[Congressional Record (Bound Edition), Volume 149 (2003), Part 5]
[Senate]
[Pages 5939-5957]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SMITH (for himself and Mr. Wyden):
  S. 601. A bill to authorize the Secretary of the Interior to acquire 
the McLoughlin House National Historic Site in Oregon City, Oregon, for 
inclusion in the Fort Vancouver National Historic Site, and for other 
purposes; to the Committee on Energy and Natural Resources.
  Mr. WYDEN. Mr. President, I rise today as an original co-sponsor of 
the McLoughlin House Preservation Act.
  Dr. John McLoughlin, a powerful 6'4" man, is known, officially and 
fondly, as the ``Father of Oregon.'' His compassion played a critical 
role in the settling of the Northwest by Oregon Trail pioneers. Dr. 
McLoughlin's generosity to these early pioneers who arrived in the 
Oregon Territory after their incredible five month journey sick, hungry 
and without provisions was often the difference between survival and 
failure during their first winter.
  This bill is a testimony to the hard work that one community can 
achieve. Preservation of the McLoughlin House and the nearby Barclay 
House, located in Oregon City, Oregon, is important to the cultural 
identity of Oregon. This bill would make them part of the Fort 
Vancouver National Park Service administrative site, thereby 
highlighting the interwoven connection between Fort Vancouver, the fur 
trade and the beginnings of the Oregon Territory.
  Dr. McLoughlin first came to the Northwest in 1824, arriving at Fort 
George, now called Astoria, Oregon, to establish a supply center for 
the Hudson's Bay Company. Within a year, he moved to a more favorable 
location on the northern side of the Columbia, in what is now 
Washington State, and built a new trading post and named it Fort 
Vancouver. As the Post Administrator, the good hearted doctor 
maintained a very good relationship with neighboring Indians and used 
his medical skills to tend to the terrible fevers that broke out among 
them.
  The Fort belonged to the Hudson's Bay Company that was a rival of 
American trappers, and although company policy discouraged American 
settlers, Dr. McLoughlin was not one to refuse a helping hand to any 
trapper or settler in distress. When frustrated with the Hudson's Bay 
Company policy opposing American settlers, Dr. McLoughlin resigned and 
moved to Oregon City on the Willamette Falls. By 1848, Oregon had grown 
so much that it was officially designated a territory, and by 1859, it 
became the nation's thirty-third state. McLoughlin remained a vibrant 
public figure and became the Mayor of Oregon City in 1851. Many of the 
debates concerning Oregon's statehood are said to have taken place in 
McLoughlin's living room, and the Oregon State Legislature aptly named 
him the ``Father of Oregon.''
  The McLoughlin House was designated as the National Historic Site, 
one of the first in the west, in 1941. I thank my constituents in 
Clackamas County, particularly John Salisbury and the McLoughlin 
Memorial Association, for all of their hard work to preserve this 
Oregon treasure. Additionally, I thank Tracy Fortmann with the National 
Park Service at Fort Vancouver for her advocacy on behalf of the 
McLoughlin House. Mayor Alice Norris and the former mayors of Oregon 
City who have worked together to bring this legislation to the 
attention of the Oregon delegation deserve our thanks as well. Finally, 
I thank Representative Hooley for having the foresight to introduce 
this legislation in the House of Representatives in the 107th Congress 
and again in the 108th.
                                 ______
                                 
      By Ms. SNOWE (for herself, Mr. Baucus, Mr. Bingaman, Mr. 
        Rockefeller, and Mr. Jeffords):
  S. 603. A bill to amend part A of title IV of the Social Security Act 
to give States the option to create a program that allows individuals 
receiving temporary assistance to needy families to obtain post-
secondary or longer duration vocational education; to the Committee on 
Finance.
  Ms. SNOWE. Mr. President, I rise today to introduce ``The Pathways to 
Self-Sufficiency Act of 2003.'' I am pleased to be joined in 
introducing this important legislation by my colleagues Senators 
Baucus, Bingaman and Rockefeller.
  This legislation is based upon the highly esteemed Maine program 
called ``Parents as Scholars''. This program, which uses State 
Maintenance of Effort, MOE, dollars to pay TANF-like benefits to those 
participating in post-secondary education, is a proven success in my 
state and is a wonderful foundation for a national effort.
  We all agree that the 1996 welfare reform effort changed the face of 
this Nation's welfare system to focus it on work. To that end, I 
believe that this legislation bolsters the emphasis on ``work first''. 
Like many of my colleagues, I agree that the shift in the focus from 
welfare to work was the right decision, and that work should be the top 
priority. However, for those TANF recipients who cannot find a good job 
that will put them on the road toward financial independence, education 
might well be the key to a successful future of self-sufficiency.
  As we have seen in Maine that education has played a significant role 
in breaking the cycle of welfare and giving parents the skills 
necessary to find

[[Page 5940]]

better paying jobs. And we all know that higher wages are the light at 
the end of the tunnel of public assistance.
  ``The Pathways to Self-Sufficiency Act of 2003'' provides States with 
the option to allow individuals receiving Federal TANF assistance to 
obtain post-secondary or vocational education. This legislation would 
give States the ability to use Federal TANF dollars to give those who 
are participating in vocational or post-secondary education the same 
assistance as they would receive if they were working.
  We all know that supports like income supplements, child care 
subsidies, and transportation assistance among others, are essential to 
a TANF recipient's ability to make a successful transition to work. The 
same is true for those engaged in longer term educational endeavors. 
This assistance is especially necessary for those who are undertaking 
the challenge and the financial responsibility of post-secondary 
education, in the hopes of increasing their earning potential and 
employability. The goal of this program is to give participants the 
tools necessary to succeed into the future so that they can become, and 
remain, self-sufficient.
  Choosing to go to college requires motivation, and graduating from 
college requires a great deal of commitment and work--even for someone 
who isn't raising children and sustaining a family. These are 
significant challenges, and that's even before taking into 
consideration the cost associated with obtaining a Bachelor's degree, 
with a four year program at the University of Maine currently costing 
almost $25,000. This legislation would provide those TANF recipients 
who have the ability and the will to go to college the assistance they 
need to sustain their families while they get a degree.
  The value of promoting access to education in this manner to get 
people off public assistance is proven by the success of Maine's 
``Parents as Scholars'', PaS, program. Maine's PaS graduates earn a 
median wage of $11.71 per hour after graduation up from a median of 
$8.00 per hour prior to entering college. When compared to the $7.50 
median hourly wage of welfare leavers in Maine who have not received a 
post-secondary degree, PaS graduates are earning, on average, $160 more 
per week. That translates into more than $8,000 per year--a significant 
difference.
  Furthermore,the median grade point average for PaS participants while 
in college was 3.4 percent,and a full 90 percent of PaS participants' 
GPA was over 3.0. These parents are giving their all to pull their 
families out of the cycle of welfare.
  Recognizing that work is a priority under TANF, and building upon the 
successful Maine model, the ``Pathways to Self-Sufficiency Act'' 
requires that participants in post-secondary and vocational education 
also participate in work. During the first two years of their 
participation in these education programs, students must participate in 
a combination of colas time, study time, employment or work experience 
for at lest 24 hours per week--the same hourly requirement that the 
President proposes in his welfare reauthorization proposal.
  During the second two years--for those enrolled in a four year 
program--the participant must work at least 15 hours in addition to 
class and study time, or engage in a combination activities, including 
colas and study time work or work experience, and training, for an 
average of 30 hours per week. And all the while, participants must 
maintain satisfactory academic progress as defined by their academia 
institution.
  The bottom line is that if we expect parents to move from welfare to 
work and stay in the work force, we must give them the tools to find 
good jobs. For some people that means job training, for others that 
could mean dealing with a barrier like substance abuse or domestic 
violence, and for others, that might mean access to education that will 
secure them a good job and that will get them off and keep them off of 
welfare.
  The experience of several ``Parents as Scholar'' graduates were 
recently captured in a publication published by the Maine Equal Justice 
Partners, and their experiences are testament to the fact that this 
program is a critically important step in moving towards self-
sufficiency. In this report one Las graduate said of her experience, 
``If it weren't for `Parents as Scholars' I would never have been able 
to attend college, afford child care, or put food on the table. Today, 
I would most likely be stuck in a low-wage job I hated barely getting 
by . . .  I can now give my children the future they deserve.''
  Another said, ``By earning my Bachelor's degree, I have become self 
sufficient. I was a waitress previously and would never have been able 
to support my daughter and I on the tips that I earned. I would 
encourage anyone to better their education if possible.
  These are but a few comments from those who have benefited from 
access to post-secondary education. And,while these women have been 
able to attend college and pursue good jobs thanks tori the good will 
and the support of the people of Maine, Las has strained the state's 
budget. Giving States the option use Federal dollars to support these 
participants will make a tremendous difference in their ability to 
sustain these programs which have proven results. In Maine, nearly 90 
percent of working graduates have left TANF permanently--and isn't that 
our ultimate goal?
  I look forward to working with my colleagues to include this 
legislation in the upcoming welfare reauthorization. It is a critical 
piece of the effort to move people from welfare to work permanently and 
it has been missing from the federal program for too long.
                                 ______
                                 
      By Mr. SMITH (for himself, Mr. Wyden, Mr. Baucus, Mr. Allen, Mr. 
        Warner, Mr. Kerry, Mr. Kennedy, Mr. Akaka, Mr. Burns, Mr. 
        Coleman, and Mr. Dayton):
  S. 605. A bill to extend waivers under the temporary assistance to 
needy families program through the end of fiscal year 2008; to the 
Committee on Finance.
  Mr. SMITH. Mr. President, I rise today to introduce legislation that 
would allow States with successful welfare to renew them for the next 
five years. In this effort, I am joined by Senators Wyden, Baucus, 
Allen, Warner, Kerry, Kennedy, Akaka, Burns, and Coleman. All of our 
States and several others operate their welfare programs under waivers 
which allow them flexibility to design programs that work for people in 
their States.
  The most comprehensive evaluation of welfare workforce strategies to 
date, commissioned and funded by the Department of Health and Human 
Services, demonstrated that a mixed strategy based on individual degree 
of job readiness was far and away the most effective way to transition 
families from welfare to work. This is the approach Oregon and others 
have taken, and I feel strongly that these States be allowed to 
continue their innovative and successful programs.
  Oregon has long been considered a national leader in developing 
innovative strategies to serve its low-income citizens. Oregon's 
welfare waiver, known as ``The Oregon Option,'' was implemented just a 
few months before passage of the Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996. The Oregon Option reflects 
Oregon's strong belief in moving families forward to sustainable 
employment. Consistent with Oregon's reputation as an innovator, the 
Oregon Option also rejects a ``one size fits all'' approach for its low 
income families.
  Oregon uses a labor market test to assess each person's ability to 
work. Families are expected to engage in intense job search for 45 days 
and if that process identifies significant barriers to families finding 
and retaining employment, case managers will work with the families to 
identify resources available to address those barriers. The case 
managers then work to develop appropriate plans that engage families in 
barrier removal activities, such as education, substance abuse or 
mental health treatment, finding housing for victims of domestic 
violence, while moving them toward employment. Oregon officials 
estimate that at any

[[Page 5941]]

time, approximately 50 percent of all TANF families have substantial 
barriers to employment.
  Oregon has demonstrated success in moving families into employment by 
fully utilizing its flexibility under the Oregon Option waiver. Oregon, 
and other states that have used federal flexibility to design 
successful programs, must not be forced either to abandon their 
effective approaches or to try to find loopholes to circumvent the 
approach mandated by current reauthorization proposals.
  The legislation that my colleagues and I are introducing today will 
allow all states with currently operational TANF waivers, and states 
with waivers expiring after January 1, 2002, the option of renewing 
their waivers for the next five years, until the next scheduled 
reauthorization of welfare in 2008. This will ensure that successful 
programs designed by local people for local people aren't eliminated in 
favor of a ``one-size-fits-all'' federal program.
                                 ______
                                 
      By Mr. GREGG (for himself, Mr. Kennedy, Mr. DeWine, Mr. Harkin, 
        Mr. Smith, Ms. Mikulski, Ms. Collins, Mr. Bingaman, Ms. Snowe, 
        Mr. Sarbanes, Mr. Kerry, Mr. Bayh, Mr. Corzine, Mr. Dayton, Mr. 
        Durbin, and Mr. Daschle):
  S. 606. A bill to provide collective bargaining rights for public 
safety officers employed by States or their political subdivisions; to 
the Committee on Health, Education, Labor, and Pensions.
  Mr. GREGG. Mr. President, today, I am pleased to be joined by 
Senators Kennedy, DeWine, Harkin, Smith, Mikulski, Collins, Bingaman, 
Snowe, Sarbanes, Kerry, Bayh, Corzine, and Dayton in introducing the 
Public Safety Employer-Employee Cooperation Act of 2003. This 
legislation would extend to firefighters and police officers the right 
to discuss workplace issues with their employers.
  With the enactment of the Congressional Accountability Act, State and 
local government employees remain the only sizable segment of workers 
left in America who do not have the basic right to enter into 
collective bargaining agreements with their employers. While most 
States do provide some collective bargaining rights for their public 
employees, others do not.
  Studies have shown that communities which promote such cooperation 
enjoy much more effective and efficient delivery of emergency services. 
Such cooperation, however, is not possible in the States that do not 
provide public safety employees with the fundamental right to bargain 
with their employers.
  The legislation I am introducing today is balanced in its recognition 
of the unique situation and obligation of public safety officers. To 
accomplish this the bill: 1. Requires States, within 2 years, to 
guarantee the right of public safety officers to form and voluntarily 
join a union to bargain collectively over hours, wages and conditions 
of employment; 2. Protects the right of public safety officers to form, 
join, or assist any labor organization or to refrain from any such 
activity, freely and without fear of penalty or reprisal; 3. Prohibits 
the use of strikes, lockouts, sickouts, work slowdowns or any other 
action that is designed to compel an employer, officer or labor 
organization to agree to the terms of a proposed contract and that will 
measurably disrupt the delivery of services; 4. Continues to allow 
States to enforce right-to-work laws which prohibit employers and labor 
organizations from negotiating labor agreements that require union 
membership or payment of union fees as a condition of employment; 5. 
Preserves the right of management to not bargain over issues 
traditionally reserved for management level decisions; 6. Exempts all 
states with a State bargaining law for public safety officers that are 
equal to or greater than the rights granted under Federal law; 7. Gives 
States the option to exempt from coverage subdivisions with populations 
of less than 5,000 or fewer than 25 full time employees.
  Labor-management partnerships, which are built upon bargaining 
relationships, result in improved public safety. Employer-employee 
cooperation contains the promise of saving the taxpayer money by 
enabling workers to give input as to the most efficient way to provide 
services. In fact, States that currently give firefighters the right to 
discuss workplace issues actually have lower fire department budgets 
than States without those laws.
  The Public Safety Employer-Employee Cooperation Act of 2003 will put 
firefighters and law enforcement officers on equal footing with other 
employees and provide them with the fundamental right to negotiate with 
employers over such basic issues as hours, wages, and workplace 
conditions.
  I urge its adoption and ask unanimous consent that the text of this 
bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 606

       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 ``Public Safety Employer-
     Employee Cooperation Act of 2003''.

     SEC. 2. DECLARATION OF PURPOSE AND POLICY.

