[Congressional Record Volume 153, Number 19 (Wednesday, January 31, 2007)]
[Senate]
[Pages S1411-S1458]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. REID (for himself, Mrs. Lincoln, Mr. Biden, Ms. Mikulski,
Mrs. Boxer, Mr. Durbin, Mr. Salazar, and Mr. Brown):
S. 439. A bill to amend title 10, United States Code, to permit
certain retired members of the uniformed services who have a service-
connected disability to receive both disability compensation from the
Department of Veterans Affairs for their disability and either retired
pay by reason of their years of military service or Combat-Related
Special Compensation; to the Committee on Armed Services.
Mr. REID. Mr. President, we are going to have a debate on Iraq, and
it will be a historic debate about that war, a war that has demanded
unparalleled sacrifices from our men and women in uniform.
While we have our disagreements with the President's conduct of the
war, all 100 Senators stand side by side in supporting our troops. They
have done everything asked of them, carrying out a difficult mission
with honor and skill. We as a country owe the brave men and women in
our military a debt of gratitude and have responsibility to ensure our
veterans receive both the thanks of a grateful nation and the benefits
they have earned,
[[Page S1412]]
and that is a subject I would like to discuss briefly this morning.
About 8 years ago, one of my staff came to me and said: Senator, do
you realize that if a person is disabled in the military and retires
from the military, they cannot draw on both their benefits? I said:
What? And he repeated that. If you are in the military and you become
disabled and you retire, you cannot draw both your benefits. I thought
my staffer didn't know what he was talking about, but he did. That was
the law in our country and had been for many years, and it was a wrong
law. That law is still mostly in effect, and that is too bad.
When someone who is disabled retires from the U.S. military, he or
she cannot draw on both their benefits. If you retire from any other
branch of the Federal Government, such as the Bureau of Land
Management, you can draw both your disability pay and your retirement
pay but, no, not if you are in the military. These people have been
robbed of their benefits, in my opinion, and I refer specifically to
thousands of men and women who have been denied their retirement
because of an unfair policy referred to as concurrent receipt.
By law, disabled veterans, as I have said, cannot collect disability
pay and retirement pay at the same time. What does this mean? It means
for every dollar of compensation a disabled veteran receives as a
result of their injuries, they must sacrifice a dollar of their
retirement pay they earned in the service of our Nation. In many cases,
this ban takes away a veteran's full retirement pay, wiping away the
benefits he or she earned in 20 or more years of service. That is
wrong.
Concurrent receipt is a special tax on the men and women who keep us
safe. Few veterans can afford to live on their retirement pay alone.
Those burdened with disability face an even greater struggle, often
denied any postservice work. They receive disability compensation to
pay for pain, suffering, and loss of future earnings caused by a
service-connected illness or injury. No other Federal retiree is forced
to make forfeit of their retirement--only our disabled military
retirees. This is not just an error, it is a disgrace.
Of course, concurrent receipt is not a new problem. I hope most
everyone in the Senate knows about it. This is the seventh year I have
introduced legislation to give disabled veterans the support they have
earned, and I will continue fighting until we succeed, ending this
unacceptable policy.
I first of all want to suggest that the two managers of the Defense
bill, every year since I have worked on this, have been Senator Warner
and Senator Levin, and they have helped me. I appreciate that very
much. They have been thoughtful and understanding in their approach to
this issue. What has happened these past 7 years is good but not really
good. We have chipped away at this unfair policy of concurrent receipt.
In 2000, I introduced legislation to eliminate this unfair policy for
the first time. I did it at the end of the 106th Congress. This
legislation passed the Senate but was removed by the House during
conference. So I reintroduced the legislation in the 107th Congress, in
both 2001 and 2002. Unfortunately, it was once again adopted by the
Senate but removed in conference.
In 2003, I proposed legislation to allow disabled veterans with at
least a 50-percent disability rating to become eligible for full
concurrent receipt over a 10-year phase-in period. Despite veto threats
from the Bush administration, Congress passed this very important
version of concurrent receipt.
In 2004, I took it a step further. I introduced legislation to
eliminate the 10-year phase-in period for veterans with a 100-percent
disability. The motivation here was to get concurrent receipt to the
most severely disabled veterans. We thought many of these veterans
would never see the benefits with a 10-year phase-in. They are old
World War II veterans, where the average age is well over 80 now, and
to think they would have to wait 10 years for a phase-in isn't very
fair.
In 2005, we focused on the most severely disabled veterans and
successfully eliminated the 10-year phase-in for veterans listed as
unemployable. I was pleased with the passage of that 2005 amendment but
disappointed that the conference committee chose not to enact this
valuable legislation for veterans rated as unemployable until 2009. So
in 2006, I sought to get unemployable veterans immediate relief, but we
didn't act. Congress didn't act.
So here we are in 2007, back at it again. Today, concurrent receipt
remains one of my highest priorities. It is a priority, I believe, in
fairness. We need to continue to chip away at this policy, and I am
committed to that goal 100 percent, so that 100 percent of disabled
veterans get the money they earn in being part of the great fighting
force of this Nation.
We are blessed in this country to be defended by an All-Volunteer
Army. These patriots put their lives and safety on the line because
they love this country. I believe it is time for this country and this
Congress to repay their service and sacrifice, and that is why I am
reintroducing today the Retired Pay Restoration Act of 2007.
Mr. President, I ask unanimous consent that the text of this
legislation be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 439
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 ``Retired Pay Restoration Act
of 2007''.
SEC. 2. ELIGIBILITY FOR PAYMENT OF BOTH RETIRED PAY AND
VETERANS' DISABILITY COMPENSATION FOR CERTAIN
MILITARY RETIREES WITH COMPENSABLE SERVICE-
CONNECTED DISABILITIES.
(a) Extension of Concurrent Receipt Authority to Retirees
With Service-Connected Disabilities Rated Less Than 50
Percent.--
(1) Repeal of 50 percent requirement.--Section 1414 of
title 10, United States Code, is amended by striking
paragraph (2) of subsection (a).
(2) Computation.--Paragraph (1) of subsection (c) of such
section is amended by adding at the end the following new
subparagraph:
``(G) For a month for which the retiree receives veterans'
disability compensation for a disability rated as 40 percent
or less or has a service-connected disability rated as zero
percent, $0.''.
(b) Repeal of Phase-In of Concurrent Receipt for Retirees
With Service-Connected Disabilities Rated as Total.--
Subsection (a)(1) of such section is amended by striking
``except that'' and all that follows and inserting ``except--
``(A) in the case of a qualified retiree receiving
veterans' disability compensation for a disability rated as
100 percent, payment of retired pay to such veteran is
subject to subsection (c) only during the period beginning on
January 1, 2004, and ending on December 31, 2004; and
``(B) in the case of a qualified retiree receiving
veterans' disability compensation for a disability rated as
total by reason of unemployability, payment of retired pay to
such veteran is subject to subsection (c) only during the
period beginning on January 1, 2004, and ending on December
31, 2007.''.
(c) Clerical Amendments.--
(1) The heading for section 1414 of such title is amended
to read as follows:
``Sec. 1414. Members eligible for retired pay who are also
eligible for veterans' disability compensation: concurrent
payment of retired pay and disability compensation''.
(2) The item relating to such section in the table of
sections at the beginning of chapter 71 of such title is
amended to read as follows:
``1414. Members eligible for retired pay who are also eligible for
veterans' disability compensation: concurrent payment of
retired pay and disability compensation.''.
(d) Effective Date.--The amendments made by this section
shall take effect on January 1, 2008, and shall apply to
payments for months beginning on or after that date.
SEC. 3. COORDINATION OF SERVICE ELIGIBILITY FOR COMBAT-
RELATED SPECIAL COMPENSATION AND CONCURRENT
RECEIPT.
(a) Eligibility for TERA Retirees.--Subsection (c) of
section 1413a of title 10, United States Code, is amended by
striking ``entitled to retired pay who--'' and inserting
``who--
``(1) is entitled to retired pay, other than a member
retired under chapter 61 of this title with less than 20
years of service creditable under section 1405 of this title
and less than 20 years of service computed under section
12732 of this title; and
``(2) has a combat-related disability.''.
(b) Amendments To Standardize Similar Provisions.--
(1) Clerical amendment.--The heading for paragraph (3) of
section 1413a(b) of such title is amended by striking
``rules'' and inserting ``rule''.
(2) Qualified retirees.--Subsection (a) of section 1414 of
such title, as amended by section 2(a), is amended--
[[Page S1413]]
(A) by striking ``a member or'' and all that follows
through ``retiree')'' and inserting ``a qualified retiree'';
and
(B) by adding at the end the following new paragraph:
``(2) Qualified retirees.--For purposes of this section, a
qualified retiree, with respect to any month, is a member or
former member of the uniformed services who--
``(A) is entitled to retired pay, other than in the case of
a member retired under chapter 61 of this title with less
than 20 years of service creditable under section 1405 of
this title and less than 20 years of service computed under
section 12732 of this title; and
``(B) is also entitled for that month to veterans'
disability compensation.''.
(3) Disability retirees.--Subsection (b) of section 1414 of
such title is amended--
(A) by striking ``Special Rules'' in the subsection heading
and all that follows through ``is subject to'' and inserting
``Special Rule for Chapter 61 Disability Retirees.--In the
case of a qualified retiree who is retired under chapter 61
of this title, the retired pay of the member is subject to'';
and
(B) by striking paragraph (2).
(c) Effective Date.--The amendments made by this section
shall take effect on January 1, 2008, and shall apply to
payments for months beginning on or after that date.
______
By Mr. DURBIN (for himself and Mr. Obama):
S. 441. A bill to permit certain school districts in Illinois to be
reconstituted for purposes of determining assistance under the Impact
Aid program; to the Committee on Health, Education, Labor, and
Pensions.
Mr. DURBIN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 441
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ELIGIBILITY FOR IMPACT AID PAYMENT.
(a) Local Educational Agencies.--Notwithstanding section
8013(9)(B) of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7713(9)(B)), North Chicago Community Unit
School District 187, North Shore District 112, and Township
High School District 113 in Lake County, Illinois, and
Glenview Public School District 34 and Glenbrook High School
District 225 in Cook County, Illinois, shall be considered
local educational agencies as such term is used in and for
purposes of title VIII of such Act.
(b) Computation.--Notwithstanding any other provision of
law, federally connected children (as determined under
section 8003(a) of the Elementary and Secondary Education Act
of 1965 (20 U.S.C. 7703(a))) who are in attendance in the
North Shore District 112, Township High School District 113,
Glenview Public School District 34, and Glenbrook High School
District 225 described in subsection (a), shall be considered
to be in attendance in the North Chicago Community Unit
School District 187 described in subsection (a) for purposes
of computing the amount that the North Chicago Community Unit
School District 187 is eligible to receive under subsection
(b) or (d) of such section if--
(1) such school districts have entered into an agreement
for such students to be so considered and for the equitable
apportionment among all such school districts of any amount
received by the North Chicago Community Unit School District
187 under such section; and
(2) any amount apportioned among all such school districts
pursuant to paragraph (1) is used by such school districts
only for the direct provision of educational services.
______
By Mr. DURBIN (for himself, Mr. Specter, Mr. Leahy, Mr. Smith,
Mr. Kerry, and Ms. Collins):
S. 442. A bill to provide for loan repayment for prosecutors and
public defenders; to the Committee on the Judiciary.
Mr. DURBIN. Mr. President, I rise today to introduce the John R.
Justice Prosecutors and Defenders Incentive Act of 2007. I am honored
to have the support and cosponsorship of Senator Leahy and Senator
Specter, the chairman and ranking member of the Judiciary Committee, on
this important legislation. I look forward to working closely with
Chairman Leahy and Ranking Member Specter to advance it through the
Judiciary Committee and secure its enactment into law. I also
appreciate the cosponsorship of Senator Smith, Senator Kerry and
Senator Collins on this bipartisan bill.
Our bill seeks to enhance our criminal justice system by encouraging
talented law school graduates to serve as criminal prosecutors and
public defenders. The bill would establish a student loan repayment
program for qualified attorneys who agree to remain employed for at
least 3 years as State or local criminal prosecutors, or as State,
local, or Federal public defenders in criminal cases.
This legislation is supported by the American Bar Association, the
National District Attorneys Association, the National Association of
Prosecutor Coordinators, the National Legal Aid and Defender
Association, and the National Association of Criminal Defense Lawyers.
For our criminal justice system to function effectively, we need to
have a sufficient supply of dedicated and competent attorneys working
in prosecutor and public defender offices. However, many qualified law
school graduates who have a strong motivation to work in the public
sector find it economically impossible due to the overwhelming burden
of student loan debt.
The legal profession and our communities pay a severe price when law
graduates are shut out from pursuing public service careers due to
educational debt. When prosecutor and public defender offices cannot
attract new lawyers or keep experienced ones, their ability to protect
the public interest is compromised. Such offices may find themselves
unable to take on new cases due to staffing shortages, and their
existing staff may be forced to handle unmanageable workloads. Cases
may suffer from lengthy and unnecessary delays, and some cases may be
mishandled by inexperienced or overworked attorneys. As a result,
innocent people may be sent to jail, and criminals may go free.
Our bill, the John R. Justice Prosecutors and Defenders Incentive
Act, is designed to help remedy some of these problems. The
availability of student loan repayment can be a powerful incentive for
attracting talented new lawyers to public service employment. Our
proposal complements loan forgiveness options that currently exist for
Federal prosecutors. Passage of this bill will help make prosecutor and
public defender jobs at all levels of government more attractive and
financially viable for law school graduates who have incurred
significant educational debt.
Our bill is named after the late John R. Justice, former president of
the National District Attorneys Association and a distinguished
prosecutor from the State of South Carolina. John Justice was
instrumental in promoting student loan repayment efforts for law school
graduates seeking to work in public service. This bill is a fitting
tribute to his dedicated efforts.
The need for this legislation is evident. In recent years, the costs
of a law school education have skyrocketed. Researchers found that
tuition increased about 340 percent from 1985 to 2002 for private law
school students and for out-of-State students at public law schools.
In-State students at public law schools saw their tuition jump about
500 percent during that time. In 2005, the average annual tuition was
$28,900 for private law schools, $22,987 for nonresident students at
public law schools, and $13,145 for resident students at public law
schools. These tuition costs do not include the costs of food, lodging,
books, fees and personal expenses over 3 years of law school.
Unsurprisingly, the vast majority of law students--over 80 percent--
must borrow funds to finance their legal education. According to the
American Bar Association, the average total cumulative educational debt
for law school graduates in the class of 2005 was $78,763 for private
schools and $51,056 for public schools. Two-thirds of law students
generally carry additional unpaid debt from their undergraduate
studies. These education debts are serious financial obligations that
must be repaid, as any default on a loan triggers significant
consequences.
Many law students graduate with a deep commitment to pursuing a
career in public service. However, they need a level of income
sufficient to meet the demands of their educational loan liabilities,
and public service salaries have not kept up with rising law school
debt burdens. From 1985 to 2002, while law school tuition increased 340
percent for private law school students and 500 percent for in-state
students at public law schools, salaries for public service lawyers
such as prosecutors and public defenders increased by just 70 percent.
According to the National Association for Law Placement, NALP, the
median entry-level salary for public defenders is $43,000. With 11 to
15 years of experience, the median salary
[[Page S1414]]
increases only to $65,500. The salary progression for State prosecuting
attorneys is similar, starting at around $46,000 and progressing to
about $68,000 for those with 11 to 15 years of experience.
Many law school graduates can earn much more and repay their student
loans much faster by entering the private sector. According to a NALP
survey, in 2005 the median salary for first-year attorneys at law firms
ranged from $67,500 in firms of 2 to 25 attorneys to $135,000 in firms
of 500 attorneys or more. The median first-year salary for all firms
participating in the survey was $100,000. When choosing between a
private sector job and a job as a prosecutor or defender, talented law
graduates with large debt burdens must take into consideration this
salary differential.
It is clear that large student debt deters many law graduates from
pursuing public service careers. According to a national survey of
1,622 students from 117 law schools conducted by Equal Justice Works,
the Partnership for Public Service, and NALP in 2002, 66 percent of
respondents stated that law school debt prevented them from considering
a public interest or government job.
Some law graduates initially accept public service jobs despite their
high debt burdens. However, many attorneys cannot repay their loan
obligations as well as pay all their other living expenses on a
government salary. Attorneys who begin careers in public service, and
who would like to remain, frequently leave after a few years when they
find their debts are hindering their ability to provide for themselves,
much less support their families or save for retirement.
Many public service employers report having a difficult time
attracting and retaining talented law graduates. Prosecutor and public
defender offices across the country have vacancies they cannot fill
because new law graduates cannot afford to work for them.
Alternatively, those who do hire law graduates find that, because of
educational debt burdens, those whom they do hire leave just at the
point when they have acquired the experience to provide the most
valuable services. According to a Bureau of Justice Statistics survey,
24 percent of state prosecutors' offices reported problems in 2005 with
recruiting new attorneys, and 35 percent reported problems in retaining
attorneys. Another survey administered by Equal Justice Works and the
National Legal Aid & Defender Association in 2002 found that over 60
percent of public interest law employers, including state and local
prosecutor and public defender offices, reported difficulty in attorney
recruitment and retention.
I recently received a letter from Bernard Murray, President of the
Prosecutors Bar Association and Chief of the Criminal Prosecutions
Bureau for the Cook County State's Attorney's Office in Chicago. He
wrote: ``[W]e are faced with enormous hurdles in attracting first-rate
candidates to pursue a career with the Cook County State's Attorney's
Office. We simply cannot afford to pay new assistants a salary high
enough to offset the enormous debt load that follows them from their
law school graduation.''
His letter also stated: ``We are observing an exodus of talent at
about the three to five year experience mark in the office when
assistants are no longer able to postpone life events such as marriage,
home ownership, and starting a family. We are losing much of our best
talent before they even have a chance to put their skills to use in
felony cases.''
I also received a copy of a letter from Michael Judge, Chief Defender
of the Los Angeles County Public Defender Office, the oldest and
largest such office in the Nation. His letter states the following
about his office's efforts to recruit new lawyers: ``It became
necessary to expand the ambit of recruiting from locally to statewide,
to the western region of the country and now to the entire nation to
ensure the success of our recruiting in the face of the deterrent of
crushing student loan debt. . . . In some sense we are `poaching' in
the territory of other defender offices. . . . I have experienced more
`turndowns' of employment offers in the recent past than during my
first 9 or 10 years as Chief Defender. I attribute that to the `ice
cold water in the face syndrome' experienced by motivated candidates
making the final net calculations and discovering a defender career can
be an adventure in deficit financing.''
It harms the public interest when communities face a shortage of
attorneys who can effectively prosecute cases and provide criminal
defendants with their constitutional right to counsel. Sadly, these
situations occur all too frequently. We can--and should--do more to
help prosecutor and public defender offices recruit and retain
attorneys in the face of increasing student debt burdens and higher
private sector salaries.
Our legislation would help by establishing, within the Department of
Justice, a program of student loan repayment for borrowers who agree to
remain employed for at least three years as State or local criminal
prosecutors, or as State, local, or Federal public defenders in
criminal cases. It would allow eligible attorneys to receive student
loan debt repayments of up to $10,000 per year, with a maximum
aggregate over time of $60,000. The bill would cover student loans
made, insured, or guaranteed under the Higher Education Act of 1965,
including consolidation loans.
Under our bill, repayment benefits for public sector attorneys would
be made available on a first-come, first-served basis, and would be
subject to the availability of appropriations. Priority would be given
to borrowers who received repayment benefits for the preceding fiscal
year and who have completed less than three years of the first required
service period. Borrowers could enter into an additional agreement,
after the required three-year period, for a successive period of
service which may be less than three years. Attorneys who do not
complete their required period of service would be required to repay
the government.
In addition to covering those who agree to serve in State and local
prosecutor and defender offices, our bill complements existing loan
forgiveness programs that are currently available for Federal
prosecutors by making loan relief available to Federal public defenders
as well.
Our bill is modeled on a loan repayment program that has been created
for Federal executive branch employees and that has enjoyed growing
success. Federal law currently permits Federal executive branch
agencies to repay their employees' student loans, up to $10,000 in a
year, and up to a lifetime maximum of $60,000. In exchange, the
employee must agree to remain with the agency for at least three years.
According to the Office of Personnel Management (OPM), during fiscal
year 2005 there were 479 lawyers working in Federal agencies who
received loan repayments under this program, including 242 lawyers for
the Securities and Exchange Commission and 85 attorneys for the
Department of Justice. According to OPM, Federal agencies across the
board say that the program has been of tremendous benefit in recruiting
and retaining attorneys.
As I have worked on behalf of our legislation, I have been moved by
the personal stories of attorneys who have been trying to embark on a
career of public service but have been struggling because of student
loans. One compelling letter I received came from Aisha Cornelius, an
Assistant State's Attorney in Cook County, Illinois. Her letter said
the following: ``I am a full-time prosecutor in Cook County. I wanted
this job because I desired to use my law degree for public service.
Although making a lot of money was not my primary goal, I had hoped at
least for financial stability. This, however, is difficult to
accomplish as my student loan payments take up a considerable amount of
my income. I have more than $100,000 in student loan debt. I am also a
single mother with a five-year-old daughter in kindergarten. In order
to work, I have to pay for before- and after-school care for her. . . .
I depleted my savings while studying for the bar exam last year and I
essentially live check to check. In order to supplement my income, I
sell cosmetics and skin care. I am also in the process of applying for
a part-time evening teaching position. I love my job and serving the
greater good. The only reason I would ever leave public service is if I
could no longer afford to stay. This is much more of a possibility than
I would like it to be. Loan repayment assistance would help me stay
longer in a position
[[Page S1415]]
that allows me to serve the community during the day while giving me
the freedom and peace of mind to focus [on] my daughter at night.''
I appreciate Ms. Cornelius's willingness to share her story with me.
By enacting and funding this legislation, we can take a meaningful step
toward alleviating some of the financial burden for attorneys such as
Ms. Cornelius who choose careers as criminal prosecutors and public
defenders.
I know there are many other law graduates who, like Aisha Cornelius,
want to apply their legal training and develop their skills in the
public sector, but are deterred by the weight of student loan
obligations. Passage of the John R. Justice Prosecutors and Defenders
Incentive Act will help them make their career dreams a reality. I urge
its swift adoption.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 442
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 ``John R. Justice Prosecutors
and Defenders Incentive Act of 2007''.
SEC. 2. LOAN REPAYMENT FOR PROSECUTORS AND DEFENDERS.
Title I of the Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the
end the following:
``PART JJ--LOAN REPAYMENT FOR PROSECUTORS AND PUBLIC DEFENDERS
``SEC. 3111. GRANT AUTHORIZATION.
``(a) Purpose.--The purpose of this section is to encourage
qualified individuals to enter and continue employment as
prosecutors and public defenders.
``(b) Definitions.--In this section:
``(1) Prosecutor.--The term `prosecutor' means a full-time
employee of a State or local agency who--
``(A) is continually licensed to practice law; and
``(B) prosecutes criminal cases at the State or local
level.
``(2) Public defender.--The term `public defender' means an
attorney who--
``(A) is continually licensed to practice law; and
``(B) is--
``(i) a full-time employee of a State or local agency or a
nonprofit organization operating under a contract with a
State or unit of local government, that provides legal
representation to indigent persons in criminal cases; or
``(ii) employed as a full-time Federal defender attorney in
a defender organization established pursuant to subsection
(g) of section 3006A of title 18, United States Code, that
provides legal representation to indigent persons in criminal
cases.
``(3) Student loan.--The term `student loan' means--
``(A) a loan made, insured, or guaranteed under part B of
title IV of the Higher Education Act of 1965 (20 U.S.C. 1071
et seq.);
``(B) a loan made under part D or E of title IV of the
Higher Education Act of 1965 (20 U.S.C. 1087a et seq. and
1087aa et seq.); and
``(C) a loan made under section 428C or 455(g) of the
Higher Education Act of 1965 (20 U.S.C. 1078-3 and 1087e(g))
to the extent that such loan was used to repay a Federal
Direct Stafford Loan, a Federal Direct Unsubsidized Stafford
Loan, or a loan made under section 428 or 428H of such Act.
``(c) Program Authorized.--The Attorney General shall
establish a program by which the Department of Justice shall
assume the obligation to repay a student loan, by direct
payments on behalf of a borrower to the holder of such loan,
in accordance with subsection (d), for any borrower who--
``(1) is employed as a prosecutor or public defender; and
``(2) is not in default on a loan for which the borrower
seeks forgiveness.
``(d) Terms of Agreement.--
``(1) In general.--To be eligible to receive repayment
benefits under subsection (c), a borrower shall enter into a
written agreement that specifies that--
``(A) the borrower will remain employed as a prosecutor or
public defender for a required period of service of not less
than 3 years, unless involuntarily separated from that
employment;
``(B) if the borrower is involuntarily separated from
employment on account of misconduct, or voluntarily separates
from employment, before the end of the period specified in
the agreement, the borrower will repay the Attorney General
the amount of any benefits received by such employee under
this section;
``(C) if the borrower is required to repay an amount to the
Attorney General under subparagraph (B) and fails to repay
such amount, a sum equal to that amount shall be recoverable
by the Federal Government from the employee (or such
employee's estate, if applicable) by such methods as are
provided by law for the recovery of amounts owed to the
Federal Government;
``(D) the Attorney General may waive, in whole or in part,
a right of recovery under this subsection if it is shown that
recovery would be against equity and good conscience or
against the public interest; and
``(E) the Attorney General shall make student loan payments
under this section for the period of the agreement, subject
to the availability of appropriations.
``(2) Repayments.--
``(A) In general.--Any amount repaid by, or recovered from,
an individual or the estate of an individual under this
subsection shall be credited to the appropriation account
from which the amount involved was originally paid.
``(B) Merger.--Any amount credited under subparagraph (A)
shall be merged with other sums in such account and shall be
available for the same purposes and period, and subject to
the same limitations, if any, as the sums with which the
amount was merged.
``(3) Limitations.--
``(A) Student loan payment amount.--Student loan repayments
made by the Attorney General under this section shall be made
subject to such terms, limitations, or conditions as may be
mutually agreed upon by the borrower and the Attorney General
in an agreement under paragraph (1), except that the amount
paid by the Attorney General under this section shall not
exceed--
``(i) $10,000 for any borrower in any calendar year; or
``(ii) an aggregate total of $60,000 in the case of any
borrower.
``(B) Beginning of payments.--Nothing in this section shall
authorize the Attorney General to pay any amount to reimburse
a borrower for any repayments made by such borrower prior to
the date on which the Attorney General entered into an
agreement with the borrower under this subsection.
``(e) Additional Agreements.--
``(1) In general.--On completion of the required period of
service under an agreement under subsection (d), the borrower
and the Attorney General may, subject to paragraph (2), enter
into an additional agreement in accordance with subsection
(d).
``(2) Term.--An agreement entered into under paragraph (1)
may require the borrower to remain employed as a prosecutor
or public defender for less than 3 years.
``(f) Award Basis; Priority.--
``(1) Award basis.--Subject to paragraph (2), the Attorney
General shall provide repayment benefits under this section
on a first-come, first-served basis, and subject to the
availability of appropriations.
``(2) Priority.--The Attorney General shall give priority
in providing repayment benefits under this section in any
fiscal year to a borrower who--
``(A) received repayment benefits under this section during
the preceding fiscal year; and
``(B) has completed less than 3 years of the first required
period of service specified for the borrower in an agreement
entered into under subsection (d).
``(g) Regulations.--The Attorney General is authorized to
issue such regulations as may be necessary to carry out the
provisions of this section.
``(h) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section
$25,000,000 for fiscal year 2008 and such sums as may be
necessary for each succeeding fiscal year.''.
______
By Mr. DURBIN:
S. 446. A bill to amend the Public Health Service Act to authorize
capitation grants to increase the number of nursing faculty and
students, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. DURBIN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 446
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 ``Nurse Education, Expansion,
and Development Act of 2007''.
SEC. 2. FINDINGS.
The Congress finds as follows:
(1) While the Nurse Reinvestment Act (Public Law 107-205)
helped to increase applications to schools of nursing by 125
percent, schools of nursing have been unable to accommodate
the influx of interested students because they have an
insufficient number of nurse educators. It is estimated
that--
(A) in the 2006-2007 school year--
(i) 66.6 percent of schools of nursing had from 1 to 18
vacant faculty positions; and
(ii) an additional 16.7 percent of schools of nursing
needed additional faculty, but lacked the resources needed to
add more positions; and
(B) 41,683 eligible candidates were denied admission to
schools of nursing in 2005, primarily due to an insufficient
number of faculty members.
(2) A growing number of nurses with doctoral degrees are
choosing careers outside of education. Over the last few
years, 22.5 percent of doctoral nursing graduates reported
seeking employment outside the education profession.
[[Page S1416]]
(3) In 2006 the average age of nurse faculty at retirement
is 63.1 years. With the average age of doctorally-prepared
nurse faculty at 54.7 years in 2005, a wave of retirements is
expected within the next 10 years.
(4) Master's and doctoral programs in nursing are not
producing a large enough pool of potential nurse educators to
meet the projected demand for nurses over the next 10 years.
While graduations from master's and doctoral programs in
nursing rose by 12.8 percent (or 1,369 graduates) and 13.1
percent (or 56 graduates), respectively, in the 2005-2006
school year, projections still demonstrate a shortage of
nurse faculty. Given current trends, there will be at least
2,616 unfilled faculty positions in 2012.
(5) According to the February 2004 Monthly Labor Review of
the Bureau of Labor Statistics, more than 1,000,000 new and
replacement nurses will be needed by 2012.
SEC. 3. CAPITATION GRANTS TO INCREASE THE NUMBER OF NURSING
FACULTY AND STUDENTS.
(a) Grants.--Part D of title VIII of the Public Health
Service Act (42 U.S.C. 296p) is amended by adding at the end
the following:
``SEC. 832. CAPITATION GRANTS.
``(a) In General.--For the purpose described in subsection
(b), the Secretary, acting through the Health Resources and
Services Administration, shall award a grant each fiscal year
in an amount determined in accordance with subsection (c) to
each eligible school of nursing that submits an application
in accordance with this section.
``(b) Purpose.--A funding agreement for a grant under this
section is that the eligible school of nursing involved will
expend the grant to increase the number of nursing faculty
and students at the school, including by hiring new faculty,
retaining current faculty, purchasing educational equipment
and audiovisual laboratories, enhancing clinical
laboratories, repairing and expanding infrastructure, or
recruiting students.
``(c) Grant Computation.--
``(1) Amount per student.--Subject to paragraph (2), the
amount of a grant to an eligible school of nursing under this
section for a fiscal year shall be the total of the
following:
``(A) $1,800 for each full-time or part-time student who is
enrolled at the school in a graduate program in nursing
that--
``(i) leads to a master's degree, a doctoral degree, or an
equivalent degree; and
``(ii) prepares individuals to serve as faculty through
additional course work in education and ensuring competency
in an advanced practice area.
``(B) $1,405 for each full-time or part-time student who--
``(i) is enrolled at the school in a program in nursing
leading to a bachelor of science degree, a bachelor of
nursing degree, a graduate degree in nursing if such program
does not meet the requirements of subparagraph (A), or an
equivalent degree; and
``(ii) has not more than 3 years of academic credits
remaining in the program.
``(C) $966 for each full-time or part-time student who is
enrolled at the school in a program in nursing leading to an
associate degree in nursing or an equivalent degree.
``(2) Limitation.--In calculating the amount of a grant to
a school under paragraph (1), the Secretary may not make a
payment with respect to a particular student--
``(A) for more than 2 fiscal years in the case of a student
described in paragraph (1)(A) who is enrolled in a graduate
program in nursing leading to a master's degree or an
equivalent degree;
``(B) for more than 4 fiscal years in the case of a student
described in paragraph (1)(A) who is enrolled in a graduate
program in nursing leading to a doctoral degree or an
equivalent degree;
``(C) for more than 3 fiscal years in the case of a student
described in paragraph (1)(B); or
``(D) for more than 2 fiscal years in the case of a student
described in paragraph (1)(C).
``(d) Eligibility.--For purposes of this section, the term
`eligible school of nursing' means a school of nursing that--
``(1) is accredited by a nursing accrediting agency
recognized by the Secretary of Education;
``(2) has a passage rate on the National Council Licensure
Examination for Registered Nurses of not less than 80 percent
for each of the 3 school years preceding submission of the
grant application; and
``(3) has a graduation rate (based on the number of
students in a class who graduate relative to, for a
baccalaureate program, the number of students who were
enrolled in the class at the beginning of junior year or, for
an associate degree program, the number of students who were
enrolled in the class at the end of the first year) of not
less than 80 percent for each of the 3 school years preceding
submission of the grant application.
``(e) Requirements.--The Secretary may award a grant under
this section to an eligible school of nursing only if the
school gives assurances satisfactory to the Secretary that,
for each school year for which the grant is awarded, the
school will comply with the following:
``(1) The school will maintain a passage rate on the
National Council Licensure Examination for Registered Nurses
of not less than 80 percent.
``(2) The school will maintain a graduation rate (as
described in subsection (d)(3)) of not less than 80 percent.
``(3)(A) Subject to subparagraphs (B) and (C), the first-
year enrollment of full-time nursing students in the school
will exceed such enrollment for the preceding school year by
5 percent or 5 students, whichever is greater.
``(B) Subparagraph (A) does not apply to the first school
year for which a school receives a grant under this section.
``(C) With respect to any school year, the Secretary may
waive application of subparagraph (A) if--
``(i) the physical facilities at the school involved limit
the school from enrolling additional students; or
``(ii) the school has increased enrollment in the school
(as described in subparagraph (A)) for each of the 2
preceding school years.
``(4) Not later than 1 year after receipt of the grant, the
school will formulate and implement a plan to accomplish at
least 2 of the following:
``(A) Establishing or significantly expanding an
accelerated baccalaureate degree nursing program designed to
graduate new nurses in 12 to 18 months.
``(B) Establishing cooperative intradisciplinary education
among schools of nursing with a view toward shared use of
technological resources, including information technology.
``(C) Establishing cooperative interdisciplinary training
between schools of nursing and schools of allied health,
medicine, dentistry, osteopathy, optometry, podiatry,
pharmacy, public health, or veterinary medicine, including
training for the use of the interdisciplinary team approach
to the delivery of health services.
``(D) Integrating core competencies on evidence-based
practice, quality improvements, and patient-centered care.
``(E) Increasing admissions, enrollment, and retention of
qualified individuals who are financially disadvantaged.
``(F) Increasing enrollment of minority and diverse student
populations.
``(G) Increasing enrollment of new graduate baccalaureate
nursing students in graduate programs that educate nurse
faculty members.
``(H) Developing post-baccalaureate residency programs to
prepare nurses for practice in specialty areas where nursing
shortages are most severe.
``(I) Increasing integration of geriatric content into the
core curriculum.
``(J) Partnering with economically disadvantaged
communities to provide nursing education.
``(K) Expanding the ability of nurse managed health centers
to provide clinical education training sites to nursing
students.
``(5) The school will submit an annual report to the
Secretary that includes updated information on the school
with respect to student enrollment, student retention,
graduation rates, passage rates on the National Council
Licensure Examination for Registered Nurses, the number of
graduates employed as nursing faculty or nursing care
providers within 12 months of graduation, and the number of
students who are accepted into graduate programs for further
nursing education.
``(6) The school will allow the Secretary to make on-site
inspections, and will comply with the Secretary's requests
for information, to determine the extent to which the school
is complying with the requirements of this section.
``(f) Reports to Congress.--The Secretary shall evaluate
the results of grants under this section and submit to the
Congress--
``(1) not later than 18 months after the date of the
enactment of this section, an interim report on such results;
and
``(2) not later than the end of fiscal year 2010, a final
report on such results.
``(g) Application.--To seek a grant under this section, a
school nursing shall submit an application to the Secretary
at such time, in such manner, and containing such information
and assurances as the Secretary may require.
``(h) Authorization of Appropriations.--
``(1) In general.--For the costs of carrying out this
section (except the costs described in paragraph (2)), there
are authorized to be appropriated $75,000,000 for fiscal year
2008, $85,000,000 for fiscal year 2009, and $95,000,000 for
fiscal year 2010.
``(2) Administrative costs.--For the costs of administering
this section, including the costs of evaluating the results
of grants and submitting reports to the Congress, there are
authorized to be appropriated such sums as may be necessary
for each of fiscal years 2008, 2009, and 2010.''.
(b) GAO Study.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act, the Comptroller General of the
United States shall conduct a study and submit a report to
the Congress on ways to increase participation in the nurse
faculty profession.
(2) Contents of report.--The report required by paragraph
(1) shall include the following:
(A) A discussion of the master's degree and doctoral degree
programs that are successful in placing graduates as faculty
in schools of nursing.
(B) An examination of compensation disparities throughout
the nursing profession and compensation disparities between
higher education instructional faculty generally and higher
education instructional nursing faculty.
[[Page S1417]]
______
By Mr. FEINGOLD:
S. 447. A bill to abolish the dealth penalty under Federal law; to
the Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, today I am introducing the Federal Death
Penalty Abolition Act of 2007. This bill would abolish the death
penalty at the Federal level. It would put an immediate halt to
executions and forbid the imposition of the death penalty as a sentence
for violations of Federal law.
Since 1976, when the death penalty was reinstated by the Supreme
Court, there have been 1,060 executions across the country, including
three at the Federal level. During that same time period, 123 people on
death row have been exonerated and released from death row. These
people never should have been convicted in the first place.
Consider those numbers. One thousand and sixty executions, and one
hundred and twenty-three exonerations in the modern death penalty era.
Had those exonerations not taken place, had those 123 people been
executed, those executions would have represented an error rate of
greater than 10 percent. That is more than an embarrassing statistic;
it is a horrifying one, one that should have us all questioning the use
of capital punishment in this country. In fact, since 1999 when I first
introduced this bill, 46 death row inmates have been exonerated
throughout the country.
In the face of these numbers, the national debate on the death
penalty has intensified. For the second year in a row, the number of
executions, the number of death sentences imposed, and the size of the
death row population have decreased as a growing number of voices have
joined to express doubt about the use of capital punishment in America.
The voices of those questioning the fairness of the death penalty have
been heard from college campuses and courtrooms and podiums across the
Nation, to the Senate Judiciary Committee hearing room, to the United
States Supreme Court. The American public understands that the death
penalty raises serious and complex issues. The death penalty can no
longer be exploited for political purposes. In fact, for the first
time, a May 2006 Gallup Poll reported that more Americans prefer a
sentence of life without parole over the death penalty when given a
choice. If anything, the political consensus is that it is time for a
change. We must not ignore these voices.
In the wake of the Supreme Court's decision in 1976 to allow capital
punishment, the Federal Government first resumed death penalty
prosecutions after enactment of a 1988 Federal law that provided for
the death penalty for murder in the course of a drug-kingpin
conspiracy. The Federal death penalty was then expanded significantly
in 1994, when the omnibus crime bill expanded its use to a total of
some 60 Federal offenses. And despite my best efforts to halt the
expansion of the Federal death penalty, more and more provisions seem
to be added every year. While the use of and confidence in the death
penalty is decreasing overall, the Federal Government has been going in
the opposite direction, making more defendants eligible for capital
punishment and increasing the size of its Federal death row. Moreover,
there are now six individuals on Federal death row from States that do
not have capital punishment. The Federal Government is pulling in the
wrong direction as the rest of the Nation moves toward a more just
system.
On this very day eight years ago, Governor George Ryan took the
historic step of placing a moratorium on executions in Illinois and
creating an independent, blue ribbon commission to review the State's
death penalty system. The Commission conducted an extensive study of
the death penalty in Illinois and released a report with 85
recommendations for reform of the death penalty system. The Commission
concluded that the death penalty system is not fair, and that the risk
of executing the innocent is alarmingly real. Governor Ryan later
pardoned four death row inmates and commuted the sentences of all
remaining Illinois death row inmates to life in prison before he left
office in January 2003.
Illinois is not alone. Seven years ago, then Maryland Governor Parris
Glendening learned of suspected racial disparities in the
administration of the death penalty in Maryland. Governor Glendening
did not look the other way. He commissioned the University of Maryland
to conduct the most exhaustive study of Maryland's application of the
death penalty in history. Then faced with the rapid approach of a
scheduled execution, Governor Glendening acknowledged that it was
unacceptable to allow executions to take place while the study he had
ordered was not yet complete. So, in May 2002, he placed a moratorium
on executions. Although Governor Bob Ehrlich lifted that moratorium and
allowed executions to resume during his tenure, Governor Martin
O'Malley has indicated that he would approve a legislative repeal of
the death penalty and that he, like the majority in this country,
favors life without parole.
Other States also have taken important steps. New York's death
penalty was overturned by a court decision in 2004 and has not been
reinstated by the legislature, and New Jersey enacted a moratorium in
2006. Along with New York and New Jersey, four other States that still
have the death penalty technically on their books have not executed any
individuals since 1976. In addition, there are 12 States, plus the
District of Columbia, whose laws do not provide for capital punishment
at all. And following in the footsteps of Illinois and Maryland, North
Carolina and California both began legislative studies of their own
capital punishment systems this past year.
The more we learn about the death penalty through studies like those,
the more reasons we have to oppose it. For example, the Maryland
study--released in January 2003--contained findings that should startle
us all. The study found that blacks accused of killing whites are more
likely to receive a death sentence than blacks who kill blacks, or than
white killers. According to the report, black offenders who kill whites
are four times as likely to be sentenced to death as blacks who kill
blacks, and twice as likely to get a death sentence as whites who kill
whites.
The Maryland and Illinois studies cannot be brushed aside as atypical
or dismissed as revealing state-specific anomalies in an otherwise
perfect system. Years of study have shown that the death penalty does
little to deter crime, and that defendants' likelihood of being
sentenced to death depends heavily on illegitimate factors such as
whether they are rich or poor. Since reinstatement of the modern death
penalty, 80 percent of murder victims in cases where death sentences
were handed down were white, even though only 50 percent of murder
victims are white. Nationwide, more than half of the death row inmates
are African Americans or Hispanic Americans. There is evidence of
racial disparities, inadequate counsel, prosecutorial misconduct, and
false scientific evidence in death penalty systems across the country.
At least Maryland, Illinois, North Carolina, and California have
begun the process of investigating the flaws in their own systems. But
there are 36 other States that have death penalty provisions in their
laws, 36 other States with systems that are most likely plagued with
the same flaws. And these systems come at great additional cost to the
taxpayers. For example, a 2005 report found that California's death
penalty system costs taxpayers $114 million in additional costs each
year. Similar reports detailing the extraordinary financial costs of
the death penalty have been generated for States across the Nation.
