[Congressional Record (Bound Edition), Volume 151 (2005), Part 20]
[Senate]
[Pages 27301-27333]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mrs. CLINTON (for herself, Mr. DeWine, Mr. Obama, and Mr. 
        Smith):
  S. 2053. A bill to amend to amend the Internal Revenue Code of 1986 
to provide a tax credit for property owners who remove lead-based paint 
hazards; to the Committee on Finance.
  Mrs. CLINTON. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2053

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

     SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

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

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

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

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

       ``(a) Allowance of Credit.--There shall be allowed as a 
     credit against the tax imposed by this chapter for the 
     taxable year an amount equal to 50 percent of the lead hazard 
     reduction activity cost paid or incurred by the taxpayer 
     during the taxable year for each eligible dwelling unit.
       ``(b) Limitation.--The amount of the credit allowed under 
     subsection (a) for any eligible dwelling unit for any taxable 
     year shall not exceed--
       ``(1) either--
       ``(A) $3,000 in the case of lead hazard reduction activity 
     cost including lead abatement measures described in clauses 
     (i), (ii), (iv) and (v) of subsection (c)(1)(A), or
       ``(B) $1,000 in the case of lead hazard reduction activity 
     cost including interim lead control measures described in 
     clauses (i), (iii), (iv), and (v) of subsection (c)(1)(A), 
     reduced by
       ``(2) the aggregate lead hazard reduction activity cost 
     taken into account under subsection (a) with respect to such 
     unit for all preceding taxable years.
       ``(c) Definitions and Special Rules.--For purposes of this 
     section:
       ``(1) Lead hazard reduction activity cost.--
       ``(A) In general.--The term `lead hazard reduction activity 
     cost' means, with respect to any eligible dwelling unit--
       ``(i) the cost for a certified risk assessor to conduct an 
     assessment to determine the presence of a lead-based paint 
     hazard,
       ``(ii) the cost for performing lead abatement measures by a 
     certified lead abatement supervisor, including the removal of 
     paint and dust, the permanent enclosure or encapsulation of 
     lead-based paint, the replacement of painted surfaces, 
     windows, or fixtures, or the removal or permanent covering of 
     soil when lead-based paint hazards are present in such paint, 
     dust, or soil,
       ``(iii) the cost for performing interim lead control 
     measures to reduce exposure or likely exposure to lead-based 
     paint hazards, including specialized cleaning, repairs, 
     maintenance, painting, temporary containment, ongoing 
     monitoring of lead-based paint hazards, and the establishment 
     and operation of management and resident education programs, 
     but only if such measures are evaluated and completed by a 
     certified lead abatement supervisor using accepted methods, 
     are conducted by a qualified contractor, and have an expected 
     useful life of more than 10 years,
       ``(iv) the cost for a certified lead abatement supervisor, 
     those working under the supervision of such supervisor, or a 
     qualified contractor to perform all preparation, cleanup, 
     disposal, and clearance testing activities associated with 
     the lead abatement measures or interim lead control measures, 
     and
       ``(v) costs incurred by or on behalf of any occupant of 
     such dwelling unit for any relocation which is necessary to 
     achieve occupant protection (as defined under section 35.1345 
     of title 24, Code of Federal Regulations).
       ``(B) Limitation.--The term `lead hazard reduction activity 
     cost' does not include any cost to the extent such cost is 
     funded by any grant, contract, or otherwise by another person 
     (or any governmental agency).
       ``(2) Eligible dwelling unit.--
       ``(A) In general.--The term `eligible dwelling unit' means, 
     with respect to any taxable year, any dwelling unit--
       ``(i) placed in service before 1960,
       ``(ii) located in the United States,
       ``(iii) in which resides, for a total period of not less 
     than 50 percent of the taxable year, at least 1 child who has 
     not attained the age of 6 years or 1 woman of child-bearing 
     age, and
       ``(iv) each of the residents of which during such taxable 
     year has an adjusted gross income of less than 185 percent of 
     the poverty line (as determined for such taxable year in 
     accordance with criteria established by the Director of the 
     Office of Management and Budget).
       ``(B) Dwelling unit.--The term `dwelling unit' has the 
     meaning given such term by section 280A(f)(1).
       ``(3) Lead-based paint hazard.--The term `lead-based paint 
     hazard' has the meaning

