may be engaged in employment in the United
States, consistent with the Fair Labor Standards Act (29
U.S.C. 201 et seq.), and State and local laws governing
minimum age for employment.
(d) Lift of Stay.--The Attorney General shall lift the stay
granted pursuant to subsection (b) if the alien--
(1) is no longer enrolled in a primary or secondary school;
or
(2) ceases to meet the requirements of subsection (b)(1).

SEC. 8. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.

Whoever files an application for relief under this Act and
willfully and knowingly falsifies, misrepresents, or conceals
a material fact or makes any false or fraudulent statement or
representation, or makes or uses any false writing or
document knowing the same to contain any false or fraudulent
statement or entry, shall be fined in accordance with title
18, United States Code, or imprisoned not more than 5 years,
or both.

SEC. 9. CONFIDENTIALITY OF INFORMATION.

(a) Prohibition.--No officer or employee of the United
States may--
(1) use the information furnished by the applicant pursuant
to an application filed under this Act to initiate removal
proceedings against any persons identified in the
application;
(2) make any publication whereby the information furnished
by any particular individual pursuant to an application under
this Act can be identified; or
(3) permit anyone other than an officer or employee of the
United States Government or, in the case of applications
filed under this Act with a designated entity, that
designated entity, to examine applications filed under this
Act.
(b) Required Disclosure.--The Attorney General or the
Secretary of Homeland Security shall provide the information
furnished under this section, and any other information
derived from such furnished information, to--
(1) a duly recognized law enforcement entity in connection
with an investigation or prosecution of an offense described
in paragraph (2) or (3) of section 212(a) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)), when such information
is requested in writing by such entity; or
(2) an official coroner for purposes of affirmatively
identifying a deceased individual (whether or not such
individual is deceased as a result of a crime).
(c) Penalty.--Whoever knowingly uses, publishes, or permits
information to be examined in violation of this section shall
be fined not more than $10,000.

SEC. 10. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON
FEES.

Regulations promulgated under this Act shall provide that
applications under this Act will be considered on an
expedited basis and without a requirement for the payment by
the applicant of any additional fee for such expedited
processing.

SEC. 11. HIGHER EDUCATION ASSISTANCE.

Notwithstanding any provision of the Higher Education Act
of 1965 (20 U.S.C. 1001 et seq.), with respect to assistance
provided under title IV of the Higher Education Act of 1965
(20 U.S.C. 1070 et seq.), an alien who adjusts status to that
of a lawful permanent resident under this Act shall be
eligible only for the following assistance under such title:
(1) Student loans under parts B, D, and E of such title IV
(20 U.S.C. 1071 et seq., 1087a et seq., 1087aa et seq.),
subject to the requirements of such parts.
(2) Federal work-study programs under part C of such title
IV (42 U.S.C. 2751 et seq.), subject to the requirements of
such part.
(3) Services under such title IV (20 U.S.C. 1070 et seq.),
subject to the requirements for such services.

SEC. 12. GAO REPORT.

Seven years after the date of enactment of this Act, the
Comptroller General of the United States shall submit a
report to the Committees on the Judiciary of the Senate and
the House of Representatives setting forth--
(1) the number of aliens who were eligible for cancellation
of removal and adjustment of status under section 4(a);
(2) the number of aliens who applied for adjustment of
status under section 4(a);
(3) the number of aliens who were granted adjustment of
status under section 4(a); and
(4) the number of aliens whose conditional permanent
resident status was removed under section 5.
______

By Mr. LEAHY (for himself, Mr. Hatch, Ms. Mikulski, Mr. Durbin,
Mr. DeWine, Mr. Biden, Mrs. Feinstein, Mr. Feingold, Mr. Smith,
Mr. Dodd, Mr. Chambliss, Mr. Rockefeller, Mr. Lieberman, Mrs.
Boxer, Mr. Wyden, Mr. Nelson of Florida, and Mr. Corzine):
S. 2076. A bill to amend title 5, United States Code, to provide to
assistant United States attorneys the same retirement benefits as are
afforded to Federal law enforcement officers; to the Committee on
Homeland Security and Governmental Affairs.
Mr. LEAHY. I am pleased to join with Senator Hatch in introducing the
Assistant United States Attorney Retirement Benefit Equity Act of 2005.
This bill was previously introduced in the 107th and 108th Congresses.
A House companion bill, H.R. 3183, has already been introduced and
currently has 43 bipartisan cosponsors.
Fairness is the driving force behind this legislation. The bill would
correct an inequity that exists under current law, whereby AUSAs
receive substantially less favorable retirement benefits than nearly
all other people involved in the Federal criminal justice system. The
bill would increase the retirement benefits given to AUSAs, as well as
other designated attorneys employed by DOJ who act primarily as
criminal prosecutors, by including them in the Civil Service Retirement
System. This change would bring their retirement benefits inline with
thousands of other employees involved in the Federal criminal justice
system.
Enhanced retirement benefits will allow us to attract and retain the
best and the brightest for these vital positions in Government. As a
former prosecutor, I know that experienced prosecutors are needed to
bring ever more sophisticated cases under increasingly complex federal
criminal laws. The Government's success in combating the threats posed
by organized crime, drug cartels, terrorist groups, and other
sophisticated criminals depends upon representation by skilled,
experienced litigators.
Because of the lure of higher salaries and benefits, the average
assistant U.S. attorney remains with the Department of Justice only 8
years. The hours are long, the pay is low, and they place themselves in
harm's way by prosecuting criminals. Surveys of assistant U.S.
attorneys have shown that a fair retirement benefit is the foremost
incentive that would increase their tenure with the Department of
Justice. Creating an enticement for them to remain with the Department
of Justice for the length of their careers would be a tremendous
victory for the American people. This legislation would improve public
safety for us all by ensuring a strong, knowledgeable, and experienced
crop of prosecutors at the federal level.
I want to thank Senators Hatch, Mikulski, Durbin, DeWine, Biden,
Feinstein, Feingold, Smith, Dodd, Chambliss, Rockefeller, Lieberman,
Boxer, Wyden, Nelson, and Corzine, for cosponsoring this important
legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2076

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 ``Assistant United States
Attorney Retirement Benefit Equity Act of 2005''.