Moreover, there are growing concerns about the most common method of
execution, lethal injection. These concerns are so grave that eight
States and the Federal system all halted individual executions in 2006
to work through these problems. And these numbers are growing. Just
this last week, executions in North Carolina were halted because of
challenges to lethal injection. More and more research is emerging that
suggests that lethal injections are unnecessarily painful and cruel,
and that this method of capital punishment--however sanitary or humane
it may appear--is no less barbaric than the more antiquated methods
lethal injection was designed to replace, such as the noose or the
firing squad, no less horrific than the electric chair or the gas
chamber.
Nothing is more barbaric, of course, than the execution of an
innocent person, and it is clearer than ever that the
[[Page S1418]]
risk is very real. Already, information has surfaced that suggests that
two men put to death in the 1990s may have been innocent. This is a
chilling prospect, one that illustrates the very grave danger in
imposing the death penalty. The loss of just one innocent life through
capital punishment should be enough to force all of us to stop and
reconsider this penalty.
And while we examine the flaws in our death penalty system, we cannot
help but note that our use of the death penalty stands in stark
contrast to the majority of nations, which have abolished the death
penalty in law or practice. There are now 123 countries that have done
so. In 2005, only China, Iran, and Saudi Arabia executed more people
than we did. These countries, and others on the list of nations that
actively use capital punishment, are countries that we often criticize
for human rights abuses. The European Union denies membership in the
alliance to those nations that use the death penalty. In fact, it
passed a resolution calling for the immediate and unconditional global
abolition of the death penalty, and it specifically called on all
States within the United States to abolish the death penalty. This is
significant because it reflects the unanimous view of a group of
nations with which the United States enjoys close relationships and
shares common values. We should join with them and with the over 100
other nations that have renounced this practice.
We are a Nation that prides itself on the fundamental principles of
justice, liberty, equality and due process. We are a Nation that
scrutinizes the human rights records of other nations. Historically, we
are one of the first Nations to speak out against torture and killings
by foreign governments. We should hold our own system of justice to the
highest standard.
As a matter of justice, this is an issue that transcends political
allegiances. A range of prominent voices in our country are raising
serious questions about the death penalty, and they are not just voices
of liberals, or of the faith community. They are the voices of former
FBI Director William Sessions, former Justice Sandra Day O'Connor,
Reverend Pat Robertson, George Will, former Mississippi warden Donald
Cabana, the Republican former Governor of Illinois, George Ryan, and
the Democratic former Governor of Maryland, Parris Glendening. The
voices of those questioning our application of the death penalty are
growing in number, they are growing louder, and they are reflected in
some of the decisions of the highest court of the land. In recent
years, the Supreme Court has held that the execution of juvenile
offenders and the mentally retarded is unconstitutional.
As we begin a new year and a new Congress, I believe the continued
use of the death penalty in the United States is beneath us. The death
penalty is at odds with our best traditions. It is wrong and it is
immoral. The adage ``two wrongs do not make a right,'' applies here in
the most fundamental way. Our Nation has long ago done away with other
barbaric punishments like whipping and cutting off the ears of
criminals. Just we did away with these punishments as contrary to our
humanity and ideals, it is time to abolish the death penalty as we seek
to spread peace and justice both here and overseas. It is not just a
matter of morality. The continued viability of our criminal justice
system as a truly just system that deserves the respect of our own
people and the world requires that we do so. Our Nation's goal to
remain the world's leading defender of freedom, liberty and equality
demands that we do so.
Abolishing the death penalty will not be an easy task. It will take
patience, persistence, and courage. As we work to move forward in a
rapidly changing world, let us leave this archaic practice behind.
I ask my colleagues to join me in taking the first step in abolishing
the death penalty in our great Nation. I also call on each State that
authorizes the use of the death penalty to cease this practice. Let us
together reject violence and restore fairness and integrity to our
criminal justice system.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 447
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 ``Federal Death Penalty
Abolition Act of 2007''.
SEC. 2. REPEAL OF FEDERAL LAWS PROVIDING FOR THE DEATH
PENALTY.
(a) Homicide-Related Offenses.--
(1) Murder related to the smuggling of aliens.--Section
274(a)(1)(B)(iv) of the Immigration and Nationality Act (8
U.S.C. 1324(a)(1)(B)(iv)) is amended by striking ``punished
by death or''.
(2) Destruction of aircraft, motor vehicles, or related
facilities resulting in death.--Section 34 of title 18,
United States Code, is amended by striking ``to the death
penalty or''.
(3) Murder committed during a drug-related drive-by
shooting.--Section 36(b)(2)(A) of title 18, United States
Code, is amended by striking ``death or''.
(4) Murder committed at an airport serving international
civil aviation.--Section 37(a) of title 18, United States
Code, is amended, in the matter following paragraph (2), by
striking ``punished by death or''.
(5) Murder committed using chemical weapons.--Section
229A(a)(2) of title 18, United States Code, is amended--
(A) in the paragraph heading, by striking ``Death penalty''
and inserting ``Causing death''; and
(B) by striking ``punished by death or''.
(6) Civil rights offenses resulting in death.--Chapter 13
of title 18, United States Code, is amended--
(A) in section 241, by striking ``, or may be sentenced to
death'';
(B) in section 242, by striking ``, or may be sentenced to
death'';
(C) in section 245(b), by striking ``, or may be sentenced
to death''; and
(D) in section 247(d)(1), by striking ``, or may be
sentenced to death''.
(7) Murder of a member of congress, an important executive
official, or a supreme court justice.--Section 351 of title
18, United States Code, is amended--
(A) in subsection (b)--
(i) by striking ``(1)''; and
(ii) by striking ``, or (2) by death'' and all that follows
through the end of the subsection and inserting a period; and
(B) in subsection (d)--
(i) by striking ``(1)''; and
(ii) by striking ``, or (2) by death'' and all that follows
through the end of the subsection and inserting a period.
(8) Death resulting from offenses involving transportation
of explosives, destruction of government property, or
destruction of property related to foreign or interstate
commerce.--Section 844 of title 18, United States Code, is
amended--
(A) in subsection (d), by striking ``or to the death
penalty'';
(B) in subsection (f)(3), by striking ``subject to the
death penalty, or'';
(C) in subsection (i), by striking ``or to the death
penalty''; and
(D) in subsection (n), by striking ``(other than the
penalty of death)''.
(9) Murder committed by use of a firearm or armor piercing
ammunition during commission of a crime of violence or a drug
trafficking crime.--Section 924 of title 18, United States
Code, is amended--
(A) in subsection (c)(5)(B)(i), by striking ``punished by
death or''; and
(B) in subsection (j)(1), by striking ``by death or''.
(10) Genocide.--Section 1091(b)(1) of title 18, United
States Code, is amended by striking ``death or''.
(11) First degree murder.--Section 1111(b) of title 18,
United States Code, is amended by striking ``by death or''.
(12) Murder by a federal prisoner.--Section 1118 of title
18, United States Code, is amended--
(A) in subsection (a), by striking ``by death or''; and
(B) in subsection (b), in the third undesignated
paragraph--
(i) by inserting ``or'' before ``an indeterminate''; and
(ii) by striking ``, or an unexecuted sentence of death''.
(13) Murder of a state or local law enforcement official or
other person aiding in a federal investigation; murder of a
state correctional officer.--Section 1121 of title 18, United
States Code, is amended--
(A) in subsection (a), by striking ``by sentence of death
or''; and
(B) in subsection (b)(1), by striking ``or death''.
(14) Murder during a kidnaping.--Section 1201(a) of title
18, United States Code, is amended by striking ``death or''.
(15) Murder during a hostage-taking.--Section 1203(a) of
title 18, United States Code, is amended by striking ``death
or''.
(16) Murder with the intent of preventing testimony by a
witness, victim, or informant.--Section 1512(a)(2)(A) of
title 18, United States Code, is amended by striking ``the
death penalty or''.
(17) Mailing of injurious articles with intent to kill or
resulting in death.--Section 1716(j)(3) of title 18, United
States Code, is amended by striking ``to the death penalty
or''.
(18) Assassination or kidnaping resulting in the death of
the president or vice president.--Section 1751 of title 18,
United States Code, is amended--
(A) in subsection (b)--
[[Page S1419]]
(i) by striking ``(1)''; and
(ii) by striking ``, or (2) by death'' and all that follows
through the end of the subsection and inserting a period; and
(B) in subsection (d)--
(i) by striking ``(1)''; and
(ii) by striking ``, or (2) by death'' and all that follows
through the end of the subsection and inserting a period.
(19) Murder for hire.--Section 1958(a) of title 18, United
States Code, is amended by striking ``death or''.
(20) Murder involved in a racketeering offense.--Section
1959(a)(1) of title 18, United States Code, is amended by
striking ``death or''.
(21) Willful wrecking of a train resulting in death.--
Section 1992 of title 18, United States Code, is amended--
(A) in subsection (a), in the matter following paragraph
(10), by striking ``or subject to death,''; and
(B) in subsection (b), in the matter following paragraph
(3), by striking ``, and if the offense resulted in the death
of any person, the person may be sentenced to death''.
(22) Bank robbery-related murder or kidnaping.--Section
2113(e) of title 18, United States Code, is amended by
striking ``death or''.
(23) Murder related to a carjacking.--Section 2119(3) of
title 18, United States Code, is amended by striking ``, or
sentenced to death''.
(24) Murder related to aggravated child sexual abuse.--
Section 2241(c) of title 18, United States Code, is amended
by striking ``unless the death penalty is imposed,''.
(25) Murder related to sexual abuse.--Section 2245 of title
18, United States Code, is amended by striking ``punished by
death or''.
(26) Murder related to sexual exploitation of children.--
Section 2251(e) of title 18, United States Code, is amended
by striking ``punished by death or''.
(27) Murder committed during an offense against maritime
navigation.--Section 2280(a)(1) of title 18, United States
Code, is amended by striking ``punished by death or''.
(28) Murder committed during an offense against a maritime
fixed platform.--Section 2281(a)(1) of title 18, United
States Code, is amended by striking ``punished by death or''.
(29) Murder using devices or dangerous substances in waters
of the united states.--Section 2282A of title 18, United
States Code, is amended--
(A) by striking subsection (b); and
(B) by redesignating subsections (c) and (d) as subsections
(b) and (c), respectively.
(30) Murder involving the transportation of explosive,
biological, chemical, or radioactive or nuclear materials.--
Section 2283 of title 18, United States Code, is amended--
(A) by striking subsection (b); and
(B) by redesignating subsection (c) as subsection (b).
(31) Murder involving the destruction of vessel or maritime
facility.--Section 2291(d) of title 18, United States Code,
is amended by striking ``to the death penalty or''.
(32) Murder of a united states national in another
country.--Section 2332(a)(1) of title 18, United States Code,
is amended by striking ``death or''.
(33) Murder by the use of a weapon of mass destruction.--
Section 2332a of title 18, United States Code, is amended--
(A) in subsection (a), in the matter following paragraph
(4), by striking ``, and if death results shall be punished
by death'' and all that follows through the end of the
subsection and inserting a period; and
(B) in subsection (b), by striking ``, and if death results
shall be punished by death'' and all that follows through the
end of the subsection and inserting a period.
(34) Murder by act of terrorism transcending national
boundaries.--Section 2332b(c)(1)(A) of title 18, United
States Code, is amended by striking ``by death, or''.
(35) Murder involving torture.--Section 2340A(a) of title
18, United States Code, is amended by striking ``punished by
death or''.
(36) Murder involving a war crime.--Section 2441(a) of
title 18, United States Code, is amended by striking ``, and
if death results to the victim, shall also be subject to the
penalty of death''.
(37) Murder related to a continuing criminal enterprise or
related murder of a federal, state, or local law enforcement
officer.--Section 408(e) of the Controlled Substances Act (21
U.S.C. 848(e)) is amended--
(A) in the subsection heading, by striking ``Death
Penalty'' and inserting ``Intentional Killing''; and
(B) in paragraph (1)--
(i) subparagraph (A), by striking ``, or may be sentenced
to death''; and
(ii) in subparagraph (B), by striking ``, or may be
sentenced to death''.
(38) Death resulting from aircraft hijacking.--Section
46502 of title 49, United States Code, is amended--
(A) in subsection (a)(2)(B), by striking ``put to death
or''; and
(B) in subsection (b)(1)(B), by striking ``put to death
or''.
(b) Non-Homicide Related Offenses.--
(1) Espionage.--Section 794(a) of title 18, United States
Code, is amended by striking ``punished by death or'' and all
that follows before the period and inserting ``imprisoned for
any term of years or for life''.
(2) Treason.--Section 2381 of title 18, United States Code,
is amended by striking ``shall suffer death, or''.
(c) Title 10.--
(1) Offenses.--
(A) Conspiracy.--Section 881(b) of title 10, United States
Code (article 81(b) of the Uniform Code of Military Justice),
is amended by striking ``, if death results'' and all that
follows through the end and inserting ``as a court-martial or
military commission may direct.''.
(B) Desertion.--Section 885(c) of title 10, United States
Code (article 85(c)), is amended by striking ``, if the
offense is committed in time of war'' and all that follows
through the end and inserting ``as a court-martial may
direct.''.
(C) Assaulting or willfully disobeying superior
commissioned officer.--Section 890 of title 10, United States
Code (article 90), is amended by striking ``, if the offense
is committed in time of war'' and all that follows and
inserting ``as a court-martial may direct.''.
(D) Mutiny or sedition.--Section 894(b) of title 10, United
States Code (article 94(b)), is amended by striking ``by
death or such other punishment''.
(E) Misbehavior before the enemy.--Section 899 of title 10,
United States Code (article 99), is amended by striking ``by
death or such other punishment''.
(F) Subordinate compelling surrender.--Section 900 of title
10, United States Code (article 100), is amended by striking
``by death or such other punishment''.
(G) Improper use of countersign.--Section 901 of title 10,
United States Code (article 101), is amended by striking ``by
death or such other punishment''.
(H) Forcing a safeguard.--Section 902 of title 10, United
States Code (article 102), is amended by striking ``suffer
death'' and all that follows and inserting ``be punished as a
court-martial may direct.''.
(I) Aiding the enemy.--Section 904 of title 10, United
States Code (article 104), is amended by striking ``suffer
death or such other punishment as a court-martial or military
commission may direct'' and inserting ``be punished as a
court-martial or military commission may direct''.
(J) Spies.--Section 906 of title 10, United States Code
(article 106), is amended by striking ``by death'' and
inserting ``by imprisonment for life''.
(K) Espionage.--Section 906a of title 10, United States
Code (article 106a), is amended--
(i) by striking subsections (b) and (c);
(ii) by redesignating paragraphs (2) and (3) of subsection
(a) as subsections (b) and (c), respectively;
(iii) in subsection (a)--
(I) by striking ``(1)'';
(II) by striking ``paragraph (2)'' and inserting
``subsection (b)'';
(III) by striking ``paragraph (3)'' and inserting
``subsection (c)''; and
(IV) by striking ``as a court-martial may direct,'' and all
that follows and inserting ``as a court-martial may
direct.'';
(iv) in subsection (b), as so redesignated--
(I) by striking ``paragraph (1)'' and inserting
``subsection (a)''; and
(II) by redesignating subparagraphs (A), (B), and (C) as
paragraphs (1), (2), and (3), respectively; and
(v) in subsection (c), as so redesignated, by striking
``paragraph (1)'' and inserting ``subsection (a)''.
(L) Improper hazarding of vessel.--The text of section 910
of title 10, United States Code (article 110), is amended to
read as follows:
``Any person subject to this chapter who willfully and
wrongfully, or negligently, hazards or suffers to be hazarded
any vessel of the Armed Forces shall be punished as a court-
martial may direct.''.
(M) Misbehavior of sentinel.--Section 913 of title 10,
United States Code (article 113), is amended by striking ``,
if the offense is committed in time of war'' and all that
follows and inserting ``as a court-martial may direct.''.
(N) Murder.--Section 918 of title 10, United States Code
(article 118), is amended by striking ``death or imprisonment
for life as a court-martial may direct'' and inserting
``imprisonment for life''.
(O) Death or injury of an unborn child.--Section 919a(a) of
title 10, United States Code, is amended--
(i) in paragraph (1), by striking ``, other than death,'';
and
(ii) by striking paragraph (4).
(P) Rape.--Section 920(a) of title 10, United States Code
(article 120(a)), is amended by striking ``by death or such
other punishment''.
(Q) Crimes triable by military commission.--Section 950v(b)
of title 10, United States Code, is amended--
(i) in paragraph (1), by striking ``by death or such other
punishment'';
(ii) in paragraph (2), by striking ``, if death results''
and all that follows and inserting ``as a military commission
under this chapter may direct.'';
(iii) in paragraph (7), by striking ``, if death results''
and all that follows and inserting ``as a military commission
under this chapter may direct.'';
(iv) in paragraph (8), by striking ``, if death results''
and all that follows and inserting ``as a military commission
under this chapter may direct.'';
(v) in paragraph (9), by striking ``, if death results''
and all that follows and inserting
[[Page S1420]]
``as a military commission under this chapter may direct.'';
(vi) in paragraph (11)(A), by striking ``, if death
results'' and all that follows and inserting ``as a military
commission under this chapter may direct.'';
(vii) in paragraph (12)(A), by striking ``, if death
results'' and all that follows and inserting ``as a military
commission under this chapter may direct.'';
(viii) in paragraph (13)(A), by striking ``, if death
results'' and all that follows and inserting ``as a military
commission under this chapter may direct.'';
(ix) in paragraph (14), by striking ``, if death results''
and all that follows and inserting ``as a military commission
under this chapter may direct.'';
(x) in paragraph (15), by striking ``by death or such other
punishment'';
(xi) in paragraph (17), by striking ``, if death results''
and all that follows and inserting ``as a military commission
under this chapter may direct.'';
(xii) in paragraph (23), by striking ``, if death results''
and all that follows and inserting ``as a military commission
under this chapter may direct.'';
(xiii) in paragraph (24), by striking ``, if death
results'' and all that follows and inserting ``as a military
commission under this chapter may direct.'';
(xiv) in paragraph (27), by striking ``by death or such
other punishment''; and
(xv) in paragraph (28), by striking ``, if death results''
and all that follows and inserting ``as a military commission
under this chapter may direct.''.
(2) Jurisdictional and procedural matters.--
(A) Dismissed officer's right to trial by court-martial.--
Section 804(a) of title 10, United States Code (article 4(a)
of the Uniform Code of Military Justice), is amended by
striking ``or death''.
(B) Courts-martial classified.--Section 816(1)(A) of title
10, United States Code (article 10(1)(A)), is amended by
striking ``or, in a case in which the accused may be
sentenced to a penalty of death'' and all that follows
through ``(article 25a)''.
(C) Jurisdiction of general courts-martial.--Section 818 of
title 10, United States Code (article 18), is amended--
(i) in the first sentence by striking ``including the
penalty of death when specifically authorized by this
chapter'' and inserting ``except death''; and
(ii) by striking the third sentence.
(D) Jurisdiction of special courts-martial.--Section 819 of
title 10, United States Code (article 19), is amended in the
first sentence by striking ``for any noncapital offense'' and
all that follows and inserting ``for any offense made
punishable by this chapter.''.
(E) Jurisdiction of summary courts-martial.--Section 820 of
title 10, United States Code (article 20), is amended in the
first sentence by striking ``noncapital''.
(F) Number of members in capital cases.--
(i) In general.--Section 825a of title 10, United States
Code (article 25a), is repealed.
(ii) Clerical amendment.--The table of sections at the
beginning of subchapter V of chapter 47 of title 10, United
States Code, is amended by striking the item relating to
section 825a (article 25a).
(G) Absent and additional members.--Section 829(b)(2) of
title 10, United States Code (article 29(b)(2)), is amended
by striking ``or, in a case in which the death penalty may be
adjudged'' and all that follows and inserting a period.
(H) Statute of limitations.--Subsection (a) of section 843
of title 10, United States Code (article 43), is amended to
read as follows:
``(a)(1) A person charged with an offense described in
paragraph (2) may be tried and punished at any time without
limitation.
``(2) An offense described in this paragraph is any offense
as follows:
``(A) Absence without leave or missing movement in time of
war.
``(B) Murder.
``(C) Rape.
``(D) A violation of section 881 of this title (article 81)
that results in death to one or more of the victims.
``(E) Desertion or attempt to desert in time of war.
``(F) A violation of section 890 of this title (article 90)
committed in time of war.
``(G) Attempted mutiny, mutiny, sedition, or failure to
suppress or report a mutiny or sedition.
``(H) A violation of section 899 of this title (article
99).
``(I) A violation of section 900 of this title (article
100).
``(J) A violation of section 901 of this title (article
101).
``(K) A violation of section 902 of this title (article
102).
``(L) A violation of section 904 of this title (article
104).
``(M) A violation of section 906 of this title (article
106).
``(N) A violation of section 906a of this title (article
106a).
``(O) A violation of section 910 of this title (article
110) in which the person subject to this chapter willfully
and wrongfully hazarded or suffered to be hazarded any vessel
of the Armed Forces.
``(P) A violation of section 913 of this title (article
113) committed in time of war.''.
(I) Pleas of accused.--Section 845(b) of title 10, United
States Code (article 45(b)), is amended--
(i) by striking the first sentence; and
(ii) by striking ``With respect to any other charge'' and
inserting ``With respect to any charge''.
(J) Depositions.--Section 849 of title 10, United States
Code (article 49), is amended--
(i) in subsection (d), by striking ``in any case not
capital''; and
(ii) by striking subsections (e) and (f).
(K) Admissibility of records of courts of inquiry.--Section
850 of title 10, United States Code (article 50), is
amended--
(i) in subsection (a), by striking ``not capital and''; and
(ii) in subsection (b), by striking ``capital cases or''.
(L) Number of votes required for conviction and sentencing
by court-martial.--Section 852 of title 10, United States
Code (article 52), is amended--
(i) in subsection (a)--
(I) by striking paragraph (1);
(II) by redesignating paragraph (2) as subsection (a); and
(III) by striking ``any other offense'' and inserting ``any
offense''; and
(ii) in subsection (b)--
(I) by striking paragraph (1); and
(II) by redesignating paragraphs (2) and (3) as paragraphs
(1) and (2), respectively.
(M) Record of trial.--Section 854(c)(1)(A) of title 10,
United States Code (article 54(c)(1)(A)), is amended by
striking ``death,''.
(N) Forfeiture of pay and allowances during confinement.--
Section 858b(a)(2)(A) of title 10, United States Code
(article 58b(a)(2)(A)), is amended by striking ``or death''.
(O) Waiver or withdrawal of appeal.--Section 861 of title
10, United States Code (article 61), is amended--
(i) in subsection (a), by striking ``except a case in which
the sentence as approved under section 860(c) of this title
(article 60(c)) includes death,''; and
(ii) in subsection (b), by striking ``Except in a case in
which the sentence as approved under section 860(c) of this
title (article 60(c)) includes death, the accused'' and
inserting ``The accused''.
(P) Review by court of criminal appeals.--Section 866(b) of
title 10, United States Code (article 66(b)), is amended--
(i) in the matter preceding paragraph (1), by inserting
``in which'' after ``court-martial'';
(ii) in paragraph (1), by striking ``in which the sentence,
as approved, extends to death,'' and inserting ``the
sentence, as approved, extends to''; and
(iii) in paragraph (2), by striking ``except in the case of
a sentence extending to death,''.
(Q) Review by court of appeals for the armed forces.--
Section 867(a) of title 10, United States Code (article
67(a)), is amended--
(i) by striking paragraph (1); and
(ii) by redesignating paragraphs (2) and (3) as paragraphs
(1) and (2), respectively.
(R) Execution of sentence.--Section 871 of title 10, United
States Code (article 71), is amended--
(i) by striking subsection (a);
(ii) by redesignating subsection (b) as subsection (a);
(iii) by striking subsection (c) and inserting the
following:
``(b)(1) If a sentence extends to dismissal or a
dishonorable or bad conduct discharge and if the right of the
accused to appellate review is not waived, and an appeal is
not withdrawn, under section 861 of this title (article 61),
that part of the sentence extending to dismissal or a
dishonorable or bad conduct discharge may not be executed
until there is a final judgment as to the legality of the
proceedings (and with respect to dismissal, approval under
subsection (a)). A judgment as to legality of the proceedings
is final in such cases when review is completed by a Court of
Criminal Appeals and--
``(A) the time for the accused to file a petition for
review by the Court of Appeals for the Armed Forces has
expired and the accused has not filed a timely petition for
such review and the case is not otherwise under review by
that Court;
``(B) such a petition is rejected by the Court of Appeals
for the Armed Forces; or
``(C) review is completed in accordance with the judgment
of the Court of Appeals for the Armed Forces and--
``(i) a petition for a writ of certiorari is not filed
within the time limits prescribed by the Supreme Court;
``(ii) such a petition is rejected by the Supreme Court; or
``(iii) review is otherwise completed in accordance with
the judgment of the Supreme Court.
``(2) If a sentence extends to dismissal or a dishonorable
or bad conduct discharge and if the right of the accused to
appellate review is waived, or an appeal is withdrawn, under
section 861 of this title (article 61), that part of the
sentence extending to dismissal or a bad conduct or
dishonorable discharge may not be executed until review of
the case by a judge advocate (and any action on that review)
under section 864 of this title (article 64) is completed.
Any other part of a court-martial sentence may be ordered
executed by the convening authority or other person acting on
the case under section 860 of this title (article 60) when
approved by him under that section.'';
(iv) by redesignating subsection (d) as subsection (c); and
(v) in subsection (c), as so redesignated, by striking ``,
except a sentence of death''.
[[Page S1421]]
(S) General article.--Section 934 of title 10, United
States Code (article 134), is amended by striking ``crimes
and offenses not capital'' and inserting ``crimes and
offenses''
(T) Jurisdiction of military commissions.--Section 948d(d)
of title 10, United States Code, is amended by striking
``including the penalty of death'' and all that follows and
inserting ``except death.''.
(U) Number of members of military commissions.--Subsection
(a) of section 948m of title 10, United States Code, is
amended to read as follows:
``(a) Number of Members.--A military commission under this
chapter shall have at least 5 members.''.
(V) Number of votes required for sentencing by military
commission.--Section 949m of title 10, United States Code, is
amended--
(i) in subsection (b)--
(I) by striking paragraph (1); and
(II) by redesignating paragraphs (2) and (3) as paragraphs
(1) and (2), respectively; and
(ii) by striking subsection (c).
(W) Appellate referral for military commissions.--Section
950c of title 10, United States Code, is amended--
(i) in subsection (b)(1), by striking ``except a case in
which the sentence as approved under section 950b of this
title extends to death,''; and
(ii) in subsection (c), by striking ``Except in a case in
which the sentence as approved under section 950b of this
title extends to death, the accused'' and inserting ``The
accused''.
(X) Execution of sentence by military commissions.--
(i) In general.--Section 950i of title 10, United States
Code, is amended--
(I) in the section heading, by striking ``; PROCEDURES FOR
EXECUTION OF SENTENCE OF DEATH'';
(II) by striking subsections (b) and (c);
(III) by redesignating subsection (d) as subsection (b);
and
(IV) in subsection (b), as so redesignated, by striking ``,
except a sentence of death''.
(ii) Clerical amendment.--The table of sections at the
beginning of subchapter VI of chapter 47A of title 10, United
States Code, is amended by striking the item relating to
section 950i and inserting the following new item:
``950i. Execution of sentence.''.
(d) Conforming Amendments.--
(1) Repeal of criminal procedures relating to imposition of
death sentence.--
(A) In general.--Chapter 228 of title 18, United States
Code, is repealed.
(B) Clerical amendment.--The table of chapters for part II
of title 18, United States Code, is amended by striking the
item relating to chapter 228.
(2) Other provisions.--
(A) Interception of wire, oral, or electronic
communications.--Section 2516(1)(a) of title 18, United
States Code, is amended by striking ``by death or''.
(B) Release and detention pending judicial proceedings.--
Chapter 207 of title 18, United States Code, is amended--
(i) in section 3142(f)(1)(B), by striking ``or death''; and
(ii) in section 3146(b)(1)(A)(i), by striking ``death, life
imprisonment,'' and inserting ``life imprisonment''.
(C) Venue in capital cases.--Chapter 221 of title 18,
United States Code, is amended--
(i) by striking section 3235; and
(ii) in the table of sections, by striking the item
relating to section 3235.
(D) Period of limitations.--
(i) In general.--Chapter 213 of title 18, United States
Code, is amended by striking section 3281 and inserting the
following:
``Sec. 3281. Offenses with no period of limitations
``An indictment may be found at any time without limitation
for the following offenses:
``(1) A violation of section 274(a)(1)(A) of the
Immigration and Nationality Act (8 U.S.C. 1324(a)(1)(A))
resulting in the death of any person.
``(2) A violation of section 34 of this title.
``(3) A violation of section 36(b)(2)(A) of this title.
``(4) A violation of section 37(a) of this title that
results in the death of any person.
``(5) A violation of section 229A(a)(2) of this title.
``(6) A violation of section 241, 242, 245(b), or 247(a) of
this title that--
``(A) results in death; or
``(B) involved kidnapping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit aggravated
sexual abuse, or an attempt to kill.
``(7) A violation of subsection (b) or (d) of section 351
of this title.
``(8) A violation of section 794(a) of this title.
``(9) A violation of subsection (d), (f), or (i) of section
844 of this title that results in the death of any person
(including any public safety officer performing duties as a
direct or proximate result of conduct prohibited by such
subsection).
``(10) An offense punishable under subsection (c)(5)(B)(i)
or (j)(1) of section 924 of this title.
``(11) An offense punishable under section 1091(b)(1) of
this title.
``(12) A violation of section 1111 of this title that is
murder in the first degree.
``(13) A violation of section 1118 of this title.
``(14) A violation of subsection (a) or (b) of section 1121
of this title.
``(15) A violation of section 1201(a) of this title that
results in the death of any person.
``(16) A violation of section 1203(a) of this title that
results in the death of any person.
``(17) An offense punishable under section 1512(a)(3) of
this title that is murder (as that term is defined in section
1111 of this title).
``(18) An offense punishable under section 1716(j)(3) of
this title.
``(19) A violation of subsection (b) or (d) of section 1751
of this title.
``(20) A violation of section 1958(a) of this title that
results in death.
``(21) A violation of section 1959(a) of this title that is
murder.
``(22) A violation of subsection (a) (except for a
violation of paragraph (8), (9) or (10) of such subsection)
or (b) of section 1992 of this title that results in the
death of any person.
``(23) A violation of section 2113(e) of this title that
results in death.
``(24) An offense punishable under section 2119(3) of this
title.
``(25) An offense punishable under section 2245(a) of this
title.
``(26) A violation of section 2251 of this title that
results in the death of a person.
``(27) A violation of section 2280(a)(1) of this title that
results in the death of any person.
``(28) A violation of section 2281(a)(1) of this title that
results in the death of any person.
``(29) A violation of section 2282A(a) of this title that
causes the death of any person.
``(30) A violation of section 2283(a) of this title that
causes the death of any person.
``(31) An offense punishable under section 2291(d) of this
title.
``(32) An offense punishable under section 2332(a)(1) of
this title.
``(33) A violation of subsection (a) or (b) of section
2332a of this title that results in death.
``(34) An offense punishable under section 2332b(c)(1)(A)
of this title.
``(35) A violation of section 2340A(a) of this title that
results in the death of any person.
``(36) A violation of section 2381 of this title.
``(37) A violation of section 2441(a) of this title that
results in the death of the victim.
``(38) A violation of section 408(e) of the Controlled
Substances Act (21 U.S.C. 848(e)).
``(39) An offense punishable under subsection (a)(2)(B) or
(b)(1)(B) of section 46502 of title 49.''
(ii) Clerical amendment.--The table of sections for chapter
213 of title 18, United States Code, is amended by striking
the item relating to section 3281 and inserting the
following:
``3281. Offenses with no period of limitations.''.
SEC. 3. PROHIBITION ON IMPOSITION OF DEATH SENTENCE.
(a) In General.--Notwithstanding any other provision of
law, no person may be sentenced to death or put to death on
or after the date of enactment of this Act for any violation
of Federal law.
(b) Persons Sentenced Before Date of Enactment.--
Notwithstanding any other provision of law, any person
sentenced to death before the date of enactment of this Act
for any violation of Federal law shall serve a sentence of
life imprisonment without the possibility of parole.
______
By Mr. BIDEN (for himself, Mr. McConnell, Mr. Menendez, Mrs.
Murray, and Mr. Specter):
S. 449. A bill to amend title I of the Omnibus Crime Control and Safe
Streets Act of 1968 to provide standards and procedures to guide both
State and local law enforcement agencies and law enforcement officers
during internal investigations, interrogation of law enforcement
officers, and administrative disciplinary hearings, to ensure
accountability of law enforcement officers, to guarantee the due
process rights of law enforcement officers, and to require States to
enact law enforcement discipline, accountability, and due process laws;
to the Committee on the Judiciary.
Mr. BIDEN. Mr. President, I rise to introduce the State and Local Law
Enforcement Discipline Accountability, and Due Process Act of 2007.
These are trying times for the men and women on our front lines who
provide our domestic security and public safety--our Nation's law
enforcement personnel. Indeed, they face one of the most difficult work
environments imaginable--an average of 165 police officers are killed
in the line of duty every year. Our Nation's law enforcement officers
put themselves in harms way on a daily basis to ensure the safety of
their fellow citizens and the domestic security of our Nation.
Nevertheless, many times these brave officers do not receive basic
rights if they become involved in internal police investigations or
administrative hearings. According to the National Association of
Police Organizations, ``[i]n roughly half of the states in this
country, officers enjoy some legal protections against false
accusations and abusive conduct, but hundreds of thousands of officers
have very limited due
[[Page S1422]]
process rights and confront limitations on their exercise of other
rights, such as the right to engage in political activities.''
Similarly, the Fraternal Order of Police notes that, ``[i]n a startling
number of jurisdictions throughout this country, law enforcement
officers have no procedural or administrative protections whatsoever;
in fact, they can be, and frequently are, summarily dismissed from
their jobs without explanation. Officers who lose their careers due to
administrative or political expediency almost always find it impossible
to find new employment in public safety. An officer's reputation, once
tarnished by accusation, is almost impossible to restore.''
The legislation being introduced today, which is endorsed by the
Fraternal Order of Police and of the National Association of Police
Organizations, seeks to provide officers with certain basic protections
in those jurisdictions where such workplace protections are not
currently provided. First, this bill allows law enforcement officials
to engage in political activities when they are off-duty. Second, it
provides standards and procedures to guide State and local law
enforcement agencies during internal investigations, interrogations,
and administrative disciplinary hearings. Additionally, it calls upon
States to develop and enforce these disciplinary procedures. The bill
would preempt State laws which confer fewer rights than those provided
for in the legislation, but it would not preempt any State or local
laws that confer rights or protections that are equal to or exceed the
rights and protections afforded in the bill. For example, my own State
of Delaware has a law enforcement officers' bill of rights, and those
procedures would not be impacted by the provisions of this bill.
This bill will also include important provisions that will enhance
the ability of citizens to hold their local police departments
accountable. The legislation includes provisions that will ensure
citizen complaints against police officers are investigated and that
citizens are informed of the outcome of these investigations. The bill
balances the rights of police officers with the rights of citizens to
raise valid concerns about the conduct of some of these officers. In
addition, I have consulted with constitutional experts who have opined
that the bill is consistent with Congress' powers under the Commerce
Clause and that it does not run afoul of the Supreme Court's Tenth
Amendment jurisprudence.
I would also like to note that I understand the objections that many
management groups, including the International Association of Chiefs of
Police's, have to this measure. I have discussed this with them, and
I've pledged that their views will be heard and considered as this bill
is debated in Congress. It is my view that we must bridge this gap.
Without a meeting of the minds between police management and union
officials, the enactment of a meaningful law enforcement officers' bill
of rights will be difficult. Law enforcement officials are facing
unprecedented challenges, and management and labor simply must work
together on this issue and the numerous other issues facing the law
enforcement community.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 449
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``State and Local Law
Enforcement Discipline, Accountability, and Due Process Act
of 2007''.
SEC. 2. FINDINGS AND DECLARATION OF PURPOSE AND POLICY.
(a) Findings.--Congress finds that--
(1) the rights of law enforcement officers to engage in
political activity or to refrain from engaging in political
activity, except when on duty, or to run as candidates for
public office, unless such service is found to be in conflict
with their service as officers, are activities protected by
the first amendment of the United States Constitution, as
applied to the States through the 14th amendment of the
United States Constitution, but these rights are often
violated by the management of State and local law enforcement
agencies;
(2) a significant lack of due process rights of law
enforcement officers during internal investigations and
disciplinary proceedings has resulted in a loss of confidence
in these processes by many law enforcement officers,
including those unfairly targeted for their labor
organization activities or for their aggressive enforcement
of the laws, demoralizing many rank and file officers in
communities and States;
(3) unfair treatment of officers has potentially serious
long-term consequences for law enforcement by potentially
deterring or otherwise preventing officers from carrying out
their duties and responsibilities effectively and fairly;
(4) the lack of labor-management cooperation in
disciplinary matters and either the perception or the
actuality that officers are not treated fairly detrimentally
impacts the recruitment of and retention of effective
officers, as potential officers and experienced officers seek
other careers, which has serious implications and
repercussions for officer morale, public safety, and labor-
management relations and strife and can affect interstate and
intrastate commerce, interfering with the normal flow of
commerce;
(5) there are serious implications for the public safety of
the citizens and residents of the United States which
threatens the domestic tranquility of the United States
because of a lack of statutory protections to ensure--
(A) the due process and political rights of law enforcement
officers;
(B) fair and thorough internal investigations and
interrogations of and disciplinary proceedings against law
enforcement officers; and
(C) effective procedures for receipt, review, and
investigation of complaints against officers, fair to both
officers and complainants; and
(6) resolving these disputes and problems and preventing
the disruption of vital police services is essential to the
well-being of the United States and the domestic tranquility
of the Nation.
(b) Declaration of Policy.--Congress declares that it is
the purpose of this Act and the policy of the United States
to--
(1) protect the due process and political rights of State
and local law enforcement officers and ensure equality and
fairness of treatment among such officers;
(2) provide continued police protection to the general
public;
(3) provide for the general welfare and ensure domestic
tranquility; and
(4) prevent any impediments to the free flow of commerce,
under the rights guaranteed under the United States
Constitution and Congress' authority thereunder.
SEC. 3. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF
OFFICERS.
(a) In General.--Part H of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3781 et seq.)
is amended by adding at the end the following:
``SEC. 820. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF
STATE AND LOCAL LAW ENFORCEMENT OFFICERS.
``(a) Definitions.--In this section:
``(1) Disciplinary action.--The term `disciplinary action'
means any adverse personnel action, including suspension,
reduction in pay, rank, or other employment benefit,
dismissal, transfer, reassignment, unreasonable denial of
secondary employment, or similar punitive action taken
against a law enforcement officer.
``(2) Disciplinary hearing.--The term `disciplinary
hearing' means an administrative hearing initiated by a law
enforcement agency against a law enforcement officer, based
on an alleged violation of law, that, if proven, would
subject the law enforcement officer to disciplinary action.
``(3) Emergency suspension.--The term `emergency
suspension' means the temporary action by a law enforcement
agency of relieving a law enforcement officer from the active
performance of law enforcement duties without a reduction in
pay or benefits when the law enforcement agency, or an
official within that agency, determines that there is
probable cause, based upon the conduct of the law enforcement
officer, to believe that the law enforcement officer poses an
immediate threat to the safety of that officer or others or
the property of others.
``(4) Investigation.--The term `investigation'--
``(A) means an action taken to determine whether a law
enforcement officer violated a law by a public agency or a
person employed by a public agency, acting alone or in
cooperation with or at the direction of another agency, or a
division or unit within another agency, regardless of a
denial by such an agency that any such action is not an
investigation; and
``(B) includes--
``(i) asking questions of any other law enforcement officer
or non-law enforcement officer;
``(ii) conducting observations;
``(iii) reviewing and evaluating reports, records, or other
documents; and
``(iv) examining physical evidence.
``(5) Law enforcement officer.--The terms `law enforcement
officer' and `officer' have the meaning given the term `law
enforcement officer' in section 1204, except the term does
not include a law enforcement officer employed by the United
States, or any department, agency, or instrumentality
thereof.
``(6) Personnel record.--The term `personnel record' means
any document, whether in written or electronic form and
irrespective of location, that has been or may be used in
determining the qualifications of a
[[Page S1423]]
law enforcement officer for employment, promotion, transfer,
additional compensation, termination or any other
disciplinary action.
``(7) Public agency and law enforcement agency.--The terms
`public agency' and `law enforcement agency' each have the
meaning given the term `public agency' in section 1204,
except the terms do not include the United States, or any
department, agency, or instrumentality thereof.
``(8) Summary punishment.--The term `summary punishment'
means punishment imposed--
``(A) for a violation of law that does not result in any
disciplinary action; or
``(B) for a violation of law that has been negotiated and
agreed upon by the law enforcement agency and the law
enforcement officer, based upon a written waiver by the
officer of the rights of that officer under subsection (i)
and any other applicable law or constitutional provision,
after consultation with the counsel or representative of that
officer.
``(b) Applicability.--
``(1) In general.--This section sets forth the due process
rights, including procedures, that shall be afforded a law
enforcement officer who is the subject of an investigation or
disciplinary hearing.
``(2) Nonapplicability.--This section does not apply in the
case of--
``(A) an investigation of specifically alleged conduct by a
law enforcement officer that, if proven, would constitute a
violation of a statute providing for criminal penalties; or
``(B) a nondisciplinary action taken in good faith on the
basis of the employment related performance of a law
enforcement officer.
``(c) Political Activity.--
``(1) Right to engage or not to engage in political
activity.--Except when on duty or acting in an official
capacity, a law enforcement officer shall not be prohibited
from engaging in political activity or be denied the right to
refrain from engaging in political activity.
``(2) Right to run for elective office.--A law enforcement
officer shall not be--
``(A) prohibited from being a candidate for an elective
office or from serving in such an elective office, solely
because of the status of the officer as a law enforcement
officer; or
``(B) required to resign or take an unpaid leave from
employment with a law enforcement agency to be a candidate
for an elective office or to serve in an elective office,
unless such service is determined to be in conflict with or
incompatible with service as a law enforcement officer.
