[Congressional Record (Bound Edition), Volume 150 (2004), Part 13]
[Senate]
[Pages 18117-18127]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Ms. COLLINS:
  S. 2792. A bill to permit athletes to receive nonimmigrant status 
under certain conditions, and for other purposes; to the Committee on 
the Judiciary.
  Ms. COLLINS. Mr. President, I rise today to introduce legislation to 
address the inability of promising, talented young athletes from other 
countries to play for sports teams in the United States, such as the 
MAINEiacs, a junior league hockey team in Lewiston, ME. This year's 
shortage of H-2B nonimmigrant visas for temporary or seasonal 
nonagricultural foreign workers is a matter of great concern to me and 
to many in my home State of Maine. In early March, the U.S. Citizenship 
and Immigration Services announced that the congressionally mandated 
cap of 66,000 H-2B visas would soon be met. It immediately stopped 
accepting applications for these visas. This meant that thousands of 
employers in Maine and across the United States who rely on the H-2B 
program have been in a very difficult position this summer.
  For example, Maine's tourism and hospitality industry, as well as its 
forest products industry, have been particularly hard-pressed to find 
enough American workers to keep their businesses running at normal 
levels during what is their busiest time of year. What many people do 
not know, however, is that the H-2B visa shortage has also meant that 
hundreds of promising athletes have been unable to come to the United 
States to play for minor league and amateur sports teams across the 
Nation.
  Those affected by the H-2B problem are not confined to just one 
industry or one State. That is why I cosponsored two pieces of 
legislation that would immediately address this problem: S. 2252, the 
Save the Summer Act, introduced by Senator Kennedy, and S. 2258, the 
Summer Operations and Services (SOS) Relief and Reform Act, introduced 
by Senators Hatch and Chambliss. The former would increase the H-2B 
visa cap by 40,000 this fiscal year, while the latter would exclude 
from the cap returning foreign workers who were counted against the cap 
within the past 2 years. It has become clear, however, that until this 
legislation comes before the full Senate for a vote, we must continue 
to actively seek alternative solutions to this problem.
  One issue we must address is the problem facing the many minor league 
professional teams, as well as junior league hockey teams, that rely on 
H-2B visas. Without these visas, sports teams in Maine and across the 
Nation have been unable to bring some of their most talented prospects 
to the United States. Major League sports have also lost a traditional 
source of talent for their teams.
  In my home State of Maine, for example, the Lewiston MAINEiacs, a 
Canadian junior hockey league team, has been unable to obtain the H-2b 
visas

[[Page 18118]]

necessary for the majority of its players to remain in the United 
States to play in the team's first home games this September. Although 
these players range in age from 16 to 20, the majority of them are 
between 16 and 18 years old and are required during the hockey season 
to balance the demands of athletics and academics. These scholar-
athletes are among Canada's most talented junior players, but due to 
the shortage of H-2B visas, they are in danger of missing out on a 
tremendous opportunity to improve their skills and, possibly, graduate 
to a career in professional hockey. In addition, for each home game 
that the team must cancel or reschedule, the economic impact on the 
city of Lewiston, and nearby Auburn, in terms of lost hotel and 
restaurant revenue will be considerable.
  The Portland Sea Dogs, a Double-A level baseball team affiliated with 
the Boston Red Sox, also relies on H-2B visas to bring several of its 
most skilled players to the United States. Thousands of fans come out 
each year to see this team, and others like it across the country, play 
what is arguably one of America's favorite sports. This year, however, 
approximately 300 talented young, foreign baseball players have been 
prevented from coming to the U.S. to play for minor league teams, a 
proving ground for athletes hoping to make it to the Major Leagues.
  The P-1 nonimmigrant visa is used by athletes who are deemed by the 
U.S. Citizenship and Immigration Services as performing at an 
``internationally recognized level of performance.'' Unfortunately, 
USCIS has interpreted this visa category to exclude these talented 
minor and amateur league athletes. This visa is typically reserved for 
only those athletes who have already been promoted to Major League 
sports. However, none of these promising athletes is likely to earn a 
Major League contract if the players are not first permitted to hone 
their skills, and to prove themselves, in the minor leagues. This 
problem can easily be solved by expanding the P-1 visa category to 
include minor league athletes, as well as those amateur-level athletes, 
like the Lewiston MAINEiacs, who have demonstrated a significant 
likelihood of graduating to the major leagues.
  I have received a letter from officials from Major League Baseball, 
which strongly supports the expansion of the P-1 visa category to 
include professional minor league baseball players. I ask unanimous 
consent to print this letter in the Record. As the League points out, 
by making P-1 visas available to this group of athletes, teams would be 
able to make player development decisions based on the talent of its 
players, without being constrained by visa quotas. The P-1 category, 
the League argues, is appropriate for minor league players because 
these are the players that the Major League Clubs have selected as some 
of the best baseball prospects in the world.
  There is no question that Americans are passionate about sports. We 
have high expectations for our teams, and demand only the best from our 
athletes. By expanding the P-1 visa category, we will make it possible 
for athletes to be selected based on talent and skill, rather than 
nationality. I ask that we act quickly to amend the law to make this 
possible.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                            Major League Baseball,


                                   Office of the Commissioner,

                                                    July 22, 2004.
     Re Legislation for Nonimmigrant Alien Status for Certain 
         Athletes.

     Hon. Susan M. Collins,
     U.S. Senator from Maine, Russell Senate Office Building, 
         Washington, DC.
       Dear Senator Collins: I write to express Major League 
     Baseball's support for your efforts on behalf of Minor League 
     professional baseball players. We understand that you are 
     considering sponsoring legislation that will enable Minor 
     League players to obtain P-1 work visas to perform in the 
     United States.
       Currently, foreign players under Minor League contracts are 
     required to obtain H-2B (temporary worker) work visas to 
     perform in the United States. The United States Citizenship 
     and Immigration Services stopped accepting H-2B visa 
     applications in March this year, citing the nationwide cap in 
     the number of such visas that can be issued. That action has 
     prevented approximately 300 young baseball players from 
     performing in the Minor Leagues in the United States this 
     season and developing their skills in the hopes of becoming 
     Major League players.
       Minor League experience is crucial in developing the best 
     possible Major League players. Unlike other professional 
     athletes, baseball players almost invariably cannot go 
     directly from high school or college to the Major Leagues. 
     Almost all need substantial experience in the Minor Leagues 
     to develop their talents and skills to Major League quality. 
     To get that necessary experience, young players are signed by 
     Major League Clubs and assigned to play for Minor League 
     affiliates throughout the United States, such as the Eastern 
     League's Portland Sea Dogs in your state.
       The Major League Clubs are currently able to use only 81% 
     of the H-2B visas the Department of Labor allowed them for 
     this season, because current laws prevented them from making 
     decisions in the late spring and throughout the summer to 
     promote foreign prospects to United States affiliates. Major 
     League Clubs sign players from the Dominican Republic and 
     Venezuela and assign them at first to affiliates in those 
     countries, then seek to promote them to affiliates in the 
     United States as players' skills progress. Typically, a Club 
     would seek to promote 3-5 players per season to Minor League 
     affiliates in the United States, but the visa restrictions 
     this year have made those promotions impossible. We have 
     learned that at least several Clubs shied away from drafting 
     foreign (mostly Canadian) players whom they otherwise might 
     have selected in the annual First-Year Player Draft in June, 
     because those Clubs knew there would be no opportunity for 
     those players to begin their professional careers in the 
     United States this season. For the Canadian players who were 
     drafted this past June, signings have declined 80% from 2003. 
     These results of the current visa laws have deprived Minor 
     League fans across America from seeing the best young players 
     possible perform for affiliates of the Major League Baseball 
     Clubs and have affected the quality and attractiveness of 
     those affiliates.
       Under your leadership, congressional legislation could, by 
     sensibly making available P-1 visas to professional Minor 
     League athletes, ensure that the best baseball prospects from 
     around the world will get the opportunity to develop here in 
     the United States, without the constraint that the H-2B visa 
     cap imposes. The National Association of Professional 
     Baseball Leagues, Inc., also known as Minor League Baseball, 
     shares our support of your legislation. The Major League 
     Baseball Players Association also supports allowing the best 
     young players to develop here in the United States.
       Major League Baseball hopes that your Senate colleagues 
     will follow your leadership and pursue a legislative remedy 
     to a problem that is threatening to weaken Baseball's Minor 
     League system.
           Sincerely,

                                          Richard L. Alderson,

                                         Executive Vice President,
                                              Baseball Operations.
                                 ______
                                 
      By Mr. SANTORUM:
  S. 2793. A bill to remove civil liability barriers that discourage 
the donation of fire equipment to volunteer fire companies; to the 
Committee on the Judiciary.
  Mr. SANTORUM. Mr. President, I rise today to introduce the ``Good 
Samaritan Volunteer Firefighter Assistance Act of 2004.'' On September 
11, 2001, the Nation witnessed the tragic loss of hundreds of heroic 
firefighters. Amazingly, every year quality firefighting equipment 
worth millions of dollars is wasted. In order to avoid civil liability 
lawsuits, heavy industry and wealthier fire departments destroy surplus 
equipment, including hoses, fire trucks, protective gear and breathing 
apparatus, instead of donating it to volunteer fire departments.
  The basic purpose of this legislation is to induce donations of 
surplus firefighting equipment by reducing the threat of civil 
liability for organizations, most commonly heavy industry, and 
individuals who wish to make these donations. The bill eliminates civil 
liability barriers to donations of surplus firefighting equipment by 
raising the liability standard for donors from ``negligence'' to 
``gross negligence.''
  The ``Good Samaritan Volunteer Firefighter Assistance Act of 2004'' 
is modeled after a bill passed by the Texas State legislature in 1997 
and signed into law by then-Governor George W. Bush which has resulted 
in more than $6 million in additional equipment donations from 
companies and other fire departments for volunteer departments which 
may not be as well equipped. Now companies in Texas can donate surplus 
equipment to the Texas Forest Service, which then certifies the 
equipment and passes it on to