       The Congress declares that the following is the policy of 
     the United States:
       (1) Labor-management relationships and partnerships are 
     based on trust, mutual respect, open communication, bilateral 
     consensual problem solving, and shared accountability. Labor-
     management cooperation fully utilizes the strengths of both 
     parties to best serve the interests of the public, operating 
     as a team, to carry out the public safety mission in a 
     quality work environment. In many public safety agencies it 
     is the union that provides the institutional stability as 
     elected leaders and appointees come and go.
       (2) The Federal Government needs to encourage conciliation, 
     mediation, and voluntary arbitration to aid and encourage 
     employers and their employees to reach and maintain 
     agreements concerning rates of pay, hours, and working 
     conditions, and to make all reasonable efforts through 
     negotiations to settle their differences by mutual agreement 
     reached through collective bargaining or by such methods as 
     may be provided for in any applicable agreement for the 
     settlement of disputes.
       (3) The absence of adequate cooperation between public 
     safety employers and employees has implications for the 
     security of employees and can affect interstate and 
     intrastate commerce. The lack of such labor-management 
     cooperation can detrimentally impact the upgrading of police 
     and fire services of local communities, the health and well-
     being of public safety officers, and the morale of the fire 
     and police departments. Additionally, these factors could 
     have significant commercial repercussions. Moreover, 
     providing minimal standards for collective bargaining 
     negotiations in the public safety sector can prevent 
     industrial strife between labor and management that 
     interferes with the normal flow of commerce.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Authority.--The term ``Authority'' means the Federal 
     Labor Relations Authority.
       (2) Emergency medical services personnel.--The term 
     ``emergency medical services personnel'' means an individual 
     who provides out-of-hospital emergency medical care, 
     including an emergency medical technician, paramedic, or 
     first responder.
       (3) Employer; public safety agency.--The terms ``employer'' 
     and ``public safety agency'' mean any State, political 
     subdivision of a State, the District of Columbia, or any 
     territory or possession of the United States that employs 
     public safety officers.
       (4) Firefighter.--The term ``firefighter'' has the meaning 
     given the term ``employee engaged in fire protection 
     activities'' in section 3(y) of the Fair Labor Standards Act 
     (29 U.S.C. 203(y)).
       (5) Labor organization.--The term ``labor organization'' 
     means an organization composed in whole or in part of 
     employees, in which employees participate, and which 
     represents such employees before public safety agencies 
     concerning grievances, conditions of employment and related 
     matters.
       (6) Law enforcement officer.--The term ``law enforcement 
     officer'' has the meaning given such term in section 1204(5) 
     of the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3796b(5)).
       (7) Management employee.--The term ``management employee'' 
     has the meaning given such term under applicable State law in 
     effect on the date of enactment of this Act. If no such State 
     law is in effect, the term means an individual employed by a 
     public safety employer in a position that requires or 
     authorizes the individual to formulate, determine, or 
     influence the policies of the employer.
       (8) Public safety officer.--The term ``public safety 
     officer''--
       (A) means an employee of a public safety agency who is a 
     law enforcement officer, a

[[Page 5942]]

     firefighter, or an emergency medical services personnel;
       (B) includes an individual who is temporarily transferred 
     to a supervisory or management position; and
       (C) does not include a permanent supervisory or management 
     employee.
       (9) Substantially provides.--The term ``substantially 
     provides'' means compliance with the essential requirements 
     of this Act, specifically, the right to form and join a labor 
     organization, the right to bargain over wages, hours, and 
     conditions of employment, the right to sign an enforceable 
     contract, and availability of some form of mechanism to break 
     an impasse, such as arbitration, mediation, or fact finding.
       (10) Supervisory employee.--The term ``supervisory 
     employee'' has the meaning given such term under applicable 
     State law in effect on the date of enactment of this Act. If 
     no such State law is in effect, the term means an individual, 
     employed by a public safety employer, who--
       (A) has the authority in the interest of the employer to 
     hire, direct, assign, promote, reward, transfer, furlough, 
     lay off, recall, suspend, discipline, or remove public safety 
     officers, to adjust their grievances, or to effectively 
     recommend such action, if the exercise of the authority is 
     not merely routine or clerical in nature but requires the 
     consistent exercise of independent judgment; and
       (B) devotes a majority of time at work exercising such 
     authority.

     SEC. 4. DETERMINATION OF RIGHTS AND RESPONSIBILITIES.

       (a) Determination.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Authority shall make a 
     determination as to whether a State substantially provides 
     for the rights and responsibilities described in subsection 
     (b). In making such determinations, the Authority shall 
     consider and give weight, to the maximum extent practicable, 
     to the opinion of affected parties.
       (2) Subsequent determinations.--
       (A) In general.--A determination made pursuant to paragraph 
     (1) shall remain in effect unless and until the Authority 
     issues a subsequent determination, in accordance with the 
     procedures set forth in subparagraph (B).
       (B) Procedures for subsequent determinations.--Upon 
     establishing that a material change in State law or its 
     interpretation has occurred, an employer or a labor 
     organization may submit a written request for a subsequent 
     determination. If satisfied that a material change in State 
     law or its interpretation has occurred, the Director shall 
     issue a subsequent determination not later than 30 days after 
     receipt of such request.
       (3) Judicial review.--Any State, political subdivision of a 
     State, or person aggrieved by a determination of the 
     Authority under this section may, during the 60 day period 
     beginning on the date on which the determination was made, 
     petition any United States Court of Appeals in the circuit in 
     which the person resides or transacts business or in the 
     District of Columbia circuit, for judicial review. In any 
     judicial review of a determination by the Authority, the 
     procedures contained in subsections (c) and (d) of section 
     7123 of title 5, United States Code, shall be followed, 
     except that any final determination of the Authority with 
     respect to questions of fact or law shall be found to be 
     conclusive unless the court determines that the Authority's 
     decision was arbitrary and capricious.
       (b) Rights and Responsibilities.--In making a determination 
     described in subsection (a), the Authority shall consider 
     whether State law provides rights and responsibilities 
     comparable to or greater than the following:
       (1) Granting public safety officers the right to form and 
     join a labor organization, which may exclude management and 
     supervisory employees, that is, or seeks to be, recognized as 
     the exclusive bargaining representative of such employees.
       (2) Requiring public safety employers to recognize the 
     employees' labor organization (freely chosen by a majority of 
     the employees), to agree to bargain with the labor 
     organization, and to commit any agreements to writing in a 
     contract or memorandum of understanding.
       (3) Permitting bargaining over hours, wages, and terms and 
     conditions of employment.
       (4) Requiring an interest impasse resolution mechanism, 
     such as fact-finding, mediation, arbitration or comparable 
     procedures.
       (5) Requiring enforcement through State courts of--
       (A) all rights, responsibilities, and protections provided 
     by State law and enumerated in this section; and
       (B) any written contract or memorandum of understanding.
       (c) Failure To Meet Requirements.--
       (1) In general.--If the Authority determines, acting 
     pursuant to its authority under subsection (a), that a State 
     does not substantially provide for the rights and 
     responsibilities described in subsection (b), such State 
     shall be subject to the regulations and procedures described 
     in section 5.
       (2) Effective date.--Paragraph (1) shall take effect on the 
     date that is 2 years after the date of enactment of this Act.

     SEC. 5. ROLE OF FEDERAL LABOR RELATIONS AUTHORITY.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the Authority shall issue regulations 
     in accordance with the rights and responsibilities described 
     in section 4(b) establishing collective bargaining procedures 
     for public safety employers and officers in States which the 
     Authority has determined, acting pursuant to its authority 
     under section 4(a), do not substantially provide for such 
     rights and responsibilities.
       (b) Role of the Federal Labor Relations Authority.--The 
     Authority, to the extent provided in this Act and in 
     accordance with regulations prescribed by the Authority, 
     shall--
       (1) determine the appropriateness of units for labor 
     organization representation;
       (2) supervise or conduct elections to determine whether a 
     labor organization has been selected as an exclusive 
     representative by a majority of the employees in an 
     appropriate unit;
       (3) resolve issues relating to the duty to bargain in good 
     faith;
       (4) conduct hearings and resolve complaints of unfair labor 
     practices;
       (5) resolve exceptions to the awards of arbitrators;
       (6) protect the right of each employee to form, join, or 
     assist any labor organization, or to refrain from any such 
     activity, freely and without fear of penalty or reprisal, and 
     protect each employee in the exercise of such right; and
       (7) take such other actions as are necessary and 
     appropriate to effectively administer this Act, including 
     issuing subpoenas requiring the attendance and testimony of 
     witnesses and the production of documentary or other evidence 
     from any place in the United States, and administering oaths, 
     taking or ordering the taking of depositions, ordering 
     responses to written interrogatories, and receiving and 
     examining witnesses.
       (c) Enforcement.--
       (1) Authority to petition court.--The Authority may 
     petition any United States Court of Appeals with jurisdiction 
     over the parties, or the United States Court of Appeals for 
     the District of Columbia Circuit, to enforce any final orders 
     under this section, and for appropriate temporary relief or a 
     restraining order. Any petition under this section shall be 
     conducted in accordance with subsections (c) and (d) of 
     section 7123 of title 5, United States Code, except that any 
     final order of the Authority with respect to questions of 
     fact or law shall be found to be conclusive unless the court 
     determines that the Authority's decision was arbitrary and 
     capricious.
       (2) Private right of action.--Unless the Authority has 
     filed a petition for enforcement as provided in paragraph 
     (1), any party has the right to file suit in a State court of 
     competent jurisdiction to enforce compliance with the 
     regulations issued by the Authority pursuant to subsection 
     (b), and to enforce compliance with any order issued by the 
     Authority pursuant to this section. The right provided by 
     this subsection to bring a suit to enforce compliance with 
     any order issued by the Authority pursuant to this section 
     shall terminate upon the filing of a petition seeking the 
     same relief by the Authority.

     SEC. 6. STRIKES AND LOCKOUTS PROHIBITED.

       A public safety employer, officer, or labor organization 
     may not engage in a lockout, sickout, work slowdown, or 
     strike or engage in any other action that is designed to 
     compel an employer, officer, or labor organization to agree 
     to the terms of a proposed contract and that will measurably 
     disrupt the delivery of emergency services, except that it 
     shall not be a violation of this section for an employer, 
     officer, or labor organization to refuse to provide services 
     not required by the terms and conditions of an existing 
     contract.

     SEC. 7. EXISTING COLLECTIVE BARGAINING UNITS AND AGREEMENTS.

       A certification, recognition, election-held, collective 
     bargaining agreement or memorandum of understanding which has 
     been issued, approved, or ratified by any public employee 
     relations board or commission or by any State or political 
     subdivision or its agents (management officials) in effect on 
     the day before the date of enactment of this Act shall not be 
     invalidated by the enactment of this Act.

     SEC. 8. CONSTRUCTION AND COMPLIANCE.

       (a) Construction.--Nothing in this Act shall be construed--
       (1) to invalidate or limit the remedies, rights, and 
     procedures of any law of any State or political subdivision 
     of any State or jurisdiction that provides collective 
     bargaining rights for public safety officers that are equal 
     to or greater than the rights provided under this Act;
       (2) to prevent a State from enforcing a right-to-work law 
     that prohibits employers and labor organizations from 
     negotiating provisions in a labor agreement that require 
     union membership or payment of union fees as a condition of 
     employment;
       (3) to invalidate any State law in effect on the date of 
     enactment of this Act that substantially provides for the 
     rights and responsibilities described in section 4(b) solely 
     because such State law permits an employee to appear on his 
     or her own behalf with respect to his or her employment 
     relations with the public safety agency involved; or

[[Page 5943]]

       (4) to permit parties subject to the National Labor 
     Relations Act (29 U.S.C. 151 et seq.) and the regulations 
     under such Act to negotiate provisions that would prohibit an 
     employee from engaging in part-time employment or volunteer 
     activities during off-duty hours; or
       (5) to prohibit a State from exempting from coverage under 
     this Act a political subdivision of the State that has a 
     population of less than 5,000 or that employs less than 25 
     full time employees.
     For purposes of paragraph (5), the term ``employee'' includes 
     each and every individual employed by the political 
     subdivision except any individual elected by popular vote or 
     appointed to serve on a board or commission.
       (b) Compliance.--No State shall preempt laws or ordinances 
     of any of its political subdivisions if such laws provide 
     collective bargaining rights for public safety officers that 
     are equal to or greater than the rights provided under this 
     Act.

     SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as may be 
     necessary to carry out the provisions of this Act.

  Mr. KENNEDY. Mr. President, I am honored today to join Senator Gregg 
in introducing the Public Safety Employer-Employee Cooperation Act of 
2003.
  This bill is an important bipartisan effort to help protect our 
Nation's public safety officers on the job. The events of September 11 
made clear that our Nation's true heroes are our fire fighters, police 
officers, and emergency medical technicians. We will never forget the 
sacrifices they made at the World Trade Center and the Pentagon. The 
photographs of tired, dust-covered, fire fighters confronting the 
unimaginable horror of that day are permanently emblazoned in our 
minds.
  Thousands of public safety officers throughout the country serve in 
some of the country's most dangerous, strenuous and stressful jobs 
today. Every year, more than 80,000 police officers and 75,000 
firefighters are injured on the job. An average of 160 police officers 
and nearly 100 firefighters die in the line of duty each year. It is a 
matter of basic fairness to give these courageous men and women the 
same rights that have long been enjoyed by other workers.
  For more than 60 years, collective bargaining has enabled labor and 
management to work together to improve job conditions and increase 
productivity. Through collective bargaining, labor and management have 
led the way together on many important improvements in today's 
workplace--especially with regard to health and pension benefits, paid 
holidays and sick leave, and workplace safety.
  Collective bargaining in the public sector, once a controversial 
issue, is now widely accepted. It has been widespread, since at least 
1962, when President Kennedy signed an Executive order granting these 
basic rights to Federal employees. Congressional employees have had 
these rights since enactment of the Congressional Accountability Act 
almost a decade ago. It is long past time for State and local 
government employees to have Federal protection for the basic right to 
participate in collective bargaining agreements with their employers.
  The bill we are introducing today extends this protection to 
firefighters, police officers, correctional officers, paramedics and 
emergency medical technicians. The bill guarantees the fundamental 
rights necessary for collective bargaining--the right to form and join 
a union; the right to bargain over hours, wages and working conditions; 
the right to sign legally enforceable contracts; and the right to a 
means to resolve impasses in negotiations.
  The benefits of this bill are clear and compelling. It will lead to 
safer working conditions for public safety officers. States that lack 
these collective bargaining laws have death rates for fire fighters 
nearly double the rate in States in which such bargaining takes place. 
In 1993, fire fighters in nine of the 10 States with the highest fire 
fighter death rates did not have collective bargaining protection. 
Because public safety employees serve on the front lines in providing 
firefighting services, law enforcement services, and emergency medical 
services, they know what it takes to create safer working conditions. 
They should have a voice in decisions that can literally make a life-
or-death difference on the job.
  This bill will benefit all of us, not just public safety officers. 
When workers who actually do the job are able to provide advice on 
their working conditions, there are fewer injuries, increased morale, 
better information on new technologies, and more efficient ways to 
provide the services, all of which improve the safety and security of 
the communities that our public safety officers serve.
  This bill will also save money for States and local communities. 
Experience has shown that when public safety officers can discuss 
workplace conditions with management, partnerships and cooperation 
develop and lead to improved labor-management relations and better, 
more cost-effective services. A study by the International Association 
of Fire Fighters shows that States and municipalities that give 
firefighters the right to discuss workplace issues have lower fire 
department budgets than States without such laws.
  This bill accomplishes its goals in a reasonable way. It requires 
that public safety officers be given the opportunity to bargain 
collectively, but it does not require that employers adopt agreements, 
and it does not regulate the content of any agreements that are 
reached.
  In States with collective bargaining laws that substantially provide 
the modest minimum standards in the bill--as a majority of States 
already do--those States will be unaffected by this legislation. Where 
States do not have such laws, they may choose to enact them, or to 
allow the Federal Labor Relations Authority to establish procedures for 
bargaining between public safety officers and their employers. This 
approach respects existing State laws, and gives each state the 
authority to choose the way in which it will comply with the 
requirements of this legislation. States will have full discretion to 
make decisions on the implementation and enforcement of the basic 
rights set forth in this proposal.
  This amendment will not supersede State laws which already adequately 
provide for the exercise of--or are more protective of--collective 
bargaining rights by public safety officers. It is a matter of basic 
fairness for these courageous men and women to have the same rights 
that have long been enjoyed by other workers. They put their lives on 
the line to protect us every day. They deserve to have an effective 
voice on the job, and I urge the Senate to approve this important 
bipartisan legislation.
                                 ______
                                 
      By Mr. REED (for himself and Mr. Kennedy):
  S. 608. A bill to provide for personnel preparation, enhanced support 
and training for beginning special educators, and professional 
development of special educators, general educators, and early 
intervention personnel; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. REED. Mr. President, I rise today to introduce the Personnel 
Excellence for Children with Disabilities Act of 2003 to ensure high 
quality personnel to serve students with disabilities.
  I have long worked to improve the quality of teaching in America's 
classrooms for the simple reason that well-trained and well-prepared 
teachers, faculty, principals and administrators are critical to 
improving the educational performance and achievement of students.
  As Congress turns to the reauthorization of the Individuals with 
Disabilities Education Act, IDEA, the focus shifts to increasing 
support for both new and veteran special education teachers, school 
principals, and the higher education faculty who train prospective 
special education teachers.
  There are currently an estimated 6 million children who receive 
special education services. Yet, there are about 70,000 special 
education teaching vacancies in schools nationwide. The President's 
2002 Commission on Excellence in Special Education report stated that 
``the growing shortage of special education teachers alarms this 
Commission.'' Moreover, an estimated 600,000 IDEA students are taught 
by unqualified or underqualified teachers nationwide. In some urban and 
rural