``(3) Adverse personnel action.--An action by a public
agency against a law enforcement officer, including requiring
the officer to take unpaid leave from employment, in
violation of this subsection shall be considered an adverse
personnel action within the meaning of subsection (a)(1).
``(d) Effective Procedures for Receipt, Review, and
Investigation of Complaints Against Law Enforcement
Officers.--
``(1) Complaint process.--Not later than 1 year after the
effective date of this section, each law enforcement agency
shall adopt and comply with a written complaint procedure
that--
``(A) authorizes persons from outside the law enforcement
agency to submit written complaints about a law enforcement
officer to--
``(i) the law enforcement agency employing the law
enforcement officer; or
``(ii) any other law enforcement agency charged with
investigating such complaints;
``(B) sets forth the procedures for the investigation and
disposition of such complaints;
``(C) provides for public access to required forms and
other information concerning the submission and disposition
of written complaints; and
``(D) requires notification to the complainant in writing
of the final disposition of the complaint and the reasons for
such disposition.
``(2) Initiation of an investigation.--
``(A) In general.--Except as provided in subparagraph (B),
an investigation based on a complaint from outside the law
enforcement agency shall commence not later than 15 days
after the receipt of the complaint by--
``(i) the law enforcement agency employing the law
enforcement officer against whom the complaint has been made;
or
``(ii) any other law enforcement agency charged with
investigating such a complaint.
``(B) Exception.--Subparagraph (A) does not apply if--
``(i) the law enforcement agency determines from the face
of the complaint that each allegation does not constitute a
violation of law; or
``(ii) the complainant fails to comply substantially with
the complaint procedure of the law enforcement agency
established under this section.
``(3) Complainant or victim conflict of interest.--The
complainant or victim of the alleged violation of law giving
rise to an investigation under this subsection may not
conduct or supervise the investigation or serve as an
investigator.
``(e) Notice of Investigation.--
``(1) In general.--Any law enforcement officer who is the
subject of an investigation shall be notified of the
investigation 24 hours before the commencement of questioning
of such officer or to otherwise being required to provide
information to an investigating agency.
``(2) Contents of notice.--Notice given under paragraph (1)
shall include--
``(A) the nature and scope of the investigation;
``(B) a description of any allegation contained in a
written complaint;
``(C) a description of each violation of law alleged in the
complaint for which suspicion exists that the officer may
have engaged in conduct that may subject the officer to
disciplinary action; and
``(D) the name, rank, and command of the officer or any
other individual who will be conducting the investigation.
``(f) Rights of Law Enforcement Officers Prior to and
During Questioning Incidental to an Investigation.--If a law
enforcement officer is subjected to questioning incidental to
an investigation that may result in disciplinary action
against the officer, the following minimum safeguards shall
apply:
``(1) Counsel and representation.--
``(A) In general.--Any law enforcement officer under
investigation shall be entitled to effective counsel by an
attorney or representation by any other person who the
officer chooses, such as an employee representative, or both,
immediately before and during the entire period of any
questioning session, unless the officer consents in writing
to being questioned outside the presence of counsel or
representative.
``(B) Private consultation.--During the course of any
questioning session, the officer shall be afforded the
opportunity to consult privately with counsel or a
representative, if such consultation does not repeatedly and
unnecessarily disrupt the questioning period.
``(C) Unavailability of counsel.--If the counsel or
representative of the law enforcement officer is not
available within 24 hours of the time set for the
commencement of any questioning of that officer, the
investigating law enforcement agency shall grant a reasonable
extension of time for the law enforcement officer to obtain
counsel or representation.
``(2) Reasonable hours and time.--Any questioning of a law
enforcement officer under investigation shall be conducted at
a reasonable time when the officer is on duty, unless exigent
circumstances compel more immediate questioning, or the
officer agrees in writing to being questioned at a different
time, subject to the requirements of subsections (e) and
paragraph (1).
``(3) Place of questioning.--Unless the officer consents in
writing to being questioned elsewhere, any questioning of a
law enforcement officer under investigation shall take
place--
``(A) at the office of the individual conducting the
investigation on behalf of the law enforcement agency
employing the officer under investigation; or
``(B) the place at which the officer under investigation
reports for duty.
``(4) Identification of questioner.--Before the
commencement of any questioning, a law enforcement officer
under investigation shall be informed of--
``(A) the name, rank, and command of the officer or other
individual who will conduct the questioning; and
``(B) the relationship between the individual conducting
the questioning and the law enforcement agency employing the
officer under investigation.
``(5) Single questioner.--During any single period of
questioning of a law enforcement officer under investigation,
each question shall be asked by or through 1 individual.
``(6) Reasonable time period.--Any questioning of a law
enforcement officer under investigation shall be for a
reasonable period of time and shall allow reasonable periods
for the rest and personal necessities of the officer and the
counsel or representative of the officer, if such person is
present.
``(7) No threats, false statements, or promises to be
made.--
``(A) In general.--Except as provided in subparagraph (B),
no threat against, false or misleading statement to,
harassment of, or promise of reward to a law enforcement
officer under investigation shall be made to induce the
officer to answer any question, give any statement, or
otherwise provide information.
``(B) Exception.--The law enforcement agency employing a
law enforcement officer under investigation may require the
officer to make a statement relating to the investigation by
explicitly threatening disciplinary action, including
termination, only if--
``(i) the officer has received a written grant of use and
derivative use immunity or transactional immunity by a person
authorized to grant such immunity; and
``(ii) the statement given by the law enforcement officer
under such an immunity may not be used in any subsequent
criminal proceeding against that officer.
``(8) Recording.--
``(A) In general.--All questioning of a law enforcement
officer under an investigation shall be recorded in full, in
writing or by electronic device, and a copy of the transcript
shall be provided to the officer under investigation before
any subsequent period of questioning or the filing of any
charge against that officer.
``(B) Separate recording.--To ensure the accuracy of the
recording, an officer may utilize a separate electronic
recording device, and a copy of any such recording (or
[[Page S1424]]
the transcript) shall be provided to the public agency
conducting the questioning, if that agency so requests.
``(9) Use of honesty testing devices prohibited.--No law
enforcement officer under investigation may be compelled to
submit to the use of a lie detector, as defined in section 2
of the Employee Polygraph Protection Act of 1988 (29 U.S.C.
2001).
``(g) Notice of Investigative Findings and Disciplinary
Recommendation and Opportunity to Submit a Written
Response.--
``(1) Notice.--Not later than 30 days after the conclusion
of an investigation under this section, the person in charge
of the investigation or the designee of that person shall
notify the law enforcement officer who was the subject of the
investigation, in writing, of the investigative findings and
any recommendations for disciplinary action.
``(2) Opportunity to submit written response.--
``(A) In general.--Not later than 30 days after receipt of
a notification under paragraph (1), and before the filing of
any charge seeking the discipline of such officer or the
commencement of any disciplinary proceeding under subsection
(h), the law enforcement officer who was the subject of the
investigation may submit a written response to the findings
and recommendations included in the notification.
``(B) Contents of response.--The response submitted under
subparagraph (A) may include references to additional
documents, physical objects, witnesses, or any other
information that the law enforcement officer believes may
provide exculpatory evidence.
``(h) Disciplinary Hearings.--
``(1) Notice of opportunity for hearing.--Except in a case
of summary punishment or emergency suspension (subject to
subsection (k)), before the imposition of any disciplinary
action the law enforcement agency shall notify the officer
that the officer is entitled to a due process hearing by an
independent and impartial hearing officer or board.
``(2) Requirement of determination of violation.--No
disciplinary action may be taken against a law enforcement
officer unless an independent and impartial hearing officer
or board determines, after a hearing and in accordance with
the requirements of this subsection, that the law enforcement
officer committed a violation of law.
``(3) Time limit.--No disciplinary charge may be brought
against a law enforcement officer unless--
``(A) the charge is filed not later than the earlier of--
``(i) 1 year after the date on which the law enforcement
agency filing the charge had knowledge or reasonably should
have had knowledge of an alleged violation of law; or
``(ii) 90 days after the commencement of an investigation;
or
``(B) the requirements of this paragraph are waived in
writing by the officer or the counsel or representative of
the officer.
``(4) Notice of hearing.--Unless waived in writing by the
officer or the counsel or representative of the officer, not
later than 30 days after the filing of a disciplinary charge
against a law enforcement officer, the law enforcement agency
filing the charge shall provide written notification to the
law enforcement officer who is the subject of the charge,
of--
``(A) the date, time, and location of any disciplinary
hearing, which shall be scheduled in cooperation with the law
enforcement officer, or the counsel or representative of the
officer, and which shall take place not earlier than 30 days
and not later than 60 days after notification of the hearing
is given to the law enforcement officer under investigation;
``(B) the name and mailing address of the independent and
impartial hearing officer, or the names and mailing addresses
of the independent and impartial hearing board members; and
``(C) the name, rank, command, and address of the law
enforcement officer prosecuting the matter for the law
enforcement agency, or the name, position, and mailing
address of the person prosecuting the matter for a public
agency, if the prosecutor is not a law enforcement officer.
``(5) Access to documentary evidence and investigative
file.--Unless waived in writing by the law enforcement
officer or the counsel or representative of that officer, not
later than 15 days before a disciplinary hearing described in
paragraph (4)(A), the law enforcement officer shall be
provided with--
``(A) a copy of the complete file of the pre-disciplinary
investigation; and
``(B) access to and, if so requested, copies of all
documents, including transcripts, records, written
statements, written reports, analyses, and electronically
recorded information that--
``(i) contain exculpatory information;
``(ii) are intended to support any disciplinary action; or
``(iii) are to be introduced in the disciplinary hearing.
``(6) Examination of physical evidence.--Unless waived in
writing by the law enforcement officer or the counsel or
representative of that officer--
``(A) not later than 15 days before a disciplinary hearing,
the prosecuting agency shall notify the law enforcement
officer or the counsel or representative of that officer of
all physical, non-documentary evidence; and
``(B) not later than 10 days before a disciplinary hearing,
the prosecuting agency shall provide a reasonable date, time,
place, and manner for the law enforcement officer or the
counsel or representative of the law enforcement officer to
examine the evidence described in subparagraph (A).
``(7) Identification of witnesses.--Unless waived in
writing by the law enforcement officer or the counsel or
representative of the officer, not later than 15 days before
a disciplinary hearing, the prosecuting agency shall notify
the law enforcement officer or the counsel or representative
of the officer, of the name and address of each witness for
the law enforcement agency employing the law enforcement
officer.
``(8) Representation.--During a disciplinary hearing, the
law enforcement officer who is the subject of the hearing
shall be entitled to due process, including--
``(A) the right to be represented by counsel or a
representative;
``(B) the right to confront and examine all witnesses
against the officer; and
``(C) the right to call and examine witnesses on behalf of
the officer.
``(9) Hearing board and procedure.--
``(A) In general.--A State or local government agency,
other than the law enforcement agency employing the officer
who is subject of the disciplinary hearing, shall--
``(i) determine the composition of an independent and
impartial disciplinary hearing board;
``(ii) appoint an independent and impartial hearing
officer; and
``(iii) establish such procedures as may be necessary to
comply with this section.
``(B) Peer representation on disciplinary hearing board.--A
disciplinary hearing board that includes employees of the law
enforcement agency employing the law enforcement officer who
is the subject of the hearing, shall include not less than 1
law enforcement officer of equal or lesser rank to the
officer who is the subject of the hearing.
``(10) Summonses and subpoenas.--
``(A) In general.--The disciplinary hearing board or
independent hearing officer--
``(i) shall have the authority to issue summonses or
subpoenas, on behalf of--
``(I) the law enforcement agency employing the officer who
is the subject of the hearing; or
``(II) the law enforcement officer who is the subject of
the hearing; and
``(ii) upon written request of either the law enforcement
agency or the officer, shall issue a summons or subpoena, as
appropriate, to compel the appearance and testimony of a
witness or the production of documentary evidence.
``(B) Effect of failure to comply with summons or
subpoena.--With respect to any failure to comply with a
summons or a subpoena issued under subparagraph (A)--
``(i) the disciplinary hearing officer or board shall
petition a court of competent jurisdiction to issue an order
compelling compliance; and
``(ii) subsequent failure to comply with such a court order
issued pursuant to a petition under clause (i) shall--
``(I) be subject to contempt of a court proceedings
according to the laws of the jurisdiction within which the
disciplinary hearing is being conducted; and
``(II) result in the recess of the disciplinary hearing
until the witness becomes available to testify and does
testify or is held in contempt.
``(11) Closed hearing.--A disciplinary hearing shall be
closed to the public unless the law enforcement officer who
is the subject of the hearing requests, in writing, that the
hearing be open to specified individuals or to the general
public.
``(12) Recording.--All aspects of a disciplinary hearing,
including pre-hearing motions, shall be recorded by audio
tape, video tape, or transcription.
``(13) Sequestration of witnesses.--Either side in a
disciplinary hearing may move for and be entitled to
sequestration of witnesses.
``(14) Testimony under oath.--The hearing officer or board
shall administer an oath or affirmation to each witness, who
shall testify subject to the laws of perjury of the State in
which the disciplinary hearing is being conducted.
``(15) Final decision on each charge.--
``(A) In general.--At the conclusion of the presentation of
all the evidence and after oral or written argument, the
hearing officer or board shall deliberate and render a
written final decision on each charge.
``(B) Final decision isolated to charge brought.--The
hearing officer or board may not find that the law
enforcement officer who is the subject of the hearing is
liable for disciplinary action for any violation of law as to
which the officer was not charged.
``(16) Burden of persuasion and standard of proof.--The
burden of persuasion or standard of proof of the prosecuting
agency shall be--
``(A) by clear and convincing evidence as to each charge
alleging false statement or representation, fraud,
dishonesty, deceit, moral turpitude, or criminal behavior on
the part of the law enforcement officer who is the subject of
the charge; and
``(B) by a preponderance of the evidence as to all other
charges.
``(17) Factors of just cause to be considered by the
hearing officer or board.--A law enforcement officer who is
the subject of a disciplinary hearing shall not be found
guilty of any charge or subjected to any disciplinary action
unless the disciplinary hearing board or independent hearing
officer finds that--
``(A) the officer who is the subject of the charge could
reasonably be expected to have
[[Page S1425]]
had knowledge of the probable consequences of the alleged
conduct set forth in the charge against the officer;
``(B) the rule, regulation, order, or procedure that the
officer who is the subject of the charge allegedly violated
is reasonable;
``(C) the charging party, before filing the charge, made a
reasonable, fair, and objective effort to discover whether
the officer did in fact violate the rule, regulation, order,
or procedure as charged;
``(D) the charging party did not conduct the investigation
arbitrarily or unfairly, or in a discriminatory manner,
against the officer who is the subject of the charge, and the
charge was brought in good faith; and
``(E) the proposed disciplinary action reasonably relates
to the seriousness of the alleged violation and to the record
of service of the officer who is the subject of the charge.
``(18) No commission of a violation.--If the officer who is
the subject of the disciplinary hearing is found not to have
committed the alleged violation--
``(A) the matter is concluded;
``(B) no disciplinary action may be taken against the
officer;
``(C) the personnel record of that officer shall not
contain any reference to the charge for which the officer was
found not guilty; and
``(D) any pay and benefits lost or deferred during the
pendency of the disposition of the charge shall be restored
to the officer as though no charge had ever been filed
against the officer, including salary or regular pay,
vacation, holidays, longevity pay, education incentive pay,
shift differential, uniform allowance, lost overtime, or
other premium pay opportunities, and lost promotional
opportunities.
``(19) Commission of a violation.--
``(A) In general.--If the officer who is the subject of the
charge is found to have committed the alleged violation, the
hearing officer or board shall make a written recommendation
of a penalty to the law enforcement agency employing the
officer or any other governmental entity that has final
disciplinary authority, as provided by applicable State or
local law.
``(B) Penalty.--The employing agency or other governmental
entity may not impose a penalty greater than the penalty
recommended by the hearing officer or board.
``(20) Appeal.--Any officer who has been found to have
committed an alleged violation may appeal from a final
decision of a hearing officer or hearing board to a court of
competent jurisdiction or to an independent neutral
arbitrator to the extent available in any other
administrative proceeding under applicable State or local
law, or a collective bargaining agreement.
``(i) Waiver of Rights.--
``(1) In general.--An officer who is notified that the
officer is under investigation or is the subject of a charge
may, after such notification, waive any right or procedure
guaranteed by this section.
``(2) Written waiver.--A written waiver under this
subsection shall be--
``(A) in writing; and
``(B) signed by--
``(i) the officer, who shall have consulted with counsel or
a representative before signing any such waiver; or
``(ii) the counsel or representative of the officer, if
expressly authorized by subsection (h).
``(j) Summary Punishment.--Nothing in this section shall
preclude a public agency from imposing summary punishment.
``(k) Emergency Suspension.--Nothing in this section may be
construed to preclude a law enforcement agency from imposing
an emergency suspension on a law enforcement officer, except
that any such suspension shall--
``(1) be followed by a hearing in accordance with the
requirements of subsection (h); and
``(2) not deprive the affected officer of any pay or
benefit.
``(l) Retaliation for Exercising Rights.--There shall be no
imposition of, or threat of, disciplinary action or other
penalty against a law enforcement officer for the exercise of
any right provided to the officer under this section.
``(m) Other Remedies Not Impaired.--Nothing in this section
may be construed to impair any other right or remedy that a
law enforcement officer may have under any constitution,
statute, ordinance, order, rule, regulation, procedure,
written policy, collective bargaining agreement, or any other
source.
``(n) Declaratory or Injunctive Relief.--A law enforcement
officer who is aggrieved by a violation of, or is otherwise
denied any right afforded by, the Constitution of the United
States, a State constitution, this section, or any
administrative rule or regulation promulgated pursuant
thereto, may file suit in any Federal or State court of
competent jurisdiction for declaratory or injunctive relief
to prohibit the law enforcement agency from violating or
otherwise denying such right, and such court shall have
jurisdiction, for cause shown, to restrain such a violation
or denial.
``(o) Protection of Law Enforcement Officer Personnel
Files.--
``(1) Restrictions on adverse material maintained in
officers' personnel records.--
``(A) In general.--Unless the officer has had an
opportunity to review and comment, in writing, on any adverse
material generated after the effective date of the State and
Local Law Enforcement Discipline, Accountability, and Due
Process Act of 2007 to be included in a personnel record
relating to the officer, no law enforcement agency or other
governmental entity may--
``(i) include the adverse material in that personnel
record; or
``(ii) possess or maintain control over the adverse
material in any form as a personnel record within the law
enforcement agency or elsewhere in the control of the
employing governmental entity.
``(B) Responsive material.--Any responsive material
provided by an officer to adverse material included in a
personnel record pertaining to the officer shall be--
``(i) attached to the adverse material; and
``(ii) released to any person or entity to whom the adverse
material is released in accordance with law and at the same
time as the adverse material is released.
``(2) Right to inspection of, and restrictions on access to
information in, the officer's own personnel records.--
``(A) In general.--Subject to subparagraph (B), a law
enforcement officer shall have the right to inspect all of
the personnel records of the officer not less than annually.
``(B) Restrictions.--A law enforcement officer shall not
have access to information in the personnel records of the
officer if the information--
``(i) relates to the investigation of alleged conduct that,
if proven, would constitute or have constituted a definite
violation of a statute providing for criminal penalties, but
as to which no formal charge was brought;
``(ii) contains letters of reference for the officer;
``(iii) contains any portion of a test document other than
the results;
``(iv) is of a personal nature about another officer, and
if disclosure of that information in non-redacted form would
constitute a clearly unwarranted intrusion into the privacy
rights of that other officer; or
``(v) is relevant to any pending claim brought by or on
behalf of the officer against the employing agency of that
officer that may be discovered in any judicial or
administrative proceeding between the officer and the
employer of that officer.
``(p) States' Rights.--
``(1) In general.--Nothing in this section may be
construed--
``(A) to preempt any State or local law, or any provision
of a State or local law, in effect on the date of enactment
of the State and Local Law Enforcement Discipline,
Accountability, and Due Process Act of 2007, that confers a
right or a protection that equals or exceeds the right or
protection afforded by this section; or
``(B) to prohibit the enactment of any State or local law
that confers a right or protection that equals or exceeds a
right or protection afforded by this section.
``(2) State or local laws preempted.--A State or local law,
or any provision of a State or local law, that confers fewer
rights or provides less protection for a law enforcement
officer than any provision in this section shall be preempted
by this section.
``(q) Collective Bargaining Agreements.--Nothing in this
section may be construed to--
``(1) preempt any provision in a mutually agreed-upon
collective bargaining agreement, in effect on the date of
enactment of the State and Local Law Enforcement Discipline,
Accountability, and Due Process Act of 2007, that provides
for substantially the same or a greater right or protection
afforded under this section; or
``(2) prohibit the negotiation of any additional right or
protection for an officer who is subject to any collective
bargaining agreement.''.
(b) Technical Amendment.--The table of contents of title I
of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3711 et seq.) is amended by inserting after the item
relating to section 819 the following:
``Sec. 820. Discipline, accountability, and due process of State and
local law enforcement officers.''.
SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE AND LOCAL
CRIMINAL JUSTICE AGENCIES.
Nothing in this Act or the amendments made by this Act
shall be construed to authorize any department, agency,
officer, or employee of the United States to exercise any
direction, supervision, or control of any police force or any
criminal justice agency of any State or any political
subdivision thereof.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall take effect with
respect to each State on the earlier of--
(1) 2 years after the date of enactment of this Act; or
(2) the conclusion of the second legislative session of the
State that begins on or after the date of enactment of this
Act.
______
By Mr. AKAKA (for himself, Mr. Cochran, Mr. Dodd, Mr. Feingold,
and Mr. Durbin):
S. 451. A bill to establish a National Foreign language Coordination
Council; to the Committee on Health, Education, Labor, and Pensions.
Mr. AKAKA. Mr. President, I am pleased to reintroduce the National
Foreign Language Coordination Act with my colleagues Senators Thad
Cochran, Christopher Dodd, and Russell Feingold. We are joined by
[[Page S1426]]
Representative Brian Baird, who is offering a companion bill in the
House of Representatives today as well.
The legislation we introduce today would implement a key
recommendation of the 2004 Department of Defense, DOD, National
Language Conference to establish a National Foreign Language
Coordination Council, chaired by a National Language Director. An
integrated foreign language strategy and sustained leadership within
the Federal Government is needed to address the lack of foreign
language proficient speakers in government and in business. Without
such a coordinated strategy, I fear that the country's national and
economic security will be at greater risk.
The communications failures of 9/11 clearly demonstrate that we can
no longer ignore the consequence of our citizens being unable to
converse fluently in languages other than English. The fact that only
9.3 percent of all Americans speak both their native languages and
another language fluently, compared with 56 percent of people in the
European Union is troubling. The Iraq Study Group reported last month
that of the 1,000 American embassy employees in Baghdad, only 33 speak
Arabic, and just 6 of them are fluent in this critical language. The
shortfall of skilled linguists prompted the Iraq Study Group to
recommend that ``The Secretary of State, the Secretary of Defense, and
the Director of National Intelligence should accord the highest
possible priority to professional language proficiency and cultural
training, in general and specifically for U.S. officers and personnel
about to be assigned to Iraq.''
The Federal Government has an essential role to play by collaborating
with educators, State and local governments, foreign language
associations, and the private sector to increase the number of
Americans who speak and understand foreign languages. A National
Foreign Language Coordination Council brings these diverse interests
together to shape a much needed, comprehensive approach. Just as I have
advocated the need for deputy secretaries for management at the
Departments of Defense and Homeland Security to direct and sustain
management leadership, I envision a National Language Director to be
responsible for maintaining and leading a cooperative effort to
strengthen our foreign language capabilities.
Our Nation's security is at risk without a sufficient number of
foreign language proficient individuals. Counterterrorism intelligence
will go untranslated and opportunities will be missed. Equally
important is preserving the economic competitiveness of the United
States. Globalization means that Americans must compete for jobs in a
marketplace no longer confined to the boundaries of the United States.
In short, both the security and economic vitality of the United States
are tied to improving foreign language education. However, according to
the Committee on Economic Development, many of our schools do not have
foreign language programs that address the educational challenges of
the 21st century. Many American students lack sufficient knowledge of
other countries, languages, and cultures to compete effectively in the
global marketplace.
Specifically, our bill ensures that the key recommendations of the
DOD National Language Conference will be implemented by: Developing
policies and programs that build the Nation's language and cultural
understanding capability; engaging Federal, State, and local agencies
and the private sector in solutions; developing language and cultural
competency across public and private sectors; developing language
skills in a wide range of critical languages; strengthening our
education system, programs, and tools in foreign languages and
cultures; and integrating language training into career fields and
increase the number of language professionals.
Last week, the Subcommittee on Oversight of Government Management,
the Federal Workforce, and the District of Columbia, which I chair,
held a hearing on the Federal Government's language strategy. Dr. Diane
Birckbich1er, director of the Foreign Language Center and chair of the
Departments of French and Italian at Ohio State University, testified
that ``if there is a national language strategy, it isn't very well
known.'' She further recommended the development of a national language
policy to create a language-ready workforce for the future.
To strengthen the role of the United States in the world, our country
must ensure that there is a sufficient number of individuals who are
proficient in languages other than their native languages. Increasing
foreign language skills enhances national security, just as increasing
foreign language skills enhances the ability of Americans to compete on
a more global playing field.
I ask my colleagues to support this legislation and unanimous consent
that the text of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 451
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ESTABLISHMENT OF NATIONAL FOREIGN LANGUAGE
COORDINATION COUNCIL.
(a) Short Title.--This Act may be cited as the ``National
Foreign Language Coordination Act of 2007''.
(b) Establishment.--There is established in the Executive
Office of the President a National Foreign Language
Coordination Council (in this section referred to as the
``Council'').
(c) Membership.--The Council shall consist of the following
members or their designees:
(1) The National Language Director, who shall serve as the
chairperson of the Council.
(2) The Secretary of Education.
(3) The Secretary of Defense.
(4) The Secretary of State.
(5) The Secretary of Homeland Security.
(6) The Attorney General.
(7) The Director of National Intelligence.
(8) The Secretary of Labor.
(9) The Director of the Office of Personnel Management.
(10) The Director of the Office of Management and Budget.
(11) The Secretary of Commerce.
(12) The Secretary of Health and Human Services.
(13) The Secretary of the Treasury.
(14) The Secretary of Housing and Urban Development.
(15) The Secretary of Agriculture.
(16) The Chairman and President of the Export-Import Bank
of the United States.
(17) The heads of such other Federal agencies as the
Council considers appropriate.
(d) Responsibilities.--
(1) In general.--The Council shall be charged with--
(A) overseeing, coordinating, and implementing the National
Security Language Initiative;
(B) developing a national foreign language strategy,
building upon the efforts of the National Security Language
Initiative, within 18 months after the date of the enactment
of this section, in consultation with--
(i) State and local government agencies;
(ii) academic sector institutions;
(iii) foreign language related interest groups;
(iv) business associations;
(v) industry;
(vi) heritage associations; and
(vii) other relevant stakeholders;
(C) conducting a survey of the status of Federal agency
foreign language and area expertise and agency needs for such
expertise; and
(D) monitoring the implementation of such strategy
through--
(i) application of current and recently enacted laws; and
(ii) the promulgation and enforcement of rules and
regulations.
(2) Strategy content.--The strategy developed under
paragraph (1) shall include--
(A) recommendations for amendments to title 5, United
States Code, in order to improve the ability of the Federal
Government to recruit and retain individuals with foreign
language proficiency and provide foreign language training
for Federal employees;
(B) the long term goals, anticipated effect, and needs of
the National Security Language Initiative;
(C) identification of crucial priorities across all
sectors;
(D) identification and evaluation of Federal foreign
language programs and activities, including--
(i) any duplicative or overlapping programs that may impede
efficiency;
(ii) recommendations on coordination;
(iii) program enhancements; and
(iv) allocation of resources so as to maximize use of
resources;
(E) needed national policies and corresponding legislative
and regulatory actions in support of, and allocation of
designated resources to, promising programs and initiatives
at all levels (Federal, State, and local), especially in the
less commonly taught languages that are seen as critical for
national security and global competitiveness during the next
20 to 50 years;
(F) effective ways to increase public awareness of the need
for foreign language skills and career paths in all sectors
that can employ those skills, with the objective of
increasing support for foreign language study among--
[[Page S1427]]
(i) Federal, State, and local leaders;
(ii) students;
(iii) parents;
(iv) elementary, secondary, and postsecondary educational
institutions; and
(v) employers;
(G) recommendations for incentives for related educational
programs, including foreign language teacher training;
(H) coordination of cross-sector efforts, including public-
private partnerships;
(I) coordination initiatives to develop a strategic posture
for language research and recommendations for funding for
applied foreign language research into issues of national
concern;
(J) recommendations for assistance for--
(i) the development of foreign language achievement
standards; and
(ii) corresponding assessments for the elementary,
secondary, and postsecondary education levels, including the
National Assessment of Educational Progress in foreign
languages;
(K) recommendations for development of--
(i) language skill-level certification standards;
(ii) frameworks for pre-service and professional
development study for those who teach foreign language;
(iii) suggested graduation criteria for foreign language
studies and appropriate non-language studies, such as--
(I) international business;
(II) national security;
(III) public administration;
(IV) health care;
(V) engineering;
(VI) law;
(VII) journalism; and
(VIII) sciences;
(L) identification of and means for replicating best
practices at all levels and in all sectors, including best
practices from the international community; and
(M) recommendations for overcoming barriers in foreign
language proficiency.
(3) National security language initiative.--The term
``National Security Language Initiative'' means the
comprehensive national plan of the President announced on
January 5, 2006, and under the direction of the Secretaries
of State, Education, and Defense and the Director of National
Intelligence to expand foreign language education for
national security purposes in the United States.
(e) Submission of Strategy to President and Congress.--Not
later than 18 months after the date of enactment of this
section, the Council shall prepare and transmit to the
President and the relevant committees of Congress the
strategy required under subsection (d).
(f) Meetings.--The Council may hold such meetings, and sit
and act at such times and places, as the Council considers
appropriate, but shall meet in formal session at least 2
times a year. State and local government agencies and other
organizations (such as academic sector institutions, foreign
language-related interest groups, business associations,
industry, and heritage community organizations) shall be
invited, as appropriate, to public meetings of the Council at
least once a year.
(g) Staff.--
(1) In general.--The Director may--
(A) appoint, without regard to the provisions of title 5,
United States Code, governing the competitive service, such
personnel as the Director considers necessary; and
(B) compensate such personnel without regard to the
provisions of chapter 51 and subchapter III of chapter 53 of
that title.
(2) Detail of government employees.--Upon request of the
Council, any Federal Government employee may be detailed to
the Council without reimbursement, and such detail shall be
without interruption or loss of civil service status or
privilege.
(3) Experts and consultants.--With the approval of the
Council, the Director may procure temporary and intermittent
services under section 3109(b) of title 5, United States
Code.
(4) Travel expenses.--Council members and staff 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 Council.
(5) Security clearance.--
(A) In general.--Subject to subparagraph (B), the
appropriate Federal agencies or departments shall cooperate
with the Council in expeditiously providing to the Council
members and staff appropriate security clearances to the
extent possible pursuant to existing procedures and
requirements.
(B) Exception.--No person shall be provided with access to
classified information under this section without the
appropriate required security clearance access.
(6) Compensation.--The rate of pay for any employee of the
Council (including the Director) may not exceed the rate
payable for level V of the Executive Schedule under section
5316 of title 5, United States Code.
(h) Powers.--
(1) Delegation.--Any member or employee of the Council may,
if authorized by the Council, take any action that the
Council is authorized to take in this section.
(2) Information.--
(A) Council authority to secure.--The Council may secure
directly from any Federal agency such information, consistent
with Federal privacy laws, including The Family Educational
Rights and Privacy Act (20 U.S.C. 1232g) and Department of
Education's General Education Provisions Act (20 U.S.C.
1232(h)), the Council considers necessary to carry out its
responsibilities.
(B) Requirement to furnish requested information.--Upon
request of the Director, the head of such agency shall
furnish such information to the Council.
(3) Donations.--The Council may accept, use, and dispose of
gifts or donations of services or property.
(4) Mail.--The Council may use the United States mail in
the same manner and under the same conditions as other
Federal agencies.
(i) Conferences, Newsletter, and Website.--In carrying out
this section, the Council--
(1) may arrange Federal, regional, State, and local
conferences for the purpose of developing and coordinating
effective programs and activities to improve foreign language
education;
(2) may publish a newsletter concerning Federal, State, and
local programs that are effectively meeting the foreign
language needs of the nation; and
(3) shall create and maintain a website containing
information on the Council and its activities, best practices
on language education, and other relevant information.
(j) Annual Report.--
(1) Requirement.--Not later than 90 days after the date of
the enactment of this Act, and annually thereafter, the
Council shall prepare and transmit to the President and the
relevant committees of Congress a report that describes--
(A) the activities of the Council;
(B) the efforts of the Council to improve foreign language
education and training; and
(C) impediments to the use of a National Foreign Language
program, including any statutory and regulatory restrictions.
(2) Relevant committees.--For purposes of paragraph (1),
the relevant committees of Congress include--
(A) in the House of Representatives--
(i) the Committee on Appropriations;
(ii) the Committee on Armed Services;
(iii) the Committee on Education and Labor;
(iv) the Committee on Oversight and Government Reform;
(v) the Committee on Small Business;
(vi) the Committee on Foreign Affairs; and
(vii) the Permanent Select Committee on Intelligence;
(B) in the Senate--
(i) the Committee on Appropriations;
(ii) the Committee on Armed Services;
(iii) the Committee on Health, Education, Labor, and
Pensions;
(iv) the Committee on Homeland Security and Governmental
Affairs;
(v) the Committee on Foreign Relations; and
(vi) the Select Committee on Intelligence.
(k) Establishment of a National Language Director.--
(1) In general.--There is established a National Language
Director who shall be appointed by the President. The
National Language Director shall be a nationally recognized
individual with credentials and abilities across the sectors
to be involved with creating and implementing long-term
solutions to achieving national foreign language and cultural
competency.
(2) Responsibilities.--The National Language Director
shall--
(A) develop and monitor the implementation of a national
foreign language strategy, built upon the efforts of the
National Security Language Initiative, across all sectors;
(B) establish formal relationships among the major
stakeholders in meeting the needs of the Nation for improved
capabilities in foreign languages and cultural understanding,
including Federal, State, and local government agencies,
academia, industry, labor, and heritage communities; and
(C) coordinate and lead a public information campaign that
raises awareness of public and private sector careers
requiring foreign language skills and cultural understanding,
with the objective of increasing interest in and support for
the study of foreign languages among national leaders, the
business community, local officials, parents, and
individuals.
(l) Encouragement of State Involvement.--
(1) State contact persons.--The Council shall consult with
each State to provide for the designation by each State of an
individual to serve as a State contact person for the purpose
of receiving and disseminating information and communications
received from the Council.
(2) State interagency councils and lead agencies.--Each
State is encouraged to establish a State interagency council
on foreign language coordination or designate a lead agency
for the State for the purpose of assuming primary
responsibility for coordinating and interacting with the
Council and State and local government agencies as necessary.
(m) Congressional Notification.--The Council shall provide
to Congress such information as may be requested by Congress,
through reports, briefings, and other appropriate means.
(n) Authorization of Appropriations.--There are authorized
to be appropriated such sums as necessary to carry out this
section.
[[Page S1428]]
______
By Mr. OBAMA (for himself, Mr. Schumer, Mr. Leahy, Mr. Cardin,
Mr. Feingold, Mr. Kerry, Mrs. Feinstein, Mrs. Clinton, Mrs.
Boxer, and Mr. Kennedy):
S. 453. A bill to prohibit deceptive practices in Federal elections;
to the Committee on the Judiciary.
Mr. OBAMA. Mr. President, I am pleased to introduce a bill today that
seeks to address the all-too-common efforts to deceive voters in order
to keep them away from the polls.
It's hard to imagine that we even need a bill like this. But,
unfortunately, there are people who will stop at nothing to try to
deceive voters and keep them away from the polls. What's worse, these
practices often target and exploit vulnerable populations, such as
minorities, the disabled, or the poor.
We saw countless examples in this past election. Some of us remember
the thousands of Latino voters in Orange County, California, who
received letters warning them in Spanish that, ``if you are an
immigrant, voting in a federal election is a crime that can result in
incarceration.''
Or the voters in Maryland who received a ``democratic sample ballot''
featuring a Republican candidate for Governor and a Republican
candidate for U.S. Senator.
Or the voters in Virginia who received calls from a so-called
``Virginia Elections Commission'' informing them--falsely--that they
were ineligible to vote.
Or the voters who were told that they couldn't vote if they had
family members who had been convicted of a crime.
Of course, these so-called warnings have no basis in fact, and are
made with only one goal in mind--to keep Americans away from the polls.
We see these problems year after year and election and after election,
and my hope is that this bill will finally stop these practices in time
for the next election.
That is why I am reintroducing the Deceptive Practices and Voter
Intimidation Prevention Act. It's a bill that makes voter intimidation
and deception punishable by law, and it contains strong penalties so
that people who commit these crimes suffer more than just a slap on the
wrist. The bill also seeks to address the real harm of these crimes--
people who are prevented from voting by misinformation--by establishing
a process for reaching out to these misinformed voters with accurate
information so they can cast their votes in time.
Senator Schumer has joined me in introducing this legislation, and we
are joined by our colleagues, Senator Patrick Leahy, Chairman of the
Judiciary Committee, and Senators Cardin, Feingold, Kerry, Feinstein
and Clinton as original co-sponsors to this bill.
There are some issues in this country that are inherently difficult
and political. Making sure that every American can cast a ballot
shouldn't be one of them. There is no place for politics in this
debate--no room for those who feel that they can gain a partisan
advantage by keeping people away from the polls. It's time to get this
done in a bipartisan fashion, and I believe this bill can make it
happen.
I ask unanimous consent that a New York Times editorial from January
31, 2007, be printed in the Record.
There being no objection, the editorial was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 31, 2007]
Honesty in Elections
On Election Day last fall in Maryland, fliers were handed
out in black neighborhoods with the heading ``Democratic
Sample Ballot'' and photos of black Democratic leaders--and
boxes checked off beside the names of the Republican
candidates for senator and governor. They were a blatant
attempt to fool black voters into thinking the Republican
candidates were endorsed by black Democrats. In Orange
County, Calif., 14,000 Latino voters got letters in Spanish
saying it was a crime for immigrants to vote in a federal
election. It didn't say that immigrants who are citizens have
the right to vote.
Dirty tricks like these turn up every election season, in
large part because they are so rarely punished. But two
Democratic senators, Barack Obama of Illinois and Charles
Schumer of New York, are introducing a bill today that would
make deceiving or intimidating voters a federal crime with
substantial penalties.
The bill aims at some of the most commonly used deceptive
political tactics. It makes it a crime to knowingly tell
voters the wrong day for an election. There have been
numerous reports of organized efforts to use telephones,
leaflets or posters to tell voters, especially in minority
areas, not to vote on Election Day because voting has been
postponed.
The bill would also criminalize making false claims to
voters about who has endorsed a candidate, or wrongly telling
people--like immigrants who are registered voters in Orange
County--that they cannot vote.
Along with defining these crimes and providing penalties of
up to five years' imprisonment, the bill would require the
Justice Department to counteract deceptive election
information that has been put out, and to report to Congress
after each election on what deceptive practices occurred and
what the Justice Department did about them.
The bill would also allow individuals to go to court to
stop deceptive practices while they are happening. That is
important, given how uninterested the current Justice
Department has proved to be in cracking down on election
season dirty tricks.
The bill is careful to avoid infringing on First Amendment
rights, and that is the right course. But in steering clear
of regulating speech, it is not clear how effective the
measure would be in addressing one of the worst dirty tricks
of last fall's election: a particular kind of deceptive
``robocall'' that was used against Democratic Congressional
candidates. These calls, paid for by the Republicans, sounded
as if they had come from the Democrat; when a recipient hung
up, the call was repeated over and over. The intent was
clearly to annoy the recipients so they would not vote for
the Democrat.
While there are already laws that can be used against this
sort of deceptive telephone harassment, a more specific bill
aimed directly at these calls is needed. But the bill being
introduced today is an important step toward making elections
more honest and fair. There is no reason it should not be
passed by Congress unanimously.
Mr. SCHUMER. Mr. President, I rise today to join with Senator Obama
in introducing landmark legislation to protect the most sacred right of
our democracy: the right to vote. The Obama-Schumer Deceptive Practices
and Voter Intimidation Prevention Act of 2007 will end the deceptive
practices that have become far too common in recent elections.
At the outset, I want to commend my colleague from Illinois, Senator
Obama, for his leadership on this important issue. It has been a great
pleasure to work with him to draft this bill. I am also proud that we
are joined by Senators Leahy, Cardin, Feingold, Kerry, Feinstein, and
Clinton as original cosponsors of this legislation.
We all know that there is an urgent need for this legislation. The
right to vote is the wellspring of our democracy. Yet Americans have
been profoundly shocked and disgusted in recent elections to see so
many cynical attempts to lie to voters in order to keep them from
casting their ballots.
Let me give just a few examples. In last year's mid-term election,
letters in Spanish were sent to voters in Orange County, CA, stating
that it is a crime for an immigrant to vote. In fact, immigrants who
are naturalized citizens have the right to vote just as any other
American citizen does.
In 2006, as well, fliers were handed out on election day in Maryland
that gave the impression that top Republican candidates for office were
Democratic candidates and were endorsed by prominent African Americans.
These fliers were a clear and deliberate attempt to mislead voters.
In Virginia, registered voters received recorded calls that falsely
stated that the recipient of the call was registered in another State
and would face criminal charges if they came to the polls.
These dirty tricks are not new. In 2002, fliers were distributed in
public housing complexes in Louisiana, telling people that they could
cast their votes 3 days after election day if the weather was bad.
These schemes insult the intelligence of those they target, and they
insult our democracy. Yet they actually seem to be growing more common.
The shameful reality is that today, Federal law does not prohibit
wrongdoers from spreading these lies.
It is high time for Congress to do something about this disgraceful
state of affairs. The Obama-Schumer bill creates a new offense of voter
deception. Under our legislation, anyone who intentionally lies to
voters about certain key information will now face both civil penalties
and criminal punishment of up to 5 years in prison or a $100,000 fine.