SEC. 2. RETIREMENT TREATMENT OF ASSISTANT UNITED STATES
ATTORNEYS.

(a) Civil Service Retirement System.--
(1) Assistant united states attorney defined.--Section 8331
of title 5, United States Code, is amended--
(A) in paragraph (28), by striking ``and'' at the end;
(B) in the first paragraph (29), by striking the period and
inserting a semicolon;
(C) in the second paragraph (29)--
(i) by striking ``(29)'' and inserting ``(30)''; and
(ii) by striking the period and inserting ``; and''; and
(D) by adding at the end the following:
``(31) `assistant United States attorney' means--
``(A) an assistant United States attorney under section 542
of title 28; and
``(B) any other attorney employed by the Department of
Justice occupying a position designated by the Attorney
General upon finding that the position--
``(i) involves routine employee responsibilities that are
substantially similar to those of assistant United States
attorneys; and
``(ii) is critical to the Department's successful
accomplishment of an important mission.''.

[[Page S13389]]

(2) Retirement treatment.--Chapter 83 of title 5, United
States Code, is amended by adding after section 8351 the
following:

``Sec. 8352. Assistant United States attorneys

``Except as provided under the Assistant United States
Attorneys Retirement Benefit Equity Act of 2005 (including
the provisions relating to the non-applicability of mandatory
separation requirements under section 8335(b) and 8425(b) of
this title), an assistant United States attorney shall be
treated in the same manner and to the same extent as a law
enforcement officer for purposes of this chapter.''.
(3) Technical and conforming amendments.--(A) The table of
sections for chapter 83 of title 5, United States Code, is
amended by inserting after the item relating to section 8351
the following:

``8352. Assistant United States attorneys.''
(B) Section 8335(a) of such title is amended by striking
``8331(29)(A)'' and inserting ``8331(30)(A)''.
(b) Federal Employees' Retirement System.--
(1) Assistant united states attorney defined.--Section 8401
of title 5, United States Code, is amended--
(A) in paragraph (34), by striking ``and'' at the end;
(B) in paragraph (35), by striking the period and inserting
``; and'' ; and
(C) by adding at the end the following:
``(36) `assistant United States attorney' means--
``(A) an assistant United States attorney under section 542
of title 28; and
``(B) any other attorney employed by the Department of
Justice occupying a position designated by the Attorney
General upon finding that the position--
``(i) involves routine employee responsibilities that are
substantially similar to those of assistant United States
attorneys; and
``(ii) is critical to the Department's successful
accomplishment of an important mission.''.
(2) Retirement treatment.--Section 8402 of title 5, United
States Code, is amended by adding at the end the following:
``(h) Except as provided under the Assistant United States
Attorneys Retirement Benefit Equity Act of 2005 (including
the provisions relating to the non-applicability of mandatory
separation requirements under section 8335(b) and 8425(b) of
this title), an assistant United States attorney shall be
treated in the same manner and to the same extent as a law
enforcement officer for purposes of this chapter.''.
(c) Mandatory Separation.--Sections 8335(b) and 8425(b) of
title 5, United States Code, are amended by adding at the end
the following: ``The preceding provisions of this subsection
shall not apply in the case of an assistant United States
attorney as defined under section 8331(31) or 8401(36).''.
(d) Effective Date.--The amendments made by this section
shall take effect on the first day of the first applicable
pay period beginning on or after 120 days after the date of
enactment of this Act.

SEC. 3. PROVISIONS RELATING TO INCUMBENTS.

(a) Definitions.--In this section--
(1) the term ``assistant United States attorney'' means--
(A) an assistant United States attorney under section 542
of title 28, United States Code; and
(B) any other attorney employed by the Department of
Justice occupying a position designated by the Attorney
General upon finding that the position--
(i) involves routine employee responsibilities that are
substantially similar to those of assistant United States
attorneys; and
(ii) is critical to the Department's successful
accomplishment of an important mission; and
(2) the term ``incumbent'' means an individual who is
serving as an assistant United States attorney on the
effective date of this section.
(b) Designated Attorneys.--If the Attorney General makes
any designation of an attorney to meet the definition under
subsection (a)(1)(B) for purposes of being an incumbent under
this section--
(1) such designation shall be made before the effective
date of this section; and
(2) the Attorney General shall submit to the Office of
Personnel Management before that effective date--
(A) the name of the individual designated; and
(B) the period of service performed by that individual as
an assistant United States attorney before that effective
date.
(c) Notice Requirement.--Not later than 9 months after the
date of enactment of this Act, the Department of Justice
shall take measures reasonably designed to provide notice to
incumbents on--
(1) their election rights under this Act; and
(2) the effects of making or not making a timely election
under this Act.
(d) Election Available to Incumbents.--
(1) In general.--An incumbent may elect, for all purposes,
to be treated--
(A) in accordance with the amendments made by this Act; or
(B) as if this Act had never been enacted.
(2) Failure to elect.--Failure to make a timely election
under this subsection shall be treated in the same way as an
election under paragraph (1)(A), made on the last day
allowable under paragraph (3).
(3) Time limitation.--An election under this subsection
shall not be effective unless the election is made not later
than the earlier of--
(A) 120 days after the date on which the notice under
subsection (c) is provided; or
(B) the date on which the incumbent involved separates from
service.
(e) Limited Retroactive Effect.--
(1) Effect on retirement.--In the case of an incumbent who
elects (or is deemed to have elected) the option under
subsection (d)(1)(A), all service performed by that
individual as an assistant United States attorney and, with
respect to (B) below, including any service performed by such
individual pursuant to an appointment under sections 515,
541, 543, and 546 of title 28, United States Code, shall--
(A) to the extent performed on or after the effective date
of that election, be treated in accordance with applicable
provisions of subchapter III of chapter 83 or chapter 84 of
title 5, United States Code, as amended by this Act; and
(B) to the extent performed before the effective date of
that election, be treated in accordance with applicable
provisions of subchapter III of chapter 83 or chapter 84 of
such title, as if the amendments made by this Act had then
been in effect.
(2) No other retroactive effect.--Nothing in this Act
(including the amendments made by this Act) shall affect any
of the terms or conditions of an individual's employment
(apart from those governed by subchapter III of chapter 83 or
chapter 84 of title 5, United States Code) with respect to
any period of service preceding the date on which such
individual's election under subsection (d) is made (or is
deemed to have been made).
(f) Individual Contributions for Prior Service.--
(1) In general.--An individual who makes an election under
subsection (d)(1)(A) shall, with respect to prior service
performed by such individual, deposit, with interest, to the
Civil Service Retirement and Disability Fund the difference
between the individual contributions that were actually made
for such service and the individual contributions that would
have been made for such service if the amendments made by
section 2 of this Act had then been in effect.
(2) Effect of not contributing.--If the deposit required
under paragraph (1) is not paid, all prior service of the
incumbent shall remain fully creditable as law enforcement
officer service, but the resulting annuity shall be reduced
in a manner similar to that described in section
8334(d)(2)(B) of title 5, United States Code. This paragraph
shall not apply in the case of a disability annuity.
(3) Prior service defined.--For purposes of this section,
the term ``prior service'' means, with respect to any
individual who makes an election (or is deemed to have made
an election) under subsection (d)(1)(A), all service
performed as an assistant United States attorney, but not
exceeding 20 years, performed by such individual before the
date as of which applicable retirement deductions begin to be
made in accordance with such election.
(g) Regulations.--Except as provided under section 4, the
Office of Personnel Management shall prescribe regulations
necessary to carry out this Act, including provisions under
which any interest due on the amount described under
subsection (e) shall be determined.
(h) Effective Date.--This section shall take effect 120
days after the date of enactment of this Act.