[[Page 18119]]

volunteer fire departments that are in need. The donated equipment must 
meet all original specifications before it can be sent to volunteer 
departments. Arizona, Missouri, Indiana, and South Carolina have passed 
similar legislation at the state level.
  The legislation saves taxpayer dollars by encouraging donations, 
thereby reducing the taxpayers' burden of purchasing expensive 
equipment for volunteer fire departments. in the 107th Congress, 
Representative Castle introduced the Good Samaritan Volunteer 
Firefighter Assistance Act which had 104 bipartisan cosponsors in the 
House of Representatives. It is also supported by the National 
Volunteer Fire Council, the Firemen's Association of the State of New 
York, and a former director of the Federal Emergency Management Agency 
(FEMA), James Lee Witt. The bill has been reintroduced as H.R. 1787 in 
the 108th Congress.
  This bill does not cost taxpayer dollars nor does it create 
additional bureaucracies to inspect equipment. The bill eliminates 
unnecessary inspection bureaucracies. This is for three reasons. First, 
bureaucracies are not necessary for inspections because the fire chiefs 
make the inspections themselves. Second, some of the State 
bureaucracies control who gets the equipment. These donations are 
private property transactions, not a good that is donated to the State, 
allowing the State to pick who will get the equipment. Third, there is 
no desire to create the temptation for waste, fraud, and abuse in a 
State bureaucracy in charge of picking winners and losers.
  The bill reflects the purpose of the Texas State law. Federally, 
precedent for similar measures includes the Bill Emerson Good Samaritan 
Food Act (Public Law 104-210), named for the late Representative Bill 
Emerson, which encourages restaurants, hotels and businesses to donate 
millions of dollars worth of food. The Volunteer Protection Act of 1997 
(Public Law 105-101) also immunizes individuals who do volunteer work 
for non-profit organizations or governmental entities from liability 
for ordinary negligence in the course of their volunteer work. I have 
also previously introduced three Good Samaritan measures in the 106th 
Congress, S. 843, S. 844 and S. 845. These provisions were also 
included in a broader charitable package in S. 997, the Charity 
Empowerment Act, to provide additional incentives for corporate in-kind 
charitable contributions for motor vehicle, aircraft, and facility use. 
The same provision passed the House of Representatives in the 107th 
Congress as part of H.R. 7, the Community Solutions Act, in July of 
2001, but was not signed into law.
  Volunteers comprise approximately 73 percent of firefighters in the 
United States. Of the total estimated 1,078,300 firefighters across the 
country, 784,700 are volunteer. Of the more than 30,000 fire 
departments in the country, approximately 22,600 are all volunteer; 
4,800 are mostly volunteer; 1,600 are mostly career; and 2,000 are all 
career. In 2000, 58 of the 103 firefighters who died in the line of 
duty were volunteers.
  This legislation provides a commonsense incentive for additional 
contributions to volunteer fire departments around the country and 
would make it more attractive for corporations to give equipment to 
fire departments in other states. All of America has witnessed the 
heroic acts of selflessness and sacrifice of firefighters in New York 
City and in the Washington, D.C. area. I urge my colleagues to join me 
in supporting this incentive for the provision of additional safety 
equipment for volunteer firefighters who put their lives on the line 
every day throughout this great nation.
                                 ______
                                 
      By Mr. KENNEDY (for himself, Mr. Dodd, Mr. Harkin, Ms. Mikulski, 
        Mr. Bingaman, Mrs. Murray, Mr. Reed, and Mrs. Clinton):
  S. 2794. A bill to improve elementary and secondary education; to the 
Committee on Health, Education, Labor, and Pensions.
  Mr. KENNEDY. Mr. President, I'm pleased to join my colleagues to 
introduce the No Child Left Behind Improvement Act. Our goal is to 
chart a better course for bringing the reforms under the law to all 
students across the country.
  I was proud to stand with President Bush in January 2002 as he signed 
the No Child Left Behind Act into law. At that time, Republicans and 
Democrats came together to recognize the need to create a strong 
education system where every child attends a good school with a good 
teacher. Together, we recognized the importance of achieving that goal 
for the future of our democracy, economy, and national defense.
  In drafting the No Child Left Behind Act in a bipartisan manner, we 
made great progress from the days when Democrats and Republicans were 
light years apart on school reform, with some trying to abolish the 
U.S. Department of Education and privatize our public schools.
  No Child Left Behind made improving our public schools a national 
priority. It laid the cornerstone for a solid accountability system in 
every State. It called for high academic standards in reading, math, 
and science, and high-quality tests to measure progress toward those 
standards. For the first time, it placed our low-income children, 
children with disabilities, minority children, and English language 
learners at the top of the school reform agenda. No longer would their 
needs be hidden, overlooked, or ignored.
  It also provided the building blocks for quality in all schools. A 
fully-qualified teacher in every classroom and better teacher training 
to make it happen. More after-school tutoring and supplemental services 
to help students with the greatest needs. Special programs for English 
language learners. Expanded support for reading in early grades. School 
report cards to provide information to parents and motivate them to be 
part of their children's education.
  No Child Left Behind promised a great deal to our students and to 
their families. It's still the right promise. But it hasn't been kept.
  Since the law passed, the country has seen the promise of funding No 
Child Left Behind flagrantly broken by the Bush administration, time 
and time again. President Bush proposed to cut funding for the law by 
$90 million just 1 month after signing the bill. His next education 
budget cut funding by far more--$1.2 billion.
  Today, he's leaving 4.6 million children behind, and he's 
underfunding the law by $9.4 billion. At the same time, President Bush 
proposes to give tax breaks for the top 1 percent of Americans that 
total five times the funds promised but never delivered under the No 
Child Left Behind Act.
  Despite these broken promises, our schools are trying to do their 
part. They've been asked to help all students reach proficiency, and 
they are responding. Teachers and other school professionals are 
beginning the hard work of tackling disparities in student achievement, 
and putting into place the curriculum needed to turn-around thousands 
of schools that have been identified as needing improvement.
  School leaders are struggling to respond to the challenges of 
providing more highly qualified teachers, supplemental services, and 
after-school programs in school districts. They're laboring hard in 
their work to implement the No Child Left Behind Act and bring the 
promise of true reform to more children and their parents.
  The work of school reform is not easy, and schools are struggling to 
succeed under No Child Left Behind. But on top of the broken promise to 
provide schools the resources they need to get the job done right, the 
administration has undermined the efforts of schools to comply with the 
law, and crippled reforms through its ineffective implementation 
effort.
  Since No Child Left Behind passed, the Department of Education's 
track record in issuing basic guidance under the law been mired in 
delay. Final accountability guidelines for children with special needs 
and limited English proficient children were announced 2 years after 
the law was enacted, and long after the law's accountability 
requirements were already in place for schools.

[[Page 18120]]

  The administration has abandoned requirements to measure adequately 
the progress of English language learners in a valid and reliable way. 
They've suggested to States that they don't have to bother to develop 
native language assessments, and they've done nothing to help improve 
assessments for children with disabilities.
  They've ignored standards for supplemental service providers, and 
failed to enforce the civil rights protections that are so essential to 
providing all children fair access to such services. Families are 
relying on tutoring and extra support to help their children. But the 
administration's guidance actually prohibits States from requiring high 
standards for that supplemental support. A highly qualified teacher in 
every classroom is good policy. Why shouldn't the same apply for 
supplemental services?
  The administration's ham-handed implementation of public school 
choice has ignored questions of capacity in school districts with 
overcrowded classrooms.
  And their weakened regulations undermine protections against high 
dropout rates--especially for low-income and minority students. Without 
information and reporting of those rates for each subgroup of children, 
the public won't have a complete picture of how children are 
succeeding.
  It's time for the administration to correct these problems and do 
their part to improve implementation of the No Child Left Behind Act.
  The bill that I'm introducing today gets these reforms on track. It 
will help keep the promise of public school choice, promote quality and 
access in supplemental services, provide for better assessments for 
children, and ensure better reporting by schools and states of 
graduation and dropout rates so that children don't fall through the 
cracks.
  It's important to acknowledge what this bill does not do. It does not 
make fundamental changes to the requirements under No Child Left 
Behind. Those reforms are essential to improving our public schools. 
Every child deserves a chance to learn in a good school, and that 
chance depends on whether we succeed in implementing the law.
  The No Child Left Behind Improvement Act will ensure that school 
districts consider health and safety codes as they draw up their plans 
for providing public school choice to students, consistent with the 
law. In order to ensure that public school choice actually helps 
children succeed educationally, we must provide an environment that is 
safe and conducive to their learning--not overcrowded.
  It will provide better access to quality supplemental services for 
eligible students, and ensure full enforcement of civil rights 
protections under those provisions. The administration's policy of 
relaxed enforcement in this area allows some private providers off-the-
hook from serving children that need the most help. That's wrong.
  All students should have a fair chance to choose a supplemental 
service provider that meets their needs. Limited English proficient 
children and children with disabilities are often those students that 
need the most extra help and assistance in our public schools, and this 
bill would ensure that each State select some providers with the skills 
to serve those populations.
  This bill will also better enable teachers and para-professionals to 
meet the required standards for teacher quality under the law. A highly 
qualified teacher is the single most important factor in improving 
student achievement, and the No Child Left Behind Act requires that 
every classroom have a qualified teacher by 2006.
  We must provide for a system that ensures all teachers have the 
opportunity to meet that goal. The No Child Left Behind Act includes an 
alternate standard for veteran teachers to demonstrate their competence 
and be counted as highly qualified in the subject matter that they 
teach. This bill ensures that every State develop and implement that 
standard under the law, and that every state provide para-professionals 
with the opportunities provided under No Child Left Behind to 
demonstrate their competence.
  Fifteen States have not yet developed or applied standards for 
veteran teachers. We must do better especially for the 67 percent of 
all public school teachers that have been teaching for more than 5 
years.
  And finally, for No Child Left Behind's accountability provisions to 
be useful, they must be accurate. We need accurate determinations of 
whether schools are making progress.
  The Department's delay in issuing adequate accountability rules for 
counting children with disabilities and limited English proficient 
children has created unnecessary confusion, caused a potential 
mislabeling of schools, and misdirected resources from the schools and 
students who actually need them. The Department should apply those 
regulations retroactively, so that schools may be judged on the same 
standards for the past year as they will be in the future, not by 
different criteria for different years. In June, I introduced a bill--
The No Child Left Behind Fairness Act--to accomplish that goal. The 
bill that I'm introducing today also includes those requirements.
  We're at an important crossroads in reforming our public schools. 
Schools are hurting, crippled by shrinking budgets and a broken promise 
of funding under the law. The ineffective track record of this 
administration in implementing No Child Left Behind largely has 
contributed to their problems and frustrations.
  We must do better. Turning our back on the reforms in the No Child 
Left Behind Act is no solution. Neither is turning our back on public 
education. I urge my colleagues to act to ensure that the promise of 
the essential reforms under No Child Left Behind are realized. Our 
students and families deserve no less.
  I 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. 2794