The Obama-Schumer bill covers the facts that are most critical for
reaching the polls--facts like where, when,
[[Page S1429]]
and how you can vote; whether you are eligible to vote; or whether an
organization has actually endorsed a candidate. When voters are being
misled about these core facts, the right to vote is nothing more than a
hollow promise. It is a real threat to the right to vote when criminal
elements are deliberately lying about something as basic--yet as
important--as the date of the election. These types of lies are the
poll taxes of today. They are being used to build a barrier around
polling places and to disenfranchise voters in the most cynical and
destructive way.
Even when misinformation campaigns are not successful, because voters
are too smart and too determined to reach the polls, these deceptive
practices make a mockery out of the great tradition of American
democracy. These despicable attempts have gone unpunished for far too
long. The Obama-Schumer bill provides strong penalties to deter and
punish the offense of voter deception.
The Obama-Schumer bill will also increase the maximum penalty for
voter intimidation from 1 year to 5 years in prison. Someone who tries
to keep voters away from the polls with threats should not be released
with a slap on the wrist, and our bill will create real penalties for
this crime.
Finally, our legislation also ensures that lies do not go unanswered
and pass for truth. Under the Obama-Schumer bill, the Department of
Justice will be responsible for getting the correct information out to
voters so that they can get to the polls and cast their vote without
undue confusion.
As a check on whether elections are being tainted by these practices,
after each election, the Attorney General will have to report to
Congress about allegations of voter deception and how they were
handled. We want to make sure that the Department of Justice uses the
new tools that would be provided under this bill. The Attorney
General's reports will give us a foundation for vigorous oversight.
Let me also be clear about what this legislation does not do. Senator
Obama and I have taken great care to craft a bill that will not run
afoul of the first amendment or prevent Americans from expressing their
political opinions. Our bill strikes a balance between the need for
political debate and the fundamental right to vote. It is narrowly
tailored: it applies only to activities within 60 days prior to an
election, and it covers only the key facts that voters need to reach
the polls and cast their votes without interference. This bill will not
limit legitimate debate, and it will not punish honest mistakes. It is
clear from the dirty tricks that America has witnessed in recent
elections that the Congress has a compelling interest in protecting the
right to vote by regulating false speech that disenfranchises voters.
We have a responsibility to act on that interest for the sake of all
Americans.
The Obama-Schumer Deceptive Practices and Voter Intimidation
Prevention Act of 2007 will finally criminalize efforts to keep voters
away from the polls with deliberate lies. I hope and trust that the
Congress will take up our bill and pass it without delay.
Mr. LEAHY. Mr. President, today, I join Senators Obama, Schumer,
Cardin, Feinstein, Feingold, Clinton, and Kerry to introduce the
Deceptive Practices and Voter Intimidation Prevention Act of 2007, a
measure that would create new protections and expand existing
protections against the use of deceptive practices in elections.
There are few things as critical to the fabric of our Nation, and to
American citizenship, as voting. The right to vote and to have your
vote count is a foundational right, like our first amendment rights,
because it secures the effectiveness of other protections. The
legitimacy of our government is dependent on the access all Americans
have to the political process.
We saw last year in nearly 20 hearings in the House and Senate on the
reauthorization of the Voting Rights Act that there is a continuing
need for the vital voting rights protections that landmark civil rights
law provides for all Americans. But our need to protect the effective
access of voters to the political process does not stop with those
vital protections against discrimination. I am concerned about
increasing efforts on behalf of some candidates and political parties
to interfere with recent elections and undermine the participation of
many voters. So today we take another step toward protecting the
exercise of the effective exercise of voting rights by ensuring that
the access to vote is not undermined by those who would take away that
access through deceit and false information.
The Deceptive Practices and Voter Intimidation Prevention Act of 2007
would provide additional tools and criminal penalties to help combat
the kinds of practices used during the 2006 midterms in places like
Maryland and Virginia. In Maryland, Republican leaders admitted to
distributing misleading flyers in African-American communities on
election day suggesting that prominent African-American Democrats
supported Republican candidates. In Virginia, the FBI has investigated
calls received by many voters in heavily Democratic precincts directing
them to the wrong polling sites, giving incorrect information about
their eligibility to vote, or encouraging them not to vote on election
day. I supported a similar bill, S. 1975, in the last Congress, and I
hope that we can move forward in this Congress.
Regrettably, the problems leading up to and on election day last year
were not limited to a few isolated incidents. In the ninth precinct in
Tucson, AZ, an area with a heavy percentage of Latino voters, it has
been reported that three vigilantes armed with a clipboard, a video
camera, and a visible firearm stopped only Latino voters as they
entered and exited the polls on election day, issuing implied and overt
threats. In Orange County, CA, Republican congressional candidate Tan
Nguyen admitted that his campaign staffer sent letters to 73,000
households, spreading misinformation about voting requirements
apparently designed to suppress Latino voter turnout.
In letters to the Attorney General and other officials at the Justice
Department and in oversight hearings last November and 2 weeks ago, we
have asked the Justice Department for more information about what it
has been doing to investigate and combat these practices. In the
information we have obtained so far, it is apparent that the Justice
Department has not done enough and additional tools are needed.
The Deceptive Practices and Voter Intimidation Prevention Act of 2007
would expand the conduct currently prohibited by law to include the
dissemination of false information within 60 days of an election about
the time, place, and manner of the election, the qualifications for
voter eligibility, or the sponsor of public communications about an
election. In addition, it would provide new means of enforcing these
prohibitions and combating such dissemination: it creates a private
right of action for persons aggrieved by the dissemination of such
false information; it provides criminal penalties for such false
dissemination of up to 5 years and $100,000; and it provides that any
person may report such false dissemination to the Attorney General, and
if it is determined that such information is false or deliberately
misleading, the Justice Department would be required to take action to
provide corrective information. In addition, this bill provides an
additional tool for effective oversight by requiring the Attorney
General to report to Congress on allegations of the dissemination of
false information within 90 days of an election.
By passing this bill and enacting it into law, we can continue our
march towards a more inclusive democracy for all Americans.
Mr. KENNEDY. Mr. President, it's a privilege to join Senator Obama
and our other colleagues in sponsoring the Deceptive Practices and
Voter Intimidation Prevention Act, because it addresses an essential
aspect of voting rights. For too long, we've ignored the festering
problem of deceptive practices intended to intimidate and deceive
voters in our national elections and suppress the vote of certain
minority groups for partisan gain. The problem is a continuing threat
to our democracy, and it's up to our new Congress to outlaw such
practices, and I commend the Senator from Illinois for his leadership
on this basic challenge.
In doing so, we must be vigilant to ensure that the bill does not
erode the important division of responsibility in the Department of
Justice between civil rights enforcement by the Civil Rights Division
and the efforts by the Criminal Division to combat voter fraud. That
division of responsibility is essential to convincing voters,
particularly those in poor or minority communities to have the trust
necessary to work with the Civil Rights Division and to inform it of
possible civil rights violations. The bill should clearly provide that,
as traditionally has been the case, the Voting Section of the Civil
Rights Division may not investigate matters of voter fraud, although it
[[Page S1430]]
may provide technical advice and assistance to other parts of the
Department in carrying out the requirements of this legislation.
We also need to guarantee that additional resources are appropriated
to carry out the bill's requirements, so that resources will not be
diverted from other important law enforcement activities of the
Department.
In addition, we must ensure that the bill's civil and criminal
provisions are not misused to erode voter participation even further,
particularly among poor and minority voters by wrongly targeting voter
registration activities or chilling legitimate get-out-the-vote efforts
by organizations serving the public interest.
I look forward very much to working with my colleagues to deal with
these specific issues, and to enact this important new measure as part
of our fundamental responsibility to protect the most basic right in
our democracy, the right to vote.
______
By Ms. COLLINS:
S. 454. A bill to provide an increase in funding for Federal Pell
Grants, to amend the Internal Revenue Code of 1986 in order to expand
the deduction for interest paid on student loans, raise the
contribution limits for Coverdell Education Savings Accounts, and make
the exclusion for employer provided educational assistance permanent,
and for other purposes; to the Committee on Finance.
Ms. COLLINS. Mr. President, I rise today to introduce the Improving
Access to Higher Education Act. This legislation would provide an
increase in the maximum Pell grant award to $5,100, as well as
additional benefits to help make higher education more accessible and
affordable.
Our system of higher education is, in many ways, the envy of the
world, but its benefits have not been equally available. Unfortunately,
family income still largely determines whether students will pursue
higher education. Students from families with incomes above $75,000 are
more than twice as likely to attend college as students from families
with incomes of less than $25,000.
To help remedy these inequities, the Federal Government has committed
itself to a need-based system of student financial aid designed to help
remove the economic barriers to higher education. Central to this
effort over the past 30 years has been the Pell grant program.
The Pell Grant Program is the largest source of Federal grant aid and
the cornerstone of our Federal need-based aid system. In 2006, the Pell
program provided approximately $13 billion in grant aid to more than
5.3 million students. Students with the greatest need receive the
maximum Pell award, which is currently set at $4,050. And Pell grants
are truly targeted to the neediest of students--Pell recipients have a
median family income of only $15,200.
Because of the central role of the Pell Grant Program, I am deeply
concerned by the significant erosion in the purchasing power of the
Pell grant that has occurred in recent years. In 1975, the maximum Pell
grant represented approximately 80 percent of the costs of attending a
public, 4-year institution. Today, it covers only 33 percent of these
costs.
When lower levels of grant aid are available, students are forced to
make up the difference by taking on larger and larger amounts of debt
to finance their education. Earlier this month, I met with two students
from the University of Southern Maine who told me that students
graduating from 4-year institutions in Maine leave with an average debt
of $20,239. As startling as this figure may be, it underestimates the
true indebtedness of students, since it does not take into account
credit card debt or private loans that students use to help finance
their education.
The decline in the value of grant aid and the growing reliance on
loans have particularly negative consequences for low-income students.
In fact, the staggering amount of debt required to finance higher
education may force some low-income students to abandon their plans to
attend college altogether.
As explained in a recent report by the Educational Policy Institute,
``Grants for Students: What they do, Why they work,'' people from
lower-income backgrounds often place a higher value on having money to
meet pressing current needs, and accordingly, are less likely to make
investments where the financial return comes only in the long term.
According to the report, ``[L]ong term poverty encourages short-term
thinking and those who experience it tend to identify very strongly
with the expression `one in the hand is worth two in the bush.' '' This
is just one reason why the availability of loans does not solve the
college access problem for low-income students, and why grant aid is so
crucial.
That is why today I am introducing legislation that will raise the
maximum Pell grant award to $5,100, an increase of more tha $1,000 in a
single year. While I recognize that this represents a significant
increase in a single year, this increase is long overdue. The maximum
grant award has been essentially level-funded since Fiscal Year 2002.
If we do not act soon Fiscal Year 2007 will become the fifth year in a
row that the Pell maximum award has been level-funded.
By raising the maximum award to $5,100, my home state of Maine will
receive approximately $60 million in Pell grant funding, an increase of
over $15 million from current levels. This level of funding would
provide Pell grants to more than 20,000 Maine students.
I recently met with Andrew Bossie, a first-generation college student
from my hometown of Caribou, about the importance of Pell grants.
Andrew is currently a student at the University of Southern Maine and
will graduate this spring, in large part, because of the help of Pell
grants. As Andrew told me, ``Without Pell grants, there is no doubt
that I would not have been able to attend college. Although the current
Pell grant award is a huge help, I still feel the stress of sometimes
having to decide between a badly-needed new pair of shoes and making my
tuition payments.'' Andrew is thriving academically--he is on the
Dean's list--and he is also the student body president and is active as
a community volunteer.
Increasing the maximum Pell award by $1,050 is going to make a real
difference for Andrew and other students in their ability to pursue
their college dreams. While I recognize that an increase to $5,100 in a
single year is an ambitious goal, it is a worthy one for a nation that
understands the opportunities that a college education brings.
My legislation also amends the Higher Education Act to raise the
minimum Pell award to $500, up from the current minimum of $400. The
minimum award level has not been increased in over 10 years. I believe
we should ensure that every student who qualifies for a Pell receives
at least $500.
In addition to our efforts on behalf of Pell grants, there are other
important steps we can take to put higher education in the reach of
more families. Ten years ago, in my first year as a Senator, I
introduced S. 930, the ``College Affordability and Access Act,'' which
contained three provisions designed to expand access to higher
education, and reduce its cost. These three provisions were enacted
into law, in amended form, as part of the Taxpayer Relief Act of 1997.
The proposal I am submitting today builds upon each of those three
provisions. First, in recognition of the increased cost of higher
education, my proposal calls for an increase in the tax deduction
available for interest paid on higher education loans. Second, my
proposal calls for a similar increase in the contribution limit for
tax-free Coverdell Education Savings Accounts. Third, the bill would
make permanent the current tax-free treatment of employer-provided
educational assistance programs.
The value of the tax relief we provided 10 years ago has not kept
pace with the rising cost of higher education. According to data from
the College Board, 4-year private colleges now charge $30,000 per year
for tuition, fees, room, and board. Even after taking inflation into
account, this represents an increase of more than $6,000 since the
1996-1997 school year. Perhaps even more troubling, the College Board
reports that the rate of increase has actually been sharper at public
4-year institutions than their private counterparts. Ten years ago,
students attending any of America's excellent public universities would
have paid, on average, just over $9,000 to cover tuition, fees, room,
and board. Today, these
[[Page S1431]]
students can expect to pay nearly $12,800--an increase of 38 percent
after taking inflation into account.
By contrast, the student loan interest deduction we provided as part
of the Taxpayer Relief Act of 1997 remains at $2,500. It is time that
we raise this cap to $3,750, a 50-percent increase. Doing so is a step
toward recognizing that investments in higher education are essential
to the health of our economy in an increasingly global, competitive
marketplace.
I also believe it is necessary to increase the contribution limits
for Coverdell Education Savings Accounts. Under current law, taxpayers
may make contributions of up to $2,000 per year to these tax-free
higher education accounts. In light of the inflation in college costs
that I have already described, I believe this contribution limit ought
to be increased to $3,000 per year.
Finally, my proposal would also extend current education benefits
provided to employees through their employers. Under current law, a
taxpayer may receive, tax free, up to $5,250 in education benefits
through their employers each year. This provision helps both companies
and their employees. Companies that provide this benefit get a
workforce that is current with the latest methods and technologies in
the field, while their employees get the training they need to advance
through the ranks. Unfortunately, this provision expires on December
31, 2010. I propose that it be made permanent.
Now is the time for us to make a commitment to raising the Pell
maximum award to $5,100, and to providing additional relief to families
struggling to afford higher education. Investing in higher education is
crucial to our economic future and competitiveness in the global
economy, and my legislation represents a sound investment towards
making the dream of a college education a reality for more Americans. I
hope my colleagues will join me in supporting this legislation.
______
By Mr. KERRY:
S. 455. A bill to amend the Internal Revenue Code of 1986 to provide
tax relief to active duty military personnel and employers who assist
them, and for other purposes; to the Committee on Finance.
Mr. KERRY. Mr. President, today Senator Smith and I are introducing
the Active Duty Military Tax Relief Act of 2007. This legislation will
help those who are valiantly serving their country and the families
that they leave behind.
The best definition of patriotism is keeping faith with those who
wear the uniform of our country. That means giving our troops the
resources they need to keep them safe while they are protecting us. And
it means supporting our troops at home as well as abroad.
Currently, there are over 132,000 military personnel serving in Iraq
and more are on the way. There are approximately 22,100 U.S.
servicemembers in Afghanistan. Many of these men and women are
reservists and have been called to activity duty, frequently for
multiple tours. Often they own, or are employed, by a small business
and their activation results in hardship for the business.
Small businesses with less than 100 employees employ about 18 percent
of all reservists who hold civilian jobs. Most large businesses have
the resources to provide supplemental income to reservist employees
called up and to replace them with temporary employees. I applaud the
businesses that have been able to pay supplemental income to their
reservists, but it is not easy for small businesses to do the same.
Earlier today, the Small Business and Entrepreneurship Committee held
a hearing on veterans' small business issues. A majority of our
veterans returning from Iraq and Afghanistan are Reserve and National
Guard members--35 percent of whom are either self-employed or own or
are employed by a small business.
We heard some disturbing statistics about the impact and unintended
consequences the callup of reservists is having on small businesses.
According to a January 2007 survey conducted by Workforce Management,
54 percent of the businesses surveyed responded that they would not
hire a citizen soldier if they knew that they could be called up for an
indeterminate amount of time. I am concerned that long callups have
made it hard for small businesses to be supportive of civilian
soldiers.
The Active Duty Military Tax Relief Act of 2007 provides a tax credit
to small businesses with fewer than 100 employees and the self-employed
to help with the cost of paying the salary of their reservist employees
when they are called to active duty. This legislation also provides an
additional tax credit to help offset the cost of hiring temporary
employees to fill vacancies left by the servicemembers.
Many reservists who own their own business return from duty to find
that their business is floundering. These tax credits will help
reservists who own their own businesses to hire temporary employees for
the duration of their tour as well as to assist small businesses deal
with the impact of having an essential employee called up for active
duty.
In addition to helping small businesses, the Active Duty Military Tax
Relief of 2007 addresses concerns related to differential military pay,
income tax withholding, and retirement plan participation. These
provisions will make it easier for employers who would like to pay
their employees supplemental income, above their military pay, and make
pension contributions. Our legislation would make differential military
pay subject to Federal income tax withholding. In addition, with
respect to the retirement plan rules, the bill provides that a person
receiving differential military pay would be treated as an employee of
the employer making the payment and allows the differential military
pay to be treated as compensation.
This bill also attempts to mitigate the financial strains placed on
our military families while the family member is deployed. To help ease
some of this burden, the Active Duty Military Tax Relief Act of 2007
would increase the standard deduction for active duty military
personnel by $1,000 for 2007 and 2008. In addition, this legislation
would make permanent the existing provision which allows taxpayers to
include combat pay as earned income for purposes of the earned income
tax credit (EITC). Without this provision some military families would
no longer be eligible to receive the EITC because combat pay is
currently not taxable.
Last Congress, Senator Smith and I introduced the Fallen Heroes
Family Savings Act, which we have incorporated into the Active Duty
Military Tax Relief Act. This provision provides tax relief for the
death gratuity payment that is given to families that have lost a loved
one in combat. This payment is currently $100,000.
Our current tax laws do not allow the recipients of this payment to
use it to make contributions to tax-preferred saving accounts that help
with saving for retirement, health care, or the costs of education. Our
legislation would allow military death gratuities to be contributed to
certain tax-preferred accounts. These contributions would be treated as
qualified rollovers. The contribution limits of these accounts will not
be applied to these contributions.
Our service men and women need to know that we are honoring their
valor by taking care of those they leave behind. Helping ease the tax
burden on the death gratuity will enable military families to save more
for retirement, education, and health care by allowing them to put the
payment in an account in which the earnings will accumulate tax-free.
These changes to our tax laws will help our military families with
some of their financial burdens. It cannot repay the sacrifices they
have made for us, but it is a small way we can support our troops and
their families at home as well as abroad.
The National Military Family Association, the Reserve Officers
Association, and The Military Coalition (a consortium of veterans and
military organizations representing more than 5.5 million members plus
their families and survivors) support this legislation.
I ask unanimous consent that the text of this legislation be printed
in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 455
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page S1432]]
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Active Duty Military Tax
Relief Act of 2007''.
SEC. 2. CREDIT FOR INCOME DIFFERENTIAL FOR EMPLOYMENT OF
ACTIVATED MILITARY RESERVIST AND REPLACEMENT
PERSONNEL.
(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. 30C. EMPLOYER WAGE CREDIT FOR ACTIVATED MILITARY
RESERVISTS.
``(a) General Rule.--There shall be allowed as a credit
against the tax imposed by this chapter for the taxable year
an amount equal to the sum of--
``(1) in the case of an eligible small business employer,
the employment credit with respect to all qualified employees
and qualified replacement employees of the taxpayer, plus
``(2) the self-employment credit of a qualified self-
employed taxpayer.
``(b) Employment Credit.--For purposes of this section--
``(1) Qualified employees.--
``(A) In general.--The employment credit with respect to a
qualified employee of the taxpayer for any taxable year is
equal to 40 percent of so much of the excess (if any) paid by
the taxpayer to such qualified employee of--
``(i) the qualified employee's average daily qualified
compensation for the taxable year, over
``(ii) the average daily military pay and allowances
received by the qualified employee during the taxable year
while participating in qualified reserve component duty to
the exclusion of the qualified employee's normal employment
duties,
for the aggregate number of days the qualified employee
participates in qualified reserve component duty during the
taxable year (including time spent in a travel status) as
does not exceed $25,000. The employment credit, with respect
to all qualified employees, is equal to the sum of the
employment credits for each qualified employee under this
subsection.
``(B) Average daily qualified compensation and average
daily military pay and allowances.--As used with respect to a
qualified employee--
``(i) the term `average daily qualified compensation' means
the qualified compensation of the qualified employee for the
taxable year divided by 365, and
``(ii) the term `average daily military pay and allowances'
means--
``(I) the amount paid to the qualified employee during the
taxable year as military pay and allowances on account of the
qualified employee's participation in qualified reserve
component duty, divided by
``(II) the total number of days the qualified employee
participates in qualified reserve component duty, including
time spent in travel status.
``(C) Qualified compensation.--When used with respect to
the compensation paid to a qualified employee for any period
during which the qualified employee participates in qualified
reserve component duty, the term `qualified compensation'
means--
``(i) compensation which is normally contingent on the
qualified employee's presence for work and which would be
deductible from the taxpayer's gross income under section
162(a)(1) if the qualified employee were present and
receiving such compensation,
``(ii) compensation which is not characterized by the
taxpayer as vacation or holiday pay, or as sick leave or pay,
or as any other form of pay for a nonspecific leave of
absence, and with respect to which the number of days the
qualified employee participates in qualified reserve
component duty does not result in any reduction in the amount
of vacation time, sick leave, or other nonspecific leave
previously credited to or earned by the qualified employee,
and
``(iii) group health plan costs (if any) with respect to
the qualified employee.
``(D) Qualified employee.--The term `qualified employee'
means a person who--
``(i) has been an employee of the taxpayer for the 91-day
period immediately preceding the period during which the
employee participates in qualified reserve component duty,
and
``(ii) is a member of the Ready Reserve of a reserve
component of an Armed Force of the United States as defined
in sections 10142 and 10101 of title 10, United States Code.
``(2) Qualified replacement employees.--
``(A) In general.--The employment credit with respect to a
qualified replacement employee of the taxpayer for any
taxable year is equal to 40 percent of so much of the
individual's qualified compensation attributable to service
rendered as a qualified replacement employee as does not
exceed $15,000. The employment credit, with respect to all
qualified replacement employees, is equal to the sum of the
employment credits for each qualified replacement employee
under this subsection.
``(B) Qualified compensation.--When used with respect to
the compensation paid to a qualified replacement employee,
the term `qualified compensation' means--
``(i) compensation which is normally contingent on the
qualified replacement employee's presence for work and which
is deductible from the taxpayer's gross income under section
162(a)(1),
``(ii) compensation which is not characterized by the
taxpayer as vacation or holiday pay, or as sick leave or pay,
or as any other form of pay for a nonspecific leave of
absence, and
``(iii) group health plan costs (if any) with respect to
the qualified replacement employee.
``(C) Qualified replacement employee.--The term `qualified
replacement employee' means an individual who is hired to
replace a qualified employee or a qualified self-employed
taxpayer, but only with respect to the period during which
such employee or taxpayer participates in qualified reserve
component duty, including time spent in travel status, and,
in the case of a qualified employee, is receiving qualified
compensation (as defined in paragraph (1)(C)) for which an
employment credit is allowed as determined under paragraph
(1).
``(c) Self-Employment Credit.--For purposes of this
section--
``(1) In general.--The self-employment credit of a
qualified self-employed taxpayer for any taxable year is
equal to 40 percent of so much of the excess (if any) of--
``(A) the qualified self-employed taxpayer's average daily
qualified compensation for the taxable year, over
``(B) the average daily military pay and allowances
received by the taxpayer during the taxable year while
participating in qualified reserve component duty to the
exclusion of the taxpayer's normal self-employment duties,
for the aggregate number of days the taxpayer participates in
qualified reserve component duty during the taxable year
(including time spent in a travel status) as does not exceed
$25,000.
``(2) Average daily qualified compensation and average
daily military pay and allowances.--As used with respect to a
qualified self-employed taxpayer--
``(A) the term `average daily qualified compensation' means
the qualified compensation of the qualified self-employed
taxpayer for the taxable year divided by 365 days, and
``(B) the term `average daily military pay and allowances'
means--
``(i) the amount paid to the taxpayer during the taxable
year as military pay and allowances on account of the
taxpayer's participation in qualified reserve component duty,
divided by
``(ii) the total number of days the taxpayer participates
in qualified reserve component duty, including time spent in
travel status.
``(3) Qualified compensation.--When used with respect to
the compensation paid to a qualified self-employed taxpayer
for any period during which the qualified self-employed
taxpayer participates in qualified reserve component duty,
the term `qualified compensation' means--
``(A) the self-employment income (as defined in section
1402(b) of the taxpayer which is normally contingent on the
taxpayer's presence for work,
``(B) compensation which is not characterized by the
taxpayer as vacation or holiday pay, or as sick leave or pay,
or as any other form of pay for a nonspecific leave of
absence, and
``(C) the amount paid for insurance which constitutes
medical care for the taxpayer for such year (within the
meaning of section 162(l)).
``(4) Qualified self-employed taxpayer.--The term
`qualified self-employed taxpayer' means a taxpayer who--
``(A) has net earnings from self-employment (as defined in
section 1402(a)) for the taxable year, and
``(B) is a member of the Ready Reserve of a reserve
component of an Armed Force of the United States.
``(d) Coordination With Other Credits.--The amount of
credit otherwise allowable under this chapter with respect to
compensation paid to any employee shall be reduced by the
credit allowed by this section with respect to such employee.
``(e) Limitations.--
``(1) Application with other credits.--The credit allowed
under subsection (a) for any taxable year shall not exceed
the excess (if any) of--
``(A) the regular tax for the taxable year reduced by the
sum of the credits allowable under subpart A and sections 27,
29, and 30, over
``(B) the tentative minimum tax for the taxable year.
``(2) Disallowance for failure to comply with employment or
reemployment rights of members of the reserve components of
the armed forces of the united states.--No credit shall be
allowed under subsection (a) to a taxpayer for--
``(A) any taxable year, beginning after the date of the
enactment of this section, in which the taxpayer is under a
final order, judgment, or other process issued or required by
a district court of the United States under section 4323 of
title 38 of the United States Code with respect to a
violation of chapter 43 of such title, and
``(B) the 2 succeeding taxable years.
``(3) Disallowance with respect to persons ordered to
active duty for training.--No credit shall be allowed under
subsection (a) to a taxpayer with respect to any period by
taking into account any person who is called or ordered to
active duty for any of the following types of duty:
``(A) Active duty for training under any provision of title
10, United States Code.
``(B) Training at encampments, maneuvers, outdoor target
practice, or other exercises under chapter 5 of title 32,
United States Code.
[[Page S1433]]
``(C) Full-time National Guard duty, as defined in section
101(d)(5) of title 10, United States Code.
``(f) General Definitions and Special Rules.--For purposes
of this section--
``(1) Eligible small business employer.--
``(A) In general.--The term `eligible small business
employer' means, with respect to any taxable year, any
employer which--
``(i) employed an average of 100 or fewer employees on
business days during such taxable year, and
``(ii) under a written plan of the employer, provides the
excess amount described in subsection (b)(1)(A) to every
qualified employee of the employer.
``(B) Controlled groups.--For purposes of subparagraph (A),
all persons treated as a single employer under subsection
(b), (c), (m), or (o) of section 414 shall be treated as a
single employer.
``(2) Military pay and allowances.--The term `military pay'
means pay as that term is defined in section 101(21) of title
37, United States Code, and the term `allowances' means the
allowances payable to a member of the Armed Forces of the
United States under chapter 7 of that title.
``(3) Qualified reserve component duty.--The term
`qualified reserve component duty' includes only active duty
performed, as designated in the reservist's military orders,
in support of a contingency operation as defined in section
101(a)(13) of title 10, United States Code.
``(4) Carryback and carryforward allowed.--
``(A) In general.--If the credit allowable under subsection
(a) for a taxable year exceeds the amount of the limitation
under subsection (f)(1) for such taxable year (in this
paragraph referred to as the `unused credit year'), such
excess shall be a credit carryback to the taxable year
preceding the unused credit year and a credit carryforward to
each of the 20 taxable years following the unused credit
year.
``(B) Rules.--Rules similar to the rules of section 39
shall apply with respect to the credit carryback and credit
carryforward under subparagraph (A).
``(5) Certain rules to apply.--Rules similar to the rules
of subsections (c), (d), and (e) of section 52 shall
apply.''.
(b) No Deduction for Compensation Taken Into Account for
Credit.--Section 280C(a) of the Internal Revenue Code of 1986
(relating to rule for employment credits) is amended--
(1) by inserting ``or compensation'' after ``salaries'',
and
(2) by inserting ``30C,'' before ``45A(a),''.
(c) Conforming Amendment.--Section 55(c)(2) of the Internal
Revenue Code of 1986 is amended by inserting ``30C(e)(1),''
after ``30(b)(3),''.
(d) Clerical Amendment.--The table of sections for subpart
B of part IV of subchapter A of chapter 1 of the Internal
Revenue Code of 1986 is amended by adding at the end of 30A
the following new item:
``Sec. 30C. Employer wage credit for activated military reservists.''.
(e) Effective Date.--The amendments made by this section
shall apply to amounts paid in taxable years beginning after
December 31, 2006.
SEC. 3. DIFFERENTIAL WAGE PAYMENTS.
(a) Income Tax Withholding on Differential Wage Payments.--
(1) In general.--Section 3401 of the Internal Revenue Code
of 1986 (relating to definitions) is amended by adding at the
end the following new subsection:
``(h) Differential Wage Payments to Active Duty Members of
the Uniformed Services.--
``(1) In general.--For purposes of subsection (a), any
differential wage payment shall be treated as a payment of
wages by the employer to the employee.
``(2) Differential wage payment.--For purposes of paragraph
(1), the term `differential wage payment' means any payment
which--
``(A) is made by an employer to an individual with respect
to any period during which the individual is performing
service in the uniformed services while on active duty for a
period of more than 30 days, and
``(B) represents all or a portion of the wages the
individual would have received from the employer if the
individual were performing service for the employer.''.
(2) Effective date.--The amendment made by this subsection
shall apply to remuneration paid after December 31, 2007.
(b) Treatment of Differential Wage Payments for Retirement
Plan Purposes.--
(1) Pension plans.--
(A) In general.--Section 414(u) of the Internal Revenue
Code of 1986 (relating to special rules relating to veterans'
reemployment rights under USERRA) is amended by adding at the
end the following new paragraph:
``(11) Treatment of differential wage payments.--
``(A) In general.--Except as provided in this paragraph,
for purposes of applying this title to a retirement plan to
which this subsection applies--
``(i) an individual receiving a differential wage payment
shall be treated as an employee of the employer making the
payment,
``(ii) the differential wage payment shall be treated as
compensation, and
``(iii) the plan shall not be treated as failing to meet
the requirements of any provision described in paragraph
(1)(C) by reason of any contribution or benefit which is
based on the differential wage payment.
``(B) Special rule for distributions.--
``(i) In general.--Notwithstanding subparagraph (A)(i), for
purposes of section 401(k)(2)(B)(i)(I), 403(b)(7)(A)(ii),
403(b)(11)(A), or 457(d)(1)(A)(ii), an individual shall be
treated as having been severed from employment during any
period the individual is performing service in the uniformed
services described in section 3401(h)(2)(A).
``(ii) Limitation.--If an individual elects to receive a
distribution by reason of clause (i), the plan shall provide
that the individual may not make an elective deferral or
employee contribution during the 6-month period beginning on
the date of the distribution.
``(C) Nondiscrimination requirement.--Subparagraph (A)(iii)
shall apply only if all employees of an employer (as
determined under subsections (b), (c), (m), and (o))
performing service in the uniformed services described in
section 3401(h)(2)(A) are entitled to receive differential
wage payments on reasonably equivalent terms and, if eligible
to participate in a retirement plan maintained by the
employer, to make contributions based on the payments on
reasonably equivalent terms. For purposes of applying this
subparagraph, the provisions of paragraphs (3), (4), and (5),
of section 410(b) shall apply.
``(D) Differential wage payment.--For purposes of this
paragraph, the term `differential wage payment' has the
meaning given such term by section 3401(h)(2).''.
(B) Conforming amendment.--The heading for section 414(u)
of such Code is amended by inserting ``and to Differential
Wage Payments to Members on Active Duty'' after ``USERRA''.
(2) Differential wage payments treated as compensation for
individual retirement plans.--Section 219(f)(1) of the
Internal Revenue Code of 1986 (defining compensation) is
amended by adding at the end the following new sentence:
``The term `compensation' includes any differential wage
payment (as defined in section 3401(h)(2)).''.
(3) Effective date.--The amendments made by this subsection
shall apply to years beginning after December 31, 2007.
(c) Provisions Relating to Plan Amendments.--
(1) In general.--If this subsection applies to any plan or
annuity contract amendment--
(A) such plan or contract shall be treated as being
operated in accordance with the terms of the plan or contract
during the period described in paragraph (2)(B)(i), and
(B) except as provided by the Secretary of the Treasury,
such plan shall not fail to meet the requirements of the
Internal Revenue Code of 1986 or the Employee Retirement
Income Security Act of 1974 by reason of such amendment.
(2) Amendments to which section applies.--
(A) In general.--This subsection shall apply to any
amendment to any plan or annuity contract which is made--
(i) pursuant to any amendment made by this section, and
(ii) on or before the last day of the first plan year
beginning on or after January 1, 2009.
(B) Conditions.--This subsection shall not apply to any
plan or annuity contract amendment unless--
(i) during the period beginning on the date the amendment
described in subparagraph (A)(i) takes effect and ending on
the date described in subparagraph (A)(ii) (or, if earlier,
the date the plan or contract amendment is adopted), the plan
or contract is operated as if such plan or contract amendment
were in effect, and
(ii) such plan or contract amendment applies retroactively
for such period.
SEC. 4. CONTRIBUTIONS OF MILITARY DEATH GRATUITIES TO CERTAIN
TAX-FAVORED ACCOUNTS.
(a) Roth IRAs.--
(1) Provision in effect before pension protection act.--
Subsection (e) of section 408A of the Internal Revenue Code
of 1986 (relating to qualified rollover contribution), as in
effect before the amendments made by section 824 of the
Pension Protection Act of 2006, is amended to read as
follows:
``(e) Qualified Rollover Contribution.--For purposes of
this section--
``(1) In general.--The term `qualified rollover
contribution' means a rollover contribution to a Roth IRA
from another such account, or from an individual retirement
plan, but only if such rollover contribution meets the
requirements of section 408(d)(3). Such term includes a
rollover contribution described in section 402A(c)(3)(A). For
purposes of section 408(d)(3)(B), there shall be disregarded
any qualified rollover contribution from an individual
retirement plan (other than a Roth IRA) to a Roth IRA.
``(2) Military death gratuity.--
``(A) In general.--The term `qualified rollover
contribution' includes a contribution to a Roth IRA
maintained for the benefit of an individual to the extent
that such contribution does not exceed the amount received by
such individual under section 1477 of title 10, United States
Code, or under section 1967 of title 38 of such Code, if such
contribution is made not later than 1 year after the day on
which such individual receives such amount.
``(B) Annual limit on number of rollovers not to apply.--
Section 408(d)(3)(B) shall not apply with respect to amounts
treated as a rollover by the subparagraph (A).
[[Page S1434]]
``(C) Application of section 72.--For purposes of applying
section 72 in the case of a distribution which is not a
qualified distribution, the amount treated as a rollover by
reason of subparagraph (A) shall be treated as investment in
the contract.''.
(2) Provision in effect after pension protection act.--
Subsection (e) of section 408A, as in effect after the
amendments made by section 824 of the Pension Protection Act
of 2006, is amended to read as follows:
``(e) Qualified Rollover Contribution.--For purposes of
this section--
``(1) In general.--The term `qualified rollover
contribution' means a rollover contribution--
``(A) to a Roth IRA from another such account,
``(B) from an eligible retirement plan, but only if--
``(i) in the case of an individual retirement plan, such
rollover contribution meets the requirements of section
408(d)(3), and
``(ii) in the case of any eligible retirement plan (as
defined in section 402(c)(8)(B) other than clauses (i) and
(ii) thereof), such rollover contribution meets the
requirements of section 402(c), 403(b)(8), or 457(e)(16), as
applicable.
For purposes of section 408(d)(3)(B), there shall be
disregarded any qualified rollover contribution from an
individual retirement plan (other than a Roth IRA) to a Roth
IRA.
``(2) Military death gratuity.--
``(A) In general.--The term `qualified rollover
contribution' includes a contribution to a Roth IRA
maintained for the benefit of an individual to the extent
that such contribution does not exceed the amount received by
such individual under section 1477 of title 10, United States
Code, or under section 1967 of title 38 of such Code, if such
contribution is made not later than 1 year after the day on
which such individual receives such amount.
``(B) Annual limit on number of rollovers not to apply.--
Section 408(d)(3)(B) shall not apply with respect to amounts
treated as a rollover by the subparagraph (A).
``(C) Application of section 72.--For purposes of applying
section 72 in the case of a distribution which is not a
qualified distribution, the amount treated as a rollover by
reason of subparagraph (A) shall be treated as investment in
the contract.''.
(b) Health Savings Accounts and Archer MSAs.--Sections
220(f)(5) and 223(f)(5) of the Internal Revenue Code of 1986
are each amended by adding at the end the following flush
sentence:
``For purposes of subparagraphs (A) and (B), rules similar to
the rules of section 408A(e)(2) (relating to rollover
treatment for contributions of military death gratuity) shall
apply.''.
(c) Education Savings Accounts.--Section 530(d)(5) of the
Internal Revenue Code of 1986 is amended by adding at the end
the following new sentence: ``For purposes of this paragraph,
rules similar to the rules of section 408A(e)(2) (relating to
rollover treatment for contributions of military death
gratuity) shall apply.''.
(d) Effective Dates.--
(1) In general.--Except as provided by paragraphs (2) and
(3), the amendments made by this section shall apply with
respect to deaths from injuries occurring on or after the
date of the enactment of this Act.
(2) Application of amendments to deaths from injuries
occurring on or after october 7, 2001, and before
enactment.--The amendments made by this section shall apply
to any contribution made pursuant to section 408A(e)(2),
220(f)(5), 223(f)(5), or 530(d)(5) of the Internal Revenue
Code of 1986, as amended by this Act, with respect to amounts
received under section 1477 of title 10, United States Code,
or under section 1967 of title 38 of such Code, for deaths
from injuries occurring on or after October 7, 2001, and
before the date of the enactment of this Act if such
contribution is made not later than 1 year after the date of
the enactment of this Act.
(3) Pension protection act changes.--Section 408A(e)(1) of
the Internal Revenue Code of 1986 (as in effect after the
amendments made by subsection (a)(2)) shall apply to taxable
years beginning after December 31, 2007.
SEC. 5. TEMPORARY INCREASE IN STANDARD DEDUCTION FOR ACTIVE
DUTY MILITARY PERSONNEL.
(a) In General.--Paragraph (3) of section 63(c) of the
Internal Revenue Code of 1986 (defining additional standard
deduction for the aged and blind) is amended to read as
follows:
``(3) Additional standard deduction.--For the purposes of
paragraph (1), the additional standard deduction is the sum
of--
``(A) the sum of each additional amount to which the
taxpayer is entitled under subsection (f), plus
``(B) in the case of a taxable year beginning in 2007 or
2008, an additional amount of $1,000 for an individual for
such taxable year if the individual who at any time during
such taxable year is performing service in the uniformed
services while on active duty for a period of more than 30
days.''.
(b) Conforming Amendments.--
(1) Section 3402(m)(3) of the the Internal Revenue Code of
1986 is amended by striking ``for the aged and blind''.
(2) Section 6012(a)(1)(B) of such Code is amended by adding
at the end the following new sentence: ``The preceding
sentence shall be applied without regard to section
63(c)(3)(B) and each of the amounts specified in subparagraph
(A) shall be increased by the portion of any additional
standard deduction to which the individual is entitled by
reason of section 63(c)(3)(B).''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2006.
SEC. 6. PERMANENT EXTENSION OF ELECTION TO INCLUDE COMBAT PAY
AS EARNED INCOME FOR PURPOSES OF EARNED INCOME
CREDIT.
(a) In General.--Section 32(c)(2)(B)(vi) of the Internal
Revenue Code of 1986, as amended by section 106 of division A
of the Tax Relief and Health Care Act of 2006, is amended to
read as follows:
``(vi) a taxpayer may elect to treat amounts excluded from
gross income by means of section 112 as earned income.''.
(b) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2007.
______
By Mrs. FEINSTEIN (for herself, Mr. Hatch, Mr. Schumer, Mr.
Specter, Mr. Biden, Mr. Kyl, Mr. Stevens, Ms. Cantwell, Mr.
Coleman, Ms. Mikulski, Mr. Baucus, Mr. Pryor, Mr. Salazar, Mrs.
Murray, Mr. Brown, Mrs. Clinton, Mrs. Dole, Mr. Cornyn, Mr.
Kohl, and Mr. Casey):
S. 456. A bill to increase and enhance law enforcement resources
committed to investigation and prosecution of violent gangs, to deter
and punish violent gang crime, to protect law-abiding citizens and
communities from violent criminals, to revise and enhance criminal
penalties for violent crimes, to expand and improve gang prevention
programs, and for other purposes; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I am pleased to join Senator Hatch and
a bipartisan group of at least 15 original cosponsors in introducing
comprehensive antiaging legislation--the Gang Abatement and Prevention
Act of 2007.
This bill will provide a comprehensive approach to gang violence by:
helping those on the front lines of enforcement, by adopting new
criminal laws and tougher penalties against those who commit gang-
related and other violent acts; authorizing hundreds of millions of
dollars for gang-related investigations and prosecutions, and new funds
for witness protection; and identifying successful community programs,
and investing significant resources in schools and civic and religious
organizations to prevent teenagers and other young people from joining
gangs in the first place.
On January 10 of this year, officials in Van Nuys, CA, reported that
two teenage boys were shot in a reported gang-related shooting.
A few weeks earlier, on December 29, Visalia, CA, law enforcement
officials reported two separate shootings and the wounding of two
minors.
On December 24, San Diego officials noted how a 16 year old was shot
in the leg in gang violence.