[[Page 27302]]

     given such term by section 745.61 of title 40, Code of 
     Federal Regulations.
       ``(4) Certified lead abatement supervisor.--The term 
     `certified lead abatement supervisor' means an individual 
     certified by the Environmental Protection Agency pursuant to 
     section 745.226 of title 40, Code of Federal Regulations, or 
     an appropriate State agency pursuant to section 745.325 of 
     title 40, Code of Federal Regulations.
       ``(5) Certified inspector.--The term `certified inspector' 
     means an inspector certified by the Environmental Protection 
     Agency pursuant to section 745.226 of title 40, Code of 
     Federal Regulations, or an appropriate State agency pursuant 
     to section 745.325 of title 40, Code of Federal Regulations.
       ``(6) Certified risk assessor.--The term `certified risk 
     assessor' means a risk assessor certified by the 
     Environmental Protection Agency pursuant to section 745.226 
     of title 40, Code of Federal Regulations, or an appropriate 
     State agency pursuant to section 745.325 of title 40, Code of 
     Federal Regulations.
       ``(7) Qualified contractor.--The term `qualified 
     contractor' means any contractor who has successfully 
     completed a training course on lead safe work practices which 
     has been approved by the Department of Housing and Urban 
     Development and the Environmental Protection Agency.
       ``(8) Documentation required for credit allowance.--No 
     credit shall be allowed under subsection (a) with respect to 
     any eligible dwelling unit for any taxable year unless--
       ``(A) after lead hazard reduction activity is complete, a 
     certified inspector or certified risk assessor provides 
     written documentation to the taxpayer that includes--
       ``(i) evidence that--

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

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

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

       (c) Effective Date.--The amendments made by this section 
     shall apply to lead hazard reduction activity costs incurred 
     after December 31, 2005, in taxable years ending after that 
     date.
  Mr. OBAMA. Mr. President, today I rise in support of Senator 
Clinton's bill which would provide tax credits of $1,000 to $3,000 to 
property owners who eliminate or contain lead-based paint hazards in 
homes where low-income young children or women of childbearing age 
live.
  Children who eat lead paint chips ingest a highly toxic substance 
that can produce a range of health effects including reduced IQ, 
reading and learning disabilities, reduced attention spans, kidney 
damage, and hyperactivity. The sad fact is that there are still over 
400,000 children suffering from lead poisoning in this country, many of 
them poor and many of them minorities. My home State, Illinois, is the 
State with the highest number of these children.
  The loss of IQ and ability to learn affects these children and their 
families for the rest of their lives and imposes an economic burden on 
the rest of us because of their reduced productivity.
  I urge my colleagues to join Senators Clinton, Smith, DeWine, and me 
in preventing future lead poisonings by giving property owners a tax 
incentive to eliminate this problem.
                                 ______
                                 
      By Mr. KERRY:
  S. 2055. A bill to amend titles 10 and 14, United States Code, to 
provide for the use of gold in the metal content of the Medal of Honor; 
to the Committee on Banking, Housing, and Urban Affairs.
  Mr. KERRY. Mr. President, today I introduce a bill requiring that the 
Congressional Medal of Honor be made out of 90 percent gold instead of 
gold-plated brass as is currently the case.
  The Congressional Medal of Honor is the highest award our country 
bestows for valor in action against an enemy force. Its recipients are 
ordinary Americans who perform extraordinary deeds in battle, often 
giving their lives.
  This is the medal awarded posthumously to Sergeant First Class Paul 
R. Smith. Under attack at Baghdad International Airport, Sergeant Smith 
quickly organized the defense of his position, engaging a company-sized 
enemy force. He showed no concern for his own personal safety when in 
the face of hostile-fire he mounted an armored personnel carrier and 
manned a .50 caliber machine gun. As the citations accompanying his 
award put it, ``In total disregard for his own life, he maintained his 
exposed position in order to engage the attacking enemy force. During 
this action, he was mortally wounded. His courageous actions helped 
defeat the enemy attack, and resulted in as many as 50 enemy soldiers 
killed, while allowing the safe withdrawal of numerous wounded 
soldiers.''
  This is the medal won by Captain Humbert Roque Versace. During an 
intense attack by the Viet Cong in the Xuyen Province, Captain Versace 
was wounded twice while engaging the enemy but continued to fight until 
exhaustion and lack of ammunition led to his capture. The citation 
accompanying his award reads: ``Taken prisoner by the Viet Cong, he 
exemplified the tenets of the Code of Conduct from the time he entered 
into Prisoner of War status. Captain Versace assumed command of his 
fellow American soldiers, scorned the enemy's exhaustive interrogation 
and indoctrination efforts, and made three unsuccessful attempts to 
escape, despite his weakened condition which was brought about by his 
wounds and the extreme privation and hardships he was forced to endure. 
During his captivity, Captain Versace was segregated in an isolated 
prisoner of war cage, manacled in irons for prolonged periods of time, 
and placed on extremely reduced ration. The enemy was unable to break 
his indomitable will, his faith in God, and his trust in the United 
States of America. Captain Versace, an American fighting man who 
epitomized the principles of his country and the Code of Conduct, was 
executed by the Viet Cong on 26 September 1965.''
  This is the medal won by Marine Corps Second Lieutenant Robert Dale 
Reem, who on the night of November 6, 1950, after leading three 
separate assaults on an enemy position in the vicinity of Chinhung-ni, 
Korea, threw