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``No Child Left Behind 
     Improvement Act of 2004''.

 TITLE I--PUBLIC SCHOOL CHOICE, SUPPLEMENTAL EDUCATIONAL SERVICES, AND 
                            TEACHER QUALITY

     SEC. 101. PUBLIC SCHOOL CHOICE CAPACITY.

       (a) School Capacity.--Section 1116(b)(1)(E) of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6316(b)) is amended--
       (1) in clause (i), by striking ``In the case'' and 
     inserting ``Subject to clauses (ii) and (iii), in the case'';
       (2) by redesignating clause (ii) as clause (iii);
       (3) by inserting after clause (i) the following:
       ``(ii) School capacity.--The obligation of a local 
     educational agency to provide the option to transfer to 
     students under clause (i) is subject to all applicable State 
     and local health and safety code requirements regarding 
     facility capacity.''; and
       (4) in clause (iii) (as redesignated by paragraph (2)), by 
     inserting ``and subject to clause (ii),'' after ``public 
     school,''.
       (b) Grants for School Construction and Renovation.--Subpart 
     1 of part A of title I of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6311 et seq.) is amended by 
     adding at the end the following:

     ``SEC. 1120C. GRANTS FOR SCHOOL CONSTRUCTION AND RENOVATION.

       ``(a) Program Authorized.--From funds appropriated under 
     subsection (g), the Secretary is authorized to award grants 
     to local educational agencies experiencing overcrowding in 
     the schools served by the local educational agencies, for the 
     construction and renovation of safe, healthy, high-
     performance school buildings.
       ``(b) Application.--Each local educational agency desiring 
     a grant under this section shall submit an application to the 
     Secretary at such time, in such manner, and accompanied by 
     such additional information as the Secretary may require.
       ``(c) Priority.--In awarding grants under this section, the 
     Secretary shall give priority to local educational agencies--
       ``(1) who have documented difficulties in meeting the 
     public school choice requirements of paragraph (1)(E), 
     (5)(A), (7)(C)(i), or (8)(A)(i) of section 1116(b), or 
     section 1116(c)(10)(C)(vii); and
       ``(2) with the highest number of schools at or above 
     capacity.
       ``(d) Award Basis.--From funds remaining after awarding 
     grants under subsection (c), the Secretary shall award grants 
     to local

[[Page 18121]]

     educational agencies that are experiencing overcrowding in 
     the schools served by the local educational agencies.
       ``(e) Prevailing Wages.--Any laborer or mechanic employed 
     by any contractor or subcontractor in the performance of work 
     on any construction funded by a grant awarded under this 
     section will be paid wages at rates not less than those 
     prevailing on similar construction in the locality as 
     determined by the Secretary of Labor under subchapter IV of 
     chapter 31 of title 40, United States Code (commonly referred 
     to as the Davis-Bacon Act).
       ``(f) Definitions.--In this section:
       ``(1) At or above capacity.--The term `at or above 
     capacity', in reference to a school, means a school in which 
     1 additional student would increase the average class size of 
     the school above the average class size of all schools in the 
     State in which the school is located.
       ``(2) Healthy, high-performance school building.--The term 
     `healthy, high-performance school building' has the meaning 
     given such term in section 5586.
       ``(g) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section 
     $250,000,000 for fiscal year 2005, and such sums as may be 
     necessary for each of the 2 succeeding fiscal years.''.

     SEC. 102. SUPPLEMENTAL EDUCATIONAL SERVICES.

       Section 1116(e) of the Elementary and Secondary Education 
     Act of 1965 (20 U.S.C. 6316(e)) is amended--
       (1) in paragraph (4)--
       (A) in subparagraph (B), by striking the semicolon and 
     inserting ``, including criteria that--
       ``(i) ensure that personnel delivering supplemental 
     educational services to students have adequate 
     qualifications; and
       ``(ii) may, at the State's discretion, ensure that 
     personnel delivering supplemental educational services to 
     students are teachers that are highly qualified, as such term 
     is defined in section 9101;'';
       (B) in subparagraph (D), by striking ``and'' after the 
     semicolon;
       (C) in subparagraph (E), by striking the period and 
     inserting ``; and''; and
       (D) by adding at the end the following:
       ``(F) ensure that the list of approved providers of 
     supplemental educational services described in subparagraph 
     (C) includes a choice of providers that have sufficient 
     capacity to provide effective services for children who are 
     limited English proficient and children with disabilities.'';
       (2) in paragraph (5)(C)--
       (A) by striking ``applicable''; and
       (B) by inserting before the period ``, and acknowledge in 
     writing that, as an approved provider in the relevant State 
     educational agency program of providing supplemental 
     educational services, the provider is deemed to be a 
     recipient of Federal financial assistance'';
       (3) by redesignating paragraphs (6), (7), (8), (9), (10), 
     (11), and (12) as paragraphs (7), (8), (9), (10), (11), (12), 
     and (13), respectively;
       (4) by inserting after paragraph (5) the following:
       ``(6) Rule of construction.--Nothing in this section shall 
     be construed to prohibit a local educational agency from 
     being considered by a State educational agency as a potential 
     provider of supplemental educational services under this 
     subsection, if such local educational agency meets the 
     criteria adopted by the State educational agency in 
     accordance with paragraph (5).'';
       (5) in paragraph (13) (as redesignated by paragraph (3))--
       (A) in subparagraph (B)--
       (i) in clause (ii), by striking ``and'' after the 
     semicolon;
       (ii) in clause (iii), by striking ``and'' after the 
     semicolon; and
       (iii) by adding at the end the following:
       ``(iv) may employ teachers who are highly qualified as such 
     term is defined in section 9101; and
       ``(v) pursuant to its inclusion on the relevant State 
     educational agency's list described in paragraph (4)(C), is 
     deemed to be a recipient of Federal financial assistance; 
     and''; and
       (B) in subparagraph (C)--
       (i) in the matter preceding subclause (i), by striking 
     ``are'';
       (ii) in subclause (i)--

       (I) by inserting ``are'' before ``in addition''; and
       (II) by striking ``and'' after the semicolon;

       (iii) in subclause (ii), by striking the period and 
     inserting ``; and''; and
       (iv) by adding at the end the following:
       ``(iii) if provided by providers that are included on the 
     relevant State educational agency's list described in 
     paragraph (4)(C), shall be deemed to be programs or 
     activities of the relevant State educational agency.''; and
       (6) by adding at the end the following:
       ``(14) Civil rights.--In providing supplemental educational 
     services under this subsection, no State educational agency 
     or local educational agency may, directly or through 
     contractual, licensing, or other arrangements with a provider 
     of supplemental educational services, engage in any form of 
     discrimination prohibited by--
       ``(A) title VI of the Civil Rights Act of 1964;
       ``(B) title IX of the Education Amendments of 1972;
       ``(C) section 504 of the Rehabilitation Act of 1973;
       ``(D) titles II and III of the Americans with Disabilities 
     Act;
       ``(E) the Age Discrimination Act of 1975;
       ``(F) regulations promulgated under the authority of the 
     laws listed in subparagraphs (A) through (E); or
       ``(G) other Federal civil rights laws.''.

     SEC. 103. QUALIFICATIONS FOR TEACHERS AND PARAPROFESSIONALS.

       (a) High Objective Uniform State Standard of Evaluation.--
     Section 1119 of the Elementary and Secondary Education Act of 
     1965 (20 U.S.C. 6319) is amended--
       (1) in subsection (a)(2)--
       (A) by redesignating subparagraphs (A) through (C) as 
     clauses (i) through (iii), respectively, and indenting as 
     appropriate;
       (B) by striking ``(2) State plan.--As part'' and inserting 
     the following:
       ``(2) State plan.--
       ``(A) In general.--As part''; and
       (C) by adding at the end the following:
       ``(B) Availability of state standards.--Each State 
     educational agency shall make available to teachers in the 
     State the high objective uniform State standard of 
     evaluation, as described in section 9101(23)(C)(ii), for the 
     purpose of meeting the teacher qualification requirements 
     established under this section.'';
       (2) by redesignating subsections (e), (f), (g), (h), (i), 
     (j), (k), and (l) as subsections (f), (g), (h), (i), (j), 
     (k), (l), and (m), respectively;
       (3) by inserting after subsection (d) the following:
       ``(e) State Responsibilities.--Each State educational 
     agency shall ensure that local educational agencies in the 
     State make available all options described in subparagraphs 
     (A) through (C) of subsection (c)(1) to each new or existing 
     paraprofessional for the purpose of demonstrating the 
     qualifications of the paraprofessional, consistent with the 
     requirements of this section.''; and
       (4) in subsection (l) (as redesignated in paragraph (2)), 
     by striking ``subsection (l)'' and inserting ``subsection 
     (m)''.
       (b) Definition of Highly Qualified Teachers.--Section 
     9101(23)(B)(ii) is amended--
       (1) in subclause (I), by striking ``or'' after the 
     semicolon;
       (2) in subclause (II), by striking ``and'' after the 
     semicolon; and
       (3) by adding at the end the following:

       ``(III) in the case of a middle school teacher, passing a 
     State-approved middle school generalist exam when the teacher 
     receives a license to teach middle school in the State;
       ``(IV) obtaining a State middle school or secondary school 
     social studies certificate that qualifies the teacher to 
     teach history, geography, economics, civics, and government 
     in middle schools or in secondary schools, respectively, in 
     the State; or
       ``(V) obtaining a State middle school or secondary school 
     science certificate that qualifies the teacher to teach earth 
     science, biology, chemistry, and physics in middle schools or 
     secondary schools, respectively, in the State; and''.