On December 22, a 9-year-old girl in Los Angeles was just washing
dishes with her mom inside her home--until gang members exchanged fire
across the street, and a bullet tore through the front wall of her
house and struck her in the head.
And that came 5 days after Cheryl Green, a 14-year-old black girl who
was talking to friends, was shot and killed by two Hispanic gang
members.
The New York Times just reported on the Cheryl Green shooting, but
unfortunately, I see gang violence in the news almost every day in
California, with gang-related shootings of children almost too numerous
to count. Perhaps the worst occurred last September, when Los Angeles
experienced a new low.
Three-year-old Kaitlyn Avila was shot point-blank by a gang member
who mistakenly thought her father was a member of a rival gang. The
gang member shot and wounded her father, then intentionally fired into
little Kaitlyn's chest.
It is the first time ever that law enforcement officials remember a
young child being ``targeted'' in a gang-related shooting.
Unfortunately, this shooting is only a symptom of the disease that
has taken hold of our cities--gang violence. The violence perpetrated
by gang members affects not only those associated with gangs, but also
police officers and innocent bystanders. It impacts not only
individuals, but also our communities.
It stops mothers from allowing their children to play outside. It
prevents
[[Page S1435]]
the elderly from taking walks in their neighborhoods. And it creates an
environment of fear.
It is past time for the Federal Government to provide a hand of
assistance to state and local law enforcement. And it is past time to
come to grips with our country's escalating levels of gang violence.
Just last month the FBI released its Uniform Crime Report for the
first half of 2006. The news was disturbing.
The report showed an alarming increase in homicides, assaults,
robberies and other violent crimes across the U.S.--a surge of nearly
3.7 percent for the first 6 months of 2006.
This, of course follows on the heels of the FBI's 2005 figures, which
had showed a 2.5 percent jump in violent crime.
At the time, those 2005 figures had represented the largest increase
in violent crime in the U.S. in 15 years. But this newly announced
increase for the first half of 2006 is almost 50 percent higher.
Of course, a big part of this increase is due to gang violence. Just
as we heard when the 2005 figures were released, criminologists point
to the spread of violent street gangs as a major cause of the 2006
increase in violent crime as well.
The warnings we have received about the links between the increase in
violent crime and gangs have been steady and consistent.
When the FBI announced its 2005 figures last June, the Washington
Post reported how criminal justice experts specifically identified ``an
influx of gangs into medium-sized cities'' as a big reason for this
increase. According to the Los Angeles Times, Houston police attributed
their 2005 increase to gang members who evacuated New Orleans after
Katrina.
When the 2006 figures were announced, the Washington Post quoted
criminologist James Alan Fox, who described how ``[w]e have many high-
crime areas where gangs have made a comeback.'' The L.A. Times noted
how ``[e]xperts said the crime upsurge reflected an increase in gang
violence, particularly in midsized cities.'' Cities like Houston, which
experienced a massive 28 percent increase in violent crime.
The headline for the Sacramento Bee, reporting on the FBI's 31
percent reported increase in violent crime for that county, said it
all: ``Gangs blamed for increase, which is part of [a] national hike in
mayhem in '06.''
Even among the cities that experienced a 2006 reduction in violent
crime--such as Los Angeles, which moved into the ranks of the safest
cities in the U.S.--Mayor Villairaigosa described gang violence as the
``glaring exception.'' Gang crime was up by 14 percent in Los Angeles--
and up 40 percent in San Fernando Valley, and 57 percent of Los
Angeles' 478 homicides for 2006 were attributed to gangs--up 50 percent
from 2005. And 86 percent of those murder victims were African American
or Latino.
There can no longer be serious debate that gang violence is a big
part of this problem.
The problem of gang violence in America is daunting. According to the
FBI, there are now at least 30,000 gangs nationwide, with 800,000
members.
In California, the State attorney general now estimates that there
are 171,000 juveniles and adults committed to criminal street gangs and
their way of life. That's greater than the population of 28 California
counties.
From 1992 to 2003, there were more than 7,500 gang-related homicides
reported in California.
In 2004, more than one-third of the 2,000 homicides in California--
698--were gang-related.
And it is worse among teens and young adults. In that same year,
nearly 50 percent of the murders of 18 to 29 year olds were gang
related. And nearly 60 percent of the murders of teens under 18 were
gang related.
The list of people murdered by gangs includes some of our finest law
enforcement officers:
Oceanside Police Officer, Dan Bessant, gunned down from behind just
last month, in an incident described as eerily similar to a similar
killing in 2003, when Oceanside Police Officer, Tony Zepetella, was
shot and killed by a known gang member.
Los Angeles Police Officer Ricardo Lizarraga, killed while responding
to a domestic violence call, by a man who drew a gun and shot him twice
in the back. The suspect was a known member of the Rollin20s Bloods.
Merced Police Officer Stephan Gray, a member of his department's gang
violence unit. Gray was shot and killed when a suspect--a gang member
he had encountered before--fired two bullets into his chest.
Los Angeles Sherriff's Deputy Jeffrey Ortiz: As a member of his
department's anti-gang task force, Ortiz had been going door to door in
a gang-plagued neighborhood of L.A. He had just knocked on a door and
was checking IDs when he was shot in the head at point-blank range. The
alleged gunman is a suspected gang member wanted on an outstanding
warrant for attempted murder.
Burbank Police Officer Matthew Pavelka: Two gunmen whom he had
stopped for driving without license plates got out and showered him
with gunfire. They were allegedly affiliated with the Vineland Boys
gang.
California Highway Patrol Officer Thomas Steiner, killed after
walking out of the Pomona courthouse after testifying in a series of
traffic cases, by a 16-year-old intent on ``killing a cop'' to prove
himself to the Pomona 12th street gang.
San Francisco Police Officer Isaac Espinoza: The first San Francisco
police officer slain on duty in more than a decade, killed when an
apparent ``Westmob'' gang member fired 14 rounds from an AK-47 assault
rifle.
Gang killings also impact children and families. Unfortunately, 3-
year-old Kaitlyn Avila is not alone: There is also 11-year-old Mynisha
Crenshaw of San Bernardino, CA, a little girl shot and killed in
November 2005;
Seven-week-old infant Glenn ``Baby G'' Molex, shot and killed on
September 28, 2003, by one of the ``Down Below'' Gang after 28 bullets
penetrated his family's apartment in San Francisco's Bayview District;
Joseph Swift, a 13-year-old boy shot outside a home after attending
church in Los Angeles in 2003; and
Eight-year-old Sunny Elijah Peralez, shot in East Los Angeles by the
Ghetto Boyz in 1999.
And this problem extends far beyond California--as evidenced by 8-
year-old Kyron Butler, killed by a stray bullet during a Jersey Park
Boys gang shootout in Smithfield, VA, in 2003, and 9-year-old Genesis
Gonzalez, a little girl shot by a car of Crips gang members in Nevada
in 2002.
As gangs have continued to spread across our country, increasing in
violence and power in every State, they are no longer just a big city
problem. They have metastasized from Los Angeles and Chicago to the
medium and smaller cities where they face less competition.
The FBI now estimates that gangs are having an impact on at least
2,500 communities across the nation.
In the latest FBI statistics, violent crime and murder grew fastest
in the midsized and smaller cities--not in our largest urban areas. The
average midsized city, in fact, had a surge in overall violent crime of
more than 5 percent in a single year.
It is clear that gangs engage in drug trafficking, robbery,
extortion, prostitution, gun trafficking, and murder. They destroy
neighborhoods, cripple families and kill innocent people.
Los Angeles Police Department Chief Bill Bratton put it bluntly:
There is nothing more insidious than these gangs. They are
worse than the Mafia. Show me a year in New York where the
Mafia indiscriminately killed 300 people. You can't.
Our national gang problem is immense and growing, and it is not going
away. Our cities and States need help. The many law enforcement
officers that have spoken to me and others in my office say one thing
clearly--short-term infusions are great, but what they really need is a
long-term Federal commitment to combat gang violence.
A massive report just prepared for the City of Los Angeles even
suggested that what is needed is a ``Marshal Plan'' initiative to
combat gang violence.
Senator Hatch and I have been introducing comprehensive Federal gang
legislation for over a decade. Our gang bills have been modified and
refined over the years, most recently in legislation that we negotiated
with the House for possible inclusion in the DOD Authorization bill
last year.
The bill that we introduce today essentially takes that bill, but
removes
[[Page S1436]]
all of its new death penalties. It has no mandatory minimums, and we
have eliminated juvenile justice changes that previously proved to be
an impediment to the larger bill's passage.
The bill that we offer today will provide a comprehensive solution to
gang violence, combining enforcement and prevention efforts in a
collaborative approach that has proven effective in models like
Operation Ceasefire, and in Modesto, CA.
This bill would establish new Federal gang crimes and tougher Federal
penalties.
Today's Federal street gang laws are frankly weak, and are almost
never used. Currently, a person committing a gang crime might have
extra time tacked on to the end of their Federal sentence. That is
because Federal law currently focuses on gang violence only as a
sentencing enhancement, rather than a crime unto itself.
The bill that I offer today would make it a separate Federal crime
for any criminal street gang member to commit, conspire or attempt to
commit violent crimes--including murder, kidnapping, arson, extortion--
in furtherance of the gang.
And the penalties for gang members committing such crimes would
increase considerably.
For gang-related murder, kidnapping, aggravated sexual abuse or
maiming, the penalties would range up to life imprisonment.
For any other serious violent felony, the penalty would range up to
30 years--which in the Federal system means without parole.
And for other crimes of violence--defined as the actual or intended
use of physical force against the person of another--the penalty could
bring up to 20 years in prison.
The bill would also create a new crime for recruiting juveniles and
adults into a criminal street gang, with a penalty of up to 10 years,
or if the recruiting involved a juvenile or recruiting from prison, up
to 20 years;
Create new Federal crimes for committing violent crimes in connection
with drug trafficking, and increase existing penalties for violent
crimes in aid of racketeering;
Enact a host of other violent crime reforms, including closing a
loophole that had allowed carjackers to avoid convictions, increasing
the penalties for those who use guns in violent crimes or transfer guns
knowing they will be used in crimes, limiting bail for violent felons
who possess firearms, and in a number of other respects cracking down
harder on those who commit violent crimes; and
Make a long-term Federal commitment to fight gangs, by authorizing
over $1 billion in new funds over the next 5 years for enforcement,
prevention, and witness protection.
This would include $500 million for the development of High Intensity
Interstate Gang Activity Areas, or HIIGAAs.
These HIIGAAs would mirror the successful HIDTA--High Intensity Drug
Trafficking Area model--under which Federal, State and local agents
coordinate investigations and prosecutions. And this $500 million would
also be split 50/50, so that for every dollar spent on law enforcement,
a dollar would be spent on prevention and intervention.
This balanced approach--of prevention and intervention plus tough
penalties--will send a clear message to gang members: a new day has
arrived. This bill will provide them with new opportunities, with
schools and social services agencies empowered to make alternatives to
gangs a realistic option. But if gang members continue to engage in
violence, they will face new and serious Federal consequences.
I am pleased to report that this bill has already been endorsed by
the National Sheriff's Association, the International Association of
Chiefs of Police, and the National Association of Police Officers.
For more than 10 years now, Senator Hatch and I have been trying to
pass Federal anti-gang legislation. There have been times when we have
gotten close. Unfortunately, while Congress has failed to act, violent
street gangs have only expanded nationwide and become more empowered
and entrenched in other States and communities.
I believe this bill can pass the Senate and be enacted into law,
especially after these changes that we have made and our previous
negotiations conducted with members of the House and Senate.
The time has arrived for us to finally address this problem, and this
bill is well-suited to help solve it. I urge my colleagues to support
this legislation.
______
By Ms. SNOWE (for herself and Mr. Rockefeller):
S. 460. A bill to make determinations by the United States Trade
Representative under title III of the Trade Act of 1974 reviewable by
the Court of International Trade and to ensure that the United States
Trade Representative considers petitions to enforce United States Trade
rights, and for other purposes; to the Committee on Finance.
Ms. SNOWE. Mr. President, when reflecting on the attributes that have
made our great country prosperous--its free market system, its hard-
working and enterprising people, its treasured natural resources--we
must not overlook the rule of law as an equal, if not paramount element
of the blessings we have secured. Since our Nation's founding,
Americans have recognized that the success of worthy enterprises in a
functioning market require the government--rather than choosing winners
and losers--to consistently and dispassionately enforce the rules that
bind all actors.
While our legal system evolved over the course of centuries to
provide for the rule of law throughout our country, the fates of
American people and businesses have become increasingly bound to
counterparts in the world beyond our borders. Whether called
``Globalization'', ``Internationalization'' or some other moniker, the
rapidly growing number of connections between suppliers, consumers and
financiers across national boundaries means that agreements breached
and laws broken on the far side of the world can harm companies and
workers here at home.
Yet our government has failed to adapt to this new reality. While
foreign governments engage in market-distorting currency manipulation,
refuse to protect intellectual property rights and turn a blind eye to
labor exploitation--each a violation of trade obligations to the United
States--ours demurs with communiques and consultations, rather than
formal enforcement action. What makes this abdication of its duty to
defend the U.S. economy from unfair foreign practices especially
troubling is that the tools to do so already exist in the dispute
resolution provisions of various trade agreements.
The distressing reality is that U.S. industry and labor groups are
often rebuffed in attempts to petition the United States Trade
Representative to initiate a formal investigation or bring a dispute
resolution action under the relevant multilateral or bilateral trade
agreement, as there seems to be considerable institutional momentum
among senior officials at USTR and elsewhere in the Administration
against bringing formal enforcement action against certain trade
partners, and China in particular.
USTR's handling of the trade effects of China's currency manipulation
practices is representative of the problem. In September 2004, a U.S.
industry coalition filed a petition under Section 301 of the Trade Act
of 1974--the statute setting forth general procedures for the
enforcement of U.S. trade rights--alleging that Chinese currency
manipulation practices constituted a violation of China's obligations
to the United States under World Trade Organization rules, and calling
for USTR to conduct an investigation of such practices. USTR rejected
the petition on the day it was filed, contending that ``an
investigation would not be effective in addressing the acts, policies,
and practices covered in the petition. The Administration is currently
involved in efforts to address with the Government of China the
currency valuation issues raised in the petition. The USTR believes
that initiation of an investigation under [the Section 301 process]
would hamper, rather than advance, Administration efforts to address
Chinese currency valuation policies.'' Shortly thereafter, in November
of 2004, a Congressional coalition of 12 Senators and 23
Representatives filed a similar Section 301 petition, which was
rejected by USTR on the same grounds.
As noted in USTR's rejection of these petitions, current law allows
the Executive to decline to initiate an industry-
[[Page S1437]]
requested investigation where it determines that action under Section
301 would be ineffective in addressing the offending act, policy or
practice. The merits of USTR's determination are unreviewable under
current law. USTR used this loophole to avoid having to even
investigate industry's claim, let alone take formal action against
China. And as we now know, the Administration's ``soft'' approach to
Chinese currency manipulation has itself proven ineffective in
addressing the problem in the two years since these filings.
It is to prevent further disregard for U.S. businesses and workers
seeking a fair and consequential hearing of their concerns with foreign
trade practices that Senator Rockefeller and I today introduce the
Trade Complaint and Litigation Accountability Improvement Measures Act,
or the ``Trade CLAIM Act''.
The Trade CLAIM Act would amend the Section 301 process to require
the United States Trade Representative to act upon an interested
party's petition to take formal action in cases where a U.S. trade
right has been violated, except in instances where: the matter has
already been addressed by the relevant trade dispute settlement body;
the foreign country is taking imminent steps to end to ameliorate the
effects of the practice; taking action would do more harm than good to
the U.S. economy; or taking action would cause serious harm to the
national security of the United States.
The bill would also grant the Court of International Trade
jurisdiction to review de novo USTR's denials of Section 301 industry
petitions to investigate and take enforcement action against unfair
foreign trade laws or practices. Such jurisdiction would include the
ability to review USTR determinations that U.S. trade rights have not
been violated as alleged in industry petitions, and the sufficiency of
formal actions taken by USTR in response to foreign trade laws or
practices determined to violate U.S. trade rights.
The Trade CLAIM Act would give U.S. businesses and workers a greater
say in whether, when and how U.S. trade rights should be enforced. The
bill would be particularly beneficial to small businesses, which--like
other petitioners in Section 301 cases--currently have no avenue to
formally challenge the merits of USTR's decisions, and are often
drowned out by large business interests in industry-wide Section 301
actions initiated by USTR.
By providing for judicial review of USTR decisions not to enforce
U.S. trade rights, the bill provides for impartial third party
oversight by a specialty court not subject to political and diplomatic
pressures. In delinking discreet trade disputes from the mercurial
machinations of international relations, this Act would end the
sacrifice of individual industries on the negotiating table, and leave
it to the free market--uniformly operating under the trade rules to
which our trading partners have already agreed--to decide their fate.
______
By Mr. GRASSLEY:
S. 461. A bill to amend title 28, United States Code, to provide an
Inspector General for the judicial branch, and for other purposes; to
the Committee on the Judiciary.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the text of
this bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 461
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 ``Judicial Transparency and
Ethics Enhancement Act of 2007''.
SEC. 2. INSPECTOR GENERAL FOR THE JUDICIAL BRANCH.
(a) Establishment and Duties.--Part III of title 28, United
States Code, is amended by adding at the end the following:
``CHAPTER 60--INSPECTOR GENERAL FOR THE JUDICIAL BRANCH
``Sec.
``1021. Establishment.
``1022. Appointment, term, and removal of Inspector General.
``1023. Duties.
``1024. Powers.
``1025. Reports.
``1026. Whistleblower protection.
``Sec. 1021. Establishment
``There is established for the judicial branch of the
Government the Office of Inspector General for the Judicial
Branch (in this chapter referred to as the `Office').
``Sec. 1022. Appointment, term, and removal of Inspector
General
``(a) Appointment.--The head of the Office shall be the
Inspector General, who shall be appointed by the Chief
Justice of the United States after consultation with the
majority and minority leaders of the Senate and the Speaker
and minority leader of the House of Representatives.
``(b) Term.--The Inspector General shall serve for a term
of 4 years and may be reappointed by the Chief Justice of the
United States for any number of additional terms.
``(c) Removal.--The Inspector General may be removed from
office by the Chief Justice of the United States. The Chief
Justice shall communicate the reasons for any such removal to
both Houses of Congress.
``Sec. 1023. Duties
``With respect to the judicial branch, the Office shall--
``(1) conduct investigations of alleged misconduct in the
judicial branch (other than the United States Supreme Court)
under chapter 16, that may require oversight or other action
within the judicial branch or by Congress;
``(2) conduct investigations of alleged misconduct in the
United States Supreme Court, that may require oversight or
other action within the judicial branch or by Congress;
``(3) conduct and supervise audits and investigations;
``(4) prevent and detect waste, fraud, and abuse; and
``(5) recommend changes in laws or regulations governing
the judicial branch.
``Sec. 1024. Powers
``(a) Powers.--In carrying out the duties of the Office,
the Inspector General shall have the power to--
``(1) make investigations and reports;
``(2) obtain information or assistance from any Federal,
State, or local governmental agency, or other entity, or unit
thereof, including all information kept in the course of
business by the Judicial Conference of the United States, the
judicial councils of circuits, the Administrative Office of
the United States Courts, and the United States Sentencing
Commission;
``(3) require, by subpoena or otherwise, the attendance and
testimony of such witnesses, and the production of such
books, records, correspondence memoranda, papers, and
documents, which subpoena, in the case of contumacy or
refusal to obey, shall be enforceable by civil action;
``(4) administer to or take from any person an oath,
affirmation, or affidavit;
``(5) employ such officers and employees, subject to the
provisions of title 5, governing appointments in the
competitive service, and the provisions of chapter 51 and
subchapter III of chapter 53 of such title relating to
classification and General Schedule pay rates;
``(6) obtain services as authorized by section 3109 of
title 5 at daily rates not to exceed the equivalent rate for
a position at level IV of the Executive Schedule under
section 5315; and
``(7) the extent and in such amounts as may be provided in
advance by appropriations Acts, to enter into contracts and
other arrangements for audits, studies, analyses, and other
services with public agencies and with private persons, and
to make such payments as may be necessary to carry out the
duties of the Office.
``(b) Chapter 16 Matters.--The Inspector General shall not
commence an investigation under section 1023(1) until the
denial of a petition for review by the judicial council of
the circuit under section 352(c) of this title or upon
referral or certification to the Judicial Conference of the
United States of any matter under section 354(b) of this
title.
``(c) Limitation.--The Inspector General shall not have the
authority to--
``(1) investigate or review any matter that is directly
related to the merits of a decision or procedural ruling by
any judge, justice, or court; or
``(2) punish or discipline any judge, justice, or court.
``Sec. 1025. Reports
``(a) When To Be Made.--The Inspector General shall--
``(1) make an annual report to the Chief Justice and to
Congress relating to the activities of the Office; and
``(2) make prompt reports to the Chief Justice and to
Congress on matters that may require action by the Chief
Justice or Congress.
``(b) Sensitive Matter.--If a report contains sensitive
matter, the Inspector General may so indicate and Congress
may receive that report in closed session.
``(c) Duty to Inform Attorney General.--In carrying out the
duties of the Office, the Inspector General shall report
expeditiously to the Attorney General whenever the Inspector
General has reasonable grounds to believe there has been a
violation of Federal criminal law.
``Sec. 1026. Whistleblower protection
``(a) In General.--No officer, employee, agent, contractor
or subcontractor in the judicial branch may discharge,
demote, threaten, suspend, harass or in any other manner
discriminate against an employee in the terms and conditions
of employment because
[[Page S1438]]
of any lawful act done by the employee to provide
information, cause information to be provided, or otherwise
assist in an investigation regarding any possible violation
of Federal law or regulation, or misconduct, by a judge,
justice, or any other employee in the judicial branch, which
may assist the Inspector General in the performance of duties
under this chapter.
``(b) Civil Action.--An employee injured by a violation of
subsection (a) may, in a civil action, obtain appropriate
relief.''.
(b) Technical and Conforming Amendment.--The table of
chapters for part III of title 28, United States Code, is
amended by adding at the end the following:
``60. Inspector General for the judicial branch.''.
______
Mr. REID (for himself and Mr. Ensign):
S. 462. A bill to approve the settlement of the water rights claims
of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation in
Nevada, to require the Secretary of the Interior to carry out the
settlement, and for other purposes; to the Committee on Indian Affairs.
Mr. REID. Mr. President, I rise today to introduce legislation to
resolve a Nevada water rights matter that has lasted more than a
decade.
This bill, the Shoshone-Paiute Tribes of Duck Valley Water Rights
Settlement Act, would ratify an agreement reached last fall by the
State of Nevada, the Tribes, many individual water users, and the
United States. I am pleased that the parties came together, asserted
their interests, made compromises, and reached an agreement. Each party
had different--and frequently conflicting--water claims, water needs,
and ideas on water use and conservation. I appreciate the parties' hard
work and their commitment to end expensive litigation to reach an
agreement that will permanently resolve the water rights matters along
the East Fork of the Owyhee River. This bill, if enacted, will ratify
the agreement reached by the parties.
The primary purpose of this bill is to approve, ratify and confirm
the agreement that addresses the Tribes' water rights, the rights of
upstream water users, and the implementation of a plan for the parties
to exercise their water rights.
The Agreement quantifies the Tribes' surface water rights and
groundwater claims in Nevada. The Tribes will establish a water code
and administer the quantified rights on the Reservation accordingly.
The Agreement also states that the water rights of the upstream water
users who live off the Reservation will be determined and administered
by the State Engineer. Under the settlement, the parties have agreed to
a limitation on the number of acres that can be irrigated by the
upstream water users.
The settlement's implementation plan describes how the rights of the
respective parties will be administered and disputes will be resolved.
It describes that the surface water basin will be closed, and provides
that a groundwater basin will be declared a basin in need of additional
administration under state law. The agreement further addresses
operation of the system particularly during times of shortage. Under
this part of the plan, upstream water users gain a small amount of
water storage in the Wild Horse Reservoir.
The second purpose of this bill is to settle the Tribes' long-
standing claims against the United States for damages caused by the
Bureau of Reclamation's Duck Valley Irrigation Project, related Bureau
of Indian Affairs projects, and the mismanagement of tribal resources,
particularly the destruction of the Tribe's salmon and steelhead trout
fishing stock.
The Shoshone-Paiutes have a long history in Nevada and Idaho. The
Tribes roamed the region well before the Duck Valley Reservation was
established by Executive Order in 1877. The Reservation today
encompasses approximately 290,000 acres of land held in trust by the
federal government for the Shoshone-Paiute Tribes.
The Reservation draws water from three primary sources: 1. the East
Fork of the Owyhee River that flows through the Reservation from south
to north from the Nevada side; 2. Blue Creek, a tributary to the Owyhee
that flows north to south through the Reservation until it meets the
Owyhee on the Idaho side of the Reservation; and 3. Mary's Creek,
located in the northeastern part of the Reservation, flowing
northeasterly through the Reservation and into Idaho.
When the Bureau of Indian Affairs' Duck Valley Indian Irrigation
Project was initiated in the 1930s, the project placed over 12,000
acres of land under irrigation. Like many Indian water projects, the
Project was only partially completed and never fully funded, which
accounted for the Projects' disrepair, resulted in reduced storage
capacity, and an inability to reach the goal of maximizing the acres in
production.
With the construction of the Bureau of Reclamation's Owyhee
Irrigation Project Dam in the 1930s, the Tribes' salmon runs were
destroyed.
The affects of these federal projects on the Tribes' resources and
culture and the Federal Government's failure to protect tribal water
rights require places the United States in the position of compensating
the Tribes for their loss. The Tribes value the loss to their resources
and culture at level much higher than what Senator Ensign and I
propose. While the United States can never fully compensate the Tribes
for their loss, I appreciate the Tribes' willingness to accept the
settlement figure and put an end to this painful part of our sovereign-
to-sovereign relationship.
The bill, if enacted, would authorize two settlement funds--a
development fund and a maintenance fund.
The development fund, to be authorized at $45 million over 5 fiscal
years, would fund tribal water development projects. After careful
research and consultation with its members and advisors, the Tribes
have identified many projects to increase their economic opportunities.
The Tribes are preparing to rehabilitate the dilapidated Duck Valley
Irrigation Project, increase the amount of irrigable lands in
agricultural production, develop a Wildlife Habitat Project, and
undertake other economic development projects to enhance the
Reservation economy and contribute to the permanent homeland purpose of
the Duck Valley Reservation.
The maintenance fund, authorized at $15 million over 5 fiscal years,
would fund the refurbishment and maintenance of the Reservation's water
infrastructure.
The Shoshone-Paiute Tribes of Duck Valley Water Rights Settlement Act
is important legislation. It reflects the compromises of our
constituents who worked hard to reach agreement on matters that affect
their livelihoods and cultures. I believe this bill benefit the Tribes,
the ranchers and upstream water users, and those residents in the
northern Nevada and southern Idaho region.
I look forward to working with the chairman and ranking member of the
Senate Committee on Indian Affairs to ensure timely review and passage
of this bill.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 462
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 ``Shoshone-Paiute Tribes of
Duck Valley Water Rights Settlement Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) it is the policy of the United States, in accordance
with the trust responsibility of the United States to Indian
tribes, to promote Indian self-determination and economic
self-sufficiency and to settle Indian water rights claims
without lengthy and costly litigation, if practicable;
(2) quantifying rights to water and development of
facilities needed to use tribal water supplies is essential
to the development of viable Indian reservation economies and
the establishment of a permanent reservation homeland;
(3) uncertainty concerning the extent of the right to water
of the Shoshone-Paiute Tribes has limited the access of the
Tribes to water and financial resources necessary to achieve
self-determination and self-sufficiency;
(4) in 2006, the Tribes, the State of Idaho, the affected
individual water users, and the United States resolved all
tribal claims to water rights in the Snake River Basin
Adjudication through a consent decree entered by the District
Court of the Fifth Judicial District of the State of Idaho,
requiring no further Federal action to implement the Tribes'
water rights in the State of Idaho;
[[Page S1439]]
(5) as of the date of enactment of this Act, proceedings to
determine the extent and nature of the water rights of the
Tribes are pending before the Nevada State Engineer;
(6) final resolution through litigation of the water claims
of the Tribes will--
(A) take many years;
(B) entail great expense;
(C) continue to limit the access of the Tribes to water,
with economic and social consequences;
(D) prolong uncertainty relating to the availability of
water supplies; and
(E) seriously impair long-term economic planning and
development for all parties to the litigation;
(7) after many years of negotiation, the United States, the
Tribes, the State, and the upstream water users have entered
into a settlement agreement to resolve permanently all water
rights of the Tribes in the State; and
(8) the Tribes have certain water-related claims for
damages against the United States.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to resolve outstanding issues with respect to the East
Fork of the Owyhee River in the State in such a manner as to
provide important benefits to--
(A) the United States;
(B) the State;
(C) the Tribes; and
(D) the upstream water users;
(2) to achieve a fair, equitable, and final settlement of
all claims of the Tribes, members of the Tribes, and the
United States on behalf of the Tribes to the East Fork of the
Owyhee River in the State;
(3) to ratify and provide for the enforcement of the
Agreement among the parties to the litigation;
(4) to resolve the Tribes' water-related claims for damages
against the United States;
(5) to require the Secretary to perform all obligations of
the Secretary under the Agreement and this Act; and
(6) to authorize the actions and appropriations necessary
for the United States to meet the obligations of the United
States under the Agreement and this Act.
SEC. 4. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``Agreement'' means the agreement
entitled the ``Agreement to Establish the Relative Water
Rights of the Shoshone-Paiute Tribes of the Duck Valley
Indian Reservation and the Upstream Water Users, East Fork
Owyhee River'' (including all attachments to that agreement).
(2) Development fund.--The term ``Development Fund'' means
the Shoshone-Paiute Tribes Water Rights Development Fund
established by section 7(b)(1).
(3) East fork of the owyhee river.--The term ``East Fork of
the Owyhee River'' means the portion of the east fork of the
Owyhee River that is located in the State.
(4) Maintenance fund.--The term ``Maintenance Fund'' means
the Shoshone-Paiute Tribes Operation and Maintenance Fund
established by section 7(c)(1).
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(6) State.--The term ``State'' means the State of Nevada.
(7) Tribal water right.--The term ``tribal water right''
means a right of the Tribes described in the Agreement
relating to water, including groundwater, storage water, and
surface water.
(8) Tribes.--The term ``Tribes'' means the Shoshone-Paiute
Tribes of the Duck Valley Indian Reservation.
(9) Upstream water user.--The term ``upstream water user''
means an individual water user that--
(A) is located upstream from the Duck Valley Indian
Reservation on the East Fork of the Owyhee River; and
(B) is a signatory to the Agreement.
SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF
AGREEMENT.
(a) In General.--Except as provided in section 1f of
article III of the Agreement, and except to the extent that
the Agreement otherwise conflicts with this Act, the
Agreement is approved, ratified, and confirmed.
(b) Performance of Obligations.--The Secretary and any
other head of a Federal agency obligated under the Agreement
shall perform any action necessary to carry out an obligation
under the Agreement in accordance with this Act.
SEC. 6. TRIBAL WATER RIGHTS.
(a) In General.--The Secretary shall hold the tribal water
rights in trust on behalf of the United States for the
benefit of the Tribes.
(b) Administration.--
(1) Enactment of water code.--Not later than 3 years after
the date of enactment of this Act, the Tribes shall enact a
water code to administer tribal water rights.
(2) Interim administration.--The Secretary shall regulate
the tribal water rights during the period beginning on the
date of enactment of this Act and ending on the date on which
the Tribes enact a water code under paragraph (1).
(c) Loss of Tribal Water Rights.--The tribal water rights
shall not be subject to loss by abandonment, forfeiture, or
nonuse.
SEC. 7. DEVELOPMENT AND MAINTENANCE FUNDS.
(a) Definition of Funds.--In this section, the term
``Funds'' means--
(1) the Development Fund; and
(2) the Maintenance Fund.
(b) Development Fund.--
(1) Establishment.--There is established in the Treasury of
the United States a fund to be known as the ``Shoshone-Paiute
Tribes Water Rights Development Fund''.
(2) Use of funds.--The Tribes shall use amounts in the
Development Fund--
(A) to pay or reimburse costs incurred by the Tribes in
acquiring land and water rights;
(B) for purposes of cultural preservation;
(C) to restore or improve fish or wildlife habitat;
(D) for fish or wildlife production, water resource
development, agricultural development, rehabilitation, and
expansion of the Duck Valley Irrigation Project;
(E) for water resource planning and development; or
(F) to pay the costs of designing and constructing water
supply and sewer systems for tribal communities, including--
(i) a water quality testing laboratory;
(ii) other appropriate water-related projects and other
related economic development projects;
(iii) the development of a water code; and
(iv) other costs of implementing the Agreement.
(3) Authorization of appropriations.--There is authorized
to be appropriated to the Secretary for deposit in the
Development Fund $9,000,000 for each of fiscal years 2008
through 2012.
(c) Maintenance Fund.--
(1) Establishment.--There is established in the Treasury of
the United States a fund to be known as the ``Shoshone-Paiute
Tribes Operation and Maintenance Fund''.
(2) Use of funds.--The Tribes shall use amounts in the
Maintenance Fund to pay or provide reimbursement for the
costs of--
(A) operation and maintenance of the Duck Valley Irrigation
Project and other water-related projects funded under this
Act; or
(B) water supply and sewer systems for tribal communities,
including the operation and maintenance costs of a water
quality testing laboratory.
(3) Authorization of appropriations.--There is authorized
to be appropriated to the Secretary for deposit in the
Maintenance Fund $3,000,000 for each of fiscal years 2008
through 2012.
(d) Administration of Funds.--
(1) In general.--The Secretary, in accordance with the
American Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4001 et seq.), this Act, and the Agreement, shall
manage the Funds, including by investing amounts from the
Funds in accordance with--
(A) the Act of April 1, 1880 (25 U.S.C. 161); and
(B) the first section of the Act of June 24, 1938 (25
U.S.C. 162a).
(2) Distributions.--
(A) Withdrawals.--
(i) In general.--During any fiscal year, the Tribes may
withdraw amounts from the Funds if the Secretary approves a
plan of the Tribes to withdraw amounts under section 202 of
the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4022).
(ii) Plan to withdraw amounts.--
(I) Inclusion.--In addition to any information required
under section 202 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4022), a plan of the
Tribes to withdraw amounts under this subparagraph shall
include a requirement that the Tribes spend the amounts
withdrawn from the Funds during a fiscal year for 1 or more
uses described in subsection (b)(2) or (c)(2).
(II) Enforcement.--The Secretary may take administrative or
judicial action to enforce a plan of the Tribes to withdraw
amounts.
(B) Remaining amounts.--
(i) In general.--On approval of an expenditure plan
submitted by the Tribes under clause (ii), the Secretary
shall distribute to the Tribes amounts in the Funds not
withdrawn by the Tribes during the preceding fiscal year.
(ii) Expenditure plan.--
(I) In general.--For each fiscal year, the Tribes shall
submit to the Secretary for approval an expenditure plan for
amounts described in clause (i).
(II) Inclusions.--An expenditure plan under subclause (I)
shall include--
(aa) an accounting by the Tribes of any funds withdrawn by
the Tribes from the Funds during the preceding fiscal year,
including a description of any use by the Tribes of the funds
and the amount remaining in the Funds for the preceding
fiscal year; and
(bb) a description of the means by which the Tribes will
use any amount distributed under this subparagraph.
(iii) Approval.--The Secretary shall approve an expenditure
plan under this subparagraph if the Secretary determines that
the plan is--
(I) reasonable; and
(II) consistent with this Act and the Agreement.
(C) Limitations.--
(i) Timing.--No amount from the Funds (including any
interest income accruing to the Funds) shall be distributed
until the waivers under section 8(a) take effect.
(ii) No per capita distributions.--No amount from the Funds
(including any interest income accruing to the Funds) shall
be distributed to a member of the Tribes on a per capita
basis.
[[Page S1440]]
(3) Funding agreement.--Notwithstanding any other provision
of this Act, on receipt of a request from the Tribes, the
Secretary shall include an amount appropriated under this
subsection in the funding agreement of the Tribes under title
IV of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 458aa et seq.), for use in accordance with
subsections (b)(2) and (c)(2).
(4) Liability.--The Secretary and the Secretary of the
Treasury shall not retain any liability for the expenditure
or investment of amounts distributed to the Tribes under this
subsection.
(5) Capital costs nonreimbursable.--The capital costs
associated with the Duck Valley Indian Irrigation Project as
of the date of enactment of this Act, including any capital
cost incurred with funds distributed under this subsection
for that project, shall be permanently nonreimbursable.
SEC. 8. TRIBAL WAIVER OF CLAIMS.
(a) Waivers.--
(1) In general.--Except as otherwise provided in the
Agreement and this Act, the Tribes, and the United States on
behalf of the Tribes, waive and release--
(A) all claims to water in the East Fork of the Owyhee
River and all claims to injury relating to that water; and
(B) all claims against the State, any agency or political
subdivision of the State, or any person, entity, or
corporation relating to injury to a right of the Tribe under
any Executive order entered on behalf of the Tribes, to the
extent that the injury--
(i) resulted from a flow modification or a reduction in the
quantity of water available; and
(ii) accrued on or before the effective date of the
Agreement.
(2) Enforcement of waivers.--A waiver of a claim under this
subsection by the Tribes, or the United States on behalf of
the Tribes, shall be enforceable in the appropriate forum.
(3) Effective date.--A waiver by the Tribes, or the United
States on behalf of the Tribes, of a claim under this
subsection shall take effect on the date on which the
Secretary publishes in the Federal Register a statement of
findings that includes a finding that--
(A) all parties to the Agreement have executed the
Agreement;
(B) a decree acceptable to each party to the Agreement has
been entered by the Fourth Judicial District Court, Elko
County, Nevada; and
(C) the Agreement has been ratified under section 5(a).
(b) Waiver and Release of Claims Against the United
States.--
(1) In general.--In consideration of performance by the
United States of all actions required by the Agreement and
this Act, including the authorization of appropriations under
subsections (b)(3) and (c)(3) of section 7, the Tribe shall
execute a waiver and release of any claim against the United
States for--
(A) a water right in the East Fork of the Owyhee River;
(B) an injury to a right described in subparagraph (A);
(C) breach of trust--
(i) for failure to protect, acquire, or develop a water
right that accrued on or before the effective date of a
waiver under this subsection; or
(ii) arising out of the negotiation or adoption of the
Agreement; or
(D) a fishing right under any Executive order, to the
extent that an injury to such a right--
(i) resulted from a reduction in the quantity of water
available in the East Fork of the Owyhee River; and
(ii) accrued on or before the effective date of a waiver
under this subsection.
(2) Effective date.--
(A) In general.--The waiver under paragraph (1) takes
effect on the date on which the amounts authorized to be
appropriated under subsections (b)(3) and (c)(3) of section 7
are distributed to the Tribes.
(B) Tolling of claims.--
(i) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim described in
paragraph (1) shall be tolled for the period beginning on the
date of enactment of this Act and ending on the date on which
the amounts authorized to be appropriated under subsections
(b)(3) and (c)(3) of section 7 are distributed to the Tribes.
(ii) Effect of subparagraph.--Nothing in this subparagraph
revives any claim or tolls any period of limitation or time-
based equitable defense that expired before the date of
enactment of this Act.
(c) Retention of Rights.--
(1) In general.--The Tribes shall retain all rights not
waived by the Tribes, or the United States on behalf of the
Tribes, in the Agreement or this Act.
(2) Claims outside reservation.--Nothing in the Agreement
or this Act shall be considered to be a waiver by the Tribes
of any claim to a right on land outside the Duck Valley
Indian Reservation.
(3) Future acquisition of water rights.--Nothing in the
Agreement or this Act precludes the Tribes, or the United
States as trustee for the Tribes, from acquiring a water
right in the State to the same extent as any other entity in
the State, in accordance with State law.
SEC. 9. MISCELLANEOUS.
(a) General Disclaimer.--The parties to the Agreement
expressly reserve all rights not specifically granted,
recognized, or relinquished by--
(1) the settlement described in the Agreement; or
(2) this Act.
(b) Limitation of Claims and Rights.--Nothing in this Act--
(1) establishes a standard for quantifying--
(A) a Federal reserved water right;
(B) an aboriginal claim; or
(C) any other water right claim of an Indian tribe in a
judicial or administrative proceeding; or
(2) limits the right of a party to the Agreement to
litigate any issue not resolved by the Agreement or this Act.
(c) Admission Against Interest.--Nothing in this Act shall
be considered to be an admission against interest by a party
in any legal proceeding.
(d) Duck Valley Reservation.--The Duck Valley Indian
Reservation established by the Executive order dated April
16, 1877, as adjusted pursuant to the Executive order dated
May 4, 1886, and Executive order numbered 1222 and dated July
1, 1910, for use and occupation by the Western Shoshones and
the Paddy Cap Band of Paiutes shall be--
(1) considered to be the property of the Tribes; and
(2) permanently held in trust by the United States for the
sole use and benefit of the Tribes.
(e) Jurisdiction.--
(1) Subject matter jurisdiction.--Nothing in the Agreement
or this Act restricts, enlarges, or otherwise determines the
subject matter jurisdiction of any Federal, State, or tribal
court.
(2) Civil or regulatory jurisdiction.--Nothing in the
Agreement or this Act impairs or impedes the exercise of any
civil or regulatory authority of the United States, the
State, or the Tribes.
(3) Consent to jurisdiction.--The United States consents to
jurisdiction in a proper forum for purposes of enforcing the
provisions of the Agreement.
(4) Effect of subsection.--Nothing in this subsection
confers jurisdiction on any State court to--
(A) enforce Federal environmental laws relating to the
duties of the United States under this Act; or
(B) conduct judicial review of a Federal agency action in
accordance with this Act.
______
By Mr. McCAIN (for himself and Mr. Feingold):
S. 463. A bill to amend the Federal Election Campaign Act of 1971 to
clarify when organizations described in section 527 of the Internal
Revenue Code of 1986 must register as political committees, and for
other purposes; to the Committee on Rules and Administration.
Mr. McCAIN. Mr. President, once again I am pleased to be joined by my
good friend and colleague Senator Feingold from Wisconsin in
introducing a bill to end the illegal practice of 527 groups spending
soft money on ads and other activities to influence Federal elections.
This bill is very simple. It would require that all 527s register as
political committees and comply with Federal campaign finance laws,
including Federal limits on the contributions they receive, unless the
money they raise and spend is only in connection with non-Federal
candidate elections, State or local ballot initiatives, or the
nomination or confirmation of individuals to non-elected offices.