[[Page 27303]]

himself on top of an enemy grenade that landed amidst his men.
  This is the medal won by Lieutenant, Junior Grade, Donald Gary, who, 
while serving aboard the U.S.S. Franklin on July 23, 1945, calmly led 
his crewmates to safety after their ship was attacked. His citation 
reads: ``Stationed on the third deck when the ship was rocked by a 
series of violent explosions set off in her own ready bombs, rockets, 
and ammunition by the hostile attack, Lt. (j.g.) Gary unhesitatingly 
risked his life to assist several hundred men trapped in a messing 
compartment filled with smoke, and with no apparent egress. As the 
imperiled men below decks became increasingly panic stricken under the 
raging fury of incessant explosions, he confidently assured them he 
would find a means of effecting their release and, groping through the 
dark, debris-filled corridors, ultimately discovered an escapeway. 
Staunchly determined, he struggled back to the messing compartment 
three times despite menacing flames, flooding water, and the ominous 
threat of sudden additional explosions, on each occasion calmly leading 
his men through the blanketing pall of smoke until the last one had 
been saved.''
  As I have said previously, those who earned these medals are the 
stuff of legend. But they are more than legends. They are actual people 
whose deeds inspire humility and gratitude in all of us. In bestowing 
the Congressional Medal of Honor, the president enrolls the recipient 
in a sacred club of heroes.
  The medal itself, however, while invaluable in significance and 
tribute, does not do enough to show our appreciation. The medal is gold 
in color but is actually brass plated with gold and only costs 
approximately $30 to produce. Other Congressional medals given to 
foreign dignitaries, famous entertainers, and other worthy citizens can 
cost $30,000 to produce. Now I will be the first to tell you that I 
believe the value of this medal is found in the deeds of every American 
who has earned it. But also believe that we can do better.
  Put simply, this legislation will forge a medal more worthy of the 
esteem with which the Nation holds those few who have earned the 
Congressional Medal of Honor through valor and heroism beyond compare.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2055

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

     SECTION 1. GOLD CONTENT FOR MEDAL OF HONOR.

       (a) Requirement for Gold Content.--Sections 3741, 6241, and 
     8741 of title 10, United States Code, and section 491 of 
     title 14, United States Code, are each amended by inserting 
     after ``appropriate design,'' the following: ``the metal 
     content of which is 90 percent gold and 10 percent alloy 
     and''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall apply with respect to any Medal of Honor awarded after 
     the date of the enactment of this Act.
                                 ______
                                 
      By Mr. ALLEN (for himself and Mr. Warner):
  S. 2056. A bill to require the Secretary of the Treasury to redesign 
$1 Federal reserve notes so as to incorporate the preamble of the 
Constitution of the United States, a list describing the Articles of 
the Constitution, and a list describing the amendments to the 
Constitution, on the reverse side of such note; to the Committee on 
Banking, Housing, and Urban Affairs.
  Mr. ALLEN. Mr. President, I rise today to introduce a piece of 
legislation that is designed to honor the document allows us to all be 
here today. The document I am referring to is the Constitution of the 
United States of America, the greatest and longest lasting political 
document in the history of the world. Drafted in part by the great 
patriot Thomas Jefferson, this document sets forth both the structure 
of our government and the fundamental freedoms we enjoy every day. 
Ingenious by its simplicity, the Constitution is a living breathing 
document that has allowed our country to evolve from 13 colonies who 
banded together to win her independence from Great Britain to the most 
powerful Nation in the world. While this document has created a strong 
national government that is unrivaled in the world, it has also kept 
the power in the States to decide how to govern themselves. As governor 
of the Commonwealth of Virginia and now as United States Senator I have 
had the unique opportunity to experience how this ingenious system of 
federalism plays out in every action we take as leaders.
  This legislation that I am introducing today will serve to remind all 
Americans of the freedoms embodied in the Constitution. For many of us, 
it has been a long time since we have had the opportunity to sit down 
and actually read this historic document. By placing the headings of 
the articles and the amendments on the back of the dollar bill, all 
people will have the chance to look at the provisions. I sincerely hope 
that when children take a look at the reverse side of a dollar bill, 
they will take the time to ask their parents about what they are 
reading so they can gain a better understanding of our great Nation and 
the principals our country was founded.
  By looking at the order of the amendments to the constitution, 
students can also trace the history of our country. The amendments to 
the constitution embody the four pillars of a free and just society. 
The first of these pillars is freedom of religion, this important 
freedom is protected by the First Amendment which allows all people of 
all religions to freely practice their chosen religion without fear of 
government interference. The second pillar is the freedom of 
expression, which again is protected in the First Amendment. The third 
pillar is the private ownership of property. This important freedom is 
protected by the Fifth Amendment which limits the government's power to 
take private property. This freedom is also protected in the Third. The 
fourth Amendment which protects citizens from being forced to quarter 
solders in their homes and protects private property from unreasonable 
searches and seizures respectively. The fourth pillar is the rule of 
law. Protection of the rule of law runs throughout the Constitution, 
most notably in the Sixth Amendment which guarantees the right to a 
speedy trial and the Fifth and Fourteenth Amendments which require due 
process of law.
  Looking at the remaining amendments one can trace the evolution of 
the Constitution and the United States from the Thirteenth Amendment 
prohibiting slavery, to the Fifteenth Amendment providing for the right 
to vote regardless of race, the Nineteenth Amendment granting women the 
right to vote and the Twenty Fourth Amendment prohibiting the poll tax.
  Throughout our history, hundreds of thousands of brave men and women 
have laid down their lives protecting the freedoms granted to us in the 
constitution. Having it been Veterans Day a few days ago, I feel it is 
high time that we do all we can to publicize what these freedom are 
that we hold so dearly.
  Before I yield the floor I would like to recognize the contributions 
of one of my constituents, Mr. Randy Wright who teaches at Liberty 
Middle School in Hanover, VA. Mr. Wright brought this idea to my 
attention several years ago and he along with his students over the 
years have been instrumental is providing support for this piece of 
legislation. I therefore urge my colleagues to join me in support this 
legislation.
                                 ______
                                 