           TITLE II--ADEQUATE YEARLY PROGRESS DETERMINATIONS

     SEC. 201. REVIEW OF ADEQUATE YEARLY PROGRESS DETERMINATIONS 
                   FOR SCHOOLS FOR THE 2002-2003 SCHOOL YEAR.

       (a) In General.--The Secretary shall require each local 
     educational agency to provide each school served by the 
     agency with an opportunity to request a review of a 
     determination by the agency that the school did not make 
     adequate yearly progress for the 2002-2003 school year.
       (b) Final Determination.--Not later than 30 days after 
     receipt of a request by a school for a review under this 
     section, a local educational agency shall issue and make 
     publicly available a final determination on whether the 
     school made adequate yearly progress for the 2002-2003 school 
     year.
       (c) Evidence.--In conducting a review under this section, a 
     local educational agency shall--
       (1) allow the principal of the school involved to submit 
     evidence on whether the school made adequate yearly progress 
     for the 2002-2003 school year; and
       (2) consider that evidence before making a final 
     determination under subsection (b).
       (d) Standard of Review.--In conducting a review under this 
     section, a local educational agency shall revise, consistent 
     with the applicable State plan under section 1111 of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6311), the local educational agency's original determination 
     that a school did not make adequate yearly progress for the 
     2002-2003 school year if the agency finds that the school 
     made such progress, taking into consideration--
       (1) the amendments made to part 200 of title 34, Code of 
     Federal Regulations (68 Fed. Reg. 68698) (relating to 
     accountability for the academic achievement of students with 
     the most significant cognitive disabilities); or
       (2) any regulation or guidance that, subsequent to the date 
     of such original determination, was issued by the Secretary 
     relating to--
       (A) the assessment of limited English proficient children;
       (B) the inclusion of limited English proficient children as 
     part of the subgroup described in section 
     1111(b)(2)(C)(v)(II)(dd) of

[[Page 18122]]

     the Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6311(b)(2)(C)(v)(II)(dd)) after such children have obtained 
     English proficiency; or
       (C) any requirement under section 1111(b)(2)(I)(ii) of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6311(b)(2)(I)(ii)).
       (e) Effect of Revised Determination.--
       (1) In general.--If pursuant to a review under this section 
     a local educational agency determines that a school made 
     adequate yearly progress for the 2002-2003 school year, upon 
     such determination--
       (A) any action by the Secretary, the State educational 
     agency, or the local educational agency that was taken 
     because of a prior determination that the school did not make 
     such progress shall be terminated; and
       (B) any obligations or actions required of the local 
     educational agency or the school because of the prior 
     determination shall cease to be required.
       (2) Exceptions.--Notwithstanding paragraph (1), a 
     determination under this section shall not affect any 
     obligation or action required of a local educational agency 
     or school under the following:
       (A) Section 1116(b)(13) of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6316(b)(13)) (requiring a 
     local educational agency to continue to permit a child who 
     transferred to another school under such section to remain in 
     that school until completion of the highest grade in the 
     school).
       (B) Section 1116(e)(9) of the Elementary and Secondary 
     Education Act of 1965 (as redesignated by section 102(3)) (20 
     U.S.C. 6316(e)(9)) (requiring a local educational agency to 
     continue to provide supplemental educational services under 
     such section until the end of the school year).
       (3) Subsequent determinations.--In determining whether a 
     school is subject to school improvement, corrective action, 
     or restructuring as a result of not making adequate yearly 
     progress, the Secretary, a State educational agency, or a 
     local educational agency may not take into account a 
     determination that the school did not make adequate yearly 
     progress for the 2002-2003 school year if such determination 
     was revised under this section and the school received a 
     final determination of having made adequate yearly progress 
     for the 2002-2003 school year.
       (f) Notification.--The Secretary--
       (1) shall require each State educational agency to notify 
     each school served by the agency of the school's ability to 
     request a review under this section; and
       (2) not later than 30 days after the date of the enactment 
     of this section, shall notify the public by means of the 
     Department of Education's website of the review process 
     established under this section.

     SEC. 202. REVIEW OF ADEQUATE YEARLY PROGRESS DETERMINATIONS 
                   FOR LOCAL EDUCATIONAL AGENCIES FOR THE 2002-
                   2003 SCHOOL YEAR.

       (a) In General.--The Secretary shall require each State 
     educational agency to provide each local educational agency 
     in the State with an opportunity to request a review of a 
     determination by the State educational agency that the local 
     educational agency did not make adequate yearly progress for 
     the 2002-2003 school year.
       (b) Application of Certain Provisions.--Except as 
     inconsistent with, or inapplicable to, this section, the 
     provisions of section 201 shall apply to review by a State 
     educational agency of a determination described in subsection 
     (a) in the same manner and to the same extent as such 
     provisions apply to review by a local educational agency of a 
     determination described in section 201(a).

     SEC. 203. DEFINITIONS.

       In this title:
       (1) The term ``adequate yearly progress'' has the meaning 
     given to that term in section 1111(b)(2)(C) of the Elementary 
     and Secondary Education Act of 1965 (20 U.S.C. 
     6311(b)(2)(C)).
       (2) The term ``local educational agency'' means a local 
     educational agency (as that term is defined in section 9101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 7801)) receiving funds under part A of title I of such 
     Act (20 U.S.C. 6311 et seq.).
       (3) The term ``Secretary'' means the Secretary of 
     Education.
       (4) The term ``school'' means an elementary school or a 
     secondary school (as those terms are defined in section 9101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 7801)) served under part A of title I of such Act (20 
     U.S.C. 6311 et seq.).
       (5) The term ``State educational agency'' means a State 
     educational agency (as that term is defined in section 9101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 7801)) receiving funds under part A of title I of such 
     Act (20 U.S.C. 6311 et seq.).

           TITLE III--IMPROVING ASSESSMENT AND ACCOUNTABILITY

     SEC. 301. GRANTS FOR INCREASING DATA CAPACITY FOR PURPOSES OF 
                   ASSESSMENT AND ACCOUNTABILITY.

       (a) Program Authorized.--From funds appropriated under 
     subsection (g) for a fiscal year, the Secretary may award 
     grants, on a competitive basis, to State educational 
     agencies--
       (1) to enable the State educational agencies to develop or 
     increase the capacity of data systems for assessment and 
     accountability purposes, including the collection of 
     graduation rates; and
       (2) to award subgrants to increase the capacity of local 
     educational agencies to upgrade, create, or manage 
     longitudinal data systems for the purpose of measuring 
     student academic progress and achievement.
       (b) State Application.--Each State educational agency 
     desiring a grant under this section shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require.
       (c) State Use of Funds.--Each State educational agency that 
     receives a grant under this section shall use--
       (1) not more than 20 percent of the grant funds for the 
     purpose of--
       (A) increasing the capacity of, or creating, State 
     databases to collect, disaggregate, and report information 
     related to student achievement, enrollment, and graduation 
     rates for assessment and accountability purposes; and
       (B) reporting, on an annual basis, for the elementary 
     schools and secondary schools within the State, on--
       (i) the enrollment data from the beginning of the academic 
     year;
       (ii) the enrollment data from the end of the academic year; 
     and
       (iii) the twelfth grade graduation rates; and
       (2) not less than 80 percent of the grant funds to award 
     subgrants to local educational agencies within the State to 
     enable the local educational agencies to carry out the 
     authorized activities described in subsection (e).
       (d) Local Application.--Each local educational agency 
     desiring a subgrant under this section shall submit an 
     application to the State educational agency at such time, in 
     such manner, and containing such information as the State 
     educational agency may require. Each such application shall 
     include, at a minimum, a demonstration of the local 
     educational agency's ability to put a longitudinal data 
     system in place.
       (e) Local Authorized Activities.--Each local educational 
     agency that receives a subgrant under this section shall use 
     the subgrant funds to increase the capacity of the local 
     educational agency to upgrade or manage longitudinal data 
     systems consistent with the uses in subsection (c)(1), by--
       (1) purchasing database software or hardware;
       (2) hiring additional staff for the purpose of managing 
     such data;
       (3) providing professional development or additional 
     training for such staff; and
       (4) providing professional development or training for 
     principals and teachers on how to effectively use such data 
     to implement instructional strategies to improve student 
     achievement and graduation rates.
       (f) Definitions.--In this section:
       (1) The term ``graduation rate'' means the percentage 
     that--
       (A) the total number of students who--
       (i) graduate from a secondary school with a regular diploma 
     (which shall not include the recognized equivalent of a 
     secondary school diploma or an alternative degree) in an 
     academic year; and
       (ii) graduated on time by progressing 1 grade per academic 
     year; represents of
       (B) the total number of students who entered the secondary 
     school in the entry level academic year applicable to the 
     graduating students.
       (2) The terms ``State educational agency'' and ``local 
     educational agency'' have the meanings given such terms in 
     section 9101 of the Elementary and Secondary Education Act of 
     1965 (20 U.S.C. 7801).
       (3) The term ``Secretary'' means the Secretary of 
     Education.
       (g) Authorization of Appropriations.--There are authorized 
     to be appropriated to carry out this section $100,000,000 for 
     fiscal year 2005, and such sums as may be necessary for each 
     of the 2 succeeding fiscal years.