Additionally, this legislation would set new rules for Federal
political committees that spend funds on voter mobilization efforts
effecting both Federal and local races and, therefore, use both a
Federal and a non-Federal account under Federal Election Commission
(FEC) regulation. The new rules would prevent unlimited soft money from
being channeled into Federal election activities by these Federal
political committees.
Under the new rules that would be established under this bill, at
least half of the funds spent on these voter mobilization activities by
Federal political committees would have to be hard money from their
Federal account. More importantly, the funds raised for their non-
Federal account would have to come from individuals and would be
limited to no more than $25,000 per year per donor. Corporations and
labor unions could not contribute to these non-Federal accounts. To put
it in simple terms, a George Soros could give $25,000 per year as
opposed to $10 million to finance these activities.
It is unfortunate that we even need to be here introducing this bill
today. This legislation would not be necessary if the FEC would enforce
existing law. As my colleagues know, a number of 527 groups raised and
spent a substantial amount of soft money in a blatant effort to
influence the outcome of the 2004 Presidential election. These
activities are illegal under existing laws,
[[Page S1441]]
but, unfortunately, the FEC has failed to implement the regulations
necessary to stop these illegal activities.
According to an analysis by campaign finance scholar Tony Corrado,
federally oriented 527s spent $423 million to affect the outcome of the
2004 elections. The same analysis shows that ten donors gave at least
$4 million each to 527s involved in the 2004 elections and two donors
each contributed over $20 million. Let me be perfectly clear on one
point here. Our proposal will NOT shut down 527s. It will simply
require them to abide by the same Federal regulations every other
Federal political committee must abide by in spending money to
influence Federal elections.
Opponents of campaign finance reform like to point out that the
activities of these 527s serve as proof that the Bipartisan Campaign
Reform Act (BCRA) has failed in its stated purpose, which is to
eliminate the corrupting influence of soft money in our political
campaigns. Let me be perfectly clear on this. The 527 issue has nothing
to do with BCRA, it has everything to do with the Federal Election
Campaign Act of 1974 and the failure of the FEC to properly regulate
the activities of these groups.
The bill Senator Feingold and I are introducing today is designed to
put an end to the abusive, illegal practices of these 527s. I urge my
colleagues to support swift passage of this bill and put an end to this
problem once and for all.
Mr. FEINGOLD. Mr. President, I am pleased to be working once again
with my partner in reform, the senior Senator from Arizona, Senator
McCain, to introduce the 527 Reform Act.
Our purpose is simple--to pass legislation that will do what the FEC
could and should do under current law, but, once again, has failed to
do. Current Federal election law requires these groups to register as
political committees and to stop raising and spending soft money. But
the FEC has failed to enforce the law, so we must act in the Congress.
This bill will make it absolutely clear that the federal election laws
apply to 527 organizations.
We had to something similar with BCRA, the Bipartisan Campaign Reform
Act, which passed in 2002, closing the soft money loophole that the FEC
created in the late '70s and expanded in the '90s. That struggle took
seven years. We have now been seeking to bring 527s within the law for
four.
This bill will require all 527s to register as political committees
unless they fall into a number of narrow categories. The exceptions are
basically for groups that Congress exempted from disclosure
requirements because they are so small or for groups that are involved
exclusively in State election activity. Once a group registers as a
political committee, certain activities, such as ads that mention only
Federal candidates, will have to be paid for solely with hard money.
Under current rules, the FEC permits Federal political committees to
maintain a non-Federal account to pay a portion of the expenses of
activities that affect both Federal and non-Federal elections. Our bill
sets new allocation rules that will make sure that these allocable
activities are paid for with at least 50 percent hard money.
Finally, the bill makes an important change with respect to the non-
federal portion of the allocable activities. We put a limit of $25,000
per year on the contributions that can be accepted for that non-federal
account. This means no more million dollar soft money contributions to
pay for get-out-the-vote efforts in the presidential campaign.
Nothing in this bill will affect legitimate 501(c) advocacy groups.
The bill only applies to groups that claim a tax exemption under
section 527.
Having laid out the central components of the bill, let me discuss
how this bill has evolved, and the differences between this bill and
the bill we introduced in 2005. In the last Congress, we made a great
deal of progress working with the Senator from Mississippi, who at the
time chaired the Rules Committee. Prior to taking the bill to a markup
in the spring of 2005, Senator Lott worked with us to clarify the bill
and address some of the concerns that had been raised about it. The
bill we are introducing today is identical to the ``Chairman's Mark''
that Senator Lott brought before the Rules Committee last year.
While the original bill exempted 527s engaged exclusively in state
elections from the registration requirement, it denied the exemption to
groups that carry out ``voter drive activities''--defined as get-out-
the vote, voter ID, or voter registration--during a federal election
year. This made the exemption too narrow, so we looked for another way
to ensure that state 527s that only work on behalf of non-Federal
officeholders will not have to become Federal PACs.
The Chairman's Mark, and this year's bill, completely exempt
organizations of State and local candidates or officeholders. Groups
such as the Democratic Governors Association, Republican Governors
Association, or a state legislative caucus would be exempt, as long as
their voter drive activities only mention state candidates or ballot
issues. These groups do not qualify for the exemption, however, if they
mention Federal candidates in their communications.
Second, the bill provides a slightly narrower exemption for State
PACs that are active only in State elections. The only additional
requirements for these PACs to qualify for an exemption are that they
can only be active in a single State, and they cannot have a candidate
for Federal office or Federal officeholder controlling or participating
in the organization or raising money for it.
Finally, we made a number of changes to ensure that Federal PACs that
allocate expenditures can use non-Federal money for expenditures
designed only to assist State candidates even if they make an
incidental reference to a Federal candidate or political party.
The changes to the legislation that we made last year working with
Senator Lott prior to the Rules Committee markup have been carried
forward in the bill we introduce today. They improved and strengthened
the bill. Unfortunately, other amendments were added during the Rules
Committee consideration of the bill that we could not support. So the
bill that we are introducing today is the same as the bill that went to
markup in 2005, not the bill that was reported.
In closing, let me remind my colleagues that the soft money loophole
was first opened by FEC rulings in the late '70s. By the time we
started work on BCRA, the problem had mushroomed and led to the
scandals we saw in the 1996 campaign. When we passed BCRA, I said we
would have to be vigilant to make sure that the FEC enforced the law
and that similar loopholes did not develop. That is what we are trying
to do here.
I have no doubt that if we don't act on this 527 problem now, we will
see more problems explode into scandals over the next few election
cycles. In the 2004 cycle, Federal-oriented 527s spend $423 million. In
fact, there were two donors who each contributed over $20 million. We
cannot afford to wait until another presidential campaign season is in
full bloom before addressing this problem. This FEC-ordained loophole
threatens to further undermine the federal election laws. We must close
it this year.
______
By Mr. ROCKEFELLER (for himself, Ms. Collins, and Mr. Nelson of
Florida):
S. 464. A bill to amend title XVIII and XIX of the Social Security
Act to improve the requirements regarding advance directives in order
to ensure that an individual's health care decisions are complied with,
and for other purposes; to the Committee on Finance.
______
By Mr. NELSON of Florida (for himself, Mr. Lugar, Mr.
Rockefeller, Ms. Collins Mr. Durbin, and Mr. Bingaman):
S. 465. A bill to amend titles XVIII and XIX of the Social Security
Act and title III of the Public Health Service Act to improve access to
information about individuals' health care options and legal rights for
care near the end of life, to promote advance care planning and
decisionmaking so that individuals' wishes are known should they become
unable to speak for themselves, to engage health care providers in
disseminating information about and assisting in the preparation of
advance directives, which include living wills and durable powers of
attorney for health care, and for other purposes; to the Committee on
Finance.
[[Page S1442]]
______
By Mr. ROCKEFELLER (for himself, Mr. Nelson of Florida, and Mr.
Lugar):
S. 466. A bill to amend title XVIII of the Social Security Act to
provide for coverage of an end-of-life planning consultation as part of
an initial preventive physical examination under the Medicare program;
to the Committee on Finance.
Mr. ROCKEFELLER. Mr. President, death is by no means an easy subject
to talk about; nonetheless, end-of-life care continues to be a
controversial topic that must be addressed. Today, I am introducing
three bills that I hope will go a long way to improve end-of-life care
in this country. Senator Susan Collins and I are reintroducing our
Advance Planning and Compassionate Care Act, comprehensive legislation
that would ensure that patients' final wishes for end-of-life care are
known, respected, and complied with. This legislation has been
introduced in each Congress since the 105th Congress. I am hopeful that
we will be able to move it this year.
I am also introducing the Medicare End-of-Life Care Planning Act with
Senators Lugar and Bill Nelson. This important bill is based on an
amendment that I introduced during the Finance Committee's
consideration of the Deficit Reduction Act in 2005. It would require
physician consultation regarding advance directives during the initial
``Welcome to Medicare'' physician visit. An end-of-life care
consultation during a Medicare recipient's first contact with the
program would emphasize the importance of advance planning and give him
or her the tools necessary to understand advance directives, the
Medicare hospice benefit, and other end-of-life care concerns. Having
such a benefit in Medicare would undoubtedly improve patient care and
quality at the end-of-life.
The final bill that I would like to talk about today is the Advance
Directives Improvement and Education Act, legislation that I am
cosponsoring with Senators Bill Nelson and Richard Lugar. The Advance
Directives Improvement and Education Act complements both of the bills
I am introducing today. It includes my language on the ``Welcome to
Medicare'' doctor's visit, which I believe is critical, but it also
includes two other important provisions. It improves the policies for
use and portability of advance directives across state lines, and it
directs the Secretary of HHS to conduct a public education campaign on
the importance of end-of-life planning.
I am happy to be an author of each of these bills. As we have seen
recently with the well-publicized case of Terri Shiavo, end-of-life
decision making can be confusing and cause added anguish to an already
sorrowful situation. The delicate nature of life and love make it very
difficult to create strict rules governing end-of-life care, nor should
we want to. In its present form, however, end-of-life planning and care
for most Americans is perplexing, disjointed, and lacking an active
dialogue. We can, and must, take action to make this process as easy as
possible.
It is not surprising that we face this problem. Health care
professionals frequently use terms that are too technical or confusing
for the average person. Patients who appear too sick to participate in
the discussions may be excluded from determining their own destiny. And
all too often the entire conversation never happens due to the
discomfort of all parties involved. As a result, patients and families,
suffer needlessly during these already difficult times. A report issued
by the Institute of Medicine Committee on Care at the End of Life
stated that, and I quote, ``suffering arises when the aggressive use of
ineffectual or intrusive interventions serves to prolong the period of
dying unnecessarily or to dishonor the dying person's wishes about
care. Too often, dying people and their families are either not aware
of these care options, not fully apprised of the probable benefits and
burdens of these various options, or are the recipients of care that is
inconsistent with their wishes as expressed in written or oral
directives.''
Despite these shortcomings, the evidence tells us that most people
want to discuss advanced directives when they are healthy and they want
their families involved in the process. According to the American
Psychological Association, almost 60 percent of individuals 65 or older
state that they want their family to be given choices about treatment
should they become incapacitated rather than leaving the decision up to
physicians. How can we allow these serious problems to persist when
dealing with the lives of our family and friends?
Death is hard to think about. Death is hard to talk about. And the
final period of time leading up to our death is hard to plan. But we
must encourage our family, our friends, and our loved ones to discuss
this difficult topic in an open and effective manner in order to avoid
any additional pain when a loved one passes away. We must also provide
them the best tools to do so.
The legislation I am introducing today accomplishes this objective by
developing standards for end-of-life care, facilitating opportunities
for patients to discuss end-of-life issues with a trained professional,
and authorizing funds for demonstration projects on innovative
approaches to end-of-life care.
Death is a serious, personal, and complicated issue that is
eventually relevant to each and every one of us. Americans deserve end-
of-life care that is effective in fulfilling individual wishes,
avoiding unnecessary disputes, and, most importantly, providing quality
end-of-life care. Therefore, I urge my colleagues to join us in
improving end-of-life care and reducing the amount of grief that
inevitably comes with losing those who we hold dear.
I ask unanimous consent that the text of each of these bills be
printed in the Record.
There being no objection, the text of the bills was ordered to be
printed in the Record, as follows:
S. 464
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Advance
Planning and Compassionate Care Act of 2007''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Development of standards to assess end-of-life care.
Sec. 3. Study and report by the Secretary of Health and Human Services
regarding the establishment and implementation of a
national uniform policy on advance directives.
Sec. 4. Improvement of policies related to the use of advance
directives.
Sec. 5. National information hotline for end-of-life decisionmaking and
hospice care.
Sec. 6. Demonstration project for innovative and new approaches to end-
of-life care for Medicare, Medicaid, and SCHIP
beneficiaries.
Sec. 7. Establishment of End-of-Life Care Advisory Board.
SEC. 2. DEVELOPMENT OF STANDARDS TO ASSESS END-OF-LIFE CARE.
(a) In General.--The Secretary of Health and Human
Services, in consultation with the Administrator of the
Centers for Medicare & Medicaid Services, the Director of the
National Institutes of Health, the Administrator of the
Agency for Health Care Policy and Research, and the End-of-
Life Care Advisory Board (established under section 7), shall
develop outcome standards and measures to--
(1) evaluate the performance of health care programs and
projects that provide end-of-life care to individuals,
including the quality of the care provided by such programs
and projects; and
(2) assess the access to, and utilization of, such programs
and projects, including differences in such access and
utilization in rural and urban areas and for minority
populations.
(b) Report to Congress.--Not later than 2 years after the
date of enactment of this Act, the Secretary of Health and
Human Services shall submit to Congress a report on the
outcome standards and measures developed under subsection
(a), together with recommendations for such legislation and
administrative actions as the Secretary considers
appropriate.
SEC. 3. STUDY AND REPORT BY THE SECRETARY OF HEALTH AND HUMAN
SERVICES REGARDING THE ESTABLISHMENT AND
IMPLEMENTATION OF A NATIONAL UNIFORM POLICY ON
ADVANCE DIRECTIVES.
(a) Study.--
(1) In general.--The Secretary of Health and Human Services
shall conduct a thorough study of all matters relating to the
establishment and implementation of a national uniform policy
on advance directives for individuals receiving items and
services under titles XVIII and XIX of the Social Security
Act (42 U.S.C. 1395 et seq.; 1396 et seq.).
(2) Matters studied.--The matters studied by the Secretary
of Health and Human Services under paragraph (1) shall
include issues concerning--
[[Page S1443]]
(A) family satisfaction that a patient's wishes, as stated
in the patient's advance directive, were carried out;
(B) the portability of advance directives, including cases
involving the transfer of an individual from 1 health care
setting to another;
(C) immunity from civil liability and criminal
responsibility for health care providers that follow the
instructions in an individual's advance directive that was
validly executed in, and consistent with the laws of, the
State in which it was executed;
(D) conditions under which an advance directive is
operative;
(E) revocation of an advance directive by an individual;
(F) the criteria used by States for determining that an
individual has a terminal condition;
(G) surrogate decisionmaking regarding end-of-life care;
(H) the provision of adequate palliative care (as defined
in paragraph (3)), including pain management; and
(I) adequate and timely referrals to hospice care programs.
(3) Palliative care.--For purposes of paragraph (2)(H), the
term ``palliative care'' means interdisciplinary care for
individuals with a life-threatening illness or injury
relating to pain and symptom management and psychological,
social, and spiritual needs and that seeks to improve the
quality of life for the individual and the individual's
family.
(b) Report to Congress.--Not later than 18 months after the
date of enactment of this Act, the Secretary of Health and
Human Services shall submit to Congress a report on the study
conducted under subsection (a), together with recommendations
for such legislation and administrative actions as the
Secretary considers appropriate.
(c) Consultation.--In conducting the study and developing
the report under this section, the Secretary of Health and
Human Services shall consult with the End-of-Life Care
Advisory Board (established under section 7), the Uniform Law
Commissioners, and other interested parties.
SEC. 4. IMPROVEMENT OF POLICIES RELATED TO THE USE OF ADVANCE
DIRECTIVES.
(a) Medicare.--Section 1866(f) of the Social Security Act
(42 U.S.C. 1395cc(f)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (B), by inserting ``and if presented by
the individual, to include the content of such advance
directive in a prominent part of such record'' before the
semicolon at the end;
(B) in subparagraph (D), by striking ``and'' after the
semicolon at the end;
(C) in subparagraph (E), by striking the period at the end
and inserting ``; and''; and
(D) by inserting after subparagraph (E) the following new
subparagraph:
``(F) to provide each individual with the opportunity to
discuss issues relating to the information provided to that
individual pursuant to subparagraph (A) with an appropriately
trained professional.'';
(2) in paragraph (3), by striking ``a written'' and
inserting ``an''; and
(3) by adding at the end the following new paragraph:
``(5)(A) An advance directive validly executed outside of
the State in which such advance directive is presented by an
adult individual to a provider of services, a Medicare
Advantage organization, or a prepaid or eligible organization
shall be given the same effect by that provider or
organization as an advance directive validly executed under
the law of the State in which it is presented would be given
effect.
``(B)(i) The definition of an advanced directive shall also
include actual knowledge of instructions made while an
individual was able to express the wishes of such individual
with regard to health care.
``(ii) For purposes of clause (i), the term `actual
knowledge' means the possession of information of an
individual's wishes communicated to the health care provider
orally or in writing by the individual, the individual's
medical power of attorney representative, the individual's
health care surrogate, or other individuals resulting in the
health care provider's personal cognizance of these wishes.
Other forms of imputed knowledge are not actual knowledge.
``(C) The provisions of this paragraph shall preempt any
State law to the extent such law is inconsistent with such
provisions. The provisions of this paragraph shall not
preempt any State law that provides for greater portability,
more deference to a patient's wishes, or more latitude in
determining a patient's wishes.''.
(b) Medicaid.--Section 1902(w) of the Social Security Act
(42 U.S.C. 1396a(w)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (B)--
(i) by striking ``in the individual's medical record'' and
inserting ``in a prominent part of the individual's current
medical record''; and
(ii) by inserting ``and if presented by the individual, to
include the content of such advance directive in a prominent
part of such record'' before the semicolon at the end;
(B) in subparagraph (D), by striking ``and'' after the
semicolon at the end;
(C) in subparagraph (E), by striking the period at the end
and inserting ``; and''; and
(D) by inserting after subparagraph (E) the following new
subparagraph:
``(F) to provide each individual with the opportunity to
discuss issues relating to the information provided to that
individual pursuant to subparagraph (A) with an appropriately
trained professional.'';
(2) in paragraph (4), by striking ``a written'' and
inserting ``an''; and
(3) by adding at the end the following paragraph:
``(6)(A) An advance directive validly executed outside of
the State in which such advance directive is presented by an
adult individual to a provider or organization shall be given
the same effect by that provider or organization as an
advance directive validly executed under the law of the State
in which it is presented would be given effect.
``(B)(i) The definition of an advanced directive shall also
include actual knowledge of instructions made while an
individual was able to express the wishes of such individual
with regard to health care.
``(ii) For purposes of clause (i), the term `actual
knowledge' means the possession of information of an
individual's wishes communicated to the health care provider
orally or in writing by the individual, the individual's
medical power of attorney representative, the individual's
health care surrogate, or other individuals resulting in the
health care provider's personal cognizance of these wishes.
Other forms of imputed knowledge are not actual knowledge.
``(C) The provisions of this paragraph shall preempt any
State law to the extent such law is inconsistent with such
provisions. The provisions of this paragraph shall not
preempt any State law that provides for greater portability,
more deference to a patient's wishes, or more latitude in
determining a patient's wishes.''.
(c) Study and Report Regarding Implementation.--
(1) Study.--The Secretary of Health and Human Services
shall conduct a study regarding the implementation of the
amendments made by subsections (a) and (b).
(2) Report.--Not later than 18 months after the date of
enactment of this Act, the Secretary of Health and Human
Services shall submit to Congress a report on the study
conducted under paragraph (1), together with recommendations
for such legislation and administrative actions as the
Secretary considers appropriate.
(d) Effective Dates.--
(1) In general.--Subject to paragraph (2), the amendments
made by subsections (a) and (b) shall apply to provider
agreements and contracts entered into, renewed, or extended
under title XVIII of the Social Security Act (42 U.S.C. 1395
et seq.), and to State plans under title XIX of such Act (42
U.S.C. 1396 et seq.), on or after such date as the Secretary
of Health and Human Services specifies, but in no case may
such date be later than 1 year after the date of enactment of
this Act.
(2) Extension of effective date for state law amendment.--
In the case of a State plan under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) 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 subsection
(b), the State plan shall not be regarded as failing to
comply with the requirements of such title 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 is considered to be a separate regular session of the
State legislature.
SEC. 5. NATIONAL INFORMATION HOTLINE FOR END-OF-LIFE
DECISIONMAKING AND HOSPICE CARE.
The Secretary of Health and Human Services, acting through
the Administrator of the Centers for Medicare & Medicaid
Services, shall operate directly, or by grant, contract, or
interagency agreement, out of funds otherwise appropriated to
the Secretary, a clearinghouse and a 24-hour toll-free
telephone hotline in order to provide consumer information
about advance directives (as defined in section 1866(f)(3) of
the Social Security Act (42 U.S.C. 1395cc(f)(3)), as amended
by section 4(a)), end-of-life decisionmaking, and available
end-of-life and hospice care services. In carrying out the
preceding sentence, the Administrator may designate an
existing clearinghouse and 24-hour toll-free telephone
hotline or, if no such entity is appropriate, may establish a
new clearinghouse and a 24-hour toll-free telephone hotline.
SEC. 6. DEMONSTRATION PROJECT FOR INNOVATIVE AND NEW
APPROACHES TO END-OF-LIFE CARE FOR MEDICARE,
MEDICAID, AND SCHIP BENEFICIARIES.
(a) Establishment.--
(1) In general.--The Secretary, acting through the
Administrator of the Centers for Medicare & Medicaid
Services, shall conduct a demonstration project under which
the Secretary contracts with entities operating programs in
order to develop new and innovative approaches to providing
end-of-life care to Medicare beneficiaries, Medicaid
beneficiaries, and SCHIP beneficiaries.
(2) Application.--Any entity seeking to participate in the
demonstration project shall submit to the Secretary an
application in such form and manner as the Secretary may
require.
(3) Duration.--The authority of the Secretary to conduct
the demonstration project shall terminate at the end of the
5-year period beginning on the date the Secretary implements
the demonstration project.
[[Page S1444]]
(b) Selection Criteria.--
(1) In general.--Subject to paragraphs (2) and (3), in
selecting entities to participate in the demonstration
project, the Secretary shall select entities that will allow
for programs to be conducted in a variety of States, in an
array of care settings, and that reflect--
(A) a balance between urban and rural settings;
(B) cultural diversity; and
(C) various modes of medical care and insurance, such as
fee-for-service, preferred provider organizations, health
maintenance organizations, hospice care, home care services,
long-term care, pediatric care, and integrated delivery
systems.
(2) Preferences.--The Secretary shall give preference to
entities operating programs that--
(A) will serve Medicare beneficiaries, Medicaid
beneficiaries, or SCHIP beneficiaries who are dying of
illnesses that are most prevalent under the Medicare program,
the Medicaid program, or SCHIP, respectively; and
(B) appear capable of sustained service and broad
replication at a reasonable cost within commonly available
organizational structures.
(3) Selection of program that provides pediatric end-of-
life care.--The Secretary shall ensure that at least 1 of the
entities selected to participate in the demonstration project
operates a program that provides pediatric end-of-life care.
(c) Evaluation of Programs.--
(1) In general.--Each program operated by an entity under
the demonstration project shall be evaluated at such regular
intervals as the Secretary determines are appropriate.
(2) Use of private entities to conduct evaluations.--The
Secretary, in consultation with the End-of-Life Care Advisory
Board (established under section 7), shall contract with 1 or
more private entities to coordinate and conduct the
evaluations under paragraph (1). Such a contract may not be
awarded to an entity selected to participate in the
demonstration project.
(3) Requirements for evaluations.--
(A) Use of outcome measures and standards.--In coordinating
and conducting an evaluation of a program conducted under the
demonstration project, an entity shall use the outcome
standards and measures required to be developed under section
2 as soon as those standards and measures are available.
(B) Elements of evaluation.--In addition to the use of the
outcome standards and measures under subparagraph (A), an
evaluation of a program conducted under the demonstration
project shall include the following:
(i) A comparison of the quality of care provided by, and of
the outcomes for Medicare beneficiaries, Medicaid
beneficiaries, and SCHIP beneficiaries, and the families of
such beneficiaries enrolled in, the program being evaluated
to the quality of care and outcomes for such individuals that
would have resulted if care had been provided under existing
delivery systems.
(ii) An analysis of how ongoing measures of quality and
accountability for improvement and excellence could be
incorporated into the program being evaluated.
(iii) A comparison of the costs of the care provided to
Medicare beneficiaries, Medicaid beneficiaries, and SCHIP
beneficiaries under the program being evaluated to the costs
of such care that would have been incurred under the Medicare
program, the Medicaid program, and SCHIP if such program had
not been conducted.
(iv) An analysis of whether the program being evaluated
implements practices or procedures that result in improved
patient outcomes, resource utilization, or both.
(v) An analysis of--
(I) the population served by the program being evaluated;
and
(II) how accurately that population reflects the total
number of Medicare beneficiaries, Medicaid beneficiaries, and
SCHIP beneficiaries residing in the area who are in need of
services offered by such program.
(vi) An analysis of the eligibility requirements and
enrollment procedures for the program being evaluated.
(vii) An analysis of the services provided to beneficiaries
enrolled in the program being evaluated and the utilization
rates for such services.
(viii) An analysis of the structure for the provision of
specific services under the program being evaluated.
(ix) An analysis of the costs of providing specific
services under the program being evaluated.
(x) An analysis of any procedures for offering Medicare
beneficiaries, Medicaid beneficiaries, and SCHIP
beneficiaries enrolled in the program being evaluated a
choice of services and how the program responds to the
preferences of such beneficiaries.
(xi) An analysis of the quality of care provided to, and of
the outcomes for, Medicare beneficiaries, Medicaid
beneficiaries, and SCHIP beneficiaries, and the families of
such beneficiaries, that are enrolled in the program being
evaluated.
(xii) An analysis of any ethical, cultural, or legal
concerns--
(I) regarding the program being evaluated; and
(II) with the replication of such program in other
settings.
(xiii) An analysis of any changes to regulations or of any
additional funding that would result in more efficient
procedures or improved outcomes under the program being
evaluated.
(d) Waiver Authority.--The Secretary may waive compliance
with any of the requirements of titles XI, XVIII, XIX, and
XXI of the Social Security Act (42 U.S.C. 1301 et seq.; 1395
et seq.; 1396 et seq.; 1397aa et seq.) which, if applied,
would prevent the demonstration project carried out under
this section from effectively achieving the purpose of such
project.
(e) Reports to Congress.--
(1) Annual reports by secretary.--
(A) In general.--Beginning 1 year after the date of
enactment of this Act, and annually thereafter, the Secretary
shall submit to Congress a report on the demonstration
project and on the quality of end-of-life care under the
Medicare program, the Medicaid program, and SCHIP, together
with recommendations for such legislation and administrative
actions as the Secretary considers appropriate.
(B) Summary of recent studies.--A report submitted under
subparagraph (A) shall include a summary of any recent
studies and advice from experts in the health care field
regarding the ethical, cultural, and legal issues that may
arise when attempting to improve the health care system to
meet the needs of individuals with serious and eventually
terminal conditions.
(C) Continuation or replication of demonstration
projects.--The first report submitted under subparagraph (A)
after the 3-year anniversary of the date the Secretary
implements the demonstration project shall include
recommendations regarding whether such demonstration project
should be continued beyond the period described in subsection
(a)(3) and whether broad replication of any of the programs
conducted under the demonstration project should be
initiated.
(2) Report by end-of-life care advisory board on
demonstration project.--
(A) In general.--Not later than 2 years after the
conclusion of the demonstration project, the End-of-Life
Advisory Board shall submit a report to the Secretary and
Congress on such project.
(B) Contents.--The report submitted under subparagraph (A)
shall contain--
(i) an evaluation of the effectiveness of the demonstration
project; and
(ii) recommendations for such legislation and
administrative actions as the Board considers appropriate.
(f) Funding.--There are appropriated such sums as are
necessary for conducting the demonstration project and for
preparing and submitting the reports required under
subsection (e)(1).
(g) Definitions.--In this section:
(1) Demonstration project.--The term ``demonstration
project'' means the demonstration project conducted under
this section.
(2) Medicaid beneficiaries.--The term ``Medicaid
beneficiaries'' means individuals who are enrolled in the
State Medicaid program.
(3) Medicaid program.--The term ``Medicaid program'' means
the health care program under title XIX of the Social
Security Act (42 U.S.C. 1395 et seq.).
(4) Medicare beneficiaries.--The term ``Medicare
beneficiaries'' means individuals who are entitled to, or
enrolled for, benefits under part A or enrolled for benefits
under part B of the Medicare program.
(5) Medicare program.--The term ``Medicare program'' means
the health care program under title XVIII of the Social
Security Act (42 U.S.C. 1395 et seq.).
(6) SCHIP.--The term ``SCHIP'' means the State children's
health insurance program under title XXI of the Social
Security Act (42 U.S.C. 1397aa et seq.).
(7) SCHIP beneficiary.--The term ``SCHIP beneficiary''
means an individual who is enrolled in SCHIP.
(8) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
SEC. 7. ESTABLISHMENT OF END-OF-LIFE CARE ADVISORY BOARD.
(a) Establishment.--There is established within the
Department of Health and Human Services an End-of-Life Care
Advisory Board (in this section referred to as the
``Board'').
(b) Structure and Membership.--
(1) In general.--The Board shall be composed of 15 members
who shall be appointed by the Secretary of Health and Human
Services (in this section referred to as the ``Secretary'').
(2) Required representation.--The Secretary shall ensure
that the following groups, organizations, and associations
are represented in the membership of the Board:
(A) An end-of-life consumer advocacy organization.
(B) A senior citizen advocacy organization.
(C) A physician-based hospice or palliative care
organization.
(D) A nurse-based hospice or palliative care organization.
(E) A hospice or palliative care provider organization.
(F) A hospice or palliative care representative that serves
the veterans population.
(G) A physician-based medical association.
(H) A physician-based pediatric medical association.
(I) A home health-based nurses association.
(J) A hospital-based or health system-based palliative care
group.
(K) A children-based or family-based hospice resource
group.
(L) A cancer pain management resource group.
[[Page S1445]]
(M) A cancer research and policy advocacy group.
(N) An end-of-life care policy advocacy group.
(O) An interdisciplinary end-of-life care academic
institution.
(3) Ethnic diversity requirement.--The Secretary shall
ensure that the members of the Board appointed under
paragraph (1) represent the ethnic diversity of the United
States.
(4) Prohibition.--No individual who is a Federal officer or
employee may serve as a member of the Board.
(5) Terms of appointment.--Each member of the Board shall
serve for a term determined appropriate by the Secretary.
(6) Chairperson.--The Secretary shall designate a member of
the Board as chairperson.
(c) Meetings.--The Board shall meet at the call of the
chairperson but not less often than every 3 months.
(d) Duties.--
(1) In general.--The Board shall advise the Secretary on
all matters related to the furnishing of end-of-life care to
individuals.
(2) Specific duties.--The specific duties of the Board are
as follows:
(A) Consulting.--The Board shall consult with the Secretary
regarding--
(i) the development of the outcome standards and measures
under section 2;
(ii) conducting the study and submitting the report under
section 3; and
(iii) the selection of private entities to conduct
evaluations pursuant to section 6(c)(2).
(B) Report on demonstration project.--The Board shall
submit the report required under section 6(e)(2).
(e) Members To Serve Without Compensation.--
(1) In general.--All members of the Board shall serve on
the Board without compensation for such service.
(2) Travel expenses.--The members of the Board 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 Board.
(f) Staff.--
(1) In general.--The chairperson of the Board may, without
regard to the civil service laws and regulations, appoint and
terminate an executive director and such other additional
personnel as may be necessary to enable the Board to perform
its duties. The employment of an executive director shall be
subject to confirmation by the Board.
(2) Compensation.--The chairperson of the Board may fix the
compensation of the executive director and other personnel
without regard to chapter 51 and subchapter III of chapter 53
of title 5, United States Code, relating to classification of
positions and General Schedule pay rates, except that the
rate of pay for the executive director and other personnel
may not exceed the rate payable for level V of the Executive
Schedule under section 5316 of such title.
(3) Personnel as federal employees.--
(A) In general.--The executive director and any personnel
of the Board who are employees shall be employees under
section 2105 of title 5, United States Code, for purposes of
chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title.
(B) Members of board.--Subparagraph (A) shall not be
construed to apply to members of the Board.
(g) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Board without additional
reimbursement (other than the employee's regular
compensation), and such detail shall be without interruption
or loss of civil service status or privilege.
(h) Procurement of Temporary and Intermittent Services.--
The chairperson of the Board may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code, at rates for individuals which do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of such title.
(i) Federal Advisory Committee Act.--Section 14 of the
Federal Advisory Committee Act (5 U.S.C. App.) shall not
apply to the Board.
(j) Termination.--The Board shall terminate 90 days after
the date on which the Board submits the report under section
6(e)(2).
(k) Funding.--Funding for the operation of the Board shall
be from amounts otherwise appropriated to the Department of
Health and Human Services.
S. 465
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 ``Advance Directives
Improvement and Education Act of 2007''.
SEC. 2. ADVANCE DIRECTIVES.
(a) Findings.--Congress makes the following findings:
(1) Every year 2,500,000 people die in the United States.
Eighty percent of those people die in institutions such as
hospitals, nursing homes, and other facilities. Chronic
illnesses, such as cancer and heart disease, account for 2
out of every 3 deaths.
(2) In 1997, the Supreme Court of the United States, in its
decisions in Washington v. Glucksberg and Vacco v. Quill,
reaffirmed the constitutional right of competent adults to
refuse unwanted medical treatment. In those cases, the Court
stressed the use of advance directives as a means of
safeguarding that right should those adults become incapable
of deciding for themselves.
(3) A survey published in 2005 estimated that the overall
prevalence of advance directives is 29 percent of the general
population, despite the passage of the Patient Self-
Determination Act in 1990, which requires that health care
providers tell patients about advance directives.
(4) Competent adults should complete advance care plans
stipulating their health care decisions in the event that
they become unable to speak for themselves. Through the
execution of advance directives, including living wills and
durable powers of attorney for health care according to the
laws of the State in which they reside, individuals can
protect their right to express their wishes and have them
respected.
(b) Purposes.--The purposes of this section are to improve
access to information about individuals' health care options
and legal rights for care near the end of life, to promote
advance care planning and decisionmaking so that individuals'
wishes are known should they become unable to speak for
themselves, to engage health care providers in disseminating
information about and assisting in the preparation of advance
directives, which include living wills and durable powers of
attorney for health care, and for other purposes.
(c) Medicare Coverage of End-of-Life Planning and
Consultations as Part of Initial Preventive Physical
Examination.--
(1) In general.--Section 1861(ww) of the Social Security
Act (42 U.S.C. 1395x(ww)) is amended--
(A) in paragraph (1), by striking ``paragraph (2),'' and
inserting ``paragraph (2) and an end-of-life planning
consultation (as defined in paragraph (3)),''; and
(B) by adding at the end the following new paragraph:
``(3) For purposes of paragraph (1), the term `end-of-life
planning consultation' means a consultation between the
physician and an individual regarding--
``(A) the importance of preparing advance directives in
case an injury or illness causes the individual to be unable
to make health care decisions;
``(B) the situations in which an advance directive is
likely to be relied upon;
``(C) the reasons that the development of a comprehensive
end-of-life plan is beneficial and the reasons that such a
plan should be updated periodically as the health of the
individual changes;
``(D) the identification of resources that an individual
may use to determine the requirements of the State in which
such individual resides so that the treatment wishes of that
individual will be carried out if the individual is unable to
communicate those wishes, including requirements regarding
the designation of a surrogate decision maker (health care
proxy); and
``(E) whether or not the physician is willing to follow the
individual's wishes as expressed in an advance directive.''.
(2) Effective date.--The amendments made by paragraph (1)
shall apply to initial preventive physical examinations
provided on or after January 1, 2008.
(d) Improvement of Policies Related to the Use and
Portability of Advance Directives.--
(1) Medicare.--Section 1866(f) of the Social Security Act
(42 U.S.C. 1395cc(f)) is amended--
(A) in paragraph (1)--
(i) in subparagraph (B), by inserting ``and if presented by
the individual (or on behalf of the individual), to include
the content of such advance directive in a prominent part of
such record'' before the semicolon at the end;
(ii) in subparagraph (D), by striking ``and'' after the
semicolon at the end;
(iii) in subparagraph (E), by striking the period at the
end and inserting ``; and''; and
(iv) by inserting after subparagraph (E) the following new
subparagraph:
``(F) to provide each individual with the opportunity to
discuss issues relating to the information provided to that
individual pursuant to subparagraph (A) with an appropriately
trained professional.'';
(B) in paragraph (3), by striking ``a written'' and
inserting ``an''; and
(C) by adding at the end the following new paragraph:
``(5)(A) In addition to the requirements of paragraph (1),
a provider of services, Medicare Advantage organization, or
prepaid or eligible organization (as the case may be) shall
give effect to an advance directive executed outside the
State in which such directive is presented, even one that
does not appear to meet the formalities of execution, form,
or language required by the State in which it is presented to
the same extent as such provider or organization would give
effect to an advance directive that meets such requirements,
except that a provider or organization may decline to honor
such a directive if the provider or organization can
reasonably demonstrate that it is not an authentic expression
of the individual's wishes concerning his or her health care.
Nothing in this paragraph shall be construed to authorize the
administration of medical treatment otherwise prohibited by
the laws of the State in which the directive is presented.
``(B) The provisions of this paragraph shall preempt any
State law to the extent such
[[Page S1446]]
law is inconsistent with such provisions. The provisions of
this paragraph shall not preempt any State law that provides
for greater portability, more deference to a patient's
wishes, or more latitude in determining a patient's
wishes.''.
(2) Medicaid.--Section 1902(w) of the Social Security Act
(42 U.S.C. 1396a(w)) is amended--
(A) in paragraph (1)--
(i) in subparagraph (B)--
(I) by striking ``in the individual's medical record'' and
inserting ``in a prominent part of the individual's current
medical record''; and
(II) by inserting ``and if presented by the individual (or
on behalf of the individual), to include the content of such
advance directive in a prominent part of such record'' before
the semicolon at the end;
(ii) in subparagraph (D), by striking ``and'' after the
semicolon at the end;
(iii) in subparagraph (E), by striking the period at the
end and inserting ``; and''; and
(iv) by inserting after subparagraph (E) the following new
subparagraph:
``(F) to provide each individual with the opportunity to
discuss issues relating to the information provided to that
individual pursuant to subparagraph (A) with an appropriately
trained professional.'';
(B) in paragraph (4), by striking ``a written'' and
inserting ``an''; and
(C) by adding at the end the following paragraph:
``(6)(A) In addition to the requirements of paragraph (1),
a provider or organization (as the case may be) shall give
effect to an advance directive executed outside the State in
which such directive is presented, even one that does not
appear to meet the formalities of execution, form, or
language required by the State in which it is presented to
the same extent as such provider or organization would give
effect to an advance directive that meets such requirements,
except that a provider or organization may decline to honor
such a directive if the provider or organization can
reasonably demonstrate that it is not an authentic expression
of the individual's wishes concerning his or her health care.
Nothing in this paragraph shall be construed to authorize the
administration of medical treatment otherwise prohibited by
the laws of the State in which the directive is presented.
``(B) The provisions of this paragraph shall preempt any
State law to the extent such law is inconsistent with such
provisions. The provisions of this paragraph shall not
preempt any State law that provides for greater portability,
more deference to a patient's wishes, or more latitude in
determining a patient's wishes.''.
(3) Effective dates.--
(A) In general.--Subject to subparagraph (B), the
amendments made by paragraphs (1) and (2) shall apply to
provider agreements and contracts entered into, renewed, or
extended under title XVIII of the Social Security Act (42
U.S.C. 1395 et seq.), and to State plans under title XIX of
such Act (42 U.S.C. 1396 et seq.), on or after such date as
the Secretary of Health and Human Services specifies, but in
no case may such date be later than 1 year after the date of
enactment of this Act.
(B) Extension of effective date for state law amendment.--
In the case of a State plan under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) 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 paragraph (2),
the State plan shall not be regarded as failing to comply
with the requirements of such title 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 is considered to be a separate regular session of the
State legislature.
(e) Increasing Awareness of the Importance of End-of-Life
Planning.--Title III of the Public Health Service Act (42
U.S.C. 241 et seq.) is amended by adding at the end the
following new part:
``PART R--PROGRAMS TO INCREASE AWARENESS OF ADVANCE DIRECTIVE PLANNING
ISSUES
``SEC. 399Z-1. ADVANCE DIRECTIVE EDUCATION CAMPAIGNS AND
INFORMATION CLEARINGHOUSES.
``(a) Advance Directive Education Campaign.--The Secretary
shall, directly or through grants awarded under subsection
(c), conduct a national public education campaign--
``(1) to raise public awareness of the importance of
planning for care near the end of life;
``(2) to improve the public's understanding of the various
situations in which individuals may find themselves if they
become unable to express their health care wishes;
``(3) to explain the need for readily available legal
documents that express an individual's wishes, through
advance directives (including living wills, comfort care
orders, and durable powers of attorney for health care); and
``(4) to educate the public about the availability of
hospice care and palliative care.
``(b) Information Clearinghouse.--The Secretary, directly
or through grants awarded under subsection (c), shall provide
for the establishment of a national, toll-free, information
clearinghouse as well as clearinghouses that the public may
access to find out about State-specific information regarding
advance directive and end-of-life decisions.
``(c) Grants.--
``(1) In general.--The Secretary shall use at least 60
percent of the funds appropriated under subsection (d) for
the purpose of awarding grants to public or nonprofit private
entities (including States or political subdivisions of a
State), or a consortium of any of such entities, for the
purpose of conducting education campaigns under subsection
(a) and establishing information clearinghouses under
subsection (b).
``(2) Period.--Any grant awarded under paragraph (1) shall
be for a period of 3 years.
``(d) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section
$25,000,000.''.