[[Page 5944]]

areas, close to half of special education teachers are unqualified.
  I am joined by Senator Kennedy, a leader in improving education for 
all children, in introducing legislation today which would address and 
improve current conditions by enhancing personnel preparation, 
recruitment and retention, support and training for beginning special 
educators, as well as professional development for special educators, 
general educators, principals, paraprofessionals, and related services 
personnel.
  The Personnel Excellence for Children with Disabilities Act modifies 
and strengthens the current State Improvement Grant program to focus 
solely on personnel and professional development, including support to 
school districts to meet the personnel requirements under IDEA.
  Our legislation also establishes two grant programs. One would fund 
partnerships of school districts, institutions of higher education, and 
elementary and secondary schools that focus on meeting the needs of 
beginning special educators, through an additional 5th year clinical 
learning opportunity or the creation or support of professional 
development schools. Professional development schools seek to improve 
the professional status of teaching through a renewal of schools and 
preservice teacher education, in-service education of veteran teachers, 
and research to add to the knowledge base. The other grant program 
seeks to ensure that general educators, including principals and 
administrators, have the skills, knowledge, and leadership training to 
improve results for children with disabilities in their schools and 
classrooms. Currently, approximately half of students with disabilities 
spend 79 percent or more of their time in regular classes, according to 
the Department of Education's Annual Report to Congress for 2001. Only 
20 percent are served outside of regular classes for 60 percent or more 
of the time.
  Lastly, our legislation enhances the personnel preparation programs 
under the current IDEA Section 673. These programs provide grants to 
institutions of higher education to enhance the preparation of special 
educators.
  In sum, the Personnel Excellence for Children with Disabilities Act 
seeks to enhance: the teaching skills of special educators, general 
educators, early intervention personnel, paraprofessionals and related 
services personnel; the leadership skills of principals; collaboration 
among special educators, general educators, and other personnel; 
mentoring and other induction support for beginning special educators; 
and training programs at institutions of higher education. The Act 
would also boost the ability of educators and personnel to: involve and 
work with parents, implement positive behavioral interventions; improve 
early intervention services for infants, toddlers, and preschoolers; 
and provide transition services and postsecondary opportunities. It 
would also improve their ability to: use classroom-based techniques to 
identify student potentially eligible for services; use technology to 
enhance learning of children with disabilities and communicate with 
parents; and ensure an effective IEP process.
  The time for action is now because 98 percent of school districts 
report that meeting the growing demand for special education teachers 
is a top priority. Annual attrition rates for special education 
teachers are over 13 percent: 6 percent for those who leave the field 
entirely; and an additional 7.4 percent who transfer to general 
education. More than 200,000 new special education teachers will be 
needed in the next five years, according to U.S. Department of 
Education estimates. Investing in personnel preparation is critical for 
addressing these needs which, in turn, will improve outcomes and 
results for children with disabilities.
  I urge my colleagues to join us in this essential endeavor by 
cosponsoring this legislation and working for its inclusion in the 
reauthorization of the IDEA.
  Mr. President, I ask unanimous consent that the text of this 
legislation be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 608

       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 ``Personnel Excellence for 
     Students with Disabilities Act''.

     SEC. 2. STATE PERSONNEL AND PROFESSIONAL DEVELOPMENT GRANTS.

       Subpart 1 of part D (20 U.S.C. 1451 et seq.) is amended to 
     read as follows:

    ``Subpart 1--State Personnel and Professional Development Grants

     ``SEC. 651. FINDINGS; PURPOSE; DEFINITION.

       ``(a) Findings.--Congress finds the following:
       ``(1) The right of all children with disabilities to a free 
     and appropriate public education requires States to adopt a 
     comprehensive strategy to address teacher shortages and 
     ensure adequate numbers of teachers to serve children with 
     disabilities.
       ``(2) In order to ensure that the persons responsible for 
     the education of children with disabilities possess the 
     skills and knowledge necessary to address such children's 
     educational and related needs, States must promote 
     comprehensive programs of professional development.
       ``(3) The dissemination of research-based knowledge about 
     successful teaching practices and models to teachers and 
     other personnel serving children with disabilities can result 
     in improved outcomes for children with disabilities.
       ``(b) Purpose.--The purpose of this subpart is to assist 
     State educational agencies and local educational agencies, 
     and their partners referred to in section 652, in providing 
     support for, and improving their systems of, personnel 
     preparation and professional development to improve results 
     for children with disabilities.
       ``(c) Definition of Postsecondary Opportunities.--In this 
     subpart, the term `postsecondary opportunities' includes the 
     transition from school to postsecondary education, adult 
     services, or work.

     ``SEC. 652. ELIGIBILITY AND COLLABORATION PROCESS IN GRANTS 
                   TO STATES.

       ``(a) Eligible Applicants; Duration of Assistance.--A State 
     educational agency may apply for a grant under this subpart 
     for a grant period of 4 years.
       ``(b) Partnerships and Consultations.--In order to be 
     considered for a grant under this subpart, a State 
     educational agency shall--
       ``(1) establish a formal partnership with local educational 
     agencies, the lead State agency for part C, the State agency 
     responsible for child care, the State vocational 
     rehabilitation agency, the State agency for higher education, 
     representatives of State-approved special education personnel 
     preparation programs in institutions of higher education 
     within the State, parent training and information centers or 
     community parent resource centers, and other State agencies 
     involved in, or concerned with, the education of children 
     with disabilities; and
       ``(2) consult with other public agencies, persons, and 
     organizations with relevant expertise in, and concerned with, 
     the education of children with disabilities, including--
       ``(A) parents of children with disabilities and parents of 
     nondisabled children;
       ``(B) general and special education teachers, 
     paraprofessionals, related services personnel, and early 
     intervention personnel;
       ``(C) the State advisory panel established under part B;
       ``(D) the State interagency coordinating council 
     established under part C;
       ``(E) community-based and other nonprofit organizations 
     representing individuals with disabilities; and
       ``(F) other providers of professional development and 
     personnel preparation for personnel that work with infants, 
     toddlers, preschoolers, and children with disabilities, and 
     nonprofit organizations whose primary purpose is education 
     research and development, when appropriate.

     ``SEC. 653. STATE APPLICATIONS.

       ``(a) In General.--A State educational agency that desires 
     to receive a grant under this subpart shall submit to the 
     Secretary an application at such time, in such manner, and 
     including such information as the Secretary may require.
       ``(b) Partnership Agreement.--Each application submitted 
     pursuant to this section shall specify the nature and extent 
     of the partnership among the State educational agency and 
     other partners (as described in section 652(b)), including 
     the respective roles of each member of the partnership, and 
     shall describe how grant funds allocated to the State under 
     section 655 will be used in undertaking the improvement 
     strategies described under subsection (c)(3).
       ``(c) Personnel and Professional Development Plan.--
       ``(1) In general.--Each application submitted pursuant to 
     this section shall include a personnel and professional 
     development plan that is--
       ``(A) based on the needs assessment described in paragraph 
     (2);
       ``(B) developed by the State educational agency in 
     collaboration with the partners described under section 
     652(b)(1);

[[Page 5945]]

       ``(C) designed to enable the State to meet the standards 
     described in section 612(a)(15) and implement the 
     comprehensive system of personnel development under section 
     612(a)(14); and
       ``(D) coordinated with other State professional development 
     plans for educators and personnel working with children in 
     early childhood education programs.
       ``(2) Needs assessment.--Each personnel and professional 
     development plan shall include an assessment of State and 
     local needs that identifies critical aspects and areas in 
     need of improvement related to the preparation, ongoing 
     training, and professional development of personnel that 
     serve infants, toddlers, preschoolers, and children with 
     disabilities within the State. Such assessment shall be based 
     on an analysis of--
       ``(A) current and anticipated personnel vacancies and 
     shortages in local educational agencies and local early 
     intervention agencies or providers throughout the State, 
     including the number of individuals currently serving 
     children with disabilities that--
       ``(i) are not highly qualified, consistent with section 
     612(a)(15);
       ``(ii) are individuals with temporary, provisional, or 
     emergency certification; or
       ``(iii) are individuals teaching with an alternative 
     certification;
       ``(B) the extent and amount of certification or retraining 
     necessary to eliminate the vacancies and shortages described 
     in subparagraph (A);
       ``(C) current preservice and inservice training and 
     preparation programs and activities available and accessible 
     in the State to personnel that serve infants, toddlers, 
     preschoolers, and children with disabilities, including--
       ``(i) the number of degree, certification, and licensure 
     programs that are preparing general and special education 
     teachers and personnel to serve children with high-incidence 
     and low-incidence disabilities;
       ``(ii) the number of noncertification programs designed to 
     train and prepare personnel to serve infants, toddlers, 
     preschoolers, and children with disabilities, including the 
     number of programs designed to provide training in early 
     intervention and transitional services; and
       ``(iii) the number of programs or activities designed to 
     provide the knowledge and skills necessary to ensure the 
     successful transition of students with disabilities into 
     postsecondary opportunities; and
       ``(D) information, reasonably available to the State, on 
     the scope and effectiveness of current training and 
     preparation programs and activities available in the State to 
     personnel that serve children with disabilities, including--
       ``(i) access of general education teachers to preservice 
     and inservice training in early intervention and special 
     education, including training related to the diverse learning 
     and developmental needs of children with disabilities;
       ``(ii) rates of attrition of special education teachers and 
     early intervention personnel throughout the State and a 
     description of factors that contribute to such attrition;
       ``(iii) data and major findings of the Secretary's most 
     recent reviews of State compliance, as such reviews relate to 
     meeting the standards described in section 612(a)(15) and 
     implementing a comprehensive system of personnel development 
     described under sections 612(a)(14) and 635(a)(8); and
       ``(iv) data regarding disproportionality required under 
     section 618.
       ``(3) Improvement strategies.--Each personnel and 
     professional development plan shall describe strategies 
     necessary to address the preparation and professional 
     development areas in need of improvement, based on the needs 
     assessment conducted under paragraph (2), that include--
       ``(A) how the State will respond to the needs for 
     preservice and inservice preparation of personnel who work 
     with infants, toddlers, preschoolers, and children with 
     disabilities, including strategies to--
       ``(i) prepare all general and special education personnel 
     (including both professional and paraprofessional personnel 
     who provide special education, general education, or related 
     services)--

       ``(I) with the knowledge and skills needed to meet the 
     needs of, and improve results for, children with 
     disabilities;
       ``(II) to utilize classroom-based techniques to identify 
     students who may be eligible for special education services 
     or other services prior to making referrals for special 
     education services;
       ``(III) to help students with disabilities meet State 
     academic standards;
       ``(IV) to work as part of a collaborative team, especially 
     training related to all aspects of planning, design, and 
     effective implementation of an IEP; and
       ``(V) to utilize effective parental involvement practices 
     needed to work with and involve parents of children with 
     disabilities in their child's education;

       ``(ii) prepare professionals, including professionals in 
     preschool settings, and paraprofessionals in the area of 
     early intervention with the knowledge and skills needed to 
     meet the needs of infants, toddlers, and preschoolers with 
     disabilities;
       ``(iii) develop the knowledge and skills and enhance the 
     ability of teachers and other personnel responsible for 
     providing transition services to improve such services and 
     postsecondary opportunities for children with disabilities;
       ``(iv) enhance the ability of principals to provide 
     instructional leadership on, and teachers and other school 
     staff to use, strategies, such as positive behavioral 
     interventions, to address the behavior of children with 
     disabilities that impedes the learning of children with 
     disabilities and others; and
       ``(v) ensure that school personnel who work with students 
     with significant health, mobility, or behavior needs receive 
     training, as appropriate, prior to serving such students;
       ``(B) how the State will collaborate with institutions of 
     higher education and other entities that (on both a 
     preservice and an inservice basis) prepare personnel who work 
     with children with disabilities to develop such entities' 
     capacity to support quality professional development programs 
     that meet State and local needs;
       ``(C) how the State will identify model certification 
     programs that may be used to create and improve certification 
     requirements for personnel working with infants, toddlers, 
     preschoolers, and children with disabilities;
       ``(D) how the State will provide technical assistance to 
     local educational agencies, schools, and early intervention 
     providers to improve the quality of training and professional 
     development available to meet the needs of personnel that 
     serve children with disabilities;
       ``(E) how the State will work in collaboration with other 
     States, especially neighboring States, when possible, to--
       ``(i) address the lack of uniformity and reciprocity in the 
     credentialing of teachers and other personnel;
       ``(ii) support or develop programs to prepare personnel for 
     which there is not sufficient demand within a single State to 
     justify support or development of such a program of 
     preparation; and
       ``(iii) develop, as appropriate, common certification 
     criteria;
       ``(F) how the State will acquire and disseminate, to 
     teachers, administrators, related services personnel, other 
     service providers, and school board members, significant 
     knowledge derived from educational research and other 
     sources, and how the State will adopt promising practices, 
     materials, and technology;
       ``(G) how the State will recruit and retain qualified 
     personnel in geographic areas of greatest need, including 
     personnel with disabilities and personnel from groups that 
     are underrepresented in the fields of regular education, 
     special education, related services, and early intervention;
       ``(H) how the State will create collaborative training 
     models and provide for the joint training of parents and 
     special education, related services, and general education 
     personnel in providing quality services and programs, and 
     family involvement and support;
       ``(I) how the State will address systemic problems 
     associated with meeting the standards described in section 
     612(a)(15) and implementing the comprehensive system of 
     personnel development under section 612(a)(14), as identified 
     in Federal compliance reviews, including shortages of 
     qualified personnel; and
       ``(J) how the State will address the findings from the data 
     required to be gathered under section 618 and the steps the 
     State will take to ensure that poor and minority children are 
     not taught at higher rates than other children by 
     inexperienced, unqualified, or out-of-field teachers, 
     including the measures that the State educational agency will 
     use to evaluate and publicly report the progress of the State 
     educational agency with respect to such steps.
       ``(4) Coordination and integration.--Each application 
     submitted pursuant to this section shall--
       ``(A) include assurances that--
       ``(i) the personnel and professional development plan is 
     integrated, to the maximum extent possible, with State plans 
     and activities carried out under other Federal and State laws 
     that address personnel recruitment, retention, and training, 
     including plans carried out under titles I and II of the 
     Elementary and Secondary Education Act of 1965, the 
     Rehabilitation Act of 1973, the Higher Education Act of 1965, 
     and the Child Care and Development Block Grant Act of 1990, 
     as appropriate;
       ``(ii) the personnel and professional development plan is 
     integrated and based, to the maximum extent possible, on 
     research and activities supported by grants under sections 
     672 and 673 and conducted by institutions of higher education 
     throughout the State; and
       ``(iii) the improvement strategies described in paragraph 
     (3) will be coordinated with activities undertaken by public 
     and private institutions of higher education, as well as with 
     public and private sector resources, when appropriate; and
       ``(B) contain a description of the amount and nature of 
     funds from any other sources, including part B funds retained 
     for use at the State level for personnel and professional 
     development purposes under sections 611(f) and 619(d), and 
     part C funds used in accordance with section 638, that will 
     be committed to the systemic-change activities under this 
     section.

[[Page 5946]]

       ``(5) Other information.--A State educational agency shall 
     submit to the Secretary, at such time and in such manner as 
     the Secretary may require, such additional information 
     regarding the preparation and professional development of 
     personnel that serve children with disabilities in the 
     personnel and professional development plan.

     ``SEC. 654. STATE USE OF FUNDS.

       ``(a) In General.--A State educational agency that receives 
     a grant under this subpart shall--
       ``(1) expend funds not reserved under paragraph (2) to 
     carry out improvement strategies contained in the personnel 
     and professional development plan under section 653(c)(3); 
     and
       ``(2) in the case of a State educational agency serving a 
     State that the Secretary determines has not met the standards 
     in section 612(a)(15) or implemented the comprehensive system 
     of personnel development under section 612(a)(14), reserve 
     not less than 35 percent of funds made available through the 
     grant to award subgrants to local educational agencies as 
     described in section 657.
       ``(b) Contracts and Subcontracts.--Consistent with the 
     partnership agreement described under section 652(b), a State 
     educational agency shall award contracts or subgrants to 
     local educational agencies and institutions of higher 
     education with State-approved special education personnel 
     preparation programs, and may award contracts or subgrants to 
     the lead State agency for part C, or other nonprofit 
     entities, as appropriate, to carry out such State educational 
     agency's personnel and professional development plan under 
     this subpart.
       ``(c) Supplement, Not Supplant.--Funds received by a State 
     educational agency under this subpart shall be used to 
     supplement, and not supplant, non-Federal funds that would 
     otherwise be used for activities authorized under this 
     subpart.

     ``SEC. 655. STATE ALLOTMENTS.