SEC. 4. DEPARTMENT OF JUSTICE ADMINISTRATIVE ACTIONS.

(a) Regulations.--
(1) In general.--Not later than 120 days after the date of
enactment of this Act, the Attorney General, in consultation
with the Office of Personnel Management, shall promulgate
regulations for designating attorneys described under section
3(a)(1)(B).
(2) Contents.--Any regulation promulgated under paragraph
(1) shall ensure that attorneys designated as assistant
United States attorneys described under section 3(a)(1)(B)
have routine employee responsibilities that are substantially
similar to those of assistant United States attorneys.
(b) Designations.--The designation of any attorney as an
assistant United States attorney described under section
3(a)(1)(B) shall be at the discretion of the Attorney
General.
______

By Mr. McCAIN:
S. 2078. A bill to amend the Indian Gaming Regulatory Act to clarify
the authority of the National Indian Gaming Commission to regulate
class III gaming, to limit the lands eligible for gaming, and for other
purposes; to the Committee on Indian Affairs.
Mr. McCAIN. Mr. President, I am introducing today a bill to amend
regulatory provisions of the Indian Gaming Regulatory Act (IGRA). The
bill clarifies that the National Indian Gaming Commission (NIGC) has
authority to promulgate and enforce Minimum Internal Control Standards
as to Class III gaming; grants the NIGC Chairman authority to approve
contracts, and expands contract approval to include contracts not only
for management contracts but also for gaming operation development
contracts and consulting services, as well as for any contract the fees
for which are to be paid as a percentage of gaming revenue; tightens
restrictions on off-reservation gaming;

[[Page S13390]]

gives the NIGC authority to issue complaints against any individual or
entity, not just against tribes or management contractors, that violate
IGRA or federal regulations; and requires all tribes to pay fees to the
NIGC.
When IGRA was enacted in 1988, Indian gaming was a $200 million
dollar industry. Today, the industry earns $19 billion a year and is
spread throughout the nation. The amendments reflect the need to re-
evaluate what constitutes appropriate regulation of this vastly changed
enterprise. I have always been and continue to be a supporter of the
rights of Indian tribes to conduct gaming, a right guaranteed by the
Supreme Court in the California v. Cabazon decision and codified in
IGRA, but I also continue to believe that effective regulation of these
enterprises are critical to tribes' continued success.
Ensuring that the NIGC is able to continue its oversight of Class ill
gaming is necessary to this effective regulation. On August 24, 2005,
the U.S. District Court for the District of Columbia issued its
decision in Colorado River Indian Tribes v. NIGC (``CRIT''), ruling
that the National Indian Gaming Commission (NIGC) did not have
jurisdiction to issue Class ill Minimum Internal Controls Standards
(MICS). These standards regulate day-to-day operations of gaming
operations. Specifically, they provide rules that designate how cash is
handled by the gaming operation, prescribe surveillance over game play,
and provide auditing procedures.
Until the Court's decision, the NIGC had been regulating Class ill
gaming through MICS since 1999. The regulations applied both to Class
II gaming--that is, bingo and games similar to bingo--and to Class III
gaming--including slot machines and table games--which represents the
largest source of revenue in Indian gaming. Following to CRIT decision
this summer, however, some tribes have challenged NIGC's authority to
issue or enforce the MICS. Although without NIGC authority, oversight
of Class ill gaming may be provided by tribal-State compacts, States'
roles in enforcement varies widely and many have left such regulation
to NIGC. In a Nationwide industry, uniform federal minimum internal
control standards are appropriate. This amendment makes clear that NIGC
continues to have the authority it has exercised until now to issue and
enforce MICS, including the ability to inspect facilities and audit
premises in order to assure compliance.
Protecting the integrity of Indian gaming also requires that the
NIGC's authority to review manager contracts be expanded. IGRA
originally identified only one kind of contract that was subject to
NIGC approval: management contracts. History has shown, however, that
in order to avoid NIGC review, some contracts have been fashioned as
``consulting'' contracts or ``development'' contracts, i.e., something
other than ``management'' contracts that require NIGC review. In these
cases, tribes run the risk that contractors will enforce unfair
contract terms, and tribes and patrons run the risk that the tribe will
contract with unsuitable partners. This amendment extends NIGC approval
to all significant gaming operation related contracts so that the
Indian gaming industry remains, as far as possible, free from
unscrupulous and unsuitable contractors.
Related to protecting the integrity of Indian gaming is the issue of
off-reservation gaming. When enacted in 1988, IGRA generally banned
Indian gaming that was not located on reservations, however, in the
interest of fairness, several exceptions to this ban were provided.
Exploitation of these exceptions, not anticipated at the time IGRA was
enacted, has led to a burgeoning practice by unscrupulous developers
seeking to profit off Indian tribes desperate for economic development.
Predictably, these ill-advised deals have invited a backlash against
Indian gaming generally. These amendments to IGRA will put an end to
the most troublesome of these proposals by eliminating the authority of
the Secretary to take land into trust off-reservation pursuant to the
so-called ``two-part determination'' provisions of Section 20.
In addressing concerns about other exceptions in Section 20 for land
claims, initial reservations and restored reservations, these
amendments strike a balance by curbing potential abuses of these
exceptions, while not unfairly penalizing those who lost their lands
through no fault of their own, or even had them taken illegally--often
by force. Thus, newly recognized and restored tribes may still obtain
lands, and conduct gaming on them, but such lands must be in the area
where the particular tribe has its most significant ties. This has been
the case for most newly recognized and restored tribes, and surely is
not unfair to impose on all similarly situated tribes. For tribes that
successfully reclaim lands taken illegally and want to conduct gaming
on them, these amendments will require congressional confirmation and
the lands must be within the state where the tribe has or had its last
reservation. This provision does not impair any tribe's legal rights to
reclaim lands, but will discourage attempts by creative non-Indian
developers to turn a tribe's legal rights into a form of extortion.
Ensuring that penalties are appropriate and can be brought against
the responsible party is another means of protecting the integrity of
Indian gaming. To this end the bill clarifies that civil penalties can
be imposed on any violator of IGRA, not just Indian tribes or
management contractors.
Finally, this bill will ensure fairness in the regulation of Indian
gaming by assuring that all tribes bear their appropriate share of the
cost of regulation so that the industry, as a whole, continues to
prosper. 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. 2078