     SEC. 302. GRANTS FOR ASSESSMENT OF CHILDREN WITH DISABILITIES 
                   AND CHILDREN WHO ARE LIMITED ENGLISH 
                   PROFICIENT.

       Part E of title I of the Elementary and Secondary Education 
     Act of 1965 (20 U.S.C. 6491 et seq.) is amended by adding at 
     the end the following:

     ``SEC. 1505. GRANTS FOR ASSESSMENT OF CHILDREN WITH 
                   DISABILITIES AND CHILDREN WHO ARE LIMITED 
                   ENGLISH PROFICIENT.

       ``(a) Grants Authorized.--From amounts authorized under 
     subsection (e) for a fiscal year, the Secretary shall award 
     grants, on a competitive basis, to State educational 
     agencies, or to consortia of State educational agencies, to 
     enable the State educational agencies or consortia to 
     collaborate with institutions of higher education, research 
     institutions, or other organizations--
       ``(1) to design and improve State academic assessments for 
     students who are limited English proficient and students with 
     disabilities; and
       ``(2) to ensure the most accurate, valid, and reliable 
     means to assess academic content standards and student 
     academic achievement standards for students who are limited 
     English proficient and students with disabilities.
       ``(b) Authorized Activities.--A State educational agency or 
     consortium that receives

[[Page 18123]]

     a grant under this section shall use the grant funds to carry 
     out 1 or more of the following activities:
       ``(1) Developing alternate assessments for students with 
     disabilities, consistent with section 1111 and the amendments 
     made on December 9, 2003, to part 200 of title 34, Code of 
     Federal Regulations (68 Fed. Reg. 68698) (relating to 
     accountability for the academic achievement of students with 
     the most significant cognitive disabilities), including--
       ``(A) the alignment of such assessments, as appropriate and 
     consistent with such amendments, with--
       ``(i) State academic achievement standards and State 
     academic content standards for all students; or
       ``(ii) alternate State academic achievement standards that 
     reflect the intended instructional construct for students 
     with disabilities;
       ``(B) activities to ensure that such assessments do not 
     reflect the disabilities, or associated characteristics, of 
     the students that are extraneous to the intent of the 
     measurement;
       ``(C) the development of an implementation plan for pilot 
     tests for such assessments, in order to determine the level 
     of appropriateness and feasibility of full-scale 
     administration; and
       ``(D) activities that provide for the retention of all 
     feasible standardized features in the alternate assessments.
       ``(2) Developing alternate assessments that meet the 
     requirements of section 1111 for students who are limited 
     English proficient, including--
       ``(A) the alignment of such assessments with State academic 
     achievement standards and State academic content standards 
     for all students;
       ``(B) the development of parallel native language 
     assessments or linguistically modified assessments for 
     limited English proficient students that meet the 
     requirements of section 1111(b)(3)(C)(ix)(III);
       ``(C) the development of an implementation plan for pilot 
     tests for such assessments, in order to determine the level 
     of appropriateness and feasibility of full-scale 
     administration; and
       ``(D) activities that provide for the retention of all 
     feasible standardized features in the alternate assessments.
       ``(3) Developing, modifying, or revising State policies and 
     criteria for appropriate accommodations to ensure the full 
     participation of students who are limited English proficient 
     and students with disabilities in State academic assessments, 
     including--
       ``(A) developing a plan to ensure that assessments provided 
     with accommodations are fully included and integrated into 
     the accountability system, for the purpose of making the 
     determinations of adequate yearly progress required under 
     section 1116;
       ``(B) ensuring the validity, reliability, and 
     appropriateness of such accommodations, such as--
       ``(i) a modification to the presentation or format of the 
     assessment;
       ``(ii) the use of assistive devices;
       ``(iii) an extension of the time allowed for testing;
       ``(iv) an alteration of the test setting or procedures;
       ``(v) the administration of portions of the test in a 
     method appropriate for the level of language proficiency of 
     the test taker;
       ``(vi) the use of a glossary or dictionary; and
       ``(vii) the use of a linguistically modified assessment;
       ``(C) ensuring that State policies and criteria for 
     appropriate accommodations take into account the form or 
     program of instruction provided to students, including the 
     level of difficulty, reliability, cultural difference, and 
     content equivalence of such form or program;
       ``(D) ensuring that such policies are consistent with the 
     standards prepared by the Joint Committee on Standards for 
     Educational and Psychological Testing of the American 
     Educational Research Association, the American Psychological 
     Association, and the National Council on Measurement in 
     Education; and
       ``(E) developing a plan for providing training on the use 
     of accommodations to school instructional staff, families, 
     students, and other appropriate parties.
       ``(4) Developing universally designed assessments that can 
     be accessible to all students, including--
       ``(A) examining test item or test performance for students 
     with disabilities and students who are limited English 
     proficient, to determine the extent to which the test item or 
     test is universally designed;
       ``(B) using think aloud and cognitive laboratory 
     procedures, as well as item statistics, to identify test 
     items that may pose particular problems for students with 
     disabilities or students who are limited English proficient;
       ``(C) developing and implementing a plan to ensure that 
     developers and reviewers of test items are trained in the 
     principles of universal design; and
       ``(D) developing computer-based applications of universal 
     design principles.
       ``(c) Application.--Each State educational agency, or 
     consortium of State educational agencies, desiring to apply 
     for a grant under this section shall submit an application to 
     the Secretary at such time, in such manner, and containing 
     such information as the Secretary may require, including--
       ``(1) information regarding the institutions of higher 
     education, research institutions, or other organizations that 
     are collaborating with the State educational agency or 
     consortium, in accordance with subsection (a);
       ``(2) in the case of a consortium of State educational 
     agencies, the designation of 1 State educational agency as 
     the fiscal agent for the receipt of grant funds;
       ``(3) a description of the process and criteria by which 
     the State educational agency will identify students that are 
     unable to participate in general State content assessments 
     and are eligible to take alternate assessments, consistent 
     with the amendments made to part 200 of title 34, Code of 
     Federal Regulations (68 Fed. Reg. 68698);
       ``(4) in the case of a State educational agency or 
     consortium carrying out the activity described in subsection 
     (b)(1)(A), a description of how the State educational agency 
     plans to fulfill the requirement of subsection (b)(1)(A);
       ``(5) in the case of a State educational agency or 
     consortium carrying out the activities described in 
     paragraphs (1), (2), and (4) of subsection (b), information 
     regarding the proposed techniques for the development of 
     alternate assessments, including a description of the 
     technical adequacy of, technical aspects of, and scoring for, 
     such assessments;
       ``(6) a plan for providing training for school 
     instructional staff, families, students, and other 
     appropriate parties on the use of alternate assessments; and
       ``(7) information on how the scores of students 
     participating in alternate assessments will be reported to 
     the public and to parents.
       ``(d) Evaluation and Reporting Requirements.--Each State 
     educational agency receiving a grant under this section shall 
     submit an annual report to the Secretary describing the 
     activities carried out under the grant and the result of such 
     activities, including--
       ``(1) details on the effectiveness of the activities 
     supported under this section in helping students with 
     disabilities, or students who are limited English proficient, 
     better participate in State assessment programs; and
       ``(2) information on the change in achievement, if any, of 
     students with disabilities and students who are limited 
     English proficient, as a result of a more accurate assessment 
     of such students.
       ``(e) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section 
     $50,000,000 for fiscal year 2005, and such sums as may be 
     necessary for each of the 2 succeeding fiscal years.''.

     SEC. 303. REPORTS ON STUDENT ENROLLMENT AND GRADUATION RATES.

       Part E of title I of the Elementary and Secondary Education 
     Act of 1965 (as amended by section 302) (20 U.S.C. 6491 et 
     seq.) is amended by adding at the end the following:

     ``SEC. 1506. REPORTS ON STUDENT ENROLLMENT AND GRADUATION 
                   RATES.

       ``(a) In General.--The Secretary of Education shall collect 
     from each State educational agency, local educational agency, 
     and school, on an annual basis, the following data:
       ``(1) The number of students enrolled in each of grades 7 
     through 12 at the beginning of the most recent school year.
       ``(2) The number of students enrolled in each of grades 7 
     through 12 at the end of the most recent school year.
       ``(3) The graduation rate for the most recent school year.
       ``(4) The data described in paragraphs (1) through (3), 
     disaggregated by the groups of students described in section 
     1111(b)(2)(C)(v)(II).
       ``(b) Annual Report.--The Secretary shall report the 
     information collected under subsection (a) on an annual 
     basis.''.

                         TITLE IV--CIVIL RIGHTS

     SEC. 401. CIVIL RIGHTS.

       Section 9534 of the Elementary and Secondary Education Act 
     of 1965 (20 U.S.C. 7914) is amended--
       (1) by redesignating subsections (a) and (b) as subsections 
     (b) and (c), respectively; and
       (2) by inserting before subsection (b) (as redesignated by 
     paragraph (1)) the following:
       ``(a) Prohibition of Discrimination.--Discrimination on the 
     basis of race, color, religion, sex (except as otherwise 
     permitted under Title IX of the Education Amendments of 
     1972), national origin, or disability in any program funded 
     under this Act is prohibited.''.

                     TITLE V--TECHNICAL ASSISTANCE

     SEC. 501. TECHNICAL ASSISTANCE.