       ``(a) In General.--The Secretary shall make a grant to each 
     State educational agency whose application the Secretary has 
     approved under section 653. Each grant shall consist of the 
     allotment determined for a State under subsection (b).
       ``(b) Determination of Allotments.--
       ``(1) Reservation of funds.--From the total amount 
     appropriated under section 658 for a fiscal year, the 
     Secretary shall reserve--
       ``(A) one-half of 1 percent for allotments for the United 
     States Virgin Islands, Guam, American Samoa, the Commonwealth 
     of the Northern Mariana Islands, the Republic of Palau, the 
     freely associated States of the Marshall Islands, and the 
     Federated States of Micronesia, to be distributed among those 
     areas on the basis of their relative need, as determined by 
     the Secretary, in accordance with the purpose of this 
     subpart; and
       ``(B) one-half of 1 percent for the Secretary of the 
     Interior for programs under this subpart in schools operated 
     or funded by the Bureau of Indian Affairs.
       ``(2) State allotments.--
       ``(A) Minimum allotment.--From the funds appropriated under 
     section 658, and not reserved under paragraph (1), the 
     Secretary shall allot to each of the 50 States, the District 
     of Columbia, and the Commonwealth of Puerto Rico an amount 
     for each fiscal year that is not less than $500,000.
       ``(B) Allotment of remaining funds.--For any fiscal year 
     for which the funds appropriated under section 658, and not 
     reserved under paragraph (1), exceed the total amount 
     required to make allotments under subparagraph (A), the 
     Secretary shall distribute to each of the States described in 
     subparagraph (A), the remaining excess funds after 
     considering--
       ``(i) the amount of the excess funds available for 
     distribution;
       ``(ii) the relative population of the States; and
       ``(iii) the scope and quality of activities proposed by the 
     States.
       ``(3) Funds to remain available.--Allotments made to States 
     under this section shall remain available until expended.
       ``(4) Reallotment.--If any State does not apply for an 
     allotment under this subsection for any fiscal year, the 
     Secretary shall reallot the amount of the allotment to the 
     remaining States in accordance with this subsection.

     ``SEC. 656. EVALUATIONS.

       ``(a) In General.--Each State educational agency that 
     receives a grant under this subpart shall submit an 
     evaluation to the Secretary at such time as the Secretary may 
     require, but not more frequently than annually.
       ``(b) Evaluation Components.--Each evaluation submitted to 
     the Secretary shall include--
       ``(1) the data contained in the needs assessment described 
     in section 653(c)(2);
       ``(2) a description of the progress made by the State in 
     implementing each of the strategies described in section 
     653(c)(3);
       ``(3) an assessment, conducted on a regular basis, of the 
     extent to which the personnel and professional development 
     plan has been effective in enabling States to meet the 
     standards described in section 612(a)(15) and implement the 
     comprehensive system of personnel development under section 
     612(a)(14); and
       ``(4) such other information as the Secretary may require.
       ``(c) Report.--The Secretary shall submit to Congress a 
     report on the evaluations received under this section.

     ``SEC. 657. SUBGRANT AWARDS TO LOCAL EDUCATIONAL AGENCIES.

       ``(a) In General.--From funds made available under section 
     654(a)(2), a State educational agency shall award a subgrant 
     to eligible local educational agencies to enable the eligible 
     local educational agencies to recruit and retain special 
     education teachers, paraprofessionals, and related services 
     providers, to ensure that such agency meets the requirements 
     in the policy adopted by the State in section 612(a)(15).
       ``(b) Eligible Local Educational Agency.--
       ``(1) In general.--A local educational agency shall be 
     eligible to receive a subgrant under this section if the 
     local educational agency--
       ``(A)(i) has failed to meet, or is in danger of failing to 
     meet, the standards described in section 612(a)(15);
       ``(ii) serves a high number or percentage of low-income 
     students; and
       ``(iii) has a demonstrated need to prepare and train new or 
     existing personnel to meet the needs of children with 
     disabilities; and
       ``(B) collects and uses data to determine local needs for 
     professional development, hiring, and retention of personnel, 
     as identified by the local educational agency and school 
     staff--
       ``(i) with the involvement of teachers, other personnel, 
     and parents; and
       ``(ii) after taking into account the activities that need 
     to be conducted--

       ``(I) to give general and special education teachers, 
     paraprofessionals, and related services personnel the means, 
     including subject matter knowledge and teaching skills, to 
     improve results and outcomes for students with disabilities; 
     and
       ``(II) to give principals the instructional leadership 
     skills to help teachers and related services personnel 
     provide students with the opportunity described in subclause 
     (I).

       ``(2) Consortium.--The term `eligible local educational 
     agency' may include a consortium of such agencies.
       ``(c) Application.--
       ``(1) In general.--An eligible local educational agency 
     that desires to receive a subgrant under this section shall 
     submit an application to the State educational agency at such 
     time, in such manner, and containing such information as the 
     State educational agency may reasonably require.
       ``(2) Contents.--Each application submitted under this 
     subsection shall include--
       ``(A) a description of the activities to be carried out by 
     the local educational agency and how such activities will 
     support the local educational agency's efforts to provide 
     professional development and to recruit and retain highly 
     qualified teachers; and
       ``(B) a description of the needs described in subsection 
     (b)(1)(B).
       ``(d) Grants Awarded.--State educational agencies shall 
     award grants under this section on the basis of the quality 
     of the applications submitted, except that State educational 
     agencies shall give priority to eligible local educational 
     agencies with the greatest need.
       ``(e) Use of Funds.--
       ``(1) In general.--An eligible local educational agency 
     that receives a subgrant under this section shall use the 
     funds made available through the subgrant to carry out 1 or 
     more of the following activities:
       ``(A) Providing high quality professional development for 
     special education teachers.
       ``(B) Providing high quality professional development to 
     personnel who serve infants, toddlers, and preschoolers with 
     disabilities.
       ``(C) Providing high quality professional development for 
     principals, including training in areas such as behavioral 
     supports in the school and classroom, paperwork reduction, 
     and promoting improved collaboration between special 
     education and general education teachers.
       ``(D) Mentoring programs.
       ``(E) Team teaching.
       ``(F) Case load reduction.
       ``(G) Paperwork reduction.
       ``(H) Financial incentives, as long as those incentives are 
     linked to participation in activities that have proven 
     effective in recruiting and retaining teachers and are 
     developed in consultation with the personnel of the eligible 
     local educational agency.
       ``(I) Hiring and training high quality paraprofessionals 
     and providing other high quality instructional support.
       ``(J) Partnering with institutions of higher education for 
     the training and retraining of teachers and to carry out any 
     other activities under this paragraph.
       ``(2) Effective programs.--Funds under this section shall 
     be used only for those activities that are linked to 
     participation in activities that have proven effective in 
     retaining teachers.
       ``(f) Matching Requirement.--Each eligible local 
     educational agency awarded a subgrant under this section 
     shall contribute matching funds, in an amount equal to not 
     less than 25 percent of the subgrant award, toward carrying 
     out the activities assisted under this section.

[[Page 5947]]



     ``SEC. 658. AUTHORIZATION OF APPROPRIATIONS.

       ``There are authorized to be appropriated to carry out this 
     subpart $250,000,000 for fiscal year 2004 and such sums as 
     may be necessary for each succeeding fiscal year.''.

     SEC. 3. ENHANCED SUPPORT AND TRAINING FOR BEGINNING SPECIAL 
                   EDUCATORS AND GENERAL EDUCATORS.

       Chapter 1 of subpart 2 of part D of the Individuals with 
     Disabilities Education Act (20 U.S.C. 1471 et seq.) is 
     amended by inserting after section 674 the following:

     ``SEC. 675. ENHANCED SUPPORT AND TRAINING FOR BEGINNING 
                   SPECIAL EDUCATORS.

       ``(a) Definitions.--In this section:
       ``(1) Eligible entity.--The term `eligible entity' means a 
     partnership between 1 or more institutions of higher 
     education with a State-approved special education personnel 
     program, and 1 or more local educational agencies.
       ``(2) Professional development partnership.--
       ``(A) In general.--The term `professional development 
     partnership' means a partnership between an eligible entity 
     and an elementary school or secondary school that is based on 
     a mutual commitment to improve teaching and learning.
       ``(B) Additional entities.--A professional development 
     partnership may include--
       ``(i) a State educational agency;
       ``(ii) a teaching organization;
       ``(iii) a professional association of principals; or
       ``(iv) a nonprofit organization whose primary purpose is--

       ``(I) education research and development; or
       ``(II) training special education and early intervention 
     personnel.

       ``(b) Authorization of Program.--
       ``(1) In general.--From amounts appropriated under 
     subsection (g) for a fiscal year, the Secretary shall award 
     grants to, or enter into contracts or cooperative agreements 
     with, eligible entities to enable such entities to establish 
     professional development partnerships to improve the 
     education of children with disabilities by--
       ``(A) ensuring a strong and steady supply of new highly 
     qualified teachers of children with disabilities;
       ``(B) helping address challenges in the local educational 
     agency to recruiting highly qualified teachers and retaining 
     such teachers; and
       ``(C) providing for an exchange of knowledge and skills 
     among special education teachers, including furthering the 
     development and professional growth of veteran special 
     education teachers.
       ``(2) Competitive basis.--Each grant, contract, or 
     cooperative agreement under this section shall be awarded or 
     entered into on a competitive basis.
       ``(3) Duration.--Each grant, contract, or cooperative 
     agreement under this section shall be awarded or entered into 
     for a period of not less than 3 and not more than 5 years.
       ``(4) Priority.--In awarding grants or entering into 
     contracts or cooperative agreements under this section, the 
     Secretary shall give priority to eligible entities that--
       ``(A) serve high numbers or percentages of low-income 
     students; and
       ``(B) serve schools that have failed to make adequate 
     yearly progress toward enabling children with disabilities to 
     meet academic achievement standards.
       ``(c) Applications.--An eligible entity desiring a grant, 
     contract, or cooperative agreement under this section shall 
     submit an application to the Secretary at such time, in such 
     manner, and accompanied by such information as the Secretary 
     may require. Each such application shall--
       ``(1) describe--
       ``(A) the proposed activities of the professional 
     development partnership and how the activities will be 
     developed in consultation with teachers;
       ``(B) how the proposed activities will prepare teachers to 
     implement research-based, demonstrably successful, and 
     replicable instructional practices that improve outcomes for 
     children with disabilities;
       ``(C) how the eligible entity will ensure the participation 
     of elementary schools or secondary schools as partners in the 
     professional development partnership, and how the research 
     and knowledge generated by the professional development 
     partnership will be disseminated and implemented in the 
     elementary schools or secondary schools that are served by 
     the local educational agency and are not partners in the 
     professional development partnership;
       ``(D) how the process for developing a new preservice 
     education program or restructuring an existing program will 
     improve teacher preparation at the institution of higher 
     education;
       ``(E) how the proposed activities will include the 
     participation of schools, colleges, or other departments 
     within the institution of higher education to ensure the 
     integration of pedagogy and content in teacher preparation;
       ``(F) how the proposed activities will increase the numbers 
     of qualified personnel, including paraprofessionals, 
     administrators, and related services personnel, that receive 
     certification and serve children with disabilities in 
     elementary schools or secondary schools;
       ``(G) how the proposed activities will recruit diverse 
     prospective special education teachers;
       ``(H) how the eligible entity will collaborate with the 
     State educational agency to ensure that proposed activities 
     will be coordinated with activities established by the State 
     to improve systems for personnel preparation and professional 
     development pursuant to subpart 1;
       ``(I) how the grant funds will be divided among the members 
     of the professional development partnership and the 
     responsibilities each partner has agreed to undertake in the 
     use of the grant funds and other related funds; and
       ``(J) how the eligible entity will gather information in 
     order to assess the impact of the activities assisted under 
     this section on teachers and the students served under this 
     section; and
       ``(2) identify the lead fiscal agent of the professional 
     development partnership responsible for the receipt and 
     disbursement of funds under this section.
       ``(d) Authorized Activities.--Each eligible entity 
     receiving a grant or entering into a contract or cooperative 
     agreement under this section shall use the grant funds to 
     establish a professional development partnership that--
       ``(1) develops a preservice teacher education program, or 
     enhances and restructures an existing program, to prepare 
     special education teachers, at colleges or departments of 
     education within the institution of higher education, by 
     incorporating an additional 5th year clinical learning 
     opportunity, field experience, or supervised practicum into a 
     program of preparation and coursework for special education 
     teachers, that includes--
       ``(A) developing new curricula and coursework for the 
     preparation of prospective special education teachers, 
     including preparation to teach in core academic subjects;
       ``(B) support for new faculty positions to provide, 
     coordinate, and oversee instruction of the clinical learning 
     opportunity, field experience, or supervised practicum;
       ``(C) new, ongoing performance-based review procedures to 
     assist and support the learning of prospective special 
     education teachers;
       ``(D) providing assistance to students for stipends and 
     costs associated with tuition and fees for continued or 
     enhanced enrollment in a preparation program for special 
     education teachers; and
       ``(E) supporting activities that increase the placement of 
     highly qualified teachers in elementary schools and secondary 
     schools; or
       ``(2) creates or supports professional development schools 
     that--
       ``(A) provide high quality induction opportunities with 
     ongoing support for beginning special education teachers;
       ``(B) provide mentoring, of prospective and beginning 
     special education teachers by veteran special education 
     teachers, in instructional skills, classroom management 
     skills, and strategies to effectively assess student progress 
     and achievement;
       ``(C) provide high quality inservice professional 
     development to veteran special education teachers through the 
     ongoing exchange of information and instructional strategies 
     among prospective special education teachers and faculty of 
     the institution of higher education;
       ``(D) prepare special education teachers to--
       ``(i) work collaboratively with general education teachers 
     and related services personnel; and
       ``(ii) involve parents in the education of such parents' 
     children; and
       ``(E) provide preparation time for faculty in the 
     professional development school, and other faculty of the 
     institution of higher education, to design and implement 
     curriculum, classroom experiences, and ongoing professional 
     development opportunities for prospective and beginning 
     special education teachers.
       ``(e) Supplement, Not Supplant.--Funds appropriated under 
     this section shall be used to supplement and not supplant 
     other Federal, State, and local public funds available for 
     the professional development or preservice preparation of 
     special education teachers.
       ``(f) Evaluation.--
       ``(1) In general.--The Secretary shall conduct biennial, 
     independent, national evaluations of the activities assisted 
     under this part not later than 3 years after the date of 
     enactment of the Personnel Excellence for Students with 
     Disabilities Act. The evaluation shall include information on 
     the impact of the activities assisted under this section on 
     outcomes for children with disabilities.
       ``(2) Report.--The Secretary shall report to Congress on 
     the results of the evaluation.
       ``(3) Dissemination.--The Secretary shall widely 
     disseminate effective practices identified through the 
     evaluation.
       ``(g) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section 
     $20,000,000 for fiscal year 2004, and such sums as may be 
     necessary for each succeeding fiscal year.

     ``SEC. 676. TRAINING TO SUPPORT GENERAL EDUCATORS.