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Indian Gaming Regulatory Act
Amendments of 2005''.

SEC. 2. DEFINITIONS.

Section 4 of the Indian Gaming Regulatory Act (25 U.S.C.
2703) is amended--
(1) in paragraph (7)(E), by striking ``of the Indian Gaming
Regulatory Act (25 U.S.C. 2710(d)(3))''; and
(2) by adding at the end the following:
``(11) Gaming-related contract.--The term `gaming-related
contract' means--
``(A) a contract or other agreement relating to the
management and operation of an Indian tribal gaming activity,
including a contract for services under which the gaming-
related contractor--
``(i) exercises material control over the gaming activity
(or any part of the gaming activity); or
``(ii) advises or consults with a person that exercises
material control over the gaming activity (or any part of the
gaming activity);
``(B) an agreement relating to the development or
construction of a facility to be used for an Indian tribal
gaming activity (including a facility that is ancillary to
such an activity) the cost of which is greater than $250,000;
or
``(C) an agreement that provides for compensation or fees
based on a percentage of the net revenues of an Indian tribal
gaming activity.
``(12) Gaming-related contractor.--The term `gaming-related
contractor' means an entity or an individual, including an
individual who is an officer, or who serves on the board of
directors, of an entity, or a stockholder that directly or
indirectly holds at least 5 percent of the issued and
outstanding stock of an entity, that enters into a gaming-
related contract with--
``(A) an Indian tribe; or
``(B) an agent of an Indian tribe.
``(13) Material control.--The term `material control', with
respect to a gaming activity, means the exercise of authority
or supervision over a matter that substantially affects a
financial or management aspect of an Indian tribal gaming
activity.''.

SEC. 3. NATIONAL INDIAN GAMING COMMISSION.

Section 5 of the Indian Gaming Regulatory Act (25 U.S.C.
2704) is amended--
(1) in subsection (c)--
(A) by striking ``(c) Vacancies'' and inserting the
following:
``(c) Vacancies.--
``(1) In general.--Except as provided in paragraph (2), a
vacancy'';
(B) by striking the second sentence and inserting the
following:
``(3) Expiration of term.--Unless a member has been removed
for cause under subsection (b)(6), the member may--
``(A) serve after the expiration of the term of office of
the member until a successor is appointed; or
``(B) be reappointed to serve on the Commission.''; and
(C) by inserting after paragraph (1) (as designated by
subparagraph (A)) the following:
``(2) Vice chairman.--The Vice Chairman shall act as
Chairman in the absence or disability of the Chairman.''; and
(2) in subsection (e), in the second sentence, by inserting
``or disability'' after ``in the absence''.

[[Page S13391]]

SEC. 4. POWERS OF THE CHAIRMAN.

Section 6 of the Indian Gaming Regulatory Act (25 U.S.C.
2705) is amended--
(1) in subsection (a)--
(A) in paragraph (3), by striking ``and'' at the end;
(B) by striking paragraph (4) and inserting the following:
``(4) approve gaming-related contracts for class II gaming
and class III gaming under section 12; and''; and
(C) by adding at the end the following:
``(5) conduct a background investigation and make a
determination with respect to the suitability of a gaming-
related contractor, as the Chairman determines to be
appropriate.''; and
(2) by adding at the end the following:
``(c) Delegation of Authority.--
``(1) In general.--The Chairman may delegate any authority
under this section to any member of the Commission, as the
Chairman determines to be appropriate.
``(2) Requirement.--In carrying out an activity pursuant to
a delegation under paragraph (1), a member of the Commission
shall be subject to, and act in accordance with--
``(A) the general policies formally adopted by the
Commission; and
``(B) the regulatory decisions, findings, and
determinations of the Commission pursuant to Federal law.''.

SEC. 5. POWERS OF THE COMMISSION.

Section 7(b) of the Indian Gaming Regulatory Act (25 U.S.C.
2706(b)) is amended--
(1) in paragraphs (1) and (4), by inserting ``and class III
gaming'' after ``class II gaming'' each place it appears;
(2) in paragraph (2), by inserting ``or class III gaming''
after ``class II gaming''; and
(3) in paragraph (10), by inserting ``, including
regulations addressing minimum internal control standards for
class II gaming and class III gaming activities'' before the
period at the end.

SEC. 6. COMMISSION STAFFING.