      By Mrs. CLINTON (for herself, Mr. Harkin, Mr. Durbin, Mr. 
        Kennedy, Mr. Kerry, Ms. Landrieu, Mr. Lautenberg, and Mr. 
        Inouye):
  S. 2057. A bill to establish State infrastructure banks for 
education, and for other purposes; to the Committee on Health, 
Education, Labor, and Pensions.
  Mrs. CLINTON. Mr. President, I rise today to introduce legislation 
co-sponsored with Senator Harkin that would begin to rebuild America's 
schools. If approved, the Investing for Tomorrow's Schools Act would 
enable states to develop State Infrastructure Banks--a

[[Page 27304]]

flexible and inexpensive way to finance school construction and 
renovation. This approach offers an innovative solution to the urgent 
problem of fixing deteriorating schools. Every dollar invested to 
create State Infrastructure Banks would be reused to support project 
after project in the form of loans and credit support.
  According to the National Center for Education Statistics, three in 
four schools in America need assistance to come into ``good overall 
condition.'' Repairs and modernizations will cost, according to the 
National Education Association, $322 billion. New York State has a 
greater need than any other state--estimated at $51 billion. Just in 
New York City, schools are estimated to need $21 billion. The city's 
schools are so old that they would nearly qualify for social security, 
averaging 61-years-old.
  Acute need for school repair and modernization exists nationwide. 
Need is estimated at $33 billion in California, $25 billion in Ohio, 
$22 billion in New Jersey, $13 billion in Texas, and $10 billion each 
in Illinois, Massachusetts, Michigan, Pennsylvania, and Utah. Nation-
wide costs add up to $322 billion.
  In 2005, an estimated $19.6 billion was spent nation-wide on school 
construction. At that rate, it will take more than 16 years to 
modernize school buildings. Last year in New York, $984 million was 
spent on school construction. At that rate, it will take more than 50 
years to modernize New York's schools--and that's assuming that in the 
meantime we don't need to build more new schools and that no schools 
fall apart!
  When students attend schools in disrepair, the consequences are all 
too clear.
  An article from 2004 in the Poughkeepsie Journal described how, in 
Hyde Park, New York along the Hudson River, ventilation problems at the 
45-year-old Franklin D. Roosevelt High School sickened students and 
staff causing watery eyes, headaches, nausea, and dizziness. I would 
like to include this article in the Congressional Record. State 
Infrastructure Banks would make funding available to address 
environmental hazards including poor ventilation and bad air quality. 
They would help more schools become healthy and high-performing.
  An article in Newsday newspaper described how, in Hempstead New York, 
on Long Island, Prospect Elementary, a 100-year-old school, was closed 
in the fall of 2003 after administrators discovered a rodent problem, 
mold in the cafeteria, and a crumbling chimney in a classroom.
  The Marguerite Golden Rhodes Elementary School was closed after state 
education officials found a gap between where the paint on the walls 
ended and where the ceiling began--an indication that either the wall 
or the ceiling was moving.
  Hempstead High School was closed for a week, after a blackboard fell 
off a wall exposing asbestos left over from a botched cleanup in 1990. 
1'd like to include this article in the Congressional Record.
  The school closures worsened overcrowding, as parents Celia Ridely 
and Olive Warner pointed out to Newsday and the New York Times. With 
schools in such poor condition, is it surprising that just 38 percent 
of students in Hempstead graduate from high school?
  In Washingtonville, 54 miles north of New York City, the roof over a 
classroom in 44-year-old Taft Elementary collapsed. Fortunately the 
catastrophic collapse occurred in August of 2004, before the school 
year began, and no one was injured.
  Unfortunately, the U-shaped joist which contributed to the collapse 
was popular in school construction across New York and throughout 
America from 1900 to the early 1970s. Many of these schools are still 
in operation. New York's Department of Education took the precaution of 
advising school districts to check similar joists to make sure they are 
in good condition.
  The lack of funding for school construction can lead school districts 
to put off maintenance. Paul Abramson, a consultant based in 
Westchester County, New York told a school construction website, ``What 
happens, unfortunately, is [that] school districts cut down on 
maintenance.''
  Barbara Knisely-Michelman of the American Association of School 
Administrators said, ``It comes down to the issue of resource. If 
school administrators had unlimited resources, [maintenance] would be 
at the top of the agenda.''
  We can do better. Schoolchildren should not have to contend with 
falling-down schools. The lack of adequate school buildings hampers 
today' s most promising and innovative efforts to boost student 
achievement.
  Charter schools hold the promise of expanding the supply of high-
quality public schools, especially in disadvantaged communities. But 
most charter schools have limited credit histories and lack access to 
public school facilities or traditional funding streams such as bonds. 
One in three charter school operators report that school construction 
costs are a major obstacle to their schools' success.
  The No Child Left Behind Act promised that children in 
underperforming schools would have the opportunity to transfer to 
better public schools. But in many communities, more students seek 
transfers than are spaces available. In New York City last year, 33,000 
students applied to transfer out of underperforming schools but only 
7,000 could be accommodated.
  Charter school operators should have access to affordable financing 
for school construction. Schoolchildren promised public school choice 
should be able to exercise that right. Innovative reforms should not be 
blocked by inadequate school buildings.
  In 2004, an editorialist for Newsday newspaper on Long Island wrote, 
``School construction is one area where the federal government could do 
more. Little . . . has been heard on the subject since the late 90s--
that's a shame. . . . Money must be found to keep schools safe, 
functional, and welcoming places.''
  Senator Harkin and I agree. That's why today we are introducing the 
Investing for Tomorrow's Schools Act. At the heart of our proposal is 
the creation of State Infrastructure Banks, which would improve 
financing for school construction. This financing mechanism has been 
used since the Reagan Administration to help local communities fund 
water treatment and clean water facilities and transportation projects. 
For example, my own State of New York received $2.48 billion in Federal 
support for its Clean Water State Revolving Fund between 1989 and 2004. 
It leveraged that money into more than $10 billion of loans to local 
communities.
  For example, State Infrastructure Banks would offer school districts 
a flexible menu of loan and credit enhancement assistance, such as low 
interest loans, bond-financing security, loan guarantees, and credit 
support for financing projects, which result in lower interest rates.
  State Infrastructure Banks would not strain Federal Treasury or the 
American taxpayer. After initial funding, they would require no ongoing 
federal appropriations. As each loan is repaid, the money can be 
offered as a new loan.
  Passage of this bill would lay the groundwork for a robust system of 
State Infrastructure Banks that provide immediate aid to the neediest 
schools and help local communities fund affordable construction far 
into the future.
  This modest proposal is one piece of the school construction 
solution. I ask my Senate colleagues to join me today to pass this 
legislation without delay.
  Mr. President, I ask unanimous consent that 2 articles be printed in 
the Record.
  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