       ``(a) Definitions.--In this section:

[[Page 5948]]

       ``(1) Eligible entities.--The term `eligible entity' means 
     a partnership that--
       ``(A) shall include--
       ``(i) 1 or more local educational agencies; and
       ``(ii) 1 or more State-approved special education personnel 
     preparation programs; and
       ``(B) may include a State educational agency, a teaching 
     organization, a professional association of principals, an 
     educational nonprofit organization, or another group or 
     institution that has expertise in special education and is 
     responsive to the needs of teachers.
       ``(2) General educator.--The term `general educator' 
     includes a teacher, a principal, a school superintendent, or 
     school faculty, such as a school counselor.
       ``(3) Postsecondary opportunities.--The term `postsecondary 
     opportunities' includes the transition from school to 
     postsecondary education, adult services, or work.
       ``(b) Authorization of Program.--
       ``(1) Assistance authorized.--The Secretary may award 
     grants to, or enter into contracts or cooperative agreements 
     with, eligible entities to enable the eligible entities to 
     provide professional development, leadership training, and 
     collaborative opportunities to general educators to ensure 
     that general educators have the skills and knowledge to meet 
     the needs of, and improve results for, children with 
     disabilities.
       ``(2) Competitive awards.--The Secretary shall award 
     grants, contracts, and cooperative agreements under this 
     section on a competitive basis.
       ``(c) Duration.--The Secretary shall award grants, 
     contracts, and cooperative agreements under this section for 
     a period of not less than 3 and not more than 5 years.
       ``(d) Application.--An eligible entity desiring a grant, 
     contract, or cooperative agreement under this section shall 
     submit an application to the Secretary at such time, in such 
     manner, and accompanied by such information as the Secretary 
     may require. Each such application shall--
       ``(1) describe--
       ``(A) the proposed activities to be assisted by the 
     eligible entity;
       ``(B) how the eligible entity will implement research-
     based, demonstrably successful, and replicable instructional 
     practices that improve outcomes for children with 
     disabilities;
       ``(C) how the eligible entity will implement training and 
     collaborative opportunities on a schoolwide basis in schools 
     within the local educational agency;
       ``(D) the eligible entity's strategy to provide general 
     educators with--
       ``(i) professional development focused on addressing the 
     needs of children with disabilities in their classrooms; and
       ``(ii) training and opportunities to collaborate with 
     special education teachers and related services personnel to 
     better serve students' needs;
       ``(E) the eligible entity's strategy to provide principals, 
     superintendents, and other administrators with instructional 
     leadership skills;
       ``(F) how the eligible entity will provide training to 
     general educators to enable the general educators to work 
     with parents and involve parents in their child's education;
       ``(G) how the eligible entity will collaborate with the 
     State educational agency to ensure that proposed activities 
     will be coordinated with activities established by the State 
     to improve systems for personnel preparation and professional 
     development pursuant to subpart 1;
       ``(H) how the grant funds will be effectively coordinated 
     with all Federal, State, and local personnel preparation and 
     professional development funds and activities;
       ``(I) how the eligible entity will assess the impact of the 
     activities conducted and how the knowledge and effective 
     practices generated by the eligible entity will be widely 
     disseminated;
       ``(J) how the grant funds will be divided among the members 
     of the partnership and the responsibilities each partner has 
     agreed to undertake in the use of the grant funds and other 
     related funds; and
       ``(2) identify the lead fiscal agent for the eligible 
     entity.
       ``(e) Authorized Activities.--Funds provided under this 
     section may be used for the following activities:
       ``(1) To provide high quality professional development to 
     general educators that develops the knowledge and skills, and 
     enhances the ability, of general educators to--
       ``(A) utilize classroom-based techniques to identify 
     students who may be eligible for special education services, 
     and deliver instruction in a way that meets the 
     individualized needs of children with disabilities through 
     appropriate supports, accommodations, and curriculum 
     modifications;
       ``(B) work collaboratively with special education teachers 
     and related services personnel;
       ``(C) implement strategies, such as positive behavioral 
     interventions, to address the behavior of children with 
     disabilities that impedes the learning of such children and 
     others;
       ``(D) prepare children with disabilities to participate in 
     statewide assessments (with and without accommodations) and 
     alternative assessment, as appropriate, and achieve high 
     marks;
       ``(E) develop effective practices for ensuring that all 
     children with disabilities are a part of all accountability 
     systems under the Elementary and Secondary Education Act of 
     1965;
       ``(F) provide transition services to improve such services 
     and postsecondary opportunities for children with 
     disabilities;
       ``(G) work with and involve parents of children with 
     disabilities in their child's education;
       ``(H) understand how to effectively construct IEPs, 
     participate in IEP meetings and implement IEPs;
       ``(I) use universally designed technology and assistive 
     technology devices and services to enhance learning by 
     children with disabilities and to communicate with parents; 
     and
       ``(J) in the case of principals and superintendents, be 
     instructional leaders and promote improved collaboration 
     between general educators, special education teachers, and 
     related services personnel.
       ``(2) Provide release and planning time for the activities 
     described in this section.
       ``(f) Supplement, Not Supplant.--Funds provided under this 
     section shall be used to supplement, not supplant, other 
     Federal, State, and local funds available for training to 
     support general educators.
       ``(g) Evaluations.--
       ``(1) In general.--The Secretary shall conduct biennial, 
     independent, national evaluations of the activities assisted 
     under this section not later than 3 years after the date of 
     enactment of the Personnel Excellence for Students with 
     Disabilities Act. The evaluations shall include information 
     on the impact of the activities assisted under this section 
     on outcomes for children with disabilities.
       ``(2) Report.--The Secretary shall prepare and submit to 
     Congress a report on the evaluations.
       ``(3) Dissemination.--The Secretary shall provide for the 
     wide dissemination of effective models and practices 
     identified in the evaluations.
       ``(h) Authorization.--There are authorized to be 
     appropriated to carry out this section $20,000,000 for fiscal 
     year 2004 and such sums as may be necessary for each 
     succeeding fiscal year.''.

     SEC. 4. PERSONNEL PREPARATION TO IMPROVE SERVICES AND RESULTS 
                   FOR CHILDREN WITH DISABILITIES.

       Section 673 of the Individuals with Disabilities Education 
     Act (20 U.S.C. 1473) is amended--
       (1) in subsection (a)(1), by inserting before the semicolon 
     ``, consistent with subpart 1'';
       (2) in subsection (b)--
       (A) in paragraph (2)--
       (i) by amending subparagraph (C) to read as follows:
       ``(C) Preparing personnel in the innovative uses and 
     application of technology, including implementation of 
     universally designed technologies and assistive technology 
     devices and assistive technology services, to enhance 
     learning by children with disabilities through early 
     intervention, educational, and transitional services, and to 
     communicate with parents to improve home and school 
     communication.'';
       (ii) by redesignating subparagraphs (E) and (F) as 
     subparagraphs (F) and (G), respectively;
       (iii) by inserting after subparagraph (D) the following:
       ``(E) Preparing personnel to work in high need elementary 
     schools and secondary schools, including urban schools, rural 
     schools, and schools operated by an entity described in 
     section 7113(d)(1)(A)(ii) of the Elementary and Secondary 
     Education Act of 1965, and schools that serve high numbers or 
     percentages of limited English proficient children.''; and
       (iv) by adding at the end the following:
       ``(H) Providing continuous personnel preparation, training, 
     and professional development for beginning special education 
     teachers that is designed to provide support and ensure 
     retention of such teachers.
       ``(I) Preparing personnel on effective parental involvement 
     practices to enable the personnel to work with parents and 
     involve parents in the education of such parents' 
     children.''; and
       (B) by amending paragraph (4) to read as follows:
       ``(4) Selection of recipients.--In selecting recipients 
     under this subsection, the Secretary may give preference to 
     applications that include 1 or more of the following:
       ``(A) A proposal to prepare personnel in more than 1 low-
     incidence disability, such as deafness and blindness.
       ``(B) A demonstration of effective partnering with local 
     educational agencies that ensures recruitment and subsequent 
     retention of highly qualified personnel to serve children 
     with disabilities.
       ``(C) A proposal to address the personnel and professional 
     development needs in the State, as identified in subpart 
     1.'';
       (3) in subsection (d)(2)--
       (A) in subparagraph (C)--
       (i) in clause (i), by striking ``and'' after the semicolon;
       (ii) in clause (ii), by striking the period and inserting 
     ``; and''; and
       (iii) by adding at the end the following:

[[Page 5949]]

       ``(iii) to implement strategies to reduce significant 
     disproportionality described in section 618.'';
       (B) in subparagraph (E), by inserting before the period ``, 
     including model teaching practices to assist such persons to 
     work effectively with parents and involve parents in the 
     education of such parents' children''; and
       (C) by adding at the end the following:
       ``(L) Developing strategies to improve personnel training, 
     recruitment, and retention of special education teachers in 
     special education in high need elementary schools and 
     secondary schools, including urban schools, rural schools, 
     and schools operated by an entity described in section 
     7113(d)(1)(A)(ii) of the Elementary and Secondary Education 
     Act of 1965, and schools that serve high numbers of limited 
     English proficient children.'';
       (4) in subsection (e)(1), by inserting ``emotional or 
     behavioral disorders,'' after ``impairment,'';
       (5) in subsection (h)--
       (A) in paragraph (1)--
       (i) by striking ``2 years'' and inserting ``1 year''; and
       (ii) by striking ``Obligation.--'' and all that follows 
     through ``Each application'' and inserting ``Obligation.--
     Each application''; and
       (B) by striking paragraph (2);
       (6) by striking subsection (i) and inserting the following:
       ``(i) Scholarships.--
       ``(1) In general.--The Secretary may include funds for 
     scholarships, with necessary stipends and allowances, in 
     awards under subsections (b), (c), (d), and (e).
       ``(2) Determination of amounts.--The Secretary may permit a 
     grant recipient to determine the amount of funds available 
     for scholarships, necessary stipends, and allowances, that is 
     consistent with such recipient's grant award and the purposes 
     of such grant.'';
       (7) by redesignating subsection (j) as subsection (k);
       (8) by inserting after subsection (i) the following:
       ``(j) Development of New Programs or Restructuring of 
     Existing Programs.--In making awards under subsections (b), 
     (c), (d), and (e), the Secretary may support programs that 
     use award funds to develop new, or enhance and restructure 
     existing, personnel preparation programs.''; and
       (9) in subsection (k) (as redesignated by paragraph (7))--
       (A) by inserting ``$250,000,000 for fiscal year 2004 and'' 
     after ``this section''; and
       (B) by striking ``of the fiscal years 1998 through 2002'' 
     and inserting ``succeeding fiscal year''.
                                 ______
                                 
      By Mr. LEAHY (for himself, Mr. Levin, Mr. Lieberman, Mr. 
        Jeffords, and Mr. Byrd):
  S. 609. A bill to amend the Homeland Security Act of 2002 (Public Law 
107-296) to provide for the protection of voluntarily furnished 
confidential information, and for other purposes; to the Committee on 
the Judiciary.
  Mr. LEAHY. Mr. President, last year when I voted to support passage 
of the Homeland Security Act, HSA, I voiced concerns about several 
flaws in the legislation. I called for the Administration and my 
colleagues on both sides of the aisle to monitor implementation of the 
new law and to craft corrective legislation in the 108th Congress. One 
of my chief concerns with the HSA was a subtitle of the act that 
granted an extraordinarily broad exemption to the Freedom of 
Information Act, FOIA, in exchange for the cooperation of private 
companies in sharing information with the government regarding vulner-
abilities in the nation's critical infrastructure.
  Unfortunately, the law that was enacted undermines Federal and State 
sunshine laws permitting the American people to know what their 
government is doing. Rather than increasing security by encouraging 
private sector disclosure to the government, it guts FOIA at the 
expense of our national security and public health and safety.
  On March 16, we mark Freedom of Information Day, which falls on the 
anniversary of James Madison's birthday. Madison said, ``A popular 
government, without popular information, or the means of acquiring it, 
is but a prologue to a farce or tragedy or perhaps both.'' As a long-
time supporter of open government, I believe we must heed Madison's 
warning and revisit the potentially damaging limitations placed on 
access to information by the HSA.
  I rise today to introduce legislation with my distinguished 
colleagues Senator Levin, Senator Jeffords, Senator Lieberman, and 
Senator Byrd to restore the integrity of FOIA. I want to thank my 
colleagues for working with me on this important issue of public 
oversight. This bill protects Americans' ``right to know'' while 
simultaneously providing security to those in the private sector who 
voluntarily submit critical infrastructure records to the newly created 
Department of Homeland Security, DHS.
  Encouraging cooperation between the private sector and the government 
to keep our critical infrastructure systems safe from terrorist attacks 
is a goal we all support. But the appropriate way to meet this goal is 
a source of great debate--a debate that has been all but ignored since 
the enactment of the HSA last year.
  The HSA created a new FOIA exemption for ``critical infrastructure 
information.'' That broadly defined term applies to information 
regarding a variety of facilities--such as privately operated power 
plants, bridges, dams, ports, or chemical plants--that might be 
targeted for a terrorist attack. In HSA negotiations last fall, House 
Republicans and the administration promoted language that they 
described as necessary to encourage owners of such facilities to 
identify vulnerabilities in their operations and share that information 
with the Department of Homeland Security, DHS. The stated goal was to 
ensure that steps could be taken to ensure the facilities' protection 
and proper functioning.
  In fact, such descriptions of the legislation were disingenuous. 
These provisions, which were eventually enacted in the HSA, shield from 
FOIA almost any voluntarily submitted document stamped by the facility 
owner as ``critical infrastructure.'' This is true no matter how 
tangential the content of that document may be to the actual security 
of a facility. The law effectively allows companies to hide information 
about public health and safety from American citizens simply by 
submitting it to DHS. The enacted provisions were called ``deeply 
flawed'' by Mark Tapscott of the Heritage Foundation in a November 20, 
2002 Washington Post op-ed. ``Too Many Secrets,'' Washington Post, 
November 20, 2002, at A25. He argued that the ``loophole'' created by 
the law ``could be manipulated by clever corporate and government 
operators to hide endless varieties of potentially embarrassing and/or 
criminal information from public view.''
  In addition, under the HSA, disclosure by private facilities to DHS 
neither obligates the private company to address the vulnerability, nor 
requires DHS to fix the problem. For example, in the case of a chemical 
spill, the law bars the government from disclosing information without 
the written consent of the company that caused the pollution. As the 
Washington Post editorialized on February 10, 2003, ``A company might 
preempt environmental regulators by `voluntarily' divulging 
incriminating material, thereby making it unavailable to anyone else.'' 
``Fix This Loophole,'' Washington Post, February 10, 2003, at A20.
  The new law also 1. shields the companies from lawsuits to compel 
disclosure, 2. criminalizes otherwise legitimate whistleblower activity 
by DHS employees, and 3. preempts any state or local disclosure laws.
  The Restore FOIA bill I introduce today with Senators Levin, 
Jeffords, Lieberman, and Byrd is identical to language I negotiated 
with Senators Levin and Bennett last summer when the HSA was debated by 
the Governmental Affairs Committee. Senator Bennett stated in the 
Committee's July 25, 2003 mark up that the administration had endorsed 
the compromise. He also said that industry groups had reported to him 
that the compromise language would make it possible for them to share 
information with the government without fear of the information being 
released to competitors or to other agencies that might accidentally 
reveal it. The Governmental Affairs Committee reported out the 
compromise language that day. Unfortunately, much more restrictive 
House language was eventually signed into law.
  The February 10 Post editorial called the Leahy-Levin-Bennett 
language ``a compromise that would accomplish the reasonable purpose'' 
of ``encouraging companies to share information with the government 
about infrastructure that might be vulnerable to terrorist

[[Page 5950]]