       Part F of title IX of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 7941) is amended--
       (1) in the part heading, by inserting ``AND TECHNICAL 
     ASSISTANCE'' after ``EVALUATIONS''; and
       (2) by adding at the end the following:

     ``SEC. 9602. TECHNICAL ASSISTANCE.

       ``The Secretary shall ensure that the technical assistance 
     provided by, and the research developed and disseminated 
     through, the Institute of Education Sciences and other 
     offices or agencies of the Department provide educators and 
     parents with the needed information and support for 
     identifying

[[Page 18124]]

     and using educational strategies, programs, and practices, 
     including strategies, programs, and practices available 
     through the clearinghouses supported under the Education 
     Sciences Reform Act of 2002 (20 U.S.C. 9501 et seq.) and 
     other Federally-supported clearinghouses, that have been 
     successful in improving educational opportunities and 
     achievement for all students.''.
                                 ______
                                 
      By Mr. ENZI (for himself, Mr. Baucus, Mr. Alexander, Mrs. Dole, 
        and Mr. Lieberman):
  S. 2795. A bill to provide for higher education affordability, 
access, and opportunity; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. ENZI. Mr. President, I rise today to introduce the Higher 
Education Affordability, Access and Opportunity Act of 2004 with my 
colleagues Senators Baucus, Alexander, Dole and Lieberman.
  We are introducing this bipartisan legislation because we are aware 
that the American workforce is in the midst of its most significant 
changes since the 1940s. In the past year, this economy has created 
nearly 1.7 million new jobs, yet the complaint from employers continues 
to be that they cannot find skilled workers to fill the jobs that are 
being created. Our educational systems must recognize this changing 
reality and be ready to provide the support for a new group of students 
that represents a workforce revolution.
  This skills gap promises to get worse unless Congress acts now to 
provide the assistance necessary to train a generation of workers that 
will fill the jobs of tomorrow. The Department of Labor has estimated 
that as many as 80 percent of the jobs being created over the next 10 
years will require some postsecondary education. This will include many 
adult learners who will return to college for additional training. This 
also includes new students attending college for the first time later 
in life to obtain new skills or to improve their current skills.
  Congress needs to ensure that we have a comprehensive system of 
workforce education and training established, one that includes the 
Workforce Investment Act, the Higher Education Act, and career and 
technical education, as well as elementary and secondary education. The 
needs of the new workforce will require a lifelong commitment to 
learning, where workers are able to return to school and re-enter the 
workforce seamlessly.
  Many workers in my home State are leaving to find better jobs 
elsewhere. To create the kind of good jobs with good futures that will 
keep people in Wyoming, we need workers with the skills that the new, 
global economy demands. Whether a company decides to open a plant in 
Casper or China, they depend on a qualified local workforce.
  This legislation would help meet the needs of businesses today and 
into the future. It would help postsecondary institutions develop and 
implement curriculum related to high skilled or high-wage occupations. 
It would also provide support for institutions to increase their 
capacity to serve adult learners and students pursuing high-growth 
occupations.
  This legislation would provide additional assistance for first-time 
college students who are attending school to receive advanced skill 
training or are looking to improve their skill set to enter high-wage 
or high-skilled occupations.
  This legislation also provides support for small business owners, 
operators, and their employees to receive skill training at 
institutions of higher education so our small businesses can continue 
to lead the economic growth of our Nation.
  This legislation also provides support for rural communities to 
recruit and retrain elementary and secondary education, so these areas 
can prepare their students for college and entry into the workforce 
with the skills they need to succeed, not only in postsecondary 
education, but in life.
  This legislation also helps students better understand the cost of 
attending college by making the information collected by the Department 
of Education more accessible. Helping prospective students understand 
how to obtain aid and help pay for college is just as important as 
making sure students have access to the financial aid to support them 
through college.
  I look forward to working with Chairman Gregg to advance these ideas 
to ensure that the American workforce is prepared with the skills 
necessary to successfully compete in the global economy.
  I ask unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2795

       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 ``Higher Education 
     Affordability, Access, and Opportunity Act of 2004''.

     SEC. 2. IMPROVEMENTS IN MARKET INFORMATION AND PUBLIC 
                   ACCOUNTABILITY.

       (a) Data Dissemination.--Section 131(b) of the Higher 
     Education Act of 1965 (20 U.S.C. 1015(b)) is amended to read 
     as follows:
       ``(b) Comparative Data.--
       ``(1) In general.--Each year the Secretary shall make 
     available to the public the information described in 
     paragraph (2), disaggregated by institution of higher 
     education, in a form that enables the public to compare the 
     information among institutions.
       ``(2) Information.--The information referred to in 
     paragraph (1) is the following:
       ``(A) Tuition and fees for a full-time undergraduate 
     student.
       ``(B) Cost of attendance for a full-time undergraduate 
     student.
       ``(C) The average annual cost of attendance for a full-time 
     undergraduate student for the 10 preceding academic years, or 
     if data are not available for the 10 preceding academic 
     years, data for as many of the 10 preceding academic years as 
     is available.
       ``(D) The percentage of full-time undergraduate students 
     receiving financial assistance, including--
       ``(i) Federal grants;
       ``(ii) State and local grants;
       ``(iii) institutional grants; and
       ``(iv) loans to students.
       ``(E) The average percentage of credit hours accepted from 
     students transferring to an institution of higher education 
     from another institution of higher education, and the policy 
     of the accepting institution of higher education for the 
     transfer of credit.
       ``(F) The percentage of students who have completed an 
     undergraduate program who are placed in unsubsidized 
     employment not later than 12 months after the date of 
     completion of the program.
       ``(G) A ranking of the dollar and percentage increases in 
     tuition for all institutions of higher education for which 
     data are available, disaggregated by quartile.
       ``(3) Standard definitions.--In carrying out this section, 
     the Secretary shall use the standard definitions developed 
     under subsection (a)(3).''.
       (b) Study and Annual Report.--Section 131(c) of the Higher 
     Education Act of 1965 (20 U.S.C. 1015(c)) is amended--
       (1) in paragraph (1)--
       (A) in the matter preceding subparagraph (A), by inserting 
     ``and costs'' after ``expenditures'';
       (B) in subparagraph (F), by striking ``and'' after the 
     semicolon;
       (C) in subparagraph (G), by striking the period and 
     inserting ``; and''; and
       (D) by adding at the end the following:
       ``(H) the information and costs described in subparagraphs 
     (D) through (G) of paragraph (2).'';
       (2) in paragraph (2)--
       (A) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       (B) in subparagraph (C), by striking the period and 
     inserting a semicolon; and
       (C) by adding at the end the following:
       ``(D) national trends in the cost of attending an 
     institution of higher education;
       ``(E) the mean cost of attending an institution of higher 
     education, disaggregated by type of institution of higher 
     education;
       ``(F) the mean annual cost of attending an institution of 
     higher education for the 10 preceding academic years (if 
     available), disaggregated by type of institution of higher 
     education; and
       ``(G) the assistance provided to institutions of higher 
     education by each State, which information the Secretary 
     shall make available to the public.''; and
       (3) in paragraph (3)--
       (A) in the subsection heading, by striking ``Final'' and 
     inserting ``Annual'';
       (B) by striking ``a report'' and inserting ``an annual 
     report'';
       (C) by inserting ``and the evaluation required by paragraph 
     (2)'' after ``paragraph (1)''; and
       (D) by striking ``not later than September 30, 2002''.

     SEC. 3. TEACHER QUALITY ENHANCEMENT GRANTS.

       (a) Definition of High Need Local Educational Agency.--
     Section 201(b)(2) of the Higher Education Act of 1965 (20 
     U.S.C. 1021(b)(2)) is amended--
       (1) in the matter preceding subparagraph (A), by striking 
     ``that serves an elementary

[[Page 18125]]

     school or secondary school located in an area in which there 
     is'';
       (2) in each of subparagraphs (A), (B), and (C), by 
     inserting ``that serves an elementary school or secondary 
     school located in an area in which there is'' before ``a 
     high'';
       (3) in subparagraph (B) (as so amended), by striking ``or'' 
     after the semicolon;
       (4) in subparagraph (C) (as so amended), by striking the 
     period and inserting ``; or''; and
       (5) by adding at the end the following:
       ``(D) with a total of less than 600 students in average 
     daily attendance at the schools that are served by the local 
     educational agency and all of those schools are designated 
     with a school locale code of 7 or 8, as determined by the 
     Secretary.''.
       (b) Definition of Eligible Partnerships.--Section 
     203(b)(1)(B) of the Higher Education Act of 1965 (20 U.S.C. 
     1023(b)(1)(B)) is amended by inserting ``educational service 
     agency (as defined in section 9101 of the Elementary and 
     Secondary Education Act of 1965),'' after ``State educational 
     agency,''.

     SEC. 4. GRANTS FOR JOB SKILL TRAINING.

       Title III of the Higher Education Act of 1965 (20 U.S.C. 
     1051 et seq.) is amended--
       (1) by redesignating part F as part G; and
       (2) by inserting after part E the following:

                      ``PART F--JOB SKILL TRAINING

     ``Subpart 1--Job Skill Training in High-Growth Occupations or 
                               Industries

     ``SEC. 371. JOB SKILL TRAINING IN HIGH-GROWTH OCCUPATIONS OR 
                   INDUSTRIES.