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

               Ventilation Blamed for FDR High Illnesses

                            (By John Davis)

       Ventilation problems were the cause of a rash of complaints 
     about the air at Franklin D. Roosevelt High School in October 
     and November, according to health officials.
       After weeks of testing and monitoring conditions at the 
     Hyde Park high school, Dutchess County Health Commissioner 
     Dr. Michael Caldwell recently relayed his findings in a 
     letter to Hyde Park schools Superintendent Carole Pickering.

[[Page 27305]]

       ``The reported symptoms and effects among students and 
     staff in the school are consistent with those reported in a 
     building with inadequate ventilation,'' Caldwell wrote.
       In response to the complaints by students and staff 
     reporting headaches, dizziness and watery eyes, the county 
     health department considered a number of factors as being the 
     source of the problem.
       The health department has ruled out mold, toxic agents or 
     germs as being the culprit.
       ``Recent modifications made to the school's ventilation 
     system appear to have had a beneficial effect upon the FDR 
     high school community,'' Caldwell noted in his letter.
       Pickering expressed sympathy Wednesday for those who 
     suffered during the period of the air problem.
       ``I regret that even one single person was ill due to the 
     air quality problems over the last seven weeks,'' Pickering 
     said in a prepared statement Wednesday. ``We will continue to 
     monitor FDR and to proactively assess heating and ventilation 
     systems in all our buildings.''
                                  ____


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

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

                          (By Laura Williams)