attack without such broad harmful effects.'' Id. The Post editorial was 
titled, ``Fix This Loophole,'' which is exactly what my colleagues and 
I hope to accomplish with the introduction of this bill. Id.
  The Restore FOIA bill would correct the problems in the HSA in 
several ways. First, it limits the FOIA exemption to relevant 
``records'' submitted by the private sector, such that only those that 
actually pertain to critical infrastructure safety are protected. 
``Records'' is the standard category referred to in FOIA. This corrects 
the effective free pass given to industry by the HSA for any 
information it labels ``critical infrastructure.''
  Second, unlike the HSA, the Restore FOIA bill allows for government 
oversight, including the ability to use and share the records within 
and between agencies. It does not limit the use of such information by 
the government, except to prohibit public disclosure where such 
information is appropriately exempted under FOIA.
  Third, it protects the actions of legitimate whistleblowers, rather 
than criminalizing their acts.
  Fourth, it does not provide civil immunity to companies that 
voluntarily submit information. This corrects a flaw in the current 
law, which would prohibit such information from being used directly in 
civil suits by government or private parties.
  Fifth, unlike the HSA, the Restore FOIA bill allows local authorities 
to apply their own sunshine laws. The Restore FOIA bill does not 
preempt any state or local disclosure laws for information obtained 
outside the Department of Homeland Security. Likewise, it does not 
restrict the use of such information by state agencies.
  Finally, the Restore FOIA bill does not restrict congressional use or 
disclosure of voluntarily submitted critical infrastructure 
information. The HSA language was unclear on this point, and even the 
Congressional Research Service could not say for certain that members 
of Congress or their staff would not be criminally liable. Homeland 
Security Act of 2002: Critical Infrastructure Information Act, February 
29, 2003, CRS Report for Congress, Order Code RL31762, at 14-15.
  These changes to the HSA would accomplish the stated goals of the 
critical infrastructure provisions in the HSA without tying the hands 
of the government in its efforts to protect Americans and without 
cutting the public out of the loop.
  The Administration has flip-flopped on how to best approach the issue 
of critical infrastructure information. The Administration's original 
June 18, 2002, legislative proposal establishing a new department 
carved out an FOIA exemption, in section 204, and required non-
disclosure of any ``information'' ``voluntarily'' provided to the new 
Department of Homeland Security by ``non-Federal entities or 
individuals'' pertaining to ``infrastructure vulnerabilities or other 
vulnerabilities to terrorism'' in the possession of, or that passed 
through, the new department. Critical terms, such as ``voluntarily 
provided,'' were undefined.
  The Judiciary Committee had an opportunity to query Governor Ridge 
about the Administration's proposal on June 26, 2002, when the 
Administration reversed its long-standing position and allowed him to 
testify in his capacity as the Director of the Transition Planning 
Office.
  Governor Ridge's testimony at that hearing is instructive. He seemed 
to appreciate the concerns expressed by Members about the President's 
June 18 proposal and to be willing to work with us in the legislative 
process to find common ground. On the FOIA issue, he described the 
Administration's goal to craft ``a limited statutory exemption to the 
Freedom of Information Act'' to help ``the Department's most important 
missions [which] will be to protect our Nation's critical 
infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge 
explained that to accomplish this, the Department must be able to 
``collect information, identifying key assets and components of that 
infrastructure, evaluate vulner-
abilities, and match threat assessments against those 
vulnerabilities.'' (Id., at p. 23).
  I do not understand why some have insisted that FOIA and our national 
security are inconsistent. Before the HSA was enacted, the FOIA already 
exempted from disclosure matters that are classified; trade secret, 
commercial and financial information, which is privileged and 
confidential; various law enforcement records and information, 
including confidential source and informant information; and FBI 
records pertaining to foreign intelligence or counterintelligence, or 
international terrorism. These already broad exemptions in the FOIA 
were designed to protect national security and public safety and to 
ensure that the private sector can provide needed information to the 
government.
  Prior to enactment of the HSA, the FOIA exempted from disclosure any 
financial or commercial information provided voluntarily to the 
government, if it was of a kind that the provider would not customarily 
make available to the public. Critical Mass Energy Project v. NRC, 975 
F.2d 871 (D.C. Cir. 1992) (en banc). Such information enjoyed even 
stronger nondisclosure protections than did material that the 
government requested. Applying this exception, Federal regulatory 
agencies safeguarded the confidentiality of all kinds of critical 
infrastructure information, like nuclear power plant safety reports 
(Critical Mass, 975 F.2d at 874), information about product 
manufacturing processes and internal security measures (Bowen v. Food & 
Drug Admin., 925 F.2d 1225 (9th Cir. 1991), design drawings of airplane 
parts (United Technologies Corp. by Pratt & Whitney v. F.A.A., 102 F.3d 
688 (2d Cir. 1996)), and technical data for video conferencing software 
(Gilmore v. Dept. of Energy, 4 F. Supp. 2d 912 (N.D. Cal. 1998)).
  The head of the FBI National Infrastructure Protection Center, NIPC, 
testified more than five years ago, in September, 1998, that the ``FOIA 
excuse'' used by some in the private sector for failing to share 
information with the government was, in essence, baseless. He explained 
the broad application of FOIA exemptions to protect from disclosure 
information received in the context of a criminal investigation or a 
``national security intelligence'' investigation, including information 
submitted confidentially or even anonymously. [Sen. Judiciary 
Subcommittee on Technology, Terrorism, and Government Information, 
Hearing on Critical Infrastructure Protection: Toward a New Policy 
Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107]
  The FBI also used the confidential business record exemption under 
(b)(4) ``to protect sensitive corporate information, and has, on 
specific occasions, entered into agreements indicating that it would do 
so prospectively with reference to information yet to be received.'' 
NIPC was developing policies ``to grant owners of information certain 
opportunities to assist in the protection of the information (e.g., by 
`sanitizing the information themselves') and to be involved in 
decisions regarding further dissemination by the NIPC.'' Id. In short, 
the former Administration witness stated:

       Sharing between the private sector and the government 
     occasionally is hampered by a perception in the private 
     sector that the government cannot adequately protect private 
     sector information from disclosure under the Freedom of 
     Information Act, FOIA. The NIPC believes that this perception 
     is flawed in that both investigative and infrastructure 
     protection information submitted to NIPC are protected from 
     FOIA disclosure under current law. (Id.)

  Nevertheless, for more than five years, businesses continued to seek 
a broad FOIA exemption that also came with special legal protections to 
limit their civil and criminal liability. That business wish list was 
largely granted in the Homeland Security Act.
  At the Senate Judiciary Committee hearing with Governor Ridge, I 
expressed my concern that an overly broad FOIA exemption would 
encourage government complicity with private firms to keep secret 
information about critical infrastructure vulner-
abilities, reduce the incentive to fix the problems and end up hurting 
rather than helping our national security. In the end, more secrecy may 
undermine rather than foster security.
  Governor Ridge seemed to appreciate these risks, and said he was 
``anxious

[[Page 5951]]

to work with the Chairman and other members of the committee to assure 
that the concerns that [had been] raised are properly addressed.'' Id. 
at p. 24. He assured us that ``[t]his Administration is ready to work 
together with you in partnership to get the job done. This is our 
priority, and I believe it is yours as well.'' Id. at p. 25. This 
turned out to be an empty promise.
  Almost before the ink was dry on the Administration's earlier June 
proposal, on July 10, 2002, the Administration proposed to substitute a 
much broader FOIA exemption that would (1) exempt from disclosure under 
the FOIA critical infrastructure information voluntarily submitted to 
the new department that was designated as confidential by the submitter 
unless the submitter gave prior written consent, (2) provide limited 
civil immunity for use of the information in civil actions against the 
company, with the likely result that regulatory actions would be 
preceded by litigation by companies that submitted designated 
information to the department over whether the regulatory action was 
prompted by a confidential disclosure, (3) preempt state sunshine laws 
if the designated information is shared with state or local government 
agencies, (4) impose criminal penalties of up to one year imprisonment 
on government employees who disclosed the designated information, and 
(5) antitrust immunity for companies that joined together with agency 
components designated by the President to promote critical 
infrastructure security.
  Despite the Administration's promulgation of two separate proposals 
for a new FOIA exemption in as many weeks, in July, Director Ridge's 
Office of Homeland Security released The National Strategy for Homeland 
Security, which appeared to call for more study of the issue before 
legislating. Specifically, this report called upon the Attorney General 
to ``convene a panel to propose any legal changes necessary to enable 
sharing of essential homeland security information between the 
government and the private sector.'' (P. 33)
  The need for more study of the Administration's proposed new FOIA 
exemption was made amply clear by its possible adverse environmental, 
public health and safety affects. Keeping secret problems in a variety 
of critical infrastructures would simply remove public pressure to fix 
the problems. Moreover, several environmental groups pointed out that, 
under the Administration's proposal, companies could avoid enforcement 
action by ``voluntarily'' providing information about environmental 
violations to the EPA, which would then be unable to use the 
information to hold the company accountable and also would be required 
to keep the information confidential. It would bar the government from 
disclosing information about spills or other violations without the 
written consent of the company that caused the pollution.
  I worked on a bipartisan basis with many interested stakeholders from 
environmental, civil liberties, human rights, business and government 
watchdog groups to craft a compromise FOIA exemption that did not grant 
the business sector's wish-list but did provide additional 
nondisclosure protections for certain records without jeopardizing the 
public health and safety. At the request of Chairman Lieberman for the 
Judiciary Committee's views on the new department, I shared my concerns 
about the Administration's proposed FOIA exemption and then worked with 
Members of the Governmental Affairs Committee, in particular Senator 
Levin and Senator Bennett, to craft a more narrow and responsible 
exemption that accomplishes the Administration's goal of encouraging 
private companies to share records of critical infrastructure 
vulnerabilities with the new Department of Homeland Security without 
providing incentives to ``game'' the system of enforcement of 
environmental and other laws designed to protect our nation's public 
health and safety. We refined the FOIA exemption in a manner that 
satisfied the Administration's stated goal, while limiting the risks of 
abuse by private companies or government agencies.
  This compromise solution was supported by the Administration and 
other Members of the Committee on Governmental Affairs and was 
unanimously adopted by that Committee at the markup of the Homeland 
Security Department bill on July 25, 2002. The compromise which I now 
introduce as a free standing bill would exempt from the FOIA certain 
records pertaining to critical infrastructure threats and 
vulnerabilities that are furnished voluntarily to the new Department 
and designated by the provider as confidential and not customarily made 
available to the public. Notably, the compromise FOIA exemption made 
clear that the exemption only covered ``records'' from the private 
sector, not all ``information'' provided by the private sector and 
thereby avoided the adverse result of government agency-created and 
generated documents and databases being put off-limits to the FOIA 
simply if private sector ``information'' is incorporated. Moreover, the 
compromise FOIA exemption clearly defined what records may be 
considered ``furnished voluntarily,'' which did not cover records used 
``to satisfy any legal requirement or obligation to obtain any grant, 
permit, benefit (such as agency forbearance, loans, or reduction or 
modifications of agency penalties or rulings), or other approval from 
the Government.'' The FOIA compromise exemption further ensured that 
portions of records that are not covered by the exemption would be 
released pursuant to FOIA requests. This compromise did not provide any 
civil liability or antitrust immunity that could be used to immunize 
bad actors or frustrate regulatory enforcement action, nor did the 
compromise preempt state or local sunshine laws.
  Unfortunately, the version of the HSA that we enacted last November 
jettisoned the bipartisan compromise on the FOIA exemption, worked out 
in the Senate with the Administration's support, and replaced it with a 
big-business wish-list gussied up in security garb. The HSA's FOIA 
exemption makes off-limits to the FOIA much broader categories of 
``information'' and grants businesses the legal immunities and 
liability protections they have sought so vigorously for over five 
years. This law goes far beyond what is needed to achieve the laudable 
goal of encouraging private sector companies to help protect our 
critical infrastructure. Instead, it ties the hands of the federal 
regulators and law enforcement agencies working to protect the public 
from imminent threats. It gives a windfall to companies who fail to 
follow federal health and safety standards. Most disappointingly, it 
undermines the goals of openness in government that the FOIA was 
designed to achieve. In short, the FOIA exemption in the HSA represents 
the most severe weakening of the Freedom of Information Act in its 36-
year history.
  In the end, the broad secrecy protections provided to critical 
infrastructure information in this bill will promote more secrecy, 
which may undermine rather than foster national security. In addition, 
the immunity provisions in the bill will frustrate enforcement of the 
laws that protect the public's health and safety.
  Let me explain in greater detail. The FOIA exemption enacted in the 
HSA allows companies to stamp or designate certain information as 
critical infrastructure information, or ``CII,'' and then submit this 
information about their operations to the government either in writing 
or orally, and thereby obtain a blanket shield from FOIA's disclosure 
mandates as well as other protections. A Federal agency may not 
disclose or use voluntarily-submitted and CII-marked information, 
except for a limited ``informational purpose,'' such as ``analysis, 
warning, interdependency study, recovery, reconstitution,'' without the 
company's consent. Even when using the information to warn the public 
about potential threats to critical infrastructure, the bill requires 
agencies to take steps to protect from disclosure the source of the CII 
information and other ``business sensitive'' information.
  The law also contains an unprecedented provision that threatens jail 
time and job loss to any government

[[Page 5952]]

employee who happens to disclose any critical infrastructure 
information that a company has submitted and wants to keep secret. 
These penalties for using the CII information in an unauthorized 
fashion or for failing to take steps to protect disclosure of the 
source of the information are severe and will chill any release of CII 
information--not just when a FOIA request comes in, but in all 
situations, no matter the circumstance. Criminalizing disclosures not 
of classified information or national security related information, but 
of information that a company decides it does not want public--is an 
effective way to quash discussion and debate over many aspects of the 
government's work. In fact, under the HSA, CII information is granted 
more comprehensive protection under Federal criminal laws than 
classified information.
  This provision of the law has potentially disastrous consequences. If 
an agency is given information from an internet service provider, ISP, 
about cyberattack vulnerabilities, agency employees will have to think 
twice about sharing that information with other ISPs for fear that, 
without the consent of the ISP to use the information, even a warning 
might cost their jobs or risk criminal prosecution.
  This provision means that if a Federal regulatory agency needs to 
issue a regulation to protect the public from threats of harm, it 
cannot rely on any voluntarily submitted information--bringing the 
normal regulatory process to a grinding halt. Public health and law 
enforcement officials need the flexibility to decide how and when to 
warn or prepare the public in the safest, most effective manner. They 
should not have to get ``sign off'' from a Fortune 500 company to do 
so.
  While the HSA risks making it harder for the government to protect 
American families, it makes it much easier for companies to escape 
responsibility when they violate the law by giving them unprecedented 
immunity from civil and regulatory enforcement actions. Once a business 
declares that information about its practices relates to critical 
infrastructure and is ``voluntarily'' provided, it can then prevent the 
Federal Government from disclosing it not just to the public, but also 
to a court in a civil action. This means that an agency receiving CII-
marked submissions showing invasions of employee or customer privacy, 
environmental pollution, or government contracting fraud will be unable 
to use that information in a civil action to hold that company 
accountable. Even if the regulatory agency obtains the information 
necessary to bring an enforcement action from an alternative source, 
the company will be able to tie the government up in protracted 
litigation over the source of the information.
  For example, if a company submits information that its factory is 
leaching arsenic in ground water, that information may not be turned 
over to local health authorities to use in any enforcement proceeding 
nor turned over to neighbors who were harmed by drinking the water for 
use in a civil tort action. Moreover, even if EPA tries to bring an 
action to stop the company's wrongdoing, the ``use immunity'' provided 
in the HSA will tie the agency up in litigation making it prove where 
it got the information and whether it is tainted as ``fruit of the 
poisonous tree''--i.e., obtained from the company under the ``critical 
infrastructure program.''
  Similarly, if the new Department of Homeland Security receives 
information from a bio-medical laboratory about its security 
vulnerabilities, and anthrax is released from the lab three weeks 
later, the Department will not be able to warn the public promptly 
about how to protect itself without consulting with and trying to get 
the consent of the laboratory in order to avoid the risk of job loss or 
criminal prosecution for a non-consensual disclosure. Moreover, if the 
laboratory is violating any state, local or federal regulation in its 
handling of the anthrax, the Department will not be able to turn over 
to another Federal agency, such as the EPA or the Department of Health 
and Human Services, or to any State or local health officials, 
information or documents relating to the laboratory's mishandling of 
the anthrax for use in any enforcement proceedings against the 
laboratory, or in any wrongful death action, should the laboratory's 
mishandling of the anthrax result in the death of any person. The law 
specifically states that such CII-marked information ``shall not, 
without the written consent of the person or entity submitting such 
information, be used directly by such agency, any other Federal, State, 
or local authority, or any third party, in any civil action arising 
under Federal or State law if such information is submitted in good 
faith.'' [H.R. 5710, section 214(a)(1)(C)]
  Most businesses are good citizens and take seriously their 
obligations to the government and the public, but this ``disclose-and-
immunize'' provision is subject to abuse by those businesses that want 
to exploit legal technicalities to avoid regulatory guidelines. The HSA 
lays out the perfect blueprint to avoid legal liability: funnel 
damaging information into this voluntary disclosure system and pre-empt 
the government or others harmed by the company's actions from being 
able to use it against the company. This is not the kind of two-way 
public-private cooperation that our country needs.
  The scope of the information that is covered by the new HSA FOIA 
exemption is overly broad and undermines the openness in government 
that FOIA was intended to guarantee. Under this law, information about 
virtually every important sector of our economy that today the public 
has a right to see can be shut off from public view simply by labeling 
it ``critical infrastructure information.'' Prior to enactment of the 
HSA, under FOIA standards, courts had required federal agencies to 
disclose 1. pricing information in contract bids so citizens can make 
sure the government is wisely spending their taxpayer dollars; 2. 
compliance reports that allow constituents to insist that government 
contractors comply with federal equal opportunity mandates; and 3. 
banks' financial data so the public can ensure that federal agencies 
properly approve bank mergers. Without access to this kind of 
information, it will be harder for the public to hold its government 
accountable. Under the HSA, all of this information may be marked CII 
information and kept out of public view.
  The HSA FOIA exemption goes so far in exempting such a large amount 
of material from FOIA's disclosure requirements that it undermines 
government openness without making any real gains in safety for 
families in Vermont and across America. We do not keep America safer by 
chilling Federal officials from warning the public about threats to 
their health and safety. We do not ensure our nation's security by 
refusing to tell the American people whether or not their federal 
agencies are doing their jobs or their government is spending their 
hard earned tax dollars wisely. We do not encourage real two-way 
cooperation by giving companies protection from civil liability when 
they break the law. We do not respect the spirit of our democracy when 
we cloak in secrecy the workings of our government from the public we 
are elected to serve.
  The argument over the scope of the FOIA and unilateral executive 
power to shield matters from public scrutiny goes to the heart of our 
fundamental right to be an educated electorate aware of what our 
government is doing. The Rutland Herald got it right in a November 26, 
2002 editorial that explained: ``The battle was not over the right of 
the government to hold sensitive, classified information secret. The 
government has that right. Rather, the battle was over whether the 
government would be required to release anything it sought to 
withhold.''
  We need to fix this troubling restriction on public accountability. 
Exempting the new Department from laws that ensure responsibility to 
the Congress and to the American people makes for a tenuous start not 
the sure footing we all want for the success and endurance of this new 
Department. I urge my colleagues to support the Restoration of Freedom 
of Information Act of 2003.