(a) General Counsel.--Section 8(a) of the Indian Gaming
Regulatory Act (25 U.S.C. 2707(a)) is amended by striking
``basic'' and all that follows through the end of the
subsection and inserting the following: ``pay payable for
level IV of the Executive Schedule under chapter 11 of title
2, United States Code, as adjusted by section 5318 of title
5, United States Code.''.
(b) Other Staff.--Section 8(b) of the Indian Gaming
Regulatory Act (25 U.S.C. 2707(b)) is amended by striking
``basic'' and all that follows through the end of the
subsection and inserting the following: ``pay payable for
level IV of the Executive Schedule under chapter 11 of title
2, United States Code, as adjusted by section 5318 of title
5, United States Code.''.
(c) Temporary and Intermittent Services.--Section 8(c) of
the Indian Gaming Regulatory Act (25 U.S.C. 2707(c)) is
amended by striking ``basic'' and all that follows through
the end of the subsection and inserting the following: ``pay
payable for level IV of the Executive Schedule under chapter
11 of title 2, United States Code, as adjusted by section
5318 of title 5, United States Code.''.

SEC. 7. TRIBAL GAMING ORDINANCES.

Section 11 of the Indian Gaming Regulatory Act (25 U.S.C.
2710) is amended--
(1) in subsection (b)--
(A) in paragraph (1)(A), by striking ``, and'' and
inserting ``; and'';
(B) in paragraph (2)(F)--
(i) by striking clause (i) and inserting the following:
``(i) ensures that background investigations and ongoing
oversight activities are conducted with respect to--
``(I) tribal gaming commissioners and key tribal gaming
commission employees, as determined by the Chairman;
``(II) primary management officials and other key employees
of the gaming enterprise, as determined by the Chairman; and
``(III) any person that is a party to a gaming-related
contract; and''; and
(ii) in clause (ii)(I), by striking ``primary'' and all
that follows through ``with'' and inserting ``the individuals
and entities described in clause (i), including'';
(C) in paragraph (3)--
(i) by redesignating subparagraphs (C) and (D) as
subparagraphs (D) and (E), respectively; and
(ii) by striking subparagraph (B) and inserting the
following:
``(B) the plan is approved by the Secretary after the
Secretary determines that--
``(i) the plan is consistent with the uses described in
paragraph (2)(B);
``(ii) the plan adequately addresses the purposes described
in clauses (i) and (iii) of paragraph (2)(B); and
``(iii) a per capita payment is a reasonable method of
providing for the general welfare of the Indian tribe and the
members of the Indian tribe;
``(C) the Secretary determines that the plan provides an
adequate mechanism for the monitoring and enforcement, by the
Secretary and the Chairman, of the compliance of the plan
(including any amendment, revision, or rescission of any part
of the plan);''; and
(D) in paragraph (4)(B)(i)--
(i) in subclause (I), by striking ``of the Act,'' and
inserting a semicolon;
(ii) in subclause (II), by striking ``of this subsection''
and inserting a semicolon;
(iii) in subclause (III), by striking ``, and'' and
inserting ``; and''; and
(iv) in subclause (IV), by striking ``National Indian
Gaming'';
(2) in subsection (d)--
(A) in paragraph (1)--
(i) in subparagraph (A)--

(I) in clause (i), by striking ``lands,'' and inserting
``lands;'';
(II) in clause (ii), by striking ``, and'' and inserting
``; and''; and
(III) in clause (iii), by striking the comma at the end and
inserting a semicolon; and

(ii) in subparagraph (B), by striking ``, and'' and
inserting ``; and'';
(B) in paragraph (2)--
(i) in subparagraph (B)(i), by striking ``, or'' and
inserting ``; or''; and
(ii) in subparagraph (D)(iii)(I), by striking ``, and'' and
inserting ``; and'';
(C) in paragraph (7)(B)--
(i) in clause (ii)(I), by striking ``, and'' and inserting
``; and'';
(ii) in clause (iii)(I), by striking ``, and'' and
inserting ``; and''; and
(iii) in clause (vii)(I), by striking ``, and'' and
inserting ``; and'';
(D) in paragraph (8)(B)--
(i) in clause (i), by striking the comma at the end and
inserting a semicolon; and
(ii) in clause (ii), by striking ``, or'' and inserting ``;
or''; and
(E) by striking paragraph (9); and
(3) by adding at the end the following:
``(f) Provision of Information to Chairman.--Immediately
after approving a plan (including any amendment, revision, or
recision of any part of a plan) under subsection (b)(3), the
Secretary shall provide to the Chairman--
``(1) a notice of the approval; and
``(2) any information used by the Secretary in approving
the plan.''.

SEC. 8. GAMING-RELATED CONTRACTS.

Section 12 of the Indian Gaming Regulatory Act (25 U.S.C.
2711) is amended to read as follows:

``SEC. 12. GAMING-RELATED CONTRACTS.

``(a) In General.--To be enforceable under this Act, a
gaming-related contract shall be--
``(1) in writing; and
``(2) approved by the Chairman under subsection (c).
``(b) Contract Requirements.--
``(1) In general.--A gaming-related contract under this Act
shall provide for the Indian tribe, at a minimum, provisions
relating to--
``(A) accounting and reporting procedures, including, as
appropriate, provisions relating to verifiable financial
reports;
``(B) the access required to ensure proper performance of
the gaming-related contract, including access to, with
respect to a gaming activity--
``(i) daily operations;
``(ii) real property;
``(iii) equipment; and
``(iv) any other tangible or intangible property used to
carry out the activity;
``(C) assurance of performance of each party to the gaming-
related contract, including the provision of bonds under
subsection (d), as the Chairman determines to be necessary;
and
``(D) the reasons for, and method of, terminating the
gaming-related contract.
``(2) Term.--
``(A) In general.--Except as provided in subparagraph (B),
the term of a gaming-related contract shall not exceed 5
years.
``(B) Exception.--Notwithstanding subparagraph (A), a
gaming-related contract may have a term of not to exceed 7
years if--
``(i) the Indian tribal party to the gaming-related
contract submits to the Chairman a request for such a term;
and
``(ii) the Chairman determines that the term is
appropriate, taking into consideration the circumstances of
the gaming-related contract.
``(3) Fees.--
``(A) In general.--Notwithstanding the payment terms of a
gaming-related contract, and except as provided in
subparagraph (B), the fee of a gaming-related contractor or
beneficiary of a gaming-related contract shall not exceed an
amount equal to 30 percent of the net revenues of the gaming
operation that is the subject of the gaming-related contract.
``(B) Exception.--The fee of a gaming-related contractor or
beneficiary of a gaming-related contract may be in an amount
equal to not more than 40 percent of the net revenues of the
gaming operation that is the subject of the gaming-related
contract if the Chairman determines that such a fee is
appropriate, taking into consideration the circumstances of
the gaming-related contract.
``(c) Approval by Chairman.--
``(1) Gaming-related contracts.--
``(A) In general.--An Indian tribe shall submit each
gaming-related contract of the tribe to the Chairman for
approval by not later than the earlier of--
``(i) the date that is 90 days after the date on which the
gaming-related contract is executed; or
``(ii) the date that is 90 days before the date on which
the gaming-related contract is scheduled to be completed.
``(B) Factors for consideration.--In determining whether to
approve a gaming-related contract under this subsection, the
Chairman may take into consideration any information relating
to the terms, parties, and beneficiaries of--
``(i) the gaming-related contract; and
``(ii) any other agreement relating to the Indian gaming
activity, as determined by the Chairman.
``(C) Deadline for determination.--