       ``(a) Grants Authorized.--The Secretary is authorized to 
     award grants, on a competitive basis, to eligible 
     partnerships to enable the eligible partnerships to provide 
     relevant job skill training in high-growth industries or 
     occupations.
       ``(b) Definitions.--In this section:
       ``(1) Eligible partnership.--The term `eligible 
     partnership' means a partnership--
       ``(A) between an institution of higher education and a 
     local board (as such term is defined in section 101 of the 
     Workforce Investment Act of 1998); or
       ``(B) if an institution of higher education is located 
     within a State that does not operate local boards, between 
     the institution of higher education and a State board (as 
     such term is defined in section 101 of the Workforce 
     Investment Act of 1998).
       ``(2) Nontraditional student.--The term `nontraditional 
     student' means a student who--
       ``(A) is independent, as defined in section 480(d);
       ``(B) attends an institution of higher education--
       ``(i) on less than a full-time basis;
       ``(ii) via evening, weekend, modular, or compressed 
     courses; or
       ``(iii) via distance learning methods; or
       ``(C) has delayed enrollment at an institution of higher 
     education.
       ``(3) Institution of higher education.--The term 
     `institution of higher education' means an institution of 
     higher education, as defined in section 101(b), that offers a 
     1- or 2-year program of study leading to a degree or 
     certificate.
       ``(c) Application.--
       ``(1) In general.--Each eligible partnership that desires a 
     grant under this section shall submit an application to the 
     Secretary at such time, in such manner, and accompanied by 
     such additional information as the Secretary may require.
       ``(2) Contents.--Each application submitted under paragraph 
     (1) shall include a description of--
       ``(A) how the eligible partnership, through the institution 
     of higher education, will provide relevant job skill training 
     for students to enter high-growth occupations or industries;
       ``(B) local high-growth occupations or industries; and
       ``(C) the need for qualified workers to meet the local 
     demand of high-growth occupations or industries.
       ``(d) Award Basis.--In awarding grants under this section, 
     the Secretary shall--
       ``(1) ensure an equitable distribution of grant funds under 
     this section among urban and rural areas of the United 
     States; and
       ``(2) take into consideration the capability of the 
     institution of higher education--
       ``(A) to offer relevant, high quality instruction and job 
     skill training for students entering a high-growth occupation 
     or industry;
       ``(B) to involve the local business community and to place 
     graduates in the community in employment in high-growth 
     occupations or industries;
       ``(C) to assist students in obtaining loans under section 
     428L, if appropriate, or other forms of student financial 
     assistance;
       ``(D) to serve nontraditional or low-income students, or 
     adult or displaced workers; and
       ``(E) to serve students from rural or remote communities.
       ``(e) Use of Funds.--Grant funds provided under this 
     section may be used--
       ``(1) to expand or create academic programs or programs of 
     training that provide relevant job skill training for high-
     growth occupations or industries;
       ``(2) to purchase equipment which will facilitate the 
     development of academic programs or programs of training that 
     provide training for high-growth occupations or industries;
       ``(3) to support outreach efforts that enable students to 
     attend institutions of higher education with academic 
     programs or programs of training focused on high-growth 
     occupations or industries;
       ``(4) to expand or create programs for distance, evening, 
     weekend, modular, or compressed learning opportunities that 
     provide relevant job skill training in high-growth 
     occupations or industries;
       ``(5) to build partnerships with local businesses in high-
     growth occupations or industries; and
       ``(6) for other uses that the Secretary determines to be 
     consistent with the intent of this section.
       ``(f) Requirements.--
       ``(1) Fiscal agent.--For the purpose of this section, the 
     institution of higher education in an eligible partnership 
     shall serve as the fiscal agent and grant recipient for the 
     eligible partnership.
       ``(2) Duration.--The Secretary shall award grants under 
     this section for a 1-year period.
       ``(3) Availability of grant funds.--Grant funds awarded 
     under this section shall be available for not more than 18 
     months unless, at the Secretary's discretion, the Secretary 
     extends the availability of the grant funds.
       ``(4) Supplement, not supplant.--Funds made available under 
     this section shall be used to supplement and not supplant 
     other Federal, State, and local funds available to the 
     eligible partnership for carrying out the activities 
     described in subsection (e).

       ``Subpart 2--Small Business Innovation Partnership Grants

     ``SEC. 375. SMALL BUSINESS INNOVATION PARTNERSHIP GRANTS.

       ``(a) Grants Authorized.--The Secretary is authorized to 
     award grants to eligible partnerships to enable the eligible 
     partnerships to provide training and relevant job skills to 
     small business owners or operators for the purpose of 
     facilitating small business development in the communities 
     served by the eligible partnerships.
       ``(b) Definition of Eligible Partnership.--In this section 
     the term `eligible partnership' means a partnership between 
     or among an institution of higher education and 1 or more 
     entities that the Secretary, in consultation with the 
     Administrator of the Small Business Administration, 
     identifies as facilitating small business development, which 
     may include--
       ``(1) a community development financial institution;
       ``(2) a small business development center; or
       ``(3) a microenterprise lending institution.
       ``(c) Award Basis.--The Secretary shall award grants under 
     this section on the basis of--
       ``(1) the ability of an eligible partnership to facilitate 
     small business development; and
       ``(2)(A) the ability of an eligible partnership to serve a 
     rural community;
       ``(B) the ability of an eligible partnership to serve a 
     low-income population; or
       ``(C) other criteria developed by the Secretary in 
     consultation with the Administrator of the Small Business 
     Administration.
       ``(d) Limitation.--Of the funds appropriated under section 
     378 for this part for a fiscal year, the Secretary is 
     authorized to use not more than $15,000,000 of such funds to 
     carry out this section.

                 ``Subpart 3--Administrative Provisions

     ``SEC. 378. AUTHORIZATION OF APPROPRIATIONS.

       ``There are authorized to be appropriated to carry out this 
     part $65,000,000 for fiscal year 2005 and such sums as may be 
     necessary for each of the 4 succeeding fiscal years.''.

     SEC. 5. LEAP APPLICATIONS.

       Section 415C of the Higher Education Act of 1965 (20 U.S.C. 
     1070c-2) is amended--
       (1) in subsection (a), by inserting after the first 
     sentence the following: ``A State agency may submit an 
     application under this section in partnership with a 
     philanthropic organization within the State, a public or 
     private degree granting institution of higher education 
     within the State, or a combination of such organizations or 
     institutions.''; and
       (2) in subsection (b)(10), by inserting ``, from 
     philanthropic, institutional, or private funds, or from a 
     combination of such sources'' before the period.

     SEC. 6. WORKFORCE DEVELOPMENT LOAN PROGRAM.

       Part B of title IV of the Higher Education Act of 1965 (20 
     U.S.C. 1071 et seq.) is amended by inserting after section 
     428K (20 U.S.C. 1078-11) the following:

     ``SEC. 428L. HIGH-GROWTH OCCUPATION OR INDUSTRY WORKFORCE 
                   DEVELOPMENT STUDENT LOANS.

       ``(a) Loan Program Authorized.--The Secretary shall carry 
     out a loan program under which eligible students may receive 
     a loan of not more than $2,000 for each of the first 2 years 
     of the eligible students' undergraduate program of study in 
     the same manner as the eligible students receive loans under 
     this part and part D.
       ``(b) Definitions.--
       ``(1) Eligible institution of higher education.--The term 
     `eligible institution of higher education' means an 
     institution of higher education that offers undergraduate 
     academic programs or undergraduate programs of training in a 
     subject identified under subsection (d)(1) by the State board 
     of the State where the institution of higher education is 
     located.

[[Page 18126]]

       ``(2) Eligible student.--The term `eligible student' means 
     an undergraduate student who--
       ``(A) is otherwise eligible for a loan under this part or 
     part D;
       ``(B) enters into an agreement with the eligible 
     institution of higher education where the student is or will 
     be in attendance, under which the student agrees to pursue an 
     undergraduate academic program or undergraduate program of 
     training that trains the student for employment in a high-
     growth occupation or industry identified under subsection 
     (d)(1);
       ``(C) is age 18 or older; and
       ``(D) has an expected family contribution (calculated under 
     part F) equal to or less than zero.
       ``(3) State board; local board.--The terms `State board' 
     and `local board' have the meanings given such terms in 
     section 101 of the Workforce Investment Act of 1998.
       ``(c) Limits on Loan Amounts.--
       ``(1) Annual loan limits.--The total aggregate amount of 
     loans made to an eligible student under this part (including 
     this section) and part D for each of the first and second 
     years of the eligible student's program of study at an 
     eligible institution of higher education, or their equivalent 
     (as determined by the Secretary), that may be covered by 
     Federal loan insurance may not exceed $4,625 for each such 
     year, notwithstanding sections 425 and 428.
       ``(2) Aggregate limits.--The Secretary shall include the 
     amount of any loans received by an eligible student under 
     this section in calculating the eligible student's aggregate 
     loan limits under sections 425(a)(2) and 428(b)(1)(B).
       ``(3) Availability of other funds.--An eligible student who 
     receives the maximum loan amount allowed under this section 
     remains eligible for any other program for which the eligible 
     student qualifies under this Act.
       ``(d) Identification of High-Growth Occupations or 
     Industries.--
       ``(1) In general.--The State board, in consultation with 
     the local boards and the State entity or agency responsible 
     for licensing institutions of higher education, shall 
     identify high growth occupations or industries in accordance 
     with paragraph (2).
       ``(2) Timing.--The State board shall review and update the 
     identification required under paragraph (1) each time the 
     State board is required to submit or resubmit a State plan 
     under section 112 of the Workforce Investment Act of 1998.
       ``(3) Special rule.--A student who has completed 1 year of 
     a 2-year undergraduate academic program or undergraduate 
     program of training in a subject which was previously 
     identified as preparation for a high-growth occupation or 
     industry but, after the review under paragraph (2), is no 
     longer so identified, shall be eligible to receive a loan 
     under this section for the student's second year of such 
     program of study if the student--
       ``(A) qualified as an eligible student, as defined in 
     subsection (b)(2), and received a loan under this section, 
     for the first year of such program of study; and
       ``(B) meets the qualifications of subparagraphs (A), (C), 
     and (D) of subsection (b)(2).
       ``(e) Funds for Administration.--
       ``(1) In general.--From funds appropriated under subsection 
     (f), the Secretary shall make available to each eligible 
     institution of higher education serving an eligible student 
     with a loan made under this section not more than the amount 
     determined under paragraph (2).
       ``(2) Amount.--The amount referred to in paragraph (1) for 
     each eligible institution of higher education serving an 
     eligible student with a loan made under this section is 2 
     percent of the total amount of all loans made under this 
     section to eligible students at the eligible institution of 
     higher education, or $100,000, whichever is less.
       ``(3) Uses.--The funds made available under paragraph (1) 
     may be used for the following purposes:
       ``(A) Office.--To create an office of business and 
     workforce partnerships at the eligible institution of higher 
     education to provide staff support for building relationships 
     between the eligible institution of higher education and 
     local businesses.
       ``(B) Annual report.--To provide an annual report to the 
     Secretary regarding the number of eligible students receiving 
     loans made under this section who--
       ``(i) remain in their academic program or program of 
     training;
       ``(ii) graduate from their academic program or program of 
     training;
       ``(iii) transfer to another institution of higher 
     education; or
       ``(iv) are placed in unsubsidized employment not later than 
     12 months after graduation.
       ``(f) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section such 
     sums as may be necessary for fiscal year 2005 and each of the 
     4 succeeding fiscal years.''.