[[Page 5953]]

  I ask unanimous consent to print the editorials I mentioned and 
several letters of support of the Restore FOIA bill in the Record.
  There being no objection, the additional material was ordered to be 
printed in the Record, as follows:

Restoration of Freedom of Information Act (``Restore FOIA'') Sectional 
                                Analysis

       Sec. 1. Short title. This section gives the bill the short 
     title, the ``Restoration of Freedom of Information Act''.
       Sec. 2. Protection of Voluntarily Furnished Confidential 
     Information. This section strikes subtitle B (secs. 211-215) 
     of the Homeland Security Act (``HSA'') (P.L. 107-296) and 
     inserts a new section 211.
       Sections to be repealed from the HSA: These sections 
     contain an exemption to the Freedom of Information Act (FOIA) 
     that (1) exempt from disclosure critical infrastructure 
     information voluntarily submitted to the new department that 
     was designated as confidential by the submitter unless the 
     submitter gave prior written consent; (2) provide civil 
     immunity for use of such information in civil actions against 
     the company; (3) preempt state sunshine laws if the 
     designated information is shared with state or local 
     government agencies; and (4) impose criminal penalties of up 
     to one year imprisonment on government employees who 
     disclosed the designated information.
       Provisions that would replace the repealed sections of the 
     HAS: The Restore FOIA bill inserts a new section 211 to the 
     HSA that would exempt from the FOIA certain records 
     pertaining to critical infrastructure threats and 
     vulnerabilities that are furnished voluntarily to the new 
     Department and designated by the provider as confidential and 
     not customarily made available to the public. Notably, the 
     Restore FOIA bill makes clear that the exemption covers 
     ``records'' from the private sector, not all ``information'' 
     provided by the private sector, as in the enacted version of 
     the HSA. The Restore FOIA bill ensures that portions of 
     records that are not covered by the exemption would be 
     released pursuant to FOIA requests. It does not provide any 
     civil liability immunity or preempt state or local sunshine 
     laws, and it does not criminalize whistleblower activity.
       Specifically, this section of the Restore FOIA bill 
     includes the following:
       A definition of ``critical infrastructure'': This term is 
     given the meaning adopted in section 1016(e) the USA Patriot 
     Act (42 U.S.C. 5195c(e)) which reads, ``critical 
     infrastructure means systems and assets, whether physical or 
     virtual, so vital to United States that the incapacity or 
     destruction of such systems and assets would have a 
     debilitating impact on security, national economic security, 
     national public health or safety, or any combination of those 
     matters.'' This definition is commonly understood to mean 
     facilities such as bridges, dams, ports, nuclear power 
     plants, or chemical plants.
       A definition of the term ``furnished voluntarily'': This 
     term signifies documents provided to the Department of 
     Homeland Security (DHS) that are not formally required by the 
     department and that are provided to it to satisfy any legal 
     requirement. The definition excludes any document that is 
     provided to DHS with a permit or grant application or to 
     obtain any other benefit from DHS, such as a loan, agency 
     forbearance, or modification of a penalty.
       An exemption from FOIA of records that pertain to 
     vulnerabilities of and threats to critical infrastructure 
     that are furnished voluntarily to DHS. This exemption is made 
     available where the provider of the record certifies that the 
     information is confidential and would not customarily be 
     released to the public.
       A requirement that other government agencies that have 
     obtained such records from DHS withhold disclosure of the 
     records and refer any FOIA requests to DHS for processing.
       A requirement that reasonably segregable portions of 
     requested documents be disclosed, as is well-established 
     under FOIA.
       An allowance to agencies that obtain critical 
     infrastructure records from a source other than DHS to 
     release requested records consistent with FOIA, regardless of 
     whether DHS has an identical record in its possession.
       An allowance to providers of critical infrastructure 
     records to withdraw the confidentiality designation of 
     records voluntarily submitted to DHS, thereby making the 
     records subject to disclosure under FOIA.
       A direction to the Secretary of Homeland Security to 
     establish procedures to receive, designate, store, and 
     protect the confidentiality of records voluntarily submitted 
     and certified as critical infrastructure records.
       A clarification that the bill would not preempt state or 
     local information disclosure laws.
       A requirement for the Comptroller General to report to the 
     House and Senate Judiciary Committees, the House Governmental 
     Reform Committee and the Senate Governmental Affairs 
     Committee the number of private entities and government 
     agencies that submit records to DHS under the terms of the 
     bill. The report would also include the number of requests 
     for access to records that were granted or denied. Finally, 
     the Comptroller General would make recommendations to the 
     committees for modifications or improvements to the 
     collection and analysis of critical infrastructure 
     information.
       Sec. 3. Technical and conforming amendment. This section 
     amends the table of contents of the Homeland Security Act.
                                  ____


               [From the Washington Post, Feb. 10, 2003]

                           Fix This Loophole

       The Homeland Security law enacted last year contains a 
     miserable provision that weakens important federal regulation 
     and public access to information. Congress should act soon to 
     repair the damage.
       The goal of the provision was reasonable enough: 
     encouraging companies to share information with the 
     government about infrastructure that might be vulnerable to 
     terrorist attack. Fearing public disclosure, companies have 
     been reluctant to share information on vulnerabilities at, 
     say, power plants or chemical factories. So under the law, 
     any such ``critical infrastructure'' information that 
     companies voluntarily provide to the government is exempted 
     from disclosure to the public, litigants and enforcement 
     agencies.
       But the law defines ``information'' so broadly that it will 
     cover, and thus keep secret, virtually anything a company 
     decides to fork over. A company might preempt environmental 
     regulators by ``voluntarily'' divulging incriminating 
     material, thereby making it unavailable to anyone else. 
     Unless regulators could show they had obtained the material 
     independently, it would be off limits to them. And the law 
     prescribes criminal penalties for whistle-blowers who make 
     such information public. The collective impact will be to put 
     in the hands of a regulated party the power, simply by 
     turning over information, to shield that information from 
     legitimate law enforcement purposes and from public 
     disclosure.
       Sens. Patrick J. Leahy (D-Vt.) and Robert F. Bennett (R-
     Utah) had negotiated a compromise that would accomplish the 
     reasonable purpose without such broad harmful effects. It 
     should be restored before the government finds its hands 
     tied--and the public finds itself out of the loop--on 
     important regulatory matters.
                                  ____


               [From the Washington Post, Nov. 20, 2002]

                            Too Many Secrets

                           (By Mark Tapscott)

       Why does the White House sometimes seem so determined to 
     close the door on the people's right to know what their 
     government is doing? Even some of us who admire the 
     leadership of President Bush in the war on terrorism would 
     like to know.
       Admittedly, insisting that the public's business be done in 
     public isn't a popular cause these days. Recent surveys show 
     that many Americans are willing to trade significant chunks 
     of their First Amendment rights for the promise of greater 
     security in the war on terrorism. Such surveys must gladden 
     the hearts of Bush administration officials who--presumably 
     unintentionally--undermine measures such as the Freedom of 
     Information Act (FOIA).
       Consider just three examples from the past year: Section 
     204 of the White House's original proposal to establish a 
     Department of Homeland Security, White House Chief of Staff 
     Andrew Card's March 2002 directive that agencies restrict 
     access to ``sensitive but unclassified'' information, and the 
     administration's claim of executive privilege to keep secret 
     information regarding President Clinton's infamous midnight 
     pardons.
       The administration's Section 204 proposal exempted from 
     FOIA disclosure any information ``provided voluntarily by 
     non-federal entities or individuals that relates to 
     infrastructure vulnerabilities or other vulnerabilities to 
     terrorism.'' One need not be a Harvard law graduate to see 
     that, without clarification of what constitutes such 
     vulnerabilities, this loophole could be manipulated by clever 
     corporate and government operators to hide endless varieties 
     of potentially embarrassing and/or criminal information from 
     public view.
       Subsequent negotiations in the Senate with the White House 
     resulted in compromise language that takes care of some of 
     the major problems, but in the rush to final passage, the 
     Senate has accepted the House version of the legislation, 
     which, being virtually identical to the administration's 
     original version, remains deeply flawed in this regard.
       The Card memo was issued when public anger over the Sept. 
     11, 2001, massacre was still intense. Despite the fact that 
     the memo failed to define what constitutes ``sensitive but 
     unclassified'' information, agencies responded by removing 
     thousands of previously public documents from FOIA 
     disclosure. The Pentagon, for example, estimated recently 
     that approximately 6,000 Defense Department documents were 
     removed from public view. Who now outside of government can 
     verify that any of those documents contained information that 
     could help terrorists?
       Few would argue that the Section 204 proposal and the Card 
     memo do not address legitimate national security needs in the 
     war against terrorism. But to date, nobody has produced a 
     single example of vital information that could not have been 
     properly exempted from disclosure under the current

[[Page 5954]]

     FOIA, which is backed by 25 years of detailed case law. 
     Instead, the administration offers vague language that 
     invites abuse.
       Finally, there are those pardons, which provoked a national 
     outcry when first reported. President Clinton had pardoned 
     140 people, including his Whitewater partner Susan McDougal, 
     his brother Roger (convicted on cocaine-related charges) and 
     international fugitive Marc Rich, wanted by the Justice 
     Department for allegedly conspiring with the Iranian 
     government in 1980 to buy 6 million barrels of oil, contrary 
     to a U.S. trade embargo.
       It is doubtful that the full facts behind the pardons will 
     ever be known as long as the administration refuses to 
     disclose nearly 4,000 pages related to the former president's 
     actions. The Bush administration has taken a similar position 
     on documents related to former attorney general Janet Reno's 
     controversial decision not to appoint a special counsel to 
     investigate possible Clinton administration campaign finance 
     illegalities.
       There was a time when at least one senior Bush 
     administration official thought the FOIA essential because 
     ``no matter what party has held the political power of 
     government, there have been attempts to cover up mistakes and 
     errors.'' That same official added that ``disclosure of 
     government information is particularly important today 
     because government is becoming involved in more and more 
     aspects of every citizen's personal and business life, and so 
     access to information about how government is exercising its 
     trust becomes increasingly important.''
       So spoke a young Illinois Republican congressman named 
     Donald Rumsfeld, in a floor speech on June 20, 1966, 
     advocating passage of the FOIA, of which he was a co-sponsor.
       The writer is director of the Heritage Foundation's Center 
     for Media and Public Policy.
                                  ____


 Fix the Critical Infrastructure Information Subtitle in the Homeland 
                          Security Act of 2002

       The undersigned organizations are concerned about the 
     current language for Critical Infrastructure Information in 
     the Homeland Security Act of 2002, which contains ambiguous 
     definitions that could unintentionally allow companies to 
     keep broad categories of information secret and provisions 
     that restrict the government's ability to use the 
     information. In order to better serve the goal of improving 
     public safety and security, we support efforts to fix the 
     Homeland Security Act by clarifying the scope of the 
     information protected and removing provisions that overly 
     restrict the government's ability to use the information.
       Senators Leahy (D-VT), Levin (D-MI), Jeffords (I-VT), 
     Lieberman (D-CT), and Byrd (D-WV) will soon introduce 
     legislation entitled the Restoration of Freedom of 
     Information Act of 2003 (``Restore FOIA'') addressing these 
     concerns, using bipartisan language developed last year by 
     the Senate Governmental Affairs Committee. The Restore FOIA 
     solution would:
       Clarify the FOIA exemption to be more consistent with 
     established law.
       Remove the restrictions on the government's ability to act 
     as it sees fit in response to the information it receives.
       Preserve whistleblower protections by removing unnecessary 
     criminal penalties.
       The information provisions currently within the Homeland 
     Security Act of 2002 do not accomplish the goal of the law--
     empowering the government to protect citizens using private-
     sector information which is ``voluntarily'' shared and 
     identifies potential vulnerabilities to terrorist attacks. 
     The current language could have devastating effects on the 
     work of the government to protect public health, safety and 
     security, as well as government accountability. It is 
     essential that these problems in the Homeland Security Act be 
     fixed immediately before they become too firmly entrenched in 
     the law.
       Jean AbiNader, Managing Director, Arab American Institute.
       Prudence S. Adler, Associate Executive Director, 
     Association of Research Libraries.
       Steven Aftergood, Project Director, Federation of American 
     Scientists.
       Gary Bass, Executive Director, OMB Watch.
       Jeremiah Baumann, Director, Toxics Right to Know Campaign, 
     U.S. Public Interest Research Group.
       Ruth Berlin, Executive Director, MD Pesticide Network.
       Lynne Bradley, Director, Government Relations, American 
     Library Association.
       Danielle Brian, Executive Director, Project on Government 
     Oversight.
       Sandy Buchanan, Executive Director, Ohio Citizen Action.
       Jeanne Butterfield, Executive Director, American 
     Immigration Lawyers Association.
       Alyssondra Campaigne, Legislative Director, Natural 
     Resources Defense Council.
       Kevin S. Curtis, Vice President, Government Affairs, 
     National Environmental Trust.
       Lucy Dalglish, Executive Director, Reporters Committee for 
     Freedom of the Press.
       Charles N. Davis, Executive Director, Freedom of 
     Information Center, University of Missouri School of 
     Journalism.
       Tom Devine, Legal Director, Government Accountability 
     Project.
       Rick Engler, Director, New Jersey Work Environment Council.
       Jason Erb, Director, Governmental Relations, Council on 
     American-Islamic Relations.
       Darryl Fagin, Legislative Director, Americans for 
     Democratic Action.
       Margaret Fung, Executive Director, Asian American Legal 
     Defense and Education Fund.
       Vickie Goodwin, Organizer, Powder River Basin Resource 
     Council.
       Evan Hendricks, Editor/Publisher, Privacy Times.
       Rick Hind, Legislative Director, Greenpeace.
       Khalil Jahshan, Director of Government Affairs, American-
     Arab Anti-Discrimination Committee.
       Susan E. Kegley, Staff Scientist/Program Coordinator, 
     Pesticide Action Network, North America.
       Robert Leger, President, Society of Professional 
     Journalists.
       Dave LeGrande, Director, Occupational Safety & Health, CWA/
     AFL-CIO.
       Sanford Lewis, Director, Strategic Counsel on Corporate 
     Accountability.
       Conrad Martin, Executive Director, Fund for Constitutional 
     Government.
       Alexandra McPherson, Director, Clean Production Action.
       Dena Mottola, Acting Director, New Jersey Public Interest 
     Research Group.
       Laura W. Murphy, Director, Washington National Office, 
     American Civil Liberties Union.
       Ralph G. Neas, President, People for the American Way.
       Robert Oakley, Washington Affairs Representative, American 
     Association of Law Libraries.
       Paul Orum, Director, Working Group on Community Right-to-
     Know.
       Deborah Pierce, Executive Director, Privacy Activism.
       Chellie Pingree, President and CEO, Common Cause.
       Ari Schwartz, Associate Director, Center for Democracy and 
     Technology.
       Debbie Sease, Legislative Director, Sierra Club.
       Bob Shavelson, Executive Director, Cook Inlet Keeper.
       Peggy M. Shepard, Executive Director, West Harlem 
     Environmental Action.
       Ted Smith, Executive Director, Silicon Valley Toxics 
     Coalition.
       David Sobel, General Counsel, Electronic Privacy 
     Information Center.
       Ed Spar, Executive Director, Council on Professional 
     Association of Federal Statistics.
       Vivian Stockman, Communications Coordinator, Ohio Valley 
     Environmental Coalition.
       Daniel Swartz, Executive Director, Children's Environmental 
     Health Network.
       Lee Tien, Senior Staff Attorney, Electronic Frontier 
     Foundation.
       Elizabeth Thompson, Legislative Director, Environmental 
     Defense.
       Sara Zdeb, Legislative Director, Friends of the Earth.
                                  ____

                                                   March 12, 2003.
     Hon. Susan Collins,
     Chair, Senate Committee on Governmental Affairs, U.S. Senate, 
         Dirksen Senate Office Building, Washington, DC.
     Hon. Orrin Hatch,
     Chair, Senate Committee on the Judiciary, U.S. Senate, 
         Dirksen Senate Office Building, Washington, DC.
     Hon. Joseph Lieberman,
     Ranking Member, Senate Committee on Governmental Affairs, 
         U.S. Senate, Hart Senate Office Building, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Senate Committee on the Judiciary, U.S. 
         Senate, Dirksen Senate Office Building, Washington, DC.
       Dear Senators Collins, Hatch, Lieberman, and Leahy: The 
     Homeland Security Act of 2002 was a very important 
     legislative accomplishment that responded to new challenges 
     facing our country.
       On the path to passage of the Act, however, certain 
     sections, particularly Section 214, dealing with Critical 
     Infrastructure Information, left a number of journalistic 
     organizations concerned that broad categories of 
     information--particularly information that relates to the 
     public's health and safety--would unnecessarily be shielded 
     from public view.
       Thus, we support efforts to clarify the language in favor 
     of essential openness, which, in fact, will also resolve 
     potential barriers that restrict the government's own use of 
     information provided by companies. The ``Restoration of 
     Freedom of Information Act of 2003'' would substitute 
     bipartisan language developed last year by the Senate 
     Government Affair Committee for that which was enacted into 
     law. This bill would:
       Clarify the FOIA exemption to be more consistent with 
     established law, while still protecting records on critical 
     infrastructure vulnerabilities submitted to the Department of 
     Homeland Security by private firms.
       Remove the restrictions on the government's ability to act 
     as it sees fit in response to the information it receives.
       Preserve whistleblower protections by removing unnecessary 
     criminal penalties.