[[Page S13392]]

``(i) In general.--The Chairman shall approve or disapprove
a gaming-related contract under this subsection by not later
than 90 days after the date on which the Chairman makes a
determination regarding the suitability of each gaming-
related contractor under paragraph (2).
``(ii) Expedited review.--

``(I) In general.--If each gaming-related contractor has
been determined by the Chairman to be suitable under
paragraph (2) on or before the date on which the gaming-
related contract is submitted to the Chairman, the Chairman
shall approve or disapprove the gaming-related contract by
not later than 30 days after the date on which the gaming-
related contract is submitted.
``(II) Failure to determine.--If the Chairman fails to make
a determination by the date described in subclause (I), a
gaming-related contract described in that subclause shall be
considered to be approved.
``(III) Amendments.--The Chairman may require the parties
to a gaming-related contract considered to be approved under
subclause (II) to amend the gaming-related contract, as the
Chairman considers to be appropriate to meet the requirements
under subsection (b).

``(iii) Early operation.--

``(I) In general.--On approval of the Chairman under
subclause (II), a gaming-related contract may be carried out
before the date on which the gaming-related contract is
approved by the Chairman under clause (i).
``(II) Approval by chairman.--The Chairman may approve the
early operation of a gaming-related contract under subclause
(I) if the Chairman determines that--

``(aa) adequate bonds have been provided under paragraph
(2)(G)(iii) and subsection (d); and
``(bb) the gaming-related contract will be amended as the
Chairman considers to be appropriate to meet the requirements
under subsection (b).
``(D) Requirements for disapproval.--The Chairman shall
disapprove a gaming-related contract under this subsection if
the Chairman determines that--
``(i) the gaming-related contract fails to meet any
requirement under subsection (b);
``(ii) a gaming-related contractor is unsuitable under
paragraph (2);
``(iii) a gaming-related contractor or beneficiary of the
gaming-related contract--

``(I) unduly interfered with or influenced, or attempted to
interfere with or influence, a decision or process of an
Indian tribal government relating to the gaming activity for
the benefit of the gaming-related contractor or beneficiary;
or
``(II) deliberately or substantially failed to comply
with--

``(aa) the gaming-related contract; or
``(bb) a tribal gaming ordinance or resolution adopted and
approved pursuant to this Act;
``(iv) the Indian tribe with jurisdiction over the Indian
lands on which the gaming activity is located will not
receive the primary benefit as sole proprietor of the gaming
activity, taking into consideration any agreement relating to
the gaming activity;
``(v) a trustee would disapprove the gaming-related
contract, in accordance with the duties of skill and
diligence of the trustee, because the compensation or fees
under the gaming-related contract do not bear a reasonable
relationship to the cost of the goods or the benefit of the
services provided under the gaming-related contract; or
``(vi) a person or an Indian tribe would violate this Act--

``(I) on approval of the gaming-related contract; or
``(II) in carrying out the gaming-related contract.

``(2) Gaming-related contractors.--
``(A) In general.--Not later than 90 days after the date on
which the Chairman receives a gaming-related contract, the
Chairman shall make a determination regarding the suitability
of each gaming-related contractor to carry out any gaming
activity that is the subject of the gaming-related contract.
``(B) Requirements.--The Chairman shall make a
determination under subparagraph (A) that a gaming-related
contractor is unsuitable if, as determined by the Chairman--
``(i) the gaming-related contractor--

``(I) is an elected member of the governing body of an
Indian tribe that is a party to the gaming-related contract;
``(II) has been convicted of--

``(aa) a felony; or
``(bb) any offense relating to gaming;

``(III)(aa) knowingly and willfully provided any materially
important false statement or other information to the
Commission or an Indian tribe that is a party to the gaming-
related contract; or
``(bb) failed to respond to a request for information under
this Act;
``(IV) poses a threat to the public interest or the
effective regulation or conduct of gaming under this Act,
taking into consideration the behavior, criminal record,
reputation, habits, and associations of the gaming-related
contractor;
``(V) unduly interfered, or attempted to unduly interfere,
with any determination or governing process of the governing
body of an Indian tribe relating to a gaming activity, for
the benefit of the gaming-related contractor; or
``(VI) deliberately or substantially failed to comply with
the terms of--

``(aa) the gaming-related contract; or
``(bb) a tribal gaming ordinance or resolution approved and
adopted under this Act; or
``(ii) a trustee would determine that the gaming-related
contractor is unsuitable, in accordance with the duties of
skill and diligence of the trustee.
``(C) Failure to determine.--If the Chairman fails to make
a suitability determination with respect to a gaming-related
contractor by the date described in subparagraph (A), each
gaming-related contractor shall be considered to be suitable
to carry out the gaming activity that is the subject of the
applicable gaming-related contract.
``(D) Revocation.--At any time, based on a showing of good
cause, the Chairman may--
``(i) make a determination that a gaming-related contractor
is unsuitable under this subsection; or
``(ii) revoke a suitability determination under this
subsection.
``(E) Temporary suitability.--
``(i) In general.--For purposes of meeting a deadline under
paragraph (1)(C), the Chairman may determine that a gaming-
related contractor is temporarily suitable if--

``(I) the Chairman determined the gaming-related contractor
to be suitable with respect to another gaming-related
contract being carried out on the date on which the Chairman
makes a determination under this paragraph; and
``(II) the gaming-related contractor has not otherwise been
determined to be unsuitable by the Chairman.