       It already seemed more than the Hempstead School District 
     could bear. Asbestos and mold forced school closings. The 
     school board abruptly fired the superintendent. Board members 
     were suing each other amid accusations of corruption.
       Then last week came word that the State Education 
     Department is launching an investigation into financial 
     hanky-panky by school board members. That revelation, in 
     fact, was welcome news to fed-up parents.
       Board members ``cannot get through a school board meeting 
     without arguing about which friend is going to benefit and 
     how they're going to get money back from the district,'' said 
     Ron Mazile, co-chairman of Hempstead Parents Community 
     United.
       The investigation will be conducted in addition to an in-
     depth audit of the district's books being done by State 
     Controller Alan Hevesi.
       As if all that weren't enough, a Hempstead High student was 
     stabbed to death near the school Tuesday. A former gang 
     member was arrested, and cops were seeking two more suspects 
     last week.
       And there's still more: the school district is facing $100 
     million worth of lawsuits, included in these are suits filed 
     by school employees making charges of sexual harassment and 
     discrimination. In addition, school board member Thomas 
     Parsley is suing colleague Ralph Schneider over something 
     personal.
       Parsley himself was charged in September with stealing an 
     ATM card from a principal, though he has said the charge was 
     politically motivated.
       Neither the district superintendent nor any of the five 
     board members returned repeated calls.
       The 6,800-student district is struggling with the problems 
     that plague so many financially-strapped communities. Almost 
     three-quarters of the Hempstead district's students qualify 
     for free lunch.
       Less than 40% of its high school students graduate, 
     compared to wealthy next-door neighbor Garden City, where 99% 
     graduate. Reading and math scores continue to lag behind the 
     county average.
       And school buildings have not been properly maintained.
       Prospect Elementary was closed last year after mold was 
     discovered in the cafeteria. Marguerite Golden Rhodes 
     Elementary School also was closed after it appeared the 
     building was shifting dangerously. Both schools' students are 
     attending classes held in trailers.
       Last year, a problem with the hot water heater sickened 
     staffers and students at Alverta Bray Schultz Middle School, 
     which also was found to be serving spoiled food in its 
     cafeteria. And Hempstead High was shut down for a week last 
     year after a chalkboard fell, exposing asbestos.
       Amid all these problems, the school board last month fired 
     Superintendent Nathaniel Clay, replacing him with Susan 
     Johnson.
       Johnson, who was fired as the district's director of 
     personnel just two months before getting the top job, had 
     launched her own lawsuit against the district, charging 
     wrongful termination.
       Parents are planning a Dec. 4 rally and march--from Village 
     Hall to school district offices--in an attempt to get local 
     school leaders to perform dutifully.
       ``Taxpayers, parents and students are fuming,'' Mazile 
     said. ``We're going to hold their feet to fire.''
                                 ______
                                 
      By Mr. FEINGOLD:
  S. 2058. A bill to promote transparency and reduce anti-competitive 
practices in the radio and concert industries; to the Committee on 
Commerce, Science, and Transportation.
  Mr. FEINGOLD. Mr. President, I am pleased to introduce legislation 
today that will promote openness and fair competition in the radio and 
concert industries.
  I have followed the changes in the radio and concert industries since 
the 1996 Telecommunication Act with great concern. For years, I have 
heard complaints from my constituents about the increasing 
concentration of ownership in the radio and concert industries and, in 
turn, the increasingly uneven playing field for small radio stations 
and independent concert promoters. For consumers this has meant less 
diversity, less local content and growing dissatisfaction with the 
radio and concerts they are offered.
  Most recently in the last Congress, I introduced broad legislation to 
address ownership consolidation and the anti-competitive practices 
common in the industry. These practices include tacit or explicit pay-
for-play, or ``payola,'' payments, and corporate radio stations putting 
untoward pressure on artists to play at the same corporation's venues 
use affiliated concert promoters. While I continue to be concerned by 
consolidation and believe this centralization exacerbates the potential 
for abuse, the bill I introduce today focuses instead on the anti-
competitive practices, whether they occur at a radio station group of a 
handful of stations or one that owns thousands of stations.
  Some might question why we need added scrutiny and accountability for 
the radio and concert industries specifically. Besides the unique role 
radio plays for communication and entertainment in each American's 
life, radio also is, in a sense, a public-private partnership. With 
radio's use of the public airwaves, it also has a responsibility to 
serve the public good.
  The abuses within the radio and concert industry are not entirely 
new. In fact, problems have occasionally sprung up almost throughout 
the entire history of the medium. There almost seems to be a cyclical 
pattern as the payola is rooted out and then several years later is 
reincarnated in slightly different form to grow to become pervasive 
again. So while the original payola practices predated the recent rapid 
consolidation in the industry, the concentration of power has made the 
problem more widespread and its effects possibly more severe on local 
stations, promoters, artists and consumers.
  While paying a radio station or radio station employee to play a 
certain song without telling the audience has a long history in radio, 
this does not make the fraud and bribery any more acceptable. In the 
1950s, the practice was relatively simple. Artists, their labels or 
managers would often directly bribe DJs to play their songs either in 
cash or through other consideration. When this practice became public, 
there were investigations and Congress and the Federal Communications 
Commission (FCC) took actions to block this payola.
  The most recent incarnation of payola takes a more complicated and 
sophisticated--corporate, if you will--approach to skirt the current 
rules that prevent direct pay-for-play. Indirect payments through 
independent music promoters have been an open secret, as have more 
direct payments, as the ground-breaking investigation of New York 
Attorney General Eliot Spitzer demonstrates. While the Spitzer 
investigation is ongoing, he has already uncovered significant abuses 
and this summer reached a $10 million settlement with a record label.
  While not traditionally considered payola, there are other abuses of 
power over airplay decisions by radio stations and their corporate 
parents, especially when the conglomerate also owns concert promoters 
and venues. This cross- ownership sets up a situation where the same 
corporation that is negotiating a contract for an artist to perform at 
its concert also controls the lifeblood of that artist's success--
airplay of his or her songs. The result can be intense pressure on 
artists to play radio station-promoted shows and, often, to do so for 
less than the normal rate. This practice hurts the artist, hurts 
competing independent stations and promoters and, ultimately, hurts the 
listening public, which ends up choosing from songs on the radio that 
have been selected based on where and for whom the artist is performing 
a concert, and for the songs' artistic merit. Moreover, for any artist 
who