[[Page 5955]]

       It is important for both citizens and the government 
     process that these changes in law are made quickly.
       Thank you for your consideration.
           Sincerely,
         American Society of Magazine Editors; American Society of 
           Newspaper Editors; Associated Press Managing Editors; 
           Freedom of Information Center, University of Missouri 
           School of Journalism; Magazine Publishers of America; 
           National Federation of Press Women; National Newspaper 
           Association; National Press Club; Newsletter & 
           Electronic Publishers Association; Newspaper 
           Association of America; Radio-Television News Directors 
           Association; Reporters Committee for Freedom of the 
           Press; Society of Professional Journalists.
                                  ____


                            Let Freedom Ring

                        (By Maurice J. Freedman)

       What if you want to find out if toxic chemicals are buried 
     under your child's schoolyard? How could you tell if your 
     veterans' benefits hinged on proving you were exposed to 
     biohazards during a top-secret mission? Or perhaps a 
     candidate for your city council wants to better understand 
     formerly classified plans for emergency evacuation.
       These days, it's possible, with considerable patience, 
     determination, and a few clicks of a mouse, to file a request 
     for answers to questions like these and a broad range of 
     government information that are critical to our lives, work, 
     health and well being.
       But like registering to vote, in some places and for some 
     people, this precious freedom hasn't always been so easy to 
     exercise.
       The main tool for such fact-finding, the Freedom of 
     Information Act, known as FOIA, which we honor each year on 
     the anniversary of James Madison's birthday, was first 
     enacted on July 4, 1966. Before that, any-one who wanted to 
     get records from the federal government had to establish his 
     or her legal right to examine those records. That was 
     expensive, time-consuming and a barrier for countless 
     legitimate requests for information on issues from whether 
     the nuclear reactor downwind had a record of safety 
     violations to how the Nixon administration tried to deport 
     John Lennon as detailed in his FBI files.
       With FOIA, the burden shifted to government agencies, 
     requiring them to meet these requests unless they fell within 
     a handful of specific national security exemptions. Indeed, 
     since then, any decision by an agency to withhold a document 
     could be challenged in federal court.
       From John Lennon's or Rev. Dr. Martin Luther King Jr.'s FBI 
     files to record of debates on whether to use nuclear weapons 
     in Vietnam, FOIA requests now run the gamut of what we need 
     to know about what our government is doing with our tax 
     dollars in our name. Whether it's internal NASA memos about 
     space shuttle safety or exchanges among federal officials 
     about Japanese internment camps during World War II, our 
     right to know about the deliberations and actions of our 
     federal government is a cornerstone of American democracy.
       In 1974, in reaction to Watergate, Congress moved to 
     strengthen FOIA. Unwilling to let our country be run more 
     like a closed corporation than an open, democratic society, 
     this change allowed courts to order the release of documents, 
     even when the President said they couldn't be made public.
       Our system of representative democracy depends on the free 
     flow of information produced, collected and published by our 
     government and available to the public so we can participate 
     as an informed electorate.
       Since the early 19th century, libraries have served as 
     depositories for the written record of our nation's 
     development and gateways to the decisions of its leaders, 
     thus assuring public access to government information. Today, 
     21st-century librarians are committed to ensuring the 
     public's right to know is protected in the electronic age. As 
     organizers, navigators and providers of government 
     information that serves the public, we help file FOIA 
     requests and otherwise support freedom of information @ your 
     library.
       Many Americans depend on access to information collected, 
     organized and disseminated by the federal government--from 
     farmers and health care professionals, to journalists and 
     veterans, community interest groups to local and state 
     government officials, and indeed, all voters.
       Americans come to libraries to find Census and other 
     statistics; to help plan new business and marketing 
     strategies; to research environmental issues and hazards, 
     laws and regulations; and to learn about job opportunities 
     from government and other employment lists.
       The ongoing transition to predominantly electronic 
     transmission of federal information offers both promise and 
     problems for the public in this realm. Information that is 
     only in electronic form quickly appears on--and as quickly 
     disappears from--Web sites. There is often no one charged 
     with capturing, preserving or making electronic data 
     available to future generations, as well as those, who for a 
     variety of reasons, cannot access or work with electronic 
     information.
       True national security is built on a vibrant democracy and 
     a well-informed citizenry, not a culture of secrecy. Said 
     James Madison, on whose birthday we make Freedom of 
     Information Day, ``Knowledge will forever govern ignorance, 
     and a people who mean to be their own governors must arm 
     themselves with the power which knowledge gives.'' Although 
     he wrote in response to abuses by Britain's King George III, 
     his warnings ring equally true today.
       Every country has hospitals, police and schools. But only 
     free countries allow the free flow of ideas. Free libraries 
     are the hub of public access to government information. 
     Challenges to an informed citizenry range from the complexity 
     and inequality in information technology to illiteracy, 
     limited information literacy skills and unequal access to 
     education and information resources.
       Thankful for our freedoms, we must do our best as we 
     prepare to fight halfway around the world to ensure that we 
     continue to guard with unrelating vigilance the right to know 
     here at home.

  Mr. LEVIN. Mr. President, today I join with Senators Leahy, Byrd, 
Jeffords, and Lieberman to introduce the Restore Freedom of Information 
Act, Restore FOIA, that will provide the public with access to 
information, while at the same time ensuring that information 
voluntarily submitted to the government by companies is not improperly 
disclosed. In order to ensure public access and limit improper 
disclosure, we need to reexamine some aspects of the Homeland Security 
Act, HSA, which was rushed through Congress last year, dropping several 
carefully-crafted, bipartisan measures which had been adopted by the 
Senate Governmental Affairs Committee, along the way. Dropping those 
measures left ambiguities in the law that need to be clarified, and 
today's bill is an attempt to make those clarifications and address 
certain problems that could otherwise result.
  The issue this bill addresses is public access to information in the 
possession of the Homeland Security Department. Although some seem to 
want to shroud all homeland security efforts in secrecy, as Judge Damon 
Keith, writing for the U.S. Sixth Circuit of Appeals, recently warned 
``Democracies die behind closed doors.'' The principles of open 
government and the public's right to know are cornerstones of our 
democracy. We cannot sacrifice those principles in the name of 
protecting them.
  One of the reasons that I voted against the Homeland Security Act 
last year was because the final bill dropped a bipartisan provision, 
passed by the Senate Governmental Affairs Committee, clarifying how the 
new Department of Homeland Security, DHS, should comply with the 
Freedom of Information Act, FOIA. The final bill substituted a poorly 
drafted provision that could inappropriately close the door on persons 
seeking unclassified information from the Department related to 
critical infrastructure.
  What is critical infrastructure? Critical infrastructure is the 
backbone that holds our country together and makes it work--our roads, 
computer grids, telephones, pipelines, water treatment plants, 
utilities, and other facilities essential to a fully functioning 
Nation. It so happens that, in the United States, much of our critical 
infrastructure is controlled by private entities, often privately owned 
or publicly traded corporations. To strengthen existing protections for 
these facilities, the Federal Government asked the companies that own 
them to submit unclassified information about their facilities to 
assist the government in evaluating them, identifying possible 
problems, and designing stronger protections from terrorist attack, 
natural disasters, or other threats to homeland security.
  Some companies asked to voluntarily submit this information feared 
that it might be improperly disclosed, and sought a new exemption from 
the Federal Freedom of Information Act, FOIA, to prohibit disclosure of 
so-called ``critical infrastructure information.'' Reporters, public 
interest groups, and others feared that, if this FOIA exemption were 
granted, companies could send important environmental and safety 
information to DHS under the general heading of ``critical 
infrastructure information'' and thereby put this information out of 
the public's reach. To bring these sides together, last July, Senators 
Bennett, Leahy and I worked out a bipartisan

[[Page 5956]]

FOIA compromise that codified existing case law with regard to 
companies voluntarily submitting information. At the Senate 
Governmental Affairs Committee mark-up of the homeland security 
legislation, Senator Bennett said that the Administration supported our 
compromise, but the language was ultimately dropped from the final 
Homeland Security Act. As a result, the media, public interest groups, 
and others continue to fear that companies may be hiding important 
health and safety information that has long been public and should be 
public behind the mask of ``critical infrastructure.''
  To rectify this situation, today we are introducing a bill that would 
change the existing HSA language in several important ways. First, our 
bill defines the key term, ``critical infrastructure,'' in a more 
focused way than the overly broad language in the HSA. To do that, our 
bill draws from language in existing case law, that has already been 
tested by the courts. The existing HSA language, it interpreted 
broadly, could expand the prohibition on disclosing critical 
infrastructure information to include virtually every aspect of a 
company's operations, denying public access to a great deal of health 
and safety information that the public has a right to know. If this 
expansive interpretation was not the intent of the bill's drafters, 
then they should be willing to accept our court-tested language.
  A second important change that our bill would make in the existing 
HSA involves the issue of civil immunity for companies that violate the 
law. As currently worded, the HSA seems to suggest that companies which 
voluntarily submit to DHS critical infrastructure information 
indicating that the company is in violation of public health or safety 
regulations may gain protection from legal action in court to halt or 
penalize this wrongdoing, even if the information shows that the 
company is acting negligently. For example, the current HSA provisions 
could lead to the disturbing situation where DHS learns, through a 
critical infrastructure submission, that a company is leaking polluted 
sludge into a nearby waterway in violation of environmental 
restrictions, but is barred from going to court to stop the pollution 
because the law appears to prohibit the agency's use of the critical 
infrastructure information in a civil action. Our bill would eliminate 
the possibility that the HSA would provide companies with civil 
immunity under these circumstances.
  A third key problem with the existing HSA language is that it 
includes a provision that could send a Federal whistleblower who 
discloses critical infrastructure information, even to an appropriate 
authority, to prison. The language is clear that if a DHS employee 
discloses unclassified critical infrastructure information, even when 
acting as a whistleblower who reveals the information to Congress in an 
act of conscience or patriotism, that whistleblower could wind up in 
jail. My colleague, Senator Leahy, describes a whistleblower who works 
at the FAA who blew the whistle on government collusion to coverup 
failures by airlines to meet tests on airline preparedness. That 
whistleblower could have ended up in jail had he blown the whistle 
under today's law. A year in jail is quite a deterrent for a Federal 
employee who is thinking about blowing the whistle, and we have never 
before threatened Federal whistleblowers with jail terms. It is a bad 
idea, and it is counterproductive to homeland safety.
  There are other troubling provisions in the current HSA law as well, 
equally detrimental to the public's right to know. For example, the HSA 
exempts all communication of critical infrastructure information from 
the open meeting and other sunshine requirements of the Federal 
Advisory Committee Act, and places critical infrastructure information 
outside restrictions on ex parte contacts. The HSA also pre-empts state 
and local sunshine laws, an undue intrusion on the power of the States. 
The bill we are introducing today would strike all of these unnecessary 
provisions, and create in their stead a narrow FOIA exemption that 
balances the prohibition against improper disclosures of critical 
infrastructure information with the public's right to know.
  Finally, I would like to include in the Record two examples of 
situations that could occur under the language in the HSA but would not 
occur under our bill. These disturbing examples were provided by Dr. 
Rena Steinzor, Professor at the University of Maryland School of Law, 
on behalf of the center for Progressive Regulation.
  Case Study Number 1 is the following:
  A large Midwest utility decides to replace an old coal burning 
electric generation unit with a new one. The new unit, much larger than 
the first, will produce significantly greater air pollution emissions. 
The company could mitigate these increases by installing additional 
pollution control equipment, but decides it does not wish to incur the 
expense. It begins construction and simultaneously reports its plans to 
the DHS as ``critical infrastructure information,'' so Federal security 
experts will know about its increased capacity to generate electricity.
  A Department of Homeland Security employee, visiting the plant to 
consult on government purchases of power during emergency situations, 
notices readings on internal gauges reflecting the dramatically 
increased emissions. She telephones EPA to report the situation. EPA 
issues a Notice of Violation to the company, and threatens to bring an 
action for civil penalties, but is instructed to desist by DHS 
officials who inform EPA that the HSA prohibits disclosing the 
information provided to the agency in court and that DHS wants to list 
the company as an emergency supplier capable of providing expanded 
electricity production in an upcoming report to Congress. EPA drops its 
enforcement action, and the DHS employee not only loses her job but 
also is prosecuted criminally.
  Case Study Number 2 is the following:
  Lobbyists representing companies that provide goods and services to 
the Department of Homeland Security routinely submit materials 
describing their companies' products in glowing terms. They arrange 
repeated trips for government purchasing agents to exotic locations 
under the guise of briefing them regarding the technical aspects of the 
products. All of this information is designated as critical 
infrastructure by the companies, and is therefore protected from 
disclosure and oversight by the media or possibly even individual 
members of Congress who could see the information but not reveal it.
  The Homeland Security Act was never intended to protect polluters or 
special interests from public scrutiny. But as these examples 
demonstrate, that is exactly what could happen if the current, vague 
language in the law is not corrected. The bill we are introducing today 
would make the needed corrections.
  On January 17, 2003 at his confirmation hearing before the 
Governmental Affairs Committee, I questioned Governor Ridge about these 
problems with the current wording of the Homeland Security Act. I asked 
him whether the HSA could have the unintended consequences of providing 
protections for wrongdoing while impeding access to necessary 
information to protect public health and safety. Governor Ridge 
replied: ``[T]hat certainly wasn't the intent, I am sure, of those who 
advocated the Freedom of Information Act exemption, to give wrongdoers 
protection or to protect illegal activity, and I will certainly work 
with you to clarify that language.'' If that was not the intent, then 
let us fix the vague, and potentially dangerous provisions that are in 
this bill.
  I would also note, for the record, that many organizations have 
endorsed our bill including the following:
  American Association of Law Libraries, American Civil Liberties 
Union, American Immigration Lawyers Association, American Library 
Association, American-Arab Anti-Discrimination Committee, Americans for 
Democratic Action, American Society of Magazine Editors, American 
Society of Newspaper Editors, Arab American Institute, Asian American 
Legal Defense

[[Page 5957]]

and Education Fund, Associated Press Managing Editors, Association of 
Research Libraries, Center for Democracy and Technology, Children's 
Environmental Health Network, Clean Production Network, Common Cause, 
Communications Workers of America, Cook Inlet Keeper, Council on 
American-Islamic Relations, Council on Professional Association of 
Federal Statistics, Electronic Frontier Foundation, Electronic Privacy 
Information Center, Environmental Defense, Federation of American 
Scientists, Freedom of Information Center, Friends of the Earth, Fund 
for Constitutional Government, Government Accountability Project, 
Greenpeace, Magazine Publishers of America, Maryland Pesticide Network, 
National Federation of Press Women, National Newspaper Association, 
National Press Club, Natural Resources Defense Council, New Jersey Work 
Environment Council, Newsletter & Electronic Publishers Association, 
Newspaper Association of America, Ohio Valley Environmental Coalition, 
OMB Watch, Pesticide Action Network, North America Powder River Basin 
Resource Council, Privacy Activism, Privacy Times, Project on 
Government Oversight, Radio-Television News Directors Association, 
Reporters Committee for Freedom of the Press, Sierra Club, Silicon 
Valley Toxics Coalition, Society of Professional Journalists, Strategic 
Counsel on Corporate Accountability, U.S. Public Interest Research 
Group, University of Missouri School of Journalism, West Harlem 
Environmental Action Working Group on Community Right-to-Know.

                          ____________________