``(ii) Final determination.--The Chairman shall make a
suitability determination with respect to a gaming-related
contractor that is the subject of a temporary suitability
determination under clause (i) by the date described in
subparagraph (A), in accordance with subparagraph (F).
``(F) Updating determinations.--The Chairman, as the
Chairman determines to be appropriate, may limit an
investigation of the suitability of a gaming-related
contractor that--
``(i) has been determined to be suitable by the Chairman
with respect to another gaming-related contract being carried
out on the date on which the Chairman makes a determination
under this paragraph; and
``(ii) certifies to the Chairman that the information
provided during a preceding suitability determination has not
materially changed.
``(G) Responsibility of gaming-related contractor.--A
gaming-related contractor shall--
``(i) pay the costs of any investigation activity of the
Chairman in carrying out this paragraph;
``(ii) provide to the Chairman a notice of any change in
information provided during a preceding investigation on
discovery of the change; and
``(iii) during an investigation of suitability under this
paragraph, provide to the Chairman such bonds under
subsection (d) as the Chairman determines to be appropriate
to shield an Indian tribe from liability resulting from an
action of the gaming-related contractor.
``(H) Registry.--The Chairman shall establish and maintain
a registry of each suitability determination made under this
paragraph.
``(3) Additional reviews.--Notwithstanding an approval
under paragraph (1), or a determination of suitability under
paragraph (2), if the Chairman determines that a gaming-
related contract, or any party to such a contract, is in
violation of this Act, the Chairman may--
``(A) suspend performance under the gaming-related
contract;
``(B) require the parties to amend the gaming-related
contract; or
``(C) revoke a determination of suitability under paragraph
(2)(D).
``(4) Termination.--Termination of a gaming-related
contract shall not require the approval of the Chairman.
``(d) Bonds.--
``(1) In general.--The Chairman may require a gaming-
related contractor to provide to the Chairman a bond to
ensure the performance of the gaming-related contractor under
a gaming-related contract.
``(2) Regulations.--The Chairman, by regulation, shall
establish the amount of a bond required under this
subsection.
``(3) Method of payment.--A bond under this subsection may
be provided--
``(A) in cash or negotiable securities;
``(B) through a surety bond guaranteed by a guarantor
acceptable to the Chairman; or
``(C) through an irrevocable letter of credit issued by a
banking institution acceptable to the Chairman.
``(4) Use of bonds.--The Chairman shall use a bond provided
under this subsection to pay the costs of a failure of the
gaming-related contractor that provided the bond to perform
under a gaming-related contract.
``(e) Appeal of Determination.--
``(1) In general.--An Indian tribe or a gaming-related
contractor may submit to the Commission a request for an
appeal of a determination of the Chairman under subsection
(c) or (d).
``(2) Determination of commission.--
``(A) Hearings.--The Commission shall schedule a hearing
relating to an appeal under paragraph (1) by not later than
30 days after the date on which a request for the appeal is
received.
``(B) Deadline for determination.--The Commission shall
make a determination, by majority vote of the Commission,
relating to an appeal under this subsection by not later than
5 days after the date of the hearing relating to the appeal
under subparagraph (A).

[[Page S13393]]

``(C) Concurrence.--If the Commission concurs with a
determination of the Chairman under this subsection, the
determination shall be considered to be a final agency
action.
``(D) Dissent.--
``(i) In general.--If the Commission dissents from a
determination of the Chairman under this subsection, the
Chairman may--

``(I) rescind the determination of the Chairman; or
``(II) on a finding of immediate and irreparable harm to
the Indian tribe that is the subject of the determination,
maintain the determination.

``(ii) Final agency action.--A decision by the Chairman to
maintain a determination under clause (i)(II) shall be
considered to be a final agency action.
``(3) Appeal of commission determination.--An Indian tribe,
a gaming-related contractor, or a beneficiary of a gaming-
related contract may appeal a determination of the Commission
under paragraph (2) to the United States District Court for
the District of Columbia.
``(f) Conveyance of Real Property.--No gaming-related
contract under this Act shall transfer or otherwise convey
any interest in land or other real property unless the
transfer or conveyance--
``(1) is authorized under law; and
``(2) is specifically described in the gaming-related
contract.
``(g) Contract Authority.--The authority of the Secretary
under section 2103 of the Revised Statutes (25 U.S.C. 81)
relating to contracts under this Act is transferred to the
Commission.
``(h) No Effect on Tribal Authority.--This section does not
expand, limit, or otherwise affect the authority of any
Indian tribe or any party to a Tribal-State compact to
investigate, license, or impose a fee on a gaming-related
contractor.''.

SEC. 9. CIVIL PENALTIES.

Section 14 of the Indian Gaming Regulatory Act (25 U.S.C.
2713) is amended--
(1) by striking the section designation and heading and all
that follows through subsection (a) and inserting the
following:

``SEC. 14. CIVIL PENALTIES.