     SEC. 7. REQUIREMENT RELATING TO CREDIT TRANSFER.

       (a) Program Participation Agreements.--Section 487(a) of 
     the Higher Education Act of 1965 (20 U.S.C. 1094(a)) is 
     amended by adding at the end the following:
       ``(24) The institution will not exclude the transfer of 
     credits earned by a student completing courses or programs at 
     other eligible institutions of higher education solely on the 
     basis of the agency or association that accredited such other 
     eligible institution if that agency or association is 
     recognized by the Secretary pursuant to section 496 to be a 
     reliable authority as to the quality of the education or 
     training offered and is currently listed by the Secretary 
     pursuant to section 101(c).''.
       (b) Accrediting Agency and Association Requirements.--
     Section 496(a) (20 U.S.C. 1099b(a)) is amended--
       (1) by striking ``and'' at the end of paragraph (7);
       (2) by striking the period at the end of paragraph (8) and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(9) such agency or association not adopt or apply 
     standards, policies, or practices that restrict or deny the 
     transfer of credits earned by a student completing courses or 
     programs at other eligible institutions of higher education 
     solely on the basis of the agency or association that 
     accredited such other eligible institution if that agency or 
     association is recognized by the Secretary pursuant to this 
     section to be a reliable authority as to the quality of the 
     education or training offered and is currently listed by the 
     Secretary pursuant to section 101(c).''.
       (c) Accrediting Agency Standards.--Section 496(a)(5) of the 
     Higher Education Act of 1965 (20 U.S.C. 1099b(a)(5)) is 
     amended--
       (1) by striking ``and'' at the end of subparagraph (I);
       (2) by inserting ``and'' after the semicolon at the end of 
     subparagraph (J); and
       (3) by inserting after subparagraph (J) the following new 
     subparagraph:
       ``(K) policies for the transfer of credit and the 
     notification of the public of such policies;''.

  Mr. ALEXANDER. Mr. President, it is my pleasure to co-sponsor, the 
Higher Education Access, Affordability and Opportunity Act being 
introduced to day by Senator Enzi. This legislation is an issue of 
great concern to Senators and our constituents: job loss. There is 
really nothing new about job loss in America. Our strength as an 
economy is not measured by how many jobs we lose; it is measured by how 
many good new jobs we create to replace those jobs and how well we 
train those people to fill those jobs. We don't want to lose any jobs. 
We want to recognize the pain that goes with moving from one job to 
another. But, the best thing we can do about job loss is to create an 
environment in which good new jobs can grow and to offer the training 
resources necessary to hold those jobs.
  Senator Enzi believes, as do I, that a comprehensive approach to 
creating jobs and training workers is necessary to adapt to the 
changing demands of the modern economy. The Higher Education Act was 
enacted to give more students a change to attend college. It was not 
intended to be a job training bill, nor should it become one. There is, 
however, a need to create a stronger partnership between institutions 
of higher education and the 21st century workforce. The goal of access 
to higher education and the goal of training a highly skilled workforce 
are not mutually exclusive.
  Community colleges are our secret weapons in workforce development. 
This bill used our secret weapon to create a competitive grant program 
to help community colleges develop academic programs focusing on areas 
of high-growth employment. Among other things, it provides additional 
subsidized loans for high-growth job sector training programs such as 
technology and health care.
  In higher education we focus really on two principles: The first is 
autonomy and the second is choice. We allow generous amounts of 
government money to follow students to the schools of their choice. 
These principles provide students with flexibility to choose among fast 
moving institutions, and facilitate contracts with businesses. These 
competitive grants and additional subsidized loans will give local 
governments both the resources necessary and autonomy to work with 
their local community colleges to develop programs that will train 
workers for the jobs that are available within their communities.
  I will continue to work with Senator Enzi on these important 
legislative initiatives and make them a part of the reauthorization of 
the Higher Education Act.
                                 ______
                                 
      By Mr. CRAIG (for himself and Mr. Durbin):

[[Page 18127]]

  S. 2796. A bill to clarify that service marks, collective marks, and 
certification marks are entitled to the same protections, rights, and 
privileges of trademarks; to the Committee on the Judiciary.
  Mr. CRAIG. Mr. President, today Senator Durbin and I are introducing 
legislation strengthening current law concerning certification marks, 
collective marks, and service marks.
  While some of our colleagues may not recognize these terms, I doubt 
there is any Senator who has not come into contact with one of these 
marks. For example, if you bought the best baking potatoes in the 
world, you are familiar with the ``Grown in Idaho'' or ``Idaho 
Potatoes'' certification mark. Perhaps you know the certification mark 
``UL,'' which stands for Underwriters Laboratory and signifies that an 
electrical product meets certain safety standards. If you watch network 
television and have seen the CBS ``eye,'' you have seen a service mark. 
The union labels on many products are collective marks.
  To explain the differences among these marks: service marks are 
words, names, symbols, or characters that distinguish the mark holder's 
services, while trademarks distinguish the mark holder's goods. 
Collective marks are trademarks that are used by organization or 
association to identify goods or services produced by members of a 
group. The certification mark is a trade or service mark used to 
certify characteristics about a product or service; it may indicate 
that the product or service originates in a specific geographic region, 
or meets certain standards of quality or mode of manufacture, or the 
work that went into it was performed by members of an organization.
  While they are somewhat different, these marks all serve the same 
purpose--that is, they enable the public to distinguish among products 
and services and prevent consumers from being deceived by similar 
brands. Congress determined that marks would serve the public interest 
by enhancing product quality and safety, and provided legal protection 
to these marks under the Lanham Act. The federal law protects all four 
kinds of marks equally; specifically, 15 U.S.C. Sec. 1503 and 15 U.S.C. 
Sec. 1504 provide that service marks, collective marks, and 
certification marks ``shall be entitled to the protection provided'' to 
trademarks, except where Congress provides otherwise by statute.
  The principle of equal treatment also applies to ``no challenge'' 
provisions in license agreements for the use of a trademark, service 
mark, collective mark, or certification mark. It is common for such 
agreements to include provisions under which licensees acknowledge the 
validity of and agree not to challenge the marks. By protecting the 
validity of the marks, these provisions reduce potential litigation 
costs for mark owners and protect the investment made by licensees. A 
long line of cases has upheld ``no challenge'' provisions in trademark 
licenses and dismissed validity challenges.
  Unfortunately, the clarity of the Lanham Act on these points has been 
confused by a recent decision of the Second Circuit Court of Appeals in 
the case of Idaho Potato Commission v. M&M Produce Farm and Sales. That 
decision interpreted the Lanham Act as requiring that certification 
marks should be treated differently from trademarks with respect to 
``no challenge'' provisions. The court mistakenly likened the public 
policy considerations surrounding certification marks to those 
surrounding patents.
  This decision has raised great consternation among the holders of 
certification marks and their licenses throughout the United States--
more than two dozen of whom joined in an amicus brief challenging the 
court's reasoning. Congress should be equally concerned, because this 
decision has the potential to undermine the Lanham Act and the 
certification mark system itself.
  The legislation we are introducing today would not change current 
law, but would only underscore the policy that Congress clearly 
intended in the first place. We propose to add the words ``rights an 
privileges'' to the two sections of the law that I quoted above, which 
would clarify that registered service marks, collective marks, and 
certification marks are ``entitled to the protections, rights, and 
privileges'' provided to trademarks. While I have learned never to call 
legislation ``simple,'' I would stress that at least our intention is 
simple: to reinstate the original intent of Congress and indicate our 
support of the view that these marks are to be given equal legal 
treatment.
  I invite all my colleagues to review this legislation and consider 
the important public policy interests it would protect. It is not only 
the mark holders and licensees in your State, but all consumers across 
the nation who have a stake in this bill, and I hope the Senate will 
act swiftly to approve it.
  I ask unanimous consent the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2796

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

     SECTION 1. PROTECTIONS, RIGHTS, AND PRIVILEGES OF SERVICE 
                   MARKS, COLLECTIVE MARKS, AND CERTIFICATION 
                   MARKS.

       The Act entitled ``An Act to provide for the registration 
     and protection of trade-marks used in commerce, to carry out 
     the provisions of certain international conventions, and for 
     other purposes'', approved July 5, 1946 (commonly referred to 
     as the Trademark Act of 1946) is amended--
       (1) in section 3 (15 U.S.C. 1053) in the first sentence, by 
     striking ``protection'' and inserting ``protections, rights, 
     and privileges''; and
       (2) in section 4 (15 U.S.C. 1054) in the first sentence, by 
     striking ``protection'' and inserting ``protections, rights, 
     and privileges''.

                          ____________________