(f) GAO Study and Report on Establishment of National
Advance Directive Registry.--
(1) Study.--The Comptroller General of the United States
shall conduct a study on the feasibility of a national
registry for advance directives, taking into consideration
the constraints created by the privacy provisions enacted as
a result of the Health Insurance Portability and
Accountability Act of 1996 (Public Law 104-191).
(2) Report.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General of the United
States shall submit to Congress a report on the study
conducted under paragraph (1) together with recommendations
for such legislation and administrative action as the
Comptroller General of the United States determines to be
appropriate.
(g) Effective Date.--Except as provided in subsections (c)
and (d), this section and the amendments made by this section
shall take effect on the date of enactment of this Act.
Mr. NELSON of Florida. Mr. President, I am pleased to be joined by my
colleagues and cosponsors Senators Jay Rockefeller and Richard Lugar as
we introduce the Advance Directives Improvement and Education Act of
2007.
The Advance Directives Improvement and Education Act of 2007 has a
simple purpose: to encourage all adults in America, especially those 65
and older, to think about, talk about and write down their wishes for
medical care near the end of life should they become unable to make
decisions for themselves. Advance directives, which include a living
will stating the individual's preferences for care, and a power of
attorney for health care, are critical documents that each of us should
have. The goal is clear, but reaching it requires that we educate the
public about the importance of advance directives, offer opportunities
for discussion of the issues, and reinforce the requirement that health
care providers honor patients' wishes. This bill is designed to do just
that.
The Advance Directives Improvement and Education Act of 2007 would
encourage new Medicare beneficiaries to prepare advance directives by
including a physician consultation on advance directives in each
``Welcome to Medicare'' physical exam. This initial consultation would
cover the importance of preparing advance directives, when these
documents are most likely to be used, and where to find additional
resources and information. The conversation will also enable physicians
to learn about their patients' wishes, fears, religious beliefs, and
life experiences that might influence their medical care wishes. These
are important aspects of a physician-patient relationship that are too
often unaddressed.
Another part of our bill would provide funds for the Department of
Health and Human Services, HHS, to conduct a public education campaign
to raise awareness of the importance of planning for care near the end
of life. This campaign would explain what advance directives are, where
they are available, what questions need to be asked and answered, and
what to do with the executed documents. HHS, directly or through
grants, would also establish an information clearinghouse where
consumers could receive State-specific information and consumer-
friendly documents and publications.
The bill also contains language that would make all advance
directives ``portable,'' that is, useful from one State to another. If
an out-of-State directive is presented, it will be presumed valid
unless the health care provider can reasonably demonstrate that it is
not an authentic expression of the individual's wishes concerning his
or her health care.
We all know about the tragic situation that occurred in Florida with
Terri Schiavo and her family. She was
[[Page S1447]]
a young woman who was the subject of a debate about her treatment
between her husband and her parents, a debate that was a court case and
a legislative quagmire. Most experts agree that if she had an advance
directive that made her wishes clear and named a health care proxy,
there would have been no question as to who could decide the course of
her care.
One of the great legacies of Terri Schiavo's life will be that she
began a national dialogue about end-of-life care and got people
discussing living wills. Regardless of our views on the ethical, legal
and constitutional issues surrounding her case, we all can agree that
more people now than ever know the importance of having end-of-life
discussions with their family, doctor, clergy or attorney. This bill
would build upon this national dialogue and encourage more Americans to
learn about and fill out advance directives.
This body is a legislative institution, not a medical one. We cannot
legislate good medical care or compassion. What we can do, what I hope
we will do, is to enact this bill so that the American public can
participate in improving end-of-life care. If we can do that, we will
have done a great deal.
S. 466
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 ``Medicare End-of-Life Care
Planning Act of 2007''.
SEC. 2. MEDICARE COVERAGE OF AN END-OF-LIFE PLANNING
CONSULTATION AS PART OF AN INITIAL PREVENTIVE
PHYSICAL EXAMINATION.
(a) In General.--Section 1861(ww) of the Social Security
Act (42 U.S.C. 1395x(ww)) is amended--
(1) in paragraph (1), by striking ``paragraph (2),'' and
inserting ``paragraph (2) and an end-of-life planning
consultation (as defined in paragraph (3)),''; and
(2) by adding at the end the following new paragraph:
``(3) For purposes of paragraph (1), the term `end-of-life
planning consultation' means a consultation between the
physician and an individual regarding--
``(A) the importance of preparing advance directives in
case an injury or illness causes the individual to be unable
to make health care decisions;
``(B) the situations in which an advance directive is
likely to be relied upon;
``(C) the reasons why the development of a comprehensive
end-of-life plan is beneficial and the reasons why such a
plan should be updated periodically as the health of the
individual changes;
``(D) the identification of resources that an individual
may use to determine the requirements of the State in which
such individual resides so that the treatment wishes of that
individual will be carried out if the individual is unable to
communicate those wishes, including requirements regarding
the designation of a surrogate decision maker (health care
proxy); and
``(E) whether or not the physician is willing to follow the
individual's wishes as expressed in an advance directive.''.
(b) Effective Date.--The amendments made by this section
shall apply to initial preventive physical examinations
provided on or after January 1, 2008.
______
By Mr. DODD (for himself, Mr. Grassley, Mr. Wyden, Mr. Bingaman,
Mr. Durbin, and Mr. Harkin):
S. 467. A bill to amend the Public Health Service Act to expand the
clinical trials drug data bank; to the Committee on Health, Education,
Labor and Pensions.
______
By Mr. GRASSLEY (for himself, Mr. Dodd, Ms. Mikulski, and Mr.
Bingaman):
S. 468. A bill to amend the Federal Food, Drug, and Cosmetic Act with
respect to drug safety, and for other purposes; to the Committee on
Health, Education, Labor, and Pensions.
Mr. DODD. Mr. President, I rise today to introduce the Fair Access to
Clinical Trials (FACT) Act. I want to begin by thanking Senators
Grassley, Wyden, Bingaman, Durbin, and Harkin for joining me in
introducing this legislation. I also would like to recognize the
leadership of Senator Johnson who was involved in the crafting of this
legislation from the beginning and who has been a long-standing
supporter of the FACT Act.
Our bill will create an electronic databank for clinical trials of
drugs, biological products, and medical devices. Such a databank will
ensure that physicians, researchers, the general public, and patients
seeking to enroll in clinical trials have access to basic information
about those trials. It will require manufacturers and other researchers
to reveal the results of clinical trials so that clinically important
information will be available to all Americans, and physicians will
have all the information necessary to make appropriate treatment
decisions for their patients.
Events of the past few years have made it clear that such a databank
is needed. For example, serious questions were raised about the
effectiveness and safety of antidepressants when used in children and
youth. It has now become clear that the existing data indicates that
these drugs may very well put children at risk. However, because the
data from antidepressant clinical trials was not publicly available, it
took years for this risk to be realized. In the meantime, millions of
children have been prescribed antidepressants by well-meaning
physicians. While these drugs undoubtedly helped many of these
children, they also led to greater suffering for others.
The news is similarly disturbing for a popular class of painkillers
known as Cox-2 inhibitors. These medicines, taken by millions of
Americans, have been associated with an increased risk of
cardiovascular adverse events, such as heart attack and stroke. It has
been suggested that one of these medicines, which has since been pulled
from the market, may have been responsible for tens of thousands of
deaths.
Most recently, a drug manufacturer acknowledged that it did not
inform the Food and Drug Administration (FDA) or the public about the
results of a 67,000 person study it conducted of an FDA-approved drug
used commonly during heart surgery to reduce the need for a
transfusion. The study revealed the drug may increase patients' risk of
death, serious kidney damage, congestive heart failure, and stroke.
Unfortunately, these are just a few examples of stories that have
become all too common. It has been suggested that negative data might
actually have been suppressed; and if this is discovered to be the
case, those responsible should be dealt with harshly. However, because
of what is known as ``publication bias,'' the information available to
the public and physicians can be misleading even without nefarious
motives. The simple fact is that studies with a positive result are far
more likely to be published, and thus publicly available, than a study
with a negative result. Physicians and patients hear the good news.
Rarely do they hear the bad news. In the end, the imbalance of
available information hurts patients.
Our bill would correct this imbalance in information, and prevent
manufacturers from suppressing negative data. It would do so by
creating a two-part databank, consisting of an expansion of
clinicaltrials.gov--an existing registry that is operated by the
National Library of Medicine (NLM)--and a new database for clinical
trial results.
Under the FACT Act, the registry would continue to operate as a
resource for patients seeking to enroll in clinical trials for drugs
and biological products intended to treat serious or life-threatening
conditions--and for the first time, it would also include medical
device trials. The new results database would include all trials
(except for preliminary safety trials), and would require the
submission of clinical trial results data.
Our legislation would enforce the requirement to submit information
to the databank in two ways. First, by requiring registration as a
condition of Institutional Review Board (IRB) approval, no trial could
begin without submitting preliminary information to the registry and
database. This information would include the purpose of the trial, the
estimated date of trial completion, as well as all of the information
necessary to help patients to enroll in the trial.
Once the trial is completed, the researcher or manufacturer is
required to submit the results to the database. If they refuse to do
so, they are subject to monetary penalties or, in the case of
federally-funded research, a restriction on future federal funding. It
is my belief that these enforcement mechanisms will ensure broad
compliance. However, in the rare case where a manufacturer does not
comply, this legislation also gives the FDA the authority to publicize
the required information.
Let me also say that any time you are collecting large amounts of
data and making it public, protecting patient privacy and
confidentiality is
[[Page S1448]]
paramount. Our legislation would in no way threaten patient privacy.
The simple fact is that under this bill, no individually-identifiable
information would be available to the public.
I believe that the establishment of a clinical trials databank is
absolutely necessary for the health and well-being of the American
public. But I would also like to highlight two other benefits that such
a databank will have. First, it has the potential to reduce health care
costs. Studies have shown that publication bias also leads to a bias
toward new and more expensive treatment options. A databank could help
make it clear that in some cases less expensive treatments are just as
effective for patients.
In addition, a databank will ensure that the sacrifice made by
patients who enroll in clinical trials is not squandered. We owe it to
patients to make sure that their participation in a trial will benefit
other individuals suffering from the same illness or condition by
making the results of the trial public, no matter the outcome of the
trial.
The problems associated with publication bias have recently drawn
more attention from the medical community, and there is broad consensus
that a clinical trials registry is one of the best ways to address the
issue. Accordingly, the American Medical Association (AMA) has
recommended creating such a databank. Additionally, the major medical
journals have established a policy that they will only publish the
results of trials that were registered in a public database before the
trial began. Our legislation meets all of the minimum criteria for a
trial registry set out by the International Committee of Medical
Journal Editors. In fact, our bill closely follows recommendations
issued by the Institute of Medicine (IOM) in its recent report on drug
safety.
To its credit, the pharmaceutical industry has also acknowledged the
problem, and has created a database where manufacturers can voluntarily
submit clinical trials data. I applaud this step. However, if our
objective is to provide the public with a complete and consistent
supply of information, a voluntary database is unlikely to achieve that
goal. Some companies will provide information, but others may decide
not to participate. We need a clinical trials framework that is not
just fair to all companies, but provides patients with the peace of
mind that they will receive complete information about the medicines
they rely on.
The American drug industry is an extraordinary success story. As a
result of the innovations that this industry has spawned, millions of
lives have been improved and saved in our country and around the globe.
Due to the importance of these medicines to our health and well-being,
I have consistently supported sound public policies to help the
industry succeed in protecting the public's health and well-being. This
legislation aims to build upon the successes of this industry, and help
ensure that the positive changes to our health care system that
prescription drugs have brought are not undermined by controversies
such as the ones surrounding antidepressants and Cox-2 inhibitors,
which are at least in part based on a lack of public information. This
bill will help ensure that well-informed patients will use new and
innovative medicines.
Creating a clinical trials databank is a critical step toward
ensuring the safety of drugs, biological products, and medical devices
in this country--but it should not be the end of our efforts. However,
other steps are necessary to fully restore patient confidence in the
safety of the medicines they rely on.
That is why today I am also introducing the Food and Drug
Administration Safety Act (FDASA) with Senator Grassley. We are joined
by Senators Mikulski and Bingaman in introducing this legislation and
thank them for their support for reforming our nation's system to
ensure that FDA-approved drugs being used by millions are safe and
effective.
Our legislation would enhance the FDA's drug-safety monitoring system
by setting up an independent center within the FDA called the Center
for Postmarket Evaluation and Research for Drugs and Biologics (CPER).
This Center would be responsible for monitoring the safety of drugs and
biologics once they are on the market, in consultation with other
existing Centers at the FDA, and would have the authority to take
corrective action if a drug or biologic presents a risk to patients.
Under the bill, the Center Director is authorized to require
manufacturers to conduct post-market clinical or observational studies
if there are questions about the safety or efficacy of a drug or
biologic once it is already on the market. The Center Director can take
corrective actions to include labeling changes, restricted
distribution, and other risk management tools if an unreasonable risk
is found to exist. The bill also gives the Center Director the
authority to review drug advertisements before they are disseminated,
and to require certain disclosures about increased risk, and in extreme
cases, the authority to pull the product off the market. Our bill
authorizes $500 million over the next 5 years to provide the new center
with the resources necessary to carry out the critically important
provisions of this legislation.
Under our legislation, the Director of CPER will report directly to
the FDA Commissioner. Our bill will ensure that CPER consults with the
other Centers at FDA as it conducts risk assessments, benefiting from
their knowledge and expertise, but not being beholden to them if
corrective action is needed.
These new authorities will allow the FDA to act quickly to get
answers when there are questions about the safety of a drug, and to act
decisively to mitigate the risks when the evidence shows that a drug
presents a safety issue. With these authorities, we will never again
have a situation where a critical labeling change takes 2 years to
complete, as was the case with Vioxx. When we are talking about drugs
that are already on the market and in widespread use, any delay can put
millions of patients in harm's way.
By creating CPER we hope to restore confidence in the medicines that
so many Americans rely on to safeguard their health and well-being.
Patients should have the peace of mind that the drugs they take to help
them will not hurt them instead. We must restore public confidence in
the words ``FDA-Approved.'' Unfortunately, events of the past few years
have seriously tarnished the FDA's image and put millions of patients
at undue risk. Recent developments have cast into doubt the FDA's
ability to ensure that the drugs that it approves are safe--especially
once they are on the market. These concerns are bad for patients, bad
for physicians, and bad for the pharmaceutical industry.
Like many Americans, I have been deeply disturbed by the revelations
of the significant risk associated with widely-used medications to
treat pain and depression. These revelations raise legitimate questions
about the safety of drugs that have already been approved. It would be
one thing if these drugs were in a trial phase, but safety issues are
being identified in drugs once they are on the market and in widespread
use. Health risks significant enough to remove drugs from the market or
significantly restrict their use are becoming clear only after millions
of Americans have been exposed to real or potential harm.
It has been estimated that more than 100,000 Americans might have
been seriously injured or killed by a popular pain medication, while
millions of children have been prescribed antidepressants that could
put them at risk. This recent spate of popular medicines being
identified as unsafe underscores the need to take additional steps to
monitor and protect patient safety after a drug has been approved.
Allowing the status quo on drug safety at the FDA is unacceptable. Real
reform is needed now.
An internal study conducted by the Department of Health and Human
Services (HHS) Office of the Inspector General in 2002 revealed that
approximately one-fifth of drug reviewers were pressured to approve a
drug despite concerns about safety, efficacy, or quality. In addition,
more than one-third said they were ``not at all'' or only ``somewhat''
confident that final decisions of the Center for Drug Evaluation and
Research (CDER) adequately assessed safety. A more recent survey of 997
FDA scientists conducted by the Union of Concerned Scientists and the
Public Employees for Environmental Responsibility found that 420
[[Page S1449]]
FDA scientists reported that they knew of cases in which HHS or FDA
political appointees inappropriately injected themselves into FDA
determinations or actions.
I look forward to working with industry, physicians, medical
journals, patient groups, and my colleagues--including the Chairman and
Ranking Member of the Health, Education, Labor, and Pensions Committee,
Senator Kennedy and Senator Enzi--to move this legislation forward.
These bills have already been endorsed by Consumers Union, the U.S.
Public Interest Research Group (PIRG), the National Women's Health
Network, and Public Citizen. I thank these organizations for lending
their expertise as we crafted these bills. I also want to recognize the
New England Journal of Medicine and the American Psychiatric
Association for their support in the crafting of the FACT Act.
Clinical trials are critically important to protecting the safety and
health of the American public. For this reason, clinical trial results
must not be treated as information that can be hidden from scrutiny.
Recent events have made it clear that a clinical trials databank is
needed. Patients and physicians agree that such a databank is important
to our public health. At the same time, there have been disturbing
reports that suggest the FDA does not place enough emphasis on drug
safety, and that concerns raised by those in the Office of Surveillance
and Epidemiology (formerly the Office of Drug Safety) at CDER are
sometimes ignored and even suppressed. Our legislation will ensure that
those who are responsible for monitoring the safety of drugs already on
the market at the FDA will have the independence, resources, and
authority to ensure medicines intended to help patients won't instead
end up causing them harm. I urge my colleagues to support these bills,
and I am hopeful that they will become law as soon as possible.
I ask unanimous consent that a letter from the American Psychiatric
Association supporting the FACT Act be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
American Psychiatric Association,
Arlington, VA, January 31, 2007.
Hon. Christopher Dodd,
U.S. Senate,
Washington, DC.
Dear Senator Dodd: The American Psychiatric Association
(APA) would like to commend and congratulate you on your
efforts to strengthen and improve clinical trial registries.
The FACT Act's goals of revamping the Food and Drug
Administration's post-marketing surveillance by ensuring that
access to clinical trials information is accessible and
available to the scientific community and the general public
is a goal shared by the APA.
The APA is the national medical specialty society
representing more than 37,000 psychiatric physicians
nationwide who specialize in the diagnosis and treatment of
mental and emotional illnesses and substance use disorders.
APA advocates for patient access to information and supports
further post-market research of medications to ensure the
safety of patients. APA member David Fassler, M.D. testified
before the Senate Health, Education, Labor and Pensions
Committee on March 1, 2005 and subsequent FDA Advisory
Committee meetings. Dr. Fassler's testimony focused on key
recommendations to improve the FDA's drug approval process
outlining: The importance of access to comprehensive clinical
trial data including negative trials and unpublished results
to be housed in a publicly accessible registry; The need for
ongoing post-marketing surveillance with increased funding
for follow up; and The necessity of a workforce of
researchers, including experts who can assist with the
design, oversight, interpretation and reporting of clinical
research.
The APA thanks you again for your dedication and commitment
to enhance the nation's drug safety monitoring system. We
look forward to working with you in ensuring that clinical
trial data is transparent and accountable in order for
patients to make well informed decisions. As your staff move
forward with further action on legislation, Lizbet Boroughs,
Deputy Director, Government Relations for the APA or Chatrane
Birbal, Federal Legislative Coordinator may be reached at
[email protected] 703/489-5907 or [email protected] 703/
907-8584 respectively.
Sincerely,
James H. Scully, Jr.,
CEO and Medical Director.
Mr. DODD. Mr. President, I ask unanimous consent that the text of the
bill be printed in the Record.
S. 467
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 ``Fair Access to Clinical
Trials Act of 2007'' or the ``FACT Act''.
SEC. 2. PURPOSE.
It is the purpose of this Act--
(1) to create a publicly accessible national data bank of
clinical trial information comprised of a clinical trial
registry and a clinical trial results database;
(2) to foster transparency and accountability in health-
related intervention research and development;
(3) to maintain a clinical trial registry accessible to
patients and health care practitioners seeking information
related to ongoing clinical trials for serious or life-
threatening diseases and conditions; and
(4) to establish a clinical trials results database of all
publicly and privately funded clinical trial results
regardless of outcome, that is accessible to the scientific
community, health care practitioners, and members of the
public.
SEC. 3. CLINICAL TRIALS DATA BANK.
(a) In General.--Subsection (i) of section 402 of the
Public Health Service Act (42 U.S.C. 282), as amended by
Public Law 109-482, is amended--
(1) in paragraph (1)(A), by striking ``for drugs for
serious or life-threatening diseases and conditions'';
(2) in paragraph (2), by striking ``available to
individuals with serious'' and all that follows through the
period and inserting ``accessible to patients, other members
of the public, health care practitioners, researchers and the
scientific community. In making information about clinical
trials publicly available, the Secretary shall seek to be as
timely and transparent as possible.'';
(3) by redesignating paragraphs (4) and (5), as paragraphs
(8) and (9), respectively;
(4) by striking paragraph (3) and inserting the following:
``(3) The data bank shall include the following:
``(A)(i) A registry of clinical trials (in this
subparagraph referred to as the `registry') of health-related
interventions (whether federally or privately funded).
``(ii) The registry shall include information for all
clinical trials conducted to test the safety or effectiveness
(including comparative effectiveness) of any drug, biological
product, or device (including those drugs, biological
products, or devices approved or cleared by the Secretary)
intended to treat serious or life-threatening diseases and
conditions, except those Phase I clinical trials conducted to
test solely the safety of an unapproved drug or unlicensed
biological product, or pilot or feasibility studies conducted
to confirm the design and operating specifications of an
unapproved or not yet cleared medical device. For purposes of
this section, Phase I clinical trials are trials described in
section 313.12(a) of title 21, Code of Federal Regulations
(or any successor regulations).
``(iii) The registry may include information for--
``(I) Phase I clinical trials conducted to test solely the
safety of an unapproved drug or unlicensed biological
product, or pilot or feasibility studies conducted to confirm
the design and operating specifications of an unapproved or
not yet cleared medical device with the consent of the
responsible person; and
``(II) clinical trials of other health-related
interventions with the consent of the responsible person.
``(iv) The information to be included in the registry under
this subparagraph shall include the following:
``(I) Descriptive information, including a brief title,
trial description in lay terminology, trial phase, trial
type, trial purpose, description of the primary and secondary
clinical outcome measures to be examined in the trial, the
time at which the outcome measures will be assessed, and the
dates and details of any revisions to such outcomes.
``(II) Recruitment information, including eligibility and
exclusion criteria, a description of whether, and through
what procedure, the manufacturer or sponsor of the
investigation of a new drug will respond to requests for
protocol exception, with appropriate safeguards, for single-
patient and expanded protocol use of the new drug,
particularly in children, a statement as to whether the trial
is closed to enrollment of new patients, overall trial
status, individual site status, and estimated completion
date. For purposes of this section the term `completion date'
means the date of the last visit by subjects in the trial for
the outcomes described in subclause (I).
``(III) Location and contact information, including the
identity of the responsible person.
``(IV) Administrative data, including the study sponsor and
the study funding source.
``(V) Information pertaining to experimental treatments for
serious or life-threatening diseases and conditions (whether
federally or privately funded) that may be available--
``(aa) under a treatment investigational new drug
application that has been submitted to the Secretary under
section 360bbb(c) of title 21, Code of Federal Regulations;
or
``(bb) as a Group C cancer drug (as defined by the National
Cancer Institute).
``(B)(i) A clinical trial results database (in this
subparagraph referred to as the `database') of health-related
interventions (whether federally or privately funded).
[[Page S1450]]
``(ii) The database shall include information for all
clinical trials conducted to test the safety or effectiveness
(including comparative effectiveness) of any drug, biological
product, or device (including those drugs, biological
products, or devices approved or cleared by the Secretary),
except those Phase I clinical trials conducted to test solely
the safety of an unapproved drug or unlicensed biological
product, or pilot or feasibility studies conducted to confirm
the design and operating specifications of an unapproved or
not yet cleared medical device.
``(iii) The database may include information for--
``(I) Phase I clinical trials conducted to test solely the
safety of an unapproved drug or unlicensed biological
product, or pilot or feasibility studies conducted to confirm
the design and operating specifications of an unapproved or
not yet cleared medical device with the consent of the
responsible person; and
``(II) clinical trials of other health-related
interventions with the consent of the responsible person.
``(iv) The information to be included in the database under
this subparagraph shall include the following:
``(I) Descriptive information, including--
``(aa) a brief title;
``(bb) the drug, biological product or device to be tested;
``(cc) a trial description in lay terminology;
``(dd) the trial phase;
``(ee) the trial type;
``(ff) the trial purpose;
``(gg) demographic data such as age, gender, or ethnicity
of trial participants;
``(hh) the estimated completion date for the trial; and
``(ii) the study sponsor and the study funding source.
``(II) A description of the primary and secondary clinical
outcome measures to be examined in the trial, the time at
which the outcome measures will be assessed, and the dates
and details of any revisions to such outcomes.
``(III) The actual completion date of the trial and the
reasons for any difference from such actual date and the
estimated completion date submitted pursuant to subclause
(I)(ii). If the trial is not completed, the termination date
and reasons for such termination.
``(IV) A summary of the results of the trial in a standard,
non-promotional summary format (such as ICHE3 template form),
including the trial design and methodology, results of the
primary and secondary outcome measures as described in
subclause (II), summary data tables with respect to the
primary and secondary outcome measures, including information
on the statistical significance or lack thereof of such
results.
``(V) Safety data concerning the trial (including a summary
of all adverse events specifying the number and type of such
events, data on prespecified adverse events, data on serious
adverse events, and data on overall deaths).
``(VI) Any publications in peer reviewed journals relating
to the trial. If the trial results are published in a peer
reviewed journal, the database shall include a citation to
and, when available, a link to the journal article.
``(VII) A description of the process used to review the
results of the trial, including a statement about whether the
results have been peer reviewed by reviewers independent of
the trial sponsor.
``(VIII) If the trial addresses the safety, effectiveness,
or benefit of a use not described in the approved labeling
for the drug, biological product, or device, a statement, as
appropriate, displayed prominently at the beginning of the
data in the registry with respect to the trial, that the Food
and Drug Administration--
``(aa) is currently reviewing an application for approval
of such use to determine whether the use is safe and
effective;
``(bb) has disapproved an application for approval of such
use;
``(cc) has reviewed an application for approval of such use
but the application was withdrawn prior to approval or
disapproval; or
``(dd) has not reviewed or approved such use as safe and
effective.
``(IX) If data from the trial has not been submitted to the
Food and Drug Administration, an explanation of why it has
not been submitted.
``(X) A description of the protocol used in such trial to
the extent necessary to evaluate the results of such trial.
``(4)(A)(i) Not later than 90 days after the date of the
completion of the review by the Food and Drug Administration
of information submitted by a sponsor in support of a new
drug application, or a supplemental new drug application,
whether or not approved by the Food and Drug Administration,
the Commissioner of Food and Drugs shall make available to
the public the full reviews conducted by the Administration
of such application, including documentation of significant
differences of opinion and the resolution of those
differences.
``(ii) When submitting information in support of a new drug
application or a supplemental new drug application, the
sponsor shall certify, in writing, that the information
submitted to the Food and Drug Administration complies with
the requirements of the Federal Food, Drug, and Cosmetic Act
and that such information presented is accurate.
``(iii) If the sponsor fails to provide certification as
specified under clause (ii), the Secretary shall transmit to
the sponsor a notice stating that such sponsor shall submit
the certification by the date determined by the Secretary.
If, by the date specified by the Secretary in the notice
under this clause, the Secretary has not received the
certification, the Secretary, after providing the opportunity
for a hearing, shall order such sponsor to pay a civil
monetary penalty of $10,000 for each day after such date that
the certification is not submitted.
``(iv) If the Secretary determines, after notice and
opportunity for a hearing, that the sponsor knew or should
have known that the information submitted in support of a new
drug application or a supplemental new drug application was
inaccurate, the Secretary shall order such sponsor to pay a
civil monetary penalty of not less than $100,000 but not to
exceed $2,000,000 for any 30-day period.
``(B)(i) The Secretary shall deposit the funds collected
under subparagraph (A) into an account and use such funds, in
consultation with the Director of the Agency for Healthcare
Research and Quality, to fund studies that compare the
clinical effectiveness of 2 or more treatments for similar
diseases or conditions.
``(ii) The Secretary shall award funding under clause (i)
based on a priority list established not later than 6 months
after the date of enactment of the FACT Act by the Director
of the Agency for Healthcare Research and Quality and
periodically updated as determined appropriate by the
Director.
``(C) Not later than 90 days after the date of the
completion of a written consultation on a drug concerning the
drug's safety conducted by the Office of Surveillance and
Epidemiology, regardless of whether initiated by such Office
or outside of the Office, the Commissioner of Food and Drugs
shall make available to the public a copy of such
consultation in full.
``(D) Nothing in this paragraph shall be construed to alter
or amend section 301(j) or section 1905 of title 18, United
States Code.
``(E) This paragraph shall supersede section 552 of title
5, United States Code.
``(5) The information described in subparagraphs (A) and
(B) of paragraph (3) shall be in a format that can be readily
accessed and understood by members of the general public,
including patients seeking to enroll as subjects in clinical
trials.
``(6) The Secretary shall assign each clinical trial a
unique identifier to be included in the registry and in the
database described in subparagraphs (A) and (B) of paragraph
(3). To the extent practicable, this identifier shall be
consistent with other internationally recognized and used
identifiers.
``(7) To the extent practicable, the Secretary shall ensure
that where the same information is required for the registry
and the database described in subparagraphs (A) and (B) of
paragraph (3), a process exists to allow the responsible
person to make only one submission.''; and
(5) by adding at the end the following:
``(10) In this section, the term `clinical trial' with
respect to the registry and the database described in
subparagraphs (A) and (B) of paragraph (3) means a research
study in human volunteers to answer specific health
questions, including treatment trials, prevention trials,
diagnostic trials, screening trials, and quality of life
trials.''.
(b) Actions of Secretary Regarding Clinical Trials.--
Section 402 of the Public Health Service Act (42 U.S.C. 282),
as amended by Public Law 109-482, is amended--
(1) by redesignating subsections (j) and (k) as subsections
(o) and (p), respectively; and
(2) by inserting after subsection (i), the following:
``(j) Federally Supported Trials.--
``(1) All federally supported trials.--With respect to any
clinical trial described in subsection (i)(3)(B) that is
supported solely by a grant, contract, or cooperative
agreement awarded by the Secretary, the principal
investigator of such trial shall, not later than the date
specified in paragraph (2), submit to the Secretary--
``(A) the information described in subclauses (II) through
(X) of subsection (i)(3)(B)(iv), and with respect to clinical
trials in progress on the date of enactment of the FACT Act,
the information described in subclause (I) of subsection
(i)(3)(B)(iv); or
``(B) a statement containing information sufficient to
demonstrate to the Secretary that the information described
in subparagraph (A) cannot reasonably be submitted, along
with an estimated date of submission of the information
described in such subparagraph.
``(2) Date specified.--The date specified in this paragraph
shall be the date that is 1 year from the earlier of--
``(A) the estimated completion date of the trial, as
submitted under subsection (i)(3)(B)(vi)(I)(ii); or
``(B) the actual date of the completion or termination of
the trial.
``(3) Condition of federal grants, contracts, and
cooperative agreements.--
``(A) Certification of compliance.--To be eligible to
receive a grant, contract, or cooperative agreement from the
Secretary for the conduct or support of a clinical trial
described in subsection (i)(3)(B), the principal investigator
involved shall certify to the Secretary that--
``(i) such investigator shall submit data to the Secretary
in accordance with this subsection; and
``(ii) such investigator has complied with the requirements
of this subsection with respect to other clinical trials
conducted by
[[Page S1451]]
such investigator after the date of enactment of the FACT
Act.
``(B) Failure to submit certification.--An investigator
that fails to submit a certification as required under
subparagraph (A) shall not be eligible to receive a grant,
contract, or cooperative agreement from the Secretary for the
conduct or support of a clinical trial described in
subsection (i)(3)(B).
``(C) Failure to comply with certification.--If, by the
date specified in paragraph (2), the Secretary has not
received the information or statement described in paragraph
(1), the Secretary shall--
``(i) transmit to the principal investigator involved a
notice specifying the information or statement required to be
submitted to the Secretary and stating that such investigator
shall not be eligible to receive further funding from the
Secretary if such information or statement is not submitted
to the Secretary within 30 days of the date on which such
notice is transmitted; and
``(ii) include and prominently display, until such time as
the Secretary receives the information or statement described
in paragraph (1), as part of the record of such trial in the
database described in subsection (i), a notice stating that
the results of such trials have not been reported as required
by law.
``(D) Failure to comply with notice.--If by the date that
is 30 days after the date on which the notice described in
subparagraph (C) is transmitted, the Secretary has not
received from the principal investigator involved the
information or statement required pursuant to such notice,
the Secretary may not award a grant, contract, cooperative
agreement, or any other award to such principal investigator
until such principal investigator submits to the Secretary
the information or statement required pursuant to such
notice.
``(E) Submission of statement but not information.--
``(i) In general.--If by the date specified in paragraph
(2), the Secretary has received a statement described in
paragraph (1)(B) but not the information described in
paragraph (1)(A), the Secretary shall transmit to the
principal investigator involved a notice stating that such
investigator shall submit such information by the date
determined by the Secretary in consultation with such
investigator.
``(ii) Failure to comply with certification.--If, by the
date specified by the Secretary in the notice under clause
(i), the Secretary has not received the information described
in paragraph (1)(B), the Secretary shall--
``(I) transmit to the principal investigator involved a
notice specifying the information required to be submitted to
the Secretary and stating that such investigator shall not be
eligible to receive further funding from the Secretary if
such information is not submitted to the Secretary within 30
days of the date on which such notice is transmitted; and
``(II) include and prominently display, until such time as
the Secretary receives the information described in paragraph
(1)(B), as part of the record of such trial in the database
described in subsection (i), a notice stating that the
results of such trials have not been reported as required by
law.
``(F) Failure to comply with notice.--If by the date that
is 30 days after the date on which the notice described in
subparagraph (E)(ii)(I) is transmitted, the Secretary has not
received from the principal investigator involved the
information required pursuant to such notice, the Secretary
may not award a grant, contract, cooperative agreement, or
any other award to such principal investigator until such
principal investigator submits to the Secretary the
information required pursuant to such notice.
``(G) Rule of construction.--For purposes of this
paragraph, limitations on the awarding of grants, contracts,
cooperative agreements, or any other awards to principal
investigators for violations of this paragraph shall not be
construed to include any funding that supports the clinical
trial involved.
``(4) Rule of construction.--Nothing in this subsection
shall be construed to prevent an investigator other than the
investigator described in paragraph (3)(F) from receiving an
ongoing award, contract, or cooperative agreement.
``(5) Inclusion in registry.--
``(A) General rule.--The Secretary shall, pursuant to
subsection (i)(5), include--
``(i) the data described in subsection (i)(3)(A) and
submitted under the amendments made by section 4(a) of the
FACT Act in the registry described in subsection (i) as soon
as practicable after receiving such data; and
``(ii) the data described in clause (I) of subsection
(i)(3)(B)(iv) and submitted under this subsection or the
amendments made by section 4(a) of the FACT Act in the
database described in subsection (i) as soon as practicable
after receiving such data.
``(B) Other data.--
``(i) In general.--The Secretary shall, pursuant to
subsection (i)(5), include the data described in subclauses
(II) through (X) of subsection (i)(3)(B)(iv) and submitted
under this section in the database described in subsection
(i)--
``(I) as soon as practicable after receiving such data; or
``(II) in the case of data to which clause (ii) applies, by
the date described in clause (iii).
``(ii) Data described.--This clause applies to data
described in clause (i) if--
``(I) the principal investigator involved requests a delay
in the inclusion in the database of such data in order to
have such data published in a peer reviewed journal; and
``(II) the Secretary determines that an attempt will be
made to seek such publication.
``(iii) Date for inclusion in registry.--Subject to clause
(iv), the date described in this clause is the earlier of--
``(I) the date on which the data involved is published as
provided for in clause (ii); or
``(II) the date that is 18 months after the date on which
such data is submitted to the Secretary.
``(iv) Extension of date.--The Secretary may extend the 18-
month period described in clause (iii)(II) for an additional
6 months if the principal investigator demonstrates to the
Secretary, prior to the expiration of such 18-month period,
that the data involved has been accepted for publication by a
journal described in clause (ii)(I).
``(v) Modification of data.--Prior to including data in the
database under clause (ii) or (iv), the Secretary shall
permit the principal investigator to modify the data
involved.
``(6) Memorandum of understanding.--Not later than 6 months
after the date of enactment of the FACT Act, the Secretary
shall seek a memorandum of understanding with the heads of
all other Federal agencies that conduct clinical trials to
include in the registry and the database clinical trials
sponsored by such agencies that meet the requirements of this
subsection.
``(7) Application to certain persons.--The provisions of
this subsection shall apply to a responsible person described
in subsections (n)(1)(A)(ii)(II) or (n)(1)(B)(i)(II).
``(k) Trials With Non-Federal Support.--
``(1) In general.--The responsible person for a clinical
trial described in subsection (i)(3)(B) shall, not later than
the date specified in paragraph (3), submit to the
Secretary--
``(A) the information described in subclauses (II) through
(X) of subsection (i)(3)(B)(iv), and with respect to clinical
trials in progress on the date of enactment of the FACT Act,
the information described in subclause (I) of subsection
(i)(3)(B)(iv); or
``(B) a statement containing information sufficient to
demonstrate to the Secretary that the information described
in subparagraph (A) cannot reasonably be submitted, along
with an estimated date of submission of the information
described in such subparagraph.
``(2) Sanction in case of noncompliance.--
``(A) Initial noncompliance.--If by the date specified in
paragraph (3), the Secretary has not received the information
or statement required to be submitted to the Secretary under
paragraph (1), the Secretary shall--
``(i) transmit to the responsible person for such trial a
notice stating that such responsible person shall be liable
for the civil monetary penalties described in subparagraph
(B) if the required information or statement is not submitted
to the Secretary within 30 days of the date on which such
notice is transmitted; and
``(ii) include and prominently display, until such time as
the Secretary receives the information described in paragraph
(1), as part of the record of such trial in the database
described in subsection (i), a notice stating that the
results of such trials have not been reported as required by
law.
``(B) Civil monetary penalties for noncompliance.--
``(i) In general.--If by the date that is 30 days after the
date on which a notice described in subparagraph (A) is
transmitted, the Secretary has not received from the
responsible person involved the information or statement
required pursuant to such notice, the Secretary shall, after
providing the opportunity for a hearing, order such
responsible person to pay a civil penalty of $10,000 for each
day after such date that the information or statement is not
submitted.
``(ii) Waivers.--In any case in which a responsible person
described in clause (i) is a nonprofit entity, the Secretary
may waive or reduce the penalties applicable under such
clause to such person.
``(C) Submission of statement but not information.--
``(i) In general.--If by the date specified in paragraph
(3), the Secretary has received a statement described in
paragraph (1)(B) but not the information described in
paragraph (1)(A) the Secretary shall transmit to the
responsible person involved a notice stating that such
responsible person shall submit such information by the date
determined by the Secretary in consultation with such
responsible person.
``(ii) Failure to comply.--If, by the date specified by the
Secretary in the notice under clause (i), the Secretary has
not received the information described in paragraph (1)(A),
the Secretary shall--
``(I) transmit to the responsible person involved a notice
specifying the information required to be submitted to the
Secretary and stating that such responsible person shall be
liable for the civil monetary penalties described in
subparagraph (D) if such information is not submitted to the
Secretary within 30 days of the date on which such notice is
transmitted; and
``(II) include and prominently display, until such time as
the Secretary receives the information described in paragraph
(1)(A), as part of the record of such trial in the database
described in subsection (i), a notice stating that the
results of such trials have not been reported as required by
law.
[[Page S1452]]
``(D) Noncompliance.--
``(i) In general.--If by the date that is 30 days after the
date on which a notice described in subparagraph (C)(ii)(I)
is transmitted, the Secretary has not received from the
responsible person involved the information required pursuant
to such notice, the Secretary, after providing the
opportunity for a hearing, shall order such responsible
person to pay a civil penalty of $10,000 for each day after
such date that the information is not submitted.
``(ii) Waivers.--In any case in which a responsible person
described in clause (i) is a nonprofit entity, the Secretary
may waive or reduce the penalties applicable under such
clause to such person.
``(E) Notice of publication of data.--If the responsible
person is the manufacturer or distributor of the drug,
biological product, or device involved, the notice under
subparagraphs (A)(i) and (C)(ii)(I) shall include a notice
that the Secretary shall publish the data described in
subsection (i)(3)(B) in the database if the responsible
person has not submitted the information specified in the
notice transmitted by the date that is 6 months after the
date of such notice.
``(F) Publication of data.--Notwithstanding section 301(j)
of the Federal Food, Drug, and Cosmetic Act, section 1905 of
title 18, United States Code, or any other provision of law,
if the responsible person is the manufacturer or distributor
of the drug, biological product, or device involved, and if
the responsible person has not submitted to the Secretary the
information specified in a notice transmitted pursuant to
subparagraph (A)(i) or (C)(ii)(I) by the date that is 6
months after the date of such notice, the Secretary shall
publish in the registry information that--
``(i) is described in subsection (i)(3)(B); and
``(ii) the responsible person has submitted to the
Secretary in any application, including a supplemental
application, for the drug or device under section 505, 510,
515, or 520 of the Federal Food, Drug, and Cosmetic Act or
for the biological product under section 351.
``(3) Date specified.--The date specified in this paragraph
shall be the date that is 1 year from the earlier of--
``(A) the estimated completion date of the trial, submitted
under subsection (i)(3)(B)(vi)(I)(ii); or
``(B) the actual date of completion or termination of the
trial.
``(4) Use of funds.--
``(A) In general.--The Secretary shall deposit the funds
collected under paragraph (2) into an account and use such
funds, in consultation with the Director of the Agency for
Healthcare Research and Quality, to fund studies that compare
the clinical effectiveness of 2 or more treatments for
similar diseases or conditions.
``(B) Funding decisions.--The Secretary shall award funding
under subparagraph (A) based on a priority list established
not later than 6 months after the date of enactment of the
FACT Act by the Director of the Agency for Healthcare
Research and Quality and periodically updated as determined
appropriate by the Director.
``(5) Inclusion in registry.--
``(A) General rule.--The Secretary shall, pursuant to
subsection (i)(5), include--
``(i) the data described in subsection (i)(3)(A) and
submitted under the amendments made by section 4(a) of the
FACT Act in the registry described in subsection (i) as soon
as practicable after receiving such data; and
``(ii) the data described in clause (I) of subsection
(i)(3)(B)(iv) and submitted under this subsection in the
database described in subsection (i) as soon as practicable
after receiving such data.