``(a) Penalties.--
``(1) Violation of act.--
``(A) In general.--An Indian tribe, individual, or entity
that violates any provision of this Act (including any
regulation of the Commission and any Indian tribal
regulation, ordinance, or resolution approved under section
11 or 13) in carrying out a gaming-related contract may be
subject to, as the Chairman determines to be appropriate--
``(i) an appropriate civil fine, in an amount not to exceed
$25,000 per violation per day; or
``(ii) an order of the Chairman for an accounting and
disgorgement, including interest.
``(B) Application to indian tribes.--An Indian tribe shall
not be subject to disgorgement under subparagraph (A)(ii)
unless the Chairman determines that the Indian tribe grossly
violated a provision of this Act.
``(2) Appeals.--The Chairman shall provide, by regulation,
an opportunity to appeal a determination relating to a
violation under paragraph (1).
``(3) Written complaints.--
``(A) In general.--If the Commission has reason to believe
that an Indian tribe or a party to a gaming-related contract
may be subject to a penalty under paragraph (1), the final
closure of an Indian gaming activity, or a modification or
termination order relating to the gaming-related contract,
the Chairman shall provide to the Indian tribe or party a
written complaint, including--
``(i) a description of any act or omission that is the
basis of the belief of the Commission; and
``(ii) a description of any action being considered by the
Commission relating to the act or omission.
``(B) Requirements.--A written complaint under subparagraph
(A)--
``(i) shall be written in common and concise language;
``(ii) shall identify any statutory or regulatory provision
relating to an alleged violation by the Indian tribe or
party; and
``(iii) shall not be written only in statutory or
regulatory language.'';
(2) in subsection (b)--
(A) by striking ``(b)(1) The Chairman'' and inserting the
following:
``(b) Temporary Closures.--
``(1) In general.--The Chairman'';
(B) in paragraph (1)--
(i) by striking ``Indian game'' and inserting ``Indian
gaming activity, or any part of such a gaming activity,'';
and
(ii) by striking ``section 11 or 13 of this Act'' and
inserting ``section 11 or 13''; and
(C) in paragraph (2)--
(i) by striking ``(2) Not later than thirty'' and inserting
the following:
``(2) Hearings.--
``(A) In general.--Not later than 30'';
(ii) in subparagraph (A) (as designating by clause (i))--

(I) by striking ``management contractor'' and inserting
``party to a gaming-related contract''; and
(II) by striking ``permanent'' and inserting ``final''; and

(iii) in the second sentence--

(I) by striking ``Not later than sixty'' and inserting the
following:

``(B) Determination of commission.--Not later than 60'';
and

(II) by striking ``permanent'' and inserting ``final'';

(3) in subsection (c), by striking ``(c) A decision'' and
inserting the following:
``(c) Appeal of Final Determinations.--A determination'';
and
(4) in subsection (d), by striking ``(d) Nothing'' and
inserting the following:
``(d) Effect on Regulatory Authority of Indian Tribes.--
Nothing''.

SEC. 10. GAMING ON LATER-ACQUIRED LAND.

Section 20(b) of the Indian Gaming Regulatory Act (25
U.S.C. 2719(b)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (A), by striking `` (A) the Secretary,
after consultation'' and inserting the following:
``(A)(i) before November 18, 2005, the Secretary reviewed,
or was in the process of reviewing, at the Central Office of
the Bureau of Indian Affairs, Washington, DC, the petition of
an Indian tribe to have land taken into trust for purposes of
gaming under this Act; and
``(ii) the Secretary, after consultation''; and
(B) in subparagraph (B)--
(i) in clause (i), by striking the comma at the end and
inserting the following: ``under Federal statutory law, if
the land is within a State in which is located--
``(I) the reservation of such Indian tribe; or
``(II) the last recognized reservation of such Indian
tribe;'';
(ii) in clause (ii), by striking ``, or'' and inserting
``if, as determined by the Secretary, the Indian tribe has a
temporal, cultural, and geographic nexus to the land; or'';
and
(iii) in clause (iii), by inserting before the period at
the end the following: ``if, as determined by the Secretary,
the Indian tribe has a temporal, cultural, and geographic
nexus to the land''; and
(2) by adding at the end the following:
``(4) Effect of subsection.--Notwithstanding any other
provision of this subsection, land that, before the date of
enactment of the Indian Gaming Regulatory Act Amendments of
2005, was determined by the Secretary or the Chairman to be
eligible to be used for purposes of gaming shall continue to
be eligible for those purposes.''.

SEC. 11. CONFORMING AMENDMENT.

(a) In General.--Section 123(a)(2) of the Department of the
Interior and Related Agencies Appropriations Act, 1998
(Public Law 105-83; 111 Stat. 1566) is amended--
(1) in subparagraph (A), by adding ``and'' at the end;
(2) in subparagraph (B), by striking ``; and'' and
inserting a period; and
(3) by striking subparagraph (C).
(b) Applicability.--Notwithstanding any other provision of
law, section 18(a) of the Indian Gaming Regulatory Act (25
U.S.C. 2717(a)) shall apply to all Indian tribes.
______

By Mr. SMITH (for himself, Mr. Thune, Mr. Allard, Mr. Burns, and
Mr. Thomas):
S. 2079. A bill to improve the ability of the Secretary of
Agriculture and the Secretary of the Interior to promptly implement
recovery treatments in response to catastrophic events affecting the
natural resources of Forest Service land and Bureau of Land Management
Land, respectively, to support the recovery of non-Federal land damaged
by catastrophic events, to assist impacted communities, to revitalize
Forest Service experimental forests, and for other purposes; to the
Committee on Energy and Natural Resources.
Mr. BURNS. Mr. President, I rise today in support of the Forests for
Future Generations Act, because it addresses a very serious problem in
our National Forests. I am not sure how many people in this body have
witnessed the devastation of a catastrophic wildfire, but I recommend
that everyone tour a burned over forest. It is a sobering reality,
often resembling a moonscape.
The worst fire year in recent Montana history was the summer of 2000,
when we burned 945,000 acres of productive Montana land. After months
of smoke-filled air, we were left with decimated wildlife habitat,
charred hillsides, sediment-filled streams, and millions of board feet
of dead, standing timber. Active forest management would require that
restoration of these fragile soils and ecosystems begin as soon as
possible, but that is almost never the case on national forest land.
Instead, we spend millions of dollars and thousands of hours writing a
plan to restore the burned area, which is inevitably appealed,
challenged, and litigated by an environmental group. We end up arguing
in the courtroom when we should be working in the forest.
I have seen side-by-side sections of land where private landowners or
even the State of Montana has taken quick action and removed some dead
or dying timber then replanted the forest. News are growing on the
private land before any of the Federal timber is even harvested. It is
amazing to me, and it makes absolutely no sense. For that

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reason I am happy to cosponsor this bill, because it is time to
reintroduce some common sense into a system that has gone far off the
tracks.

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