[[Page 27306]]

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

                                S. 2058

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Radio and Concert Disclosure 
     and Competition Act of 2005''.

     SEC. 2. DISCLOSURE REGULATIONS.

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

     SEC. 3. ARM'S LENGTH TRANSACTIONS.

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

[[Page 27307]]

       (2) for a radio station that is a small business, as 
     recognized by the Commission and established by the Small 
     Business Administration under section 121 of title 13, Code 
     of Federal Regulations, if the Commission determines that 
     such record keeping poses an undue burden to that small 
     business.

     SEC. 4. COMPETITION REGULATIONS.

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

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

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

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

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

     SEC. 5. REVIEW OF TRANSACTIONS.

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

     SEC. 6. PENALTIES.

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

     SEC. 7. REPORT.

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

     SEC. 8. LICENSE REVOCATION.

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

     SEC. 9. INCREASED MAXIMUM PENALTIES.

       (a) Penalties for Disclosure of Payments to Individuals 
     Connected With Broadcasts.--Section 507(g)(1) of the 
     Communications Act of 1934 (47 U.S.C. 508(g)(1)) is amended 
     by striking ``$10,000'' and inserting ``$50,000''.
       (b) Penalties for Prohibited Practices in Contests of 
     Knowledge, Skill, or Chance.--Section 508(c)(1) of the 
     Communications Act of 1934 (47 U.S.C. 509(c)(1)) is amended--
       (1) by striking ``$10,000'' and inserting ``$50,000''; and
       (2) by inserting ``, for each violation'' before the 
     period.
                                 ______
                                 
      By Mr. VOINOVICH (for himself and Mr. Akaka):
  S. 2060. A bill to extend the District of Columbia College Access Act 
of 1999 and make certain improvements; to the Committee on Homeland 
Security and Governmental Affairs.
  Mr. VOINOVICH. Mr. President, today I rise to introduce legislation 
to reauthorize the District of Columbia Tuition Assistance Grant (D.C. 
TAG) program for five additional years. This program has had a 
tremendously beneficial impact on promoting higher education for high 
school graduates in our Nation's capital.
  The aim of this program is to assist District students, who do not 
have access to state-supported education systems, in attending college. 
D.C. TAG scholarships are used by District residents to pay the 
difference between in-State and out-of-State tuition at State 
universities nationwide, up to $10,000 per student per school year, 
with a cumulative cap of $50,000 per student. In addition, since March 
2002, District students attending private institutions in Maryland and 
Virginia, as well as Historically Black Colleges and Universities 
nationwide, started receiving tuition grants under the program of 
$2,500 per student per school year, with a cumulative cap of $12,500 
per student.
  Since the first grants were awarded in 2000, the program has 
dispersed over $98 million to 8,454 District students; many are the 
first in their family to attend college. Moreover, District high school 
graduating seniors have seen a 28 percent increase in college 
attendance. Seventy five percent of District students said that D.C. 
TAG made a difference in their decision to continue their education 
beyond high school. Sixty five percent of District students have 
indicated that D.C. TAG has enabled them to choose a college that best 
suits their educational needs.
  Because of the great success and positive impact of this program, I 
propose to expand the program to private schools nationwide, thereby 
creating greater equity between all private colleges, while 
establishing a cap on program funding at the current appropriation of 
$33.2 million annually. In addition, this legislation will require the 
Mayor of the District of Columbia to submit an annual report to 
Congress on the program's status.

[[Page 27308]]

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

                                S. 2060

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

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

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

     SEC. 2. EXPANSION TO PRIVATE SCHOOLS NATIONWIDE.

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

     SEC. 3. CAPPED FUNDING.

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

     SEC. 4. MAYOR'S REPORT.