``(B) Other data.--
``(i) In general.--The Secretary shall, pursuant to
subsection (i)(5), include the data described in subclauses
(II) through (X) of subsection (i)(3)(B)(iv) and submitted
under this section in the database described in subsection
(i)--
``(I) as soon as practicable after receiving such data; or
``(II) in the case of data to which clause (ii) applies, by
the date described in clause (iii).
``(ii) Data described.--This clause applies to data
described in clause (i) if--
``(I) the responsible person involved requests a delay in
the inclusion in the database of such data in order to have
such data published in a peer reviewed journal; and
``(II) the Secretary determines that an attempt will be
made to seek such publication.
``(iii) Date for inclusion in registry.--Subject to clause
(iv), the date described in this clause is the earlier of--
``(I) the date on which the data involved is published as
provided for in clause (ii); or
``(II) the date that is 18 months after the date on which
such data is submitted to the Secretary.
``(iv) Extension of date.--The Secretary may extend the 18-
month period described in clause (iii)(II) for an additional
6 months if the responsible person demonstrates to the
Secretary, prior to the expiration of such 18-month period,
that the data involved has been accepted for publication by a
journal described in clause (ii)(I).
``(v) Modification of data.--Prior to including data in the
database under clause (ii) or (iv), the Secretary shall
permit the responsible person to modify the data involved.
``(6) Effect.--The information with respect to a clinical
trial submitted to the Secretary under this subsection,
including data published by the Secretary pursuant to
paragraph (2)(F), may not be submitted by a person other than
the responsible person as part of, or referred to in, an
application for approval of a drug or device under section
505, 510, 515, or 520 of the Federal Food, Drug, and Cosmetic
Act or of a biological product under section 351, unless the
information is available from a source other than the
registry or database described in subsection (i).
``(l) Procedures and Waivers.--
``(1) Submission prior to notice.--Nothing in subsections
(j) through (k) shall be construed to prevent a principal
investigator or a responsible person from submitting any
information required under this subsection to the Secretary
prior to receiving any notice described in such subsections.
``(2) Ongoing trials.--A factually accurate statement that
a clinical trial is ongoing shall be deemed to be information
sufficient to demonstrate to the Secretary that the
information described in subsections (j)(1)(A) and (k)(1)(A)
cannot reasonably be submitted.
``(3) Information previously submitted.--Nothing in
subsections (j) through (k) shall be construed to require the
Secretary to send a notice to any principal investigator or
responsible person requiring the submission to the Secretary
of information that has already been submitted.
``(4) Submission format and technical standards.--
``(A) In general.--The Secretary shall, to the extent
practicable, accept submissions required under this
subsection in an electronic format and shall establish
interoperable technical standards for such submissions.
``(B) Consistency of standards.--To the extent practicable,
the standards established under subparagraph (A) shall be
consistent with standards adopted by the Consolidated Health
Informatics Initiative (or a successor organization to such
Initiative) to the extent such Initiative (or successor) is
in operation.
``(5) Trials completed prior to enactment.--The Secretary
shall establish procedures and mechanisms to allow for the
voluntary submission to the database of the information
described in subsection (i)(3)(B) with respect to clinical
trials completed prior to the date of enactment of the FACT
Act. In cases in which it is in the interest of public
health, the Secretary may require that information from such
trials be submitted to the database. To the extent
practicable, submissions to the database shall comply with
paragraph (4). Failure to comply with a requirement to submit
information to the database under this paragraph shall be
deemed to be a failure to submit information as required
under this section, and the appropriate remedies and
sanctions under this section shall apply.
``(6) Trials not involving drugs, biological products, or
devices.--The Secretary shall establish procedures and
mechanisms to allow for the voluntary submission to the
database of the information described in subsection (i)(3)(B)
with respect to clinical trials that do not involve drugs,
biological products, or devices. In cases in which it is in
the interest of public health, the Secretary may require that
information from such trials be submitted to the database.
Failure to comply with such a requirement shall be deemed to
be a failure to submit information as required under this
section, and the appropriate remedies and sanctions under
this section shall apply.
``(7) Submission of inaccurate information.--
``(A) In general.--If the Secretary determines that
information submitted by a principal investigator or a
responsible person under this section is factually and
substantively inaccurate, the Secretary shall submit a notice
to the investigator or responsible person concerning such
inaccuracy that includes--
``(i) a summary of the inaccuracies involved; and
``(ii) a request for corrected information within 30 days.
``(B) Audit of information.--
``(i) In general.--The Secretary may conduct audits of any
information submitted under subsection (i).
``(ii) Requirement.--Any principal investigator or
responsible person that has submitted information under
subsection (i) shall permit the Secretary to conduct the
audit described in clause (i).
``(C) Changes to information.--Any change in the
information submitted by a principal investigator or a
responsible person under this section shall be reported to
the Secretary within 30 days of the date on which such
investigator or person became aware of the change for
purposes of updating the registry or the database.
``(D) Failure to correct.--If a principal investigator or a
responsible person fails to permit an audit under
subparagraph (B), provide corrected information pursuant to a
notice under subparagraph (A), or provide changed information
under subparagraph (C), the investigator or responsible
person involved shall be deemed to have failed to submit
information as required under this section and the
appropriate remedies and sanction under this section shall
apply.
``(E) Corrections.--
``(i) In general.--The Secretary may correct, through any
means deemed appropriate by the Secretary to protect public
health, any information included in the registry or the
database described in subsection (i) (including information
described or contained in a publication referred to under
subclause (VI) of subsection (i)(3)(B)(iv)) that is--
[[Page S1453]]
``(I) submitted to the Secretary for inclusion in the
registry or the database; and
``(II) factually and substantively inaccurate or false or
misleading.
``(ii) Reliance on information.--The Secretary may rely on
any information from a clinical trial or a report of an
adverse event acquired or produced under the authority of
section 351 of this Act or of the Federal Food, Drug, and
Cosmetic Act in determining whether to make corrections as
provided for in clause (i).
``(iii) Determinations relating to misleading
information.--For purposes of clause (i)(II), in determining
whether information is misleading, the Secretary shall use
the standard described in section 201(n) of the Federal Food,
Drug, and Cosmetic Act that is used to determine whether
labeling or advertising is misleading.
``(iv) Rule of construction.--This subparagraph shall not
be construed to authorize the disclosure of information if--
``(I) such disclosure would constitute an invasion of
personal privacy;
``(II) such information concerns a method or process which
as a trade secret is entitled to protection within the
meaning of section 301(j) of the Federal Food, Drug, and
Cosmetic Act;
``(III) such disclosure would disclose confidential
commercial information or a trade secret, other than a trade
secret described in subclause (II), unless such disclosure is
necessary--
``(aa) to make a correction as provided for under clause
(i); and
``(bb) protect the public health; or
``(IV) such disclosure relates to a biological product for
which no license is in effect under section 351, a drug for
which no approved application is in effect under section
505(c) of the Federal Food, Drug, and Cosmetic Act, or a
device that is not cleared under section 510(k) of such Act
or for which no application is in effect under section 515 of
such Act.
``(v) Notice.--In the case of a disclosure under clause
(iv)(III), the Secretary shall notify the manufacturer or
distributor of the drug, biological product, or device
involved--
``(I) at least 30 days prior to such disclosure; or
``(II) if immediate disclosure is necessary to protect the
public health, concurrently with such disclosure.
``(8) Waivers regarding clinical trial results.--The
Secretary may waive the requirements of subsections (j)(1)
and (k)(1) that the results of clinical trials be submitted
to the Secretary, upon a written request from the responsible
person if the Secretary determines that extraordinary
circumstances justify the waiver and that providing the
waiver is in the public interest, consistent with the
protection of public health, or in the interest of national
security. Not later than 30 days after any part of a waiver
is granted, the Secretary shall notify, in writing, the
appropriate committees of Congress of the waiver and provide
an explanation for why the waiver was granted.
``(m) Trials Conducted Outside of the United States.--
``(1) In general.--With respect to clinical trials
described in paragraph (2), the responsible person shall
submit to the Secretary the information required under
subclauses (II) through (X) of subsection (i)(3)(B)(iv). The
Secretary shall ensure that the information described in the
preceding sentence is made available in the database under
subsection (i) in a timely manner. Submissions to the
database shall comply with subsection (l)(4) to the extent
practicable. The Secretary shall include the information
described in the preceding sentence in the database under
subsection (i) as soon as practicable after receiving such
information. Failure to comply with this paragraph shall be
deemed to be a failure to submit information as required
under this section, and the appropriate remedies and
sanctions under this section shall apply.
``(2) Clinical trial described.--A clinical trial is
described in this paragraph if--
``(A) such trial is conducted outside of the United States;
and
``(B) the data from such trial is--
``(i) submitted to the Secretary as part of an application,
including a supplemental application, for a drug or device
under section 505, 510, 515, or 520 of the Federal Food,
Drug, and Cosmetic Act or for the biological product under
section 351; or
``(ii) used in advertising or labeling to make a claim
about the drug, device, or biological product involved.
``(n) Definitions; Individual Liability.--
``(1) Responsible person.--
``(A) In general.--In this section, the term `responsible
person' with respect to a clinical trial, means--
``(i) if such clinical trial is the subject of an
investigational new drug application or an application for an
investigational device exemption, the sponsor of such
investigational new drug application or such application for
an investigational device exemption; or
``(ii) except as provided in subparagraph (B), if such
clinical trial is not the subject of an investigational new
drug application or an application for an investigational
device exemption--
``(I) the person that provides the largest share of the
monetary support (such term does not include in-kind support)
for the conduct of such trial; or
``(II) in the case in which the person described in
subclause (I) is a Federal or State agency, the principal
investigator of such trial.
``(B) Nonprofit entities and requesting persons.--
``(i) Nonprofit entities.--For purposes of subparagraph
(A)(ii)(I), if the person that provides the largest share of
the monetary support for the conduct of the clinical trial
involved is a nonprofit entity, the responsible person for
purposes of this section shall be--
``(I) the nonprofit entity; or
``(II) if the nonprofit entity and the principal
investigator of such trial jointly certify to the Secretary
that the principal investigator will be responsible for
submitting the information described in subsection (i)(3)(B)
for such trial, the principal investigator.
``(ii) Requesting persons.--For purposes of subparagraph
(A)(ii)(I), if a person--
``(I) has submitted a request to the Secretary that the
Secretary recognize the person as the responsible person for
purposes of this section; and
``(II) the Secretary determines that such person--
``(aa) provides monetary support for the conduct of such
trial;
``(bb) is responsible for the conduct of such trial; and
``(cc) will be responsible for submitting the information
described in subsection (i)(3)(B) for such trial;
such person shall be the responsible person for purposes of
this section.
``(2) Drug, device, biological product.--In this section--
``(A) the terms `drug' and `device' have the meanings given
such terms in section 201 of the Federal Food, Drug, and
Cosmetic Act; and
``(B) the term `biological product' has the meaning given
such term in section 351 of this Act.
``(3) Individual liability.--
``(A) Limitation on liability of individuals.--No
individual shall be liable for any civil monetary penalty
under this section.
``(B) Individuals who are responsible persons.--If a
responsible person under subparagraph (A) or (B) of paragraph
(1) is an individual, such individual shall be subject to the
procedures and conditions described in subsection (j).''.
(c) Authorization of Appropriations.--Section 402 of the
Public Health Service Act (42 U.S.C. 282), as amended by this
section, is further amended by adding at the end the
following:
``(q) Authorization of Appropriations.--There are
authorized to be appropriated such sums as may be necessary
to carry out this section.''.
(d) Conforming Amendment.--Section 402(c)(1)(D) of the
Public Health Service Act (42 U.S.C. 282(c)(1)(D)), as
amended by Public Law 109-482, is amended by striking
``402(k)'' and inserting ``402(p)''.
SEC. 4. REVIEW AND APPROVAL OF PROPOSALS FOR RESEARCH.
(a) Amendments.--Section 492A(a) of the Public Health
Service Act (42 U.S.C. 289a-1(a)) is amended--
(1) in paragraph (1)(A), by striking ``unless'' and all
that follows through the period and inserting the following:
``unless--
``(i) the application has undergone review in accordance
with such section and has been recommended for approval by a
majority of the members of the Board conducting the review;
``(ii) such Board has submitted to the Secretary a
notification of such approval; and
``(iii) with respect to an application involving a clinical
trial to which section 402(i) applies, the principal
investigator who has submitted such application has submitted
to the Secretary for inclusion in the registry and the
database described in section 402(i) the information
described in paragraph (3)(A) and subclause (I) of paragraph
(3)(B)(iv) of such section.''; and
(2) by adding at the end the following:
``(3) Cost recovery.--Nonprofit entities may recover the
full costs associated with compliance with the requirements
of paragraph (1) from the Secretary as a direct cost of
research.''.
(b) Regulations.--The Secretary of Health and Human
Services shall modify the regulations promulgated at part 46
of title 45, Code of Federal Regulations, part 50 of title
21, Code of Federal Regulations, and part 56 of title 21,
Code of Federal Regulations, to reflect the amendments made
by subsection (a).
(c) Conforming Amendment.--Section 492A(a)(2) of the Public
Health Service Act (42 U.S.C. 289a-1(a)(2)), as amended by
Public Law 109-482, is amended by striking ``402(k)'' and
inserting ``402(p)''.
SEC. 5. PROHIBITED ACTS.
Section 301 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 331) is amended by adding at the end the following:
``(ii)(1) The entering into of a contract or other
agreement by a responsible person or a manufacturer of a
drug, biological product, or device with an individual who is
not an employee of such responsible person or manufacturer,
or the performance of any other act by such a responsible
person or manufacturer, that prohibits, limits, or imposes
unreasonable delays on the ability of such individual to--
``(A) discuss the results of a clinical trial at a
scientific meeting or any other public or private forum; or
``(B) publish the results of a clinical trial or a
description or discussion of the results of a clinical trial
in a scientific journal or any other publication.
[[Page S1454]]
``(2) The entering into a contract or other agreement by a
responsible person or a manufacturer of a drug, biological
product, or device with an academic institution or a health
care facility, or the performance of any other act by such a
responsible person or manufacturer, that prohibits, limits,
or imposes unreasonable delays on the ability of an
individual who is not an employee of such responsible person
or manufacturer to--
``(A) discuss the results of a clinical trial at a
scientific meeting or any other public or private forum; or
``(B) publish the results of a clinical trial or a
description or discussion of the results of a clinical trial
in a scientific journal or any other publication.''.
SEC. 6. REPORTS.
(a) Implementation Report.--Not later than 1 year after the
date of enactment of this Act, the Secretary of Health and
Human Services shall submit to the appropriate committees of
Congress a report on the status of the implementation of the
requirements of the amendments made by section 3 that
includes a description of the number and types of clinical
trials for which information has been submitted under such
amendments.
(b) Data Collection.--
(1) In general.--The Secretary of Health and Human Services
shall enter into a contract with the Institute of Medicine
for the conduct of a study concerning the extent to which
data submitted to the registry under section 402(i) of the
Public Health Service Act (42 U.S.C. 282(i)) has impacted the
public health.
(2) Report.--Not later than 6 months after the date on
which a contract is entered into under paragraph (1), the
Institute of Medicine shall submit to the Secretary of Health
and Human Services a report on the results of the study
conducted under such paragraph. Such report shall include
recommendations for changes to the registry, the database,
and the data submission requirements that would benefit the
public health.
Mr. GRASSLEY. Madam President, I am pleased to have bipartisan
sponsorship of two very important bills with Senator Dodd of
Connecticut that are being introduced today, the Food and Drug
Administration Safety Act of 2007 and the Fair Access to Clinical
Trials Act of 2007.
These bills are part of a sustained effort to restore public
confidence in the Federal Government's food and drug safety program and
to make sure the agency does all it can to protect the public.
Enactment of those two bills would provide doctors and patients with
more information about the risks and benefits of their medicines and
bring about greater transparency and accountability of the Food and
Drug Administration.
I am sure my colleagues realize I have been involved in oversight of
the Food and Drug Administration for now at least 3 years, and it has
been in response to concerns about the reluctance of the Food and Drug
Administration to provide information to the public about the increased
suicide risks for young people taking antidepressants.
In November 2004, I chaired a groundbreaking hearing on drug safety
involving the Food and Drug Administration and the drug Vioxx. That
hearing and other critical drug safety concerns that have come to light
since then highlight the need for comprehensive and systematic reforms
as well as more stringent oversight of the Food and Drug
Administration.
Over the past 3 years, it has become increasingly apparent that the
Food and Drug Administration has repeatedly failed to protect the
public from an industry that focuses all too often on profits, even
when those profits come at the expense of ``John Q. Public.''
In 2005, then, and because of this, Senator Dodd and I introduced
almost identical companion bills to advance serious reforms at the Food
and Drug Administration. In the 2 years following the introduction of
those bills, however, the Food and Drug Administration failed to take
comprehensive and systematic steps toward restoring public confidence
in that agency, as well as the necessity of strengthening public
safety.
Yesterday, the Food and Drug Administration released its response to
the Institute of Medicine's 2006 report on drug safety. The two safety
bills introduced today are not intended to supplant the plans
articulated in the Food and Drug Administration's response but, rather,
to augment those plans and to provide the FDA with additional
enforcement tools, something they now lack.
In fact, one of our bills is intended to specifically address a
serious problem that was also identified by the Institute of Medicine.
Dr. Alta Charo, a member of the Institute of Medicine committee that
wrote the report on drug safety, stated in the newspaper USA Today:
I have to confess I'm disappointed that they--
Meaning the FDA--
ignored one of our most critical recommendations.
According to the USA Today article, she was referring to the
Institute of Medicine's recommendation that the Food and Drug
Administration give more clout to the office that monitors drugs after
they go to market. I want you to know I agree with Dr. Charo.
The Food and Drug Administration Safety Act of 2007 would then
establish an independent center within the Food and Drug
Administration. The name of the center would be the Center for
Postmarket Evaluation and Research for Drugs and Biologics. The
director of this center would report directly to the Food and Drug
Administration Commissioner and would be responsible for conducting
risk assessments for approved drugs and biological products.
The new center would also be responsible for ensuring the safety and
effectiveness of drugs once they are on the market. Unfortunately, the
problem we are trying to solve is that now at the FDA, the office that
reviews drug safety postmarketing is a mere consultant and under the
thumb of the office that puts the drugs on the market in the first
place.
Even more troubling is the fact that those who speak out of line are
targeted. Whistleblowers, as we call them, are targeted. They are very
helpful to Congress in ferreting out wrongdoing, that laws are not
being faithfully executed, that money is not being spent according to
congressional intent. So they speak out at the FDA and point out a lot
of things that are wrong. And what do they get for it? They are treated
like a skunk at a picnic. They are targeted.
So this legislation we put before us would provide the new center
with the independence and authority to promptly identify serious safety
risks and take necessary actions to protect the public, and I hope
eliminate some of the intimidation against whistleblowers.
At the same time, the intra-agency communication is essential in
addressing drug safety. So this legislation would encourage
communication between the center and other centers and offices, or
let's say subagencies at the Food and Drug Administration that handle
drugs and biological products, to do what is best for the consumer and
not have big PhRMA having undue influence.
The second bill we are introducing would expand an existing Web site,
www.clinicaltrials.gov, to create a publicly accessible national
databank of clinical trial information. The databank would be comprised
of a clinical trial registry and a clinical trial results database of
all publicly and privately funded clinical trials so that everything is
out there for the public to consider, not letting somebody choose:
Well, if this is a little negative toward our drug, we will not make
that public. All the positive stuff, of course, we will make public.
So I think this legislation is going to foster transparency. But it
is going to bring about a great deal of accountability in health
research and development and ensure that the scientific community and,
most importantly, the general public whom we are trying to protect have
access to basic information about clinical trials, about new drugs
going out on the market.
The legislation would also create an environment that would encourage
companies from withholding clinically important information about their
products from the Food and Drug Administration and from the public.
By the way, the information that is coming out now about Vioxx in the
newspapers today will even tell you that a long time before Vioxx went
on the market there were scientists within the company who were raising
questions about whether it was going to cause harm to the heart. All of
this information should be out there. The public ought to know it. Your
doctor ought to know it. Transparency and accountability should not
hurt anybody in an open society such as we have in
[[Page S1455]]
America. Oh, there might be some legitimate reasons for intellectual
property privacy, but nothing beyond that.
If we have learned anything over the last few years, it is that the
Food and Drug Administration is a troubled agency that lost sight of
its fundamental function. That fundamental function is to protect the
safety and the efficacy of new prescription drugs.
Two very important things for them to answer: Are the drugs safe for
you? Are they effective?
Unfortunately, the public has good reason to doubt the Food and Drug
Administration's ability to do its job. And experts from all over the
country have expressed concern. These two bills, then, that Senator
Dodd and I are introducing--and let me parenthetically say for the
public, people are always thinking that Democrats are hitting on
Republicans and Republicans are hitting on Democrats. There is a lot
going on around here you never see on evening television that is
bipartisan because there is not controversy about it, or at least there
is no controversy between Republicans and Democrats. But what they want
to put in the news media every night is when some Republican is
fighting some Democrat. So our constituents get a view about this
Congress that is very distorted.
I would like to have people read on a regular basis about how Senator
Baucus and I meet on a regular basis to determine the agenda for the
Finance Committee. I would like to have them read about how he and I
have put out bipartisan bills for the last 6 years--whether he was
chairman or I was chairman--and that every one of them got to the
President to be signed. But you do not hear those things.
So I want to emphasize, this is a Dodd--and Senator Dodd is a
Democrat from Connecticut--and a Grassley bill--and Grassley is a
Republican Senator from Iowa. So this bill is being introduced to
ensure the safety and efficacy of new prescription drugs, not to do
something new for the FDA, just to give them the tools to do what they
have had a responsibility to do for several decades.
So the public has doubts about the FDA's ability to do it. These two
bills will help put the FDA back on the path to fulfilling its mission
and, most importantly, put the American consumer first.
So, Madam President, in closing, I ask unanimous consent that my
statement in the Record that I give today be coupled with the statement
of Senator Dodd, which will be given later today, regarding the
introduction of these important bills.
By giving me this unanimous consent, it will assure the public, when
they read about these bills, knows that Dodd is a Democrat, Grassley is
a Republican, and they are bipartisan bills.
The PRESIDING OFFICER. Without objection, it is so ordered.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 468
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 ``Food and Drug Administration
Safety Act of 2007''.
SEC. 2. CENTER FOR POSTMARKET EVALUATION AND RESEARCH FOR
DRUGS AND BIOLOGICS.
(a) In General.--Chapter V of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 351 et seq.) is amended by inserting
after section 506C the following:
``SEC. 507. DRUG SAFETY.
``(a) Establishment of the Center for Postmarket Evaluation
and Research for Drugs and Biologics.--There is established
within the Food and Drug Administration a Center for
Postmarket Evaluation and Research for Drugs and Biologics
(referred to in the section as the `Center'). The Director of
the Center shall report directly to the Commissioner of Food
and Drugs.
``(b) Duties of the Center for Postmarket Evaluation and
Research for Drugs and Biologics.--
``(1) Responsibilities of director.--The Director of the
Center, in consultation with the Director of the Center for
Drug Evaluation and Research or the Director of the Center
for Biologics Evaluation and Research, as appropriate,
shall--
``(A) conduct postmarket risk assessment of drugs approved
under section 505 of this Act and of biological products
licensed under section 351 of the Public Health Service Act;
``(B) conduct and improve postmarket surveillance of
approved drugs and licensed biological products using
postmarket surveillance programs and activities (including
MedWatch), risk-benefit analyses, adverse event reports, the
scientific literature, any clinical or observational studies
(including studies required under subsection (d) or (e)), and
any other resources that the Director of the Center
determines appropriate;
``(C) determine whether a study is required under
subsection (d) or (e) and consult with the sponsors of drugs
and biological products to ensure that such studies are
completed by the date, and according to the terms, specified
by the Director of the Center;
``(D) contract, or require the sponsor of an application or
the holder of an approved application or license to contract,
with the holders of domestic and international patient
databases to conduct epidemiologic and other observational
studies;
``(E) determine, based on postmarket surveillance programs
and activities (including MedWatch), risk-benefit analyses,
adverse event reports, the scientific literature, and any
clinical or observational studies (including studies required
under subsection (d) or (e)), and any other resources that
the Director of the Center determines appropriate, whether a
drug or biological product may present an unreasonable risk
to the health of patients or the general public, and take
corrective action if such an unreasonable risk may exist;
``(F) make information about the safety and effectiveness
of approved drugs and licensed biological products available
to the public and healthcare providers in a timely manner;
and
``(G) conduct other activities as the Director of the
Center determines appropriate to ensure the safety and
effectiveness of all drugs approved under section 505 and all
biological products licensed under section 351 of the Public
Health Service Act.
``(2) Determination of unreasonable risk.--In determining
whether a drug or biological product may present an
unreasonable risk to the health of patients or the general
public, the Director of the Center, in consultation with the
Director of the Center for Drug Evaluation and Research or
the Director of the Center for Biologics Evaluation and
Research, as appropriate, shall consider the risk in relation
to the known benefits of such drug or biological product.
``(c) Secretarial Authority.--
``(1) In general.--Approval of a drug under section 505 of
this Act or issuance of a license for a biological product
under section 351 of the Public Health Service Act may be
subject to the requirement that the sponsor conduct 1 or more
postmarket studies as described in subsection (d) or (e) of
this section, or other postmarket studies as required by the
Secretary, to validate the safety and effectiveness of the
drug or biological product.
``(2) Definition.--For purposes of this section, the term
`postmarket' means--
``(A) with respect to a drug, after approval of an
application under section 505; and
``(B) with respect to a biological product, after licensure
under section 351 of the Public Health Service Act.
``(d) Preapproval Review.--
``(1) Review of application.--
``(A) In general.--
``(i) Review.--At any time before a drug is approved under
section 505 of this Act or a biological product is licensed
under section 351 of the Public Health Service Act, the
Director of the Center shall review the application (or
supplement to the application), and any analyses associated
with the application, of such drug or biological product.
``(ii) Effect of approval or licensure.--The approval of a
drug under section 505 or the licensure of a biological
product under such section 351 shall not affect the
continuation and completion of a review under clause (i).
``(B) Limitation.--In no case shall the review under
subparagraph (A) delay a decision with respect to an
application for a drug under section 505 of this Act or for a
biological product under section 351 of the Public Health
Service Act.
``(2) Result of review.--The Director of the Center may,
based on the review under paragraph (1)--
``(A) require that the sponsor of the application agree to
conduct 1 or more postmarket studies to determine the safety
or effectiveness of a drug or biological product, including
such safety or effectiveness as compared to other drugs or
biological products, to be completed by a date, and according
to the terms, specified by the Director of the Center; or
``(B) contract, or require the sponsor of the application
to contract, with a holder of a domestic or an international
patient database to conduct 1 or more epidemiologic or other
observational studies.
``(e) Postmarketing Studies of Drug Safety.--
``(1) In general.--At any time after a drug is approved
under section 505 of this Act or a biological product is
licensed under section 351 of the Public Health Service Act,
the Director of the Center, may--
``(A) require that the holder of an approved application or
license conduct 1 or more studies to determine the safety or
effectiveness of such drug or biological product, including
such safety and effectiveness as compared to other drugs or
biological products, to be completed by a date, and according
to the terms, specified by such Director; or
``(B) contract, or require the holder of the approved
application or license to contract, with a holder of a
domestic or an international patient database to conduct 1 or
more epidemiologic or other observational studies.
[[Page S1456]]
``(2) Review of outstanding studies.--Not later than 90
days after the date of enactment of the Food and Drug
Administration Safety Act of 2007, the Director of the Center
shall--
``(A) review and publish a list in the Federal Register of
any postmarketing studies outstanding on the date of
enactment of the Food and Drug Administration Safety Act of
2007; and
``(B) as the Director determines appropriate, require the
sponsor of a study described in subparagraph (A) to conduct
such study under this subsection.
``(f) Publication of Progress Reports and Completed
Studies.--
``(1) In general.--The Director of the Center shall require
that the sponsor of a study under subsection (d) or (e)
submit to the Secretary--
``(A) not less frequently than every 90 days, an up-to-date
report describing the progress of such study; and
``(B) upon the completion date of such study, the results
of such study.
``(2) Completion date.--For purposes of this section, the
completion date of such study shall be determined by the
Director of the Center.
``(g) Determinations by Director.--
``(1) Results of study.--The Director of the Center shall
determine, upon receipt of the results of a study required
under subsection (d) or (e)--
``(A) whether the drug or biological product studied may
present an unreasonable risk to the health of patients or the
general public; and
``(B) what, if any, corrective action under subsection (k)
shall be taken to protect patients and the public health.
``(2) Results of evidence.--The Director of the Center may,
at any time, based on the empirical evidence from postmarket
surveillance programs and activities (including MedWatch),
risk-benefit analyses, adverse event reports, the scientific
literature, any clinical or observational studies (including
studies required under subsection (d) or (e)), or any other
resources that the Director of the Center determines
appropriate--
``(A) make a determination that a drug or biological
product may present an unreasonable risk to the health of
patients or the general public; and
``(B) order a corrective action under subsection (k) be
taken to protect patients and the public health.
``(3) Required consultation and considerations.--Before
making a determination under paragraph (2), ordering a study
under subsection (d) or (e), or taking a corrective action
under subsection (k), the Director of the Center shall--
``(A) consult with the Director of the Center for Drug
Evaluation and Research or the Director of the Center for
Biologics Evaluation and Research, as appropriate; and
``(B) consider--
``(i) the benefit-to-risk profile of the drug or biological
product;
``(ii) the effect that a corrective action, or failure to
take corrective action, will have on the patient population
that relies on the drug or biological product; and
``(iii) the extent to which the drug or biological product
presents a meaningful therapeutic benefit as compared to
other available treatments.
``(h) Public Information.--Periodically, but not less often
than every 90 days, the Secretary shall make available to the
public, by publication in the Federal Register and posting on
an Internet website, the following information:
``(1) Studies required under subsection (d) or (e)
including--
``(A) the type of study;
``(B) the nature of the study;
``(C) the primary and secondary outcomes of the study;
``(D) the date the study was required under subsection (d)
or (e) or was agreed to by the sponsor;
``(E) the deadline for completion of the study; and
``(F) if the study has not been completed by the deadline
under subparagraph (E), a statement that explains why.
``(2) The periodic progress reports and results of
completed studies described under subsection (f).
``(3) Any determinations made by the Director of the Center
under subsection (g), including--
``(A) reasons for the determination, including factual
basis for such determination;
``(B) reference to supporting empirical data; and
``(C) an explanation that describes why contrary data is
insufficient.
``(i) Drug Advisory Committee.--The Drug Safety and Risk
Management Advisory Committee within the Center of the Food
and Drug Administration shall--
``(1) meet not less frequently than every 180 days; and
``(2) make recommendations to the Director of the Center
with respect to--
``(A) which drugs and biological products should be the
subject of a study under subsection (d) or (e);
``(B) the design and duration for studies under subsection
(d) or (e);
``(C) which drugs and biological products may present an
unreasonable risk to the health of patients or the general
public; and
``(D) appropriate corrective actions under subsection (k).
``(j) Penalties.--
``(1) In general.--If the Secretary determines, after
notice and opportunity for an informal hearing, that a
sponsor of a drug or biological product or other entity has
failed to complete a study required under subsection (d) or
(e) by the date or to the terms specified by the Secretary
under such subsection, the Secretary may order such sponsor
or other entity to--
``(A) complete the study in a specified time;
``(B) revise the study to comply with the terms specified
by the Secretary under subsection (d) or (e); or
``(C) pay a civil penalty.
``(2) Amount of penalties.--
``(A) In general.--The civil penalty ordered under
paragraph (1) shall be $250,000 for the first 30-day period
after the date specified by the Secretary that the study is
not completed, and shall double in amount for every 30-day
period thereafter that the study is not completed.
``(B) Limitation.--In no case shall a penalty under
subparagraph (A) exceed $2,000,000 for any 30-day period.
``(3) Notification of penalty.--The Secretary shall publish
in the Federal Register any civil penalty ordered under this
subsection.
``(k) Result of Determination.--
``(1) In general.--If the Director of the Center makes a
determination that a drug or biological product may present
an unreasonable risk to the health of patients or the general
public under subsection (g), such Director shall order a
corrective action, as described under paragraph (2).
``(2) Corrective actions.--The corrective action described
under subsection (g)--
``(A) may include--
``(i) requiring a change to the drug or biological product
label by a date specified by the Director of the Center;
``(ii) modifying the approved indication of the drug or
biological product to restrict use to certain patients;
``(iii) placing restriction on the distribution of the drug
or biological product to ensure safe use;
``(iv) requiring the sponsor of the drug or biological
product or license to establish a patient registry;
``(v) requiring patients to sign a consent form prior to
receiving a prescription of the drug or biological product;
``(vi) requiring the sponsor to monitor sales and usage of
the drug or biological product to detect unsafe use;
``(vii) requiring patient or physician education; and
``(viii) requiring the establishment of a risk management
plan by the sponsor; and
``(B) shall include the requirements with respect to
promotional material under subsection (l)(1).
``(3) Penalties.--
``(A) In general.--If the Secretary determines, after
notice and opportunity for an informal hearing, that a
sponsor of a drug or biological product has failed to take
the corrective action ordered by the Director of the Center
under this subsection or has failed to comply with subsection
(l)(2), the Secretary may order such sponsor to pay a civil
penalty.
``(B) Amount of penalties.--
``(i) In general.--The civil penalty ordered under
subparagraph (A) shall be $250,000 for the first 30-day
period that the sponsor does not comply with the order under
paragraph (1), and shall double in amount for every 30-day
period thereafter that the order is not complied with.
``(ii) Limitation.--In no case shall a penalty under clause
(i) exceed $2,000,000 for any 30-day period.
``(C) Notification of penalty.--The Secretary shall publish
in the Federal Register any civil penalty ordered under this
paragraph.
``(l) Promotion Material.--
``(1) Safety issue.--If the Director of the Center makes a
determination that a drug or biological product may present
an unreasonable risk to the health of patients or the general
public under subsection (g), such Director, in consultation
with the Division of Drug Marketing, Advertising, and
Communications of the Food and Drug Administration, shall--
``(A) notwithstanding section 502(n), require that the
sponsor of such drug or biological product submit to the
Director of the Center copies of all promotional material
with respect to the drug or biological product not less than
30 days prior to the dissemination of such material; and
``(B) require that all promotional material with respect to
the drug or biological product include certain disclosures,
which shall be displayed prominently and in a manner easily
understood by the general public, including--
``(i) a statement that describes the unreasonable risk to
the health of patients or the general public as determined by
the Director of the Center;
``(ii) a statement that encourages patients to discuss
potential risks and benefits with their healthcare provider;
``(iii) a description of the corrective actions required
under subsection (k);
``(iv) where appropriate, a statement explaining that there
may be products available to treat the same disease or
condition that present a more favorable benefit-to-risk
profile, and that patients should talk to their healthcare
provider about the risks and benefits of alternative
treatments;
[[Page S1457]]
``(v) a description of any requirements of outstanding
clinical and observational studies, including the purpose of
each study; and
``(vi) contact information to report a suspected adverse
reaction.
``(2) New products; outstanding studies.--For the first 2-
year period after a drug is approved under section 505 of
this Act or a biological product is licensed under section
351 of the Public Health Service Act, and with respect to
drugs and biological products for which there are outstanding
study requirements under subsection (d) or (e), the Director
of the Center, in consultation with the Division of Drug
Marketing, Advertising, and Communications of the Food and
Drug Administration, shall--
``(A) notwithstanding section 502(n), require that the
sponsor of such drug or biological product submit to the
Director of the Center copies of all promotional material
with respect to the drug or biological product not less than
30 days prior to the dissemination of such material; and
``(B) require that all promotional material with respect to
the drug or biological product include certain disclosures,
which shall be displayed prominently and in a manner easily
understood by the general public, including--
``(i) a statement explaining that the drug or biological
product is newly approved or licensed or the subject of
outstanding clinical or observational studies, as the case
may be, and, as a result, not all side effects or drug
interactions may be known;
``(ii) the number of people in which the drug or biological
product has been studied and the duration of time during
which the drug or biological product has been studied;
``(iii) a statement that encourages patients to discuss the
potential risks and benefits of treatment with their
healthcare provider;
``(iv) a description of any requirements of outstanding
clinical and observational studies, including the purpose of
each study; and
``(v) contact information to report a suspected adverse
reaction.
``(3) Effect of voluntary submission.--Paragraphs (1)(A)
and (2)(A) shall not apply to the sponsor of a drug or
biological product if such sponsor has voluntarily submitted
to the Division of Drug Marketing, Advertising, and
Communications of the Food and Drug Administration all
promotional material with respect to the drug or biological
product prior to the dissemination of such material.
``(m) Withdrawal or Suspension of Approval or Licensure.--
``(1) In general.--The Director of the Center, may withdraw
or suspend approval of a drug or licensure of a biological
product using expedited procedures (as prescribed by the
Secretary in regulations promulgated not later than 1 year
after the date of enactment of the Food and Drug
Administration Safety Act of 2007, which shall include an
opportunity for an informal hearing) after consultation with
the Director of the Center for Drug Evaluation and Research
or the Director of the Center for Biologics Evaluation and
Research, as appropriate, and any other person as determined
appropriate by the Director of the Center, if--
``(A) the Director of the Center makes a determination that
the drug or biological product may present an unreasonable
risk to the health of patients or the general public, and
that risk cannot be satisfactorily alleviated by a corrective
action under subsection (k); or
``(B) the sponsor fails to comply with an order or
requirement under this section.
``(2) Public information.--The Secretary shall make
available to the public, by publication in the Federal
Register and posting on an Internet website, the details of
the consultation described in paragraph (1), including--
``(A) the reason for the determination to withdraw,
suspend, or failure to withdraw or suspend, approval for the
drug or licensure for the biological product;
``(B) the factual basis for such determination;
``(C) reference to supporting empirical data;
``(D) an explanation that describes why contrary data is
insufficient; and
``(E) the position taken by each individual consulted.
``(n) Effect of Section.--The authorities conferred by this
section shall be separate from and in addition to the
authorities conferred by section 505B.
``(o) Administration of Section.--The provisions of this
section shall be carried out by the Secretary, acting through
the Director of the Center.''.
(b) Misbranding.--Section 502 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 352) is amended by inserting
after subsection (j) the following:
``(k) If it is a drug or biological product for which the
sponsor of an application or holder of an approved
application or license has not complied with an order or
requirement under section 507.''.
(c) Report on Devices.--Not later than 6 months after the
date of enactment of this Act, the Secretary of Health and
Human Services, in consultation with the Commissioner of Food
and Drugs, the Director of the Center for Postmarket
Evaluation and Research for Drugs and Biologics, and the
Director of the Center for Devices and Radiological Health,
shall submit to Congress a report that--
(1) identifies gaps in the current process of postmarket
surveillance of devices approved under the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321 et seq.);
(2) includes recommendations on ways to improve gaps in
postmarket surveillance of devices; and
(3) identifies the changes in authority needed to make
those improvements, recognizing the legitimate differences
between devices and other medical products regulated by the
Food and Drug Administration.
(d) Transfer of Functions.--The functions and duties of the
Office of Surveillance and Epidemiology, including the Drug
Safety and Risk Management Advisory Committee, of the Food
and Drug Administration on the day before the date of
enactment of this Act shall be transferred to the Center for
Postmarket Evaluation and Research for Drugs and Biologics
established under section 507 of the Federal Food, Drug, and
Cosmetic Act (as added by this section). The Center for
Postmarket Evaluation and Research for Drugs and Biologics
shall be a separate entity within the Food and Drug
Administration and shall not be an administrative office of
the Center for Drug Evaluation and Research or the Center for
Biologics Evaluation and Research.
(e) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this Act (and the amendments
made by this Act)--
(1) $50,000,000 for fiscal year 2008;
(2) $75,000,000 for fiscal year 2009;
(3) $100,000,000 for fiscal year 2010;
(4) $125,000,000 for fiscal year 2011; and
(5) $150,000,000 for fiscal year 2012.
______
By Mr. BAUCUS (for himself and Mr. Grassley):
S. 469. A bill to amend the Internal Revenue Code of 1986 to make
permanent the special rule for contributions of qualified conservation
contributions; to the Committee on Finance.
Mr. BAUCUS. Mr. President, I rise today to introduce the Rural
Heritage Conservation Extension Act of 2007, along with my good friend
Senator Grassley from Iowa.
As we all know, the country, and my home State of Montana, are losing
precious agricultural and ranch lands at a record pace. While providing
Montana and the Nation with the highest quality food and fiber, these
farms and ranches also provide habitat for wildlife and the open
spaces, land that many of us take for granted and assume will always be
there. Montana has begun to recognize the importance of these lands. We
currently have 1,573,411 acres covered by conservation easements. To
some, that may seem like a large amount, but this is Montana, a State
that covers 93,583,532 acres, making the conservation easements
coverage a mere 1.68 percent of all of our lands.
To assure that open space and habitat will be there for future
generations, we must help our hardworking farmers and ranchers preserve
this precious heritage and their way-of-life.
Conservation easements have been tremendously successful in
preserving open space and wildlife habitat. Last year, the Congress
recognized this by providing targeted income tax relief to small
farmers and ranchers who wish to make a charitable contribution of a
qualified conservation easement. The provision allows eligible farmers
and ranchers to increase the amounts of deduction that may be taken
currently for charitable contributions of qualified conservation
easements by raising the Adjusted Gross Income (AGI) limitations to 100
percent and extending the carryover period from 5 years to 15 years. In
the case of all landowners, the AGI limitation would be raised from 30
percent to 50 percent.
The Rural Heritage Conservation Extension Act of 2007 would make this
allowable deduction permanent, building on the success of conservation
easements. Our farmers and ranchers will be able to preserve their
important agricultural and ranching lands for future generations, while
continuing to operate their businesses. Landowners, conservationists,
the Federal Government, and local communities are working together to
preserve our precious natural resources.
This legislation is vitally important to Montana, and to every other
State in the Nation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 469
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SPECIAL RULE FOR CONTRIBUTIONS OF QUALIFIED
CONSERVATION CONTRIBUTIONS MADE PERMANENT.
(a) In General.--
[[Page S1458]]
(1) Individuals.--Subparagraph (E) of section 170(b)(1) of
the Internal Revenue Code of 1986 (relating to contributions
of qualified conservation contributions) is amended by
striking clause (vi).
(2) Corporations.--Subparagraph (B) of section 170(b)(2) of
such Code (relating to qualified conservation contributions)
is amended by striking clause (iii).
(b) Effective Date.--The amendments made by this section
shall apply to contributions made in taxable years beginning
after the date of the enactment of this Act.
____________________