       Section 3(g) of the District of Columbia College Access Act 
     of 1999 (sec. 38-2703(g); D.C. Official Code) is amended to 
     read as follows:
       ``(g) Mayor's Report.--Not later than August 1, the Mayor 
     shall report to Congress annually regarding:
       ``(1) The number of students applying for the program and 
     the number of students graduating from the program.
       ``(2) The number of eligible students attending each 
     eligible institution and the amount of the grant awards paid 
     to those institutions on behalf of the eligible students.
       ``(3) The extent, if any, to which a ratable reduction was 
     made in the amount of tuition and fee payments made on behalf 
     of eligible students.
       ``(4) The progress in obtaining recognized academic 
     credentials of the cohort of eligible students for each 
     year.''.
                                 ______
                                 
      By Mr. ENZI (for himself, Mr. Isakson, Mr. Craig, Mr. Burr, Mr. 
        Roberts, Mr. Sessions, Mr. Warner, and Mr. Gregg):
  S. 2065. A bill to amend the Occupational Safety and Health Act of 
1970 to further improve the safety and health of working environments, 
and for other purposes; to the Committee on Health, Education, Labor, 
and Pensions.
                                 ______
                                 
      By Mr. ENZI (for himself, Mr. Isakson, Mr. Craig, Mr. Burr, Mr. 
        Roberts, Mr. Sessions, Mr. Gregg, Mr. Warner, and Mr. DeMint):
  S. 2066. A bill to amend the Occupational Safety and Health Act of 
1970 to further improve the safety and health of working environments, 
and for other purposes; to the Committee on Health, Education, Labor, 
and Pensions.
                                 ______
                                 
      By Mr. ENZI (for himself, Mrs. Murray, Mr. Isakson, Mr. Burr, Mr. 
        Sessions, and Mr. Gregg):
  S. 2067. A bill to assist chemical manufacturers and importers in 
preparing material safety data sheets pursuant to the requirements of 
the Hazard Communication standard and to establish a Commission to 
study and make recommendations regarding the implementation of the 
Globally Harmonized System of Classification and Labeling of Chemicals; 
to the Committee on Health, Education, Labor, and Pensions.
  Mr. ENZI. Mr. President, I am pleased today to announce the 
introduction of legislation designed to improve our workplace health 
and safety. The Senate Committee on Health, Education, Labor and 
Pensions, that I Chair, has a broad range of responsibilities. None of 
them is more important than the oversight of our occupational safety 
and health laws.
  In the past decade or so we have witnessed steady progress toward 
safer and healthier workplaces. For example, in 1992, approximately 9 
out of every 100 American workers suffered a workplace injury. By 2003, 
that injury rate had been cut nearly in half. Over the same period we 
have seen more than a 20 percent decline in the annual rate of 
fatalities from workplace injuries.
  As encouraging as this progress is, however, it should not be cause 
for anyone to become complacent. The number of work-related deaths and 
injuries remains unacceptably high. For example, last year, despite the 
efforts of all concerned, some 4.4 million workers suffered work-
related injuries, with 1.3 million of those injuries involving lost 
work days. Such workplace injuries continue to bring hardship to 
employees and their families and to impose significant burdens on our 
economy. We need to continue our efforts to improve workplace safety.
  If we are to be successful in our efforts we must be prepared to cast 
aside old assumptions, be willing to embrace new ideas, and be candid 
enough to agree on some fundamental realities. First among these 
realities is that the overwhelming number of employers are concerned 
about the welfare of their employees and are fully prepared to comply 
with laws aimed at enhancing their safety on the job. The notion that 
employers care little about worker safety, or are prepared to sacrifice 
worker health in the pursuit of higher profits is a dangerously 
inaccurate myth. It is dangerous because it promotes and perpetuates an 
adversarial relationship between employers and government safety 
agencies at the very time that we need precisely the opposite. 
Cooperation, not confrontation is essential in making our workplaces 
safer.
  It is fortunate that most employers want to do the right thing since 
without the cooperation of the employer community there is little 
realistic hope of continuing to improve workplace safety. That is the 
second fundamental reality we must accept. Where the vast majority of 
employers are committed to establishing and maintaining a safe 
workplace, it makes little sense to perpetuate a system built largely 
on a system of inspections and sanctions. Any system aimed at fostering 
workplace safety that relies principally on such measures is not only 
improperly focused; it cannot, as a practical matter, even hope to 
achieve its intended goal.
  Simple mathematics makes it clear that we cannot inspect or sanction 
our way to greater job safety. Today, the total number of OSHA 
inspectors, including those employed by the states, as well as those 
employed by the Federal Government, is less than 2,400. Each of these 
individuals conducts an average of about 40 inspections a year. In 
other words, there will be less than 100,000 work sites inspected by 
State and Federal OSHA combined in any given year. At the present time, 
there are well over seven million worksites in the United States. At 
current inspection rates, we would need nearly 170,000 OSHA inspectors 
in order to inspect all U.S. work sites just once a year. In addition, 
since most industrial accidents occur in a split second, and since many 
are caused by unsafe acts rather than unsafe conditions, even an army 
of inspectors could not adequately address the issue.
  It is my view that any practical approach to addressing the issue of 
workplace safety must recognize these realities and be designed to 
encourage and assist employers in achieving this end--not merely punish 
them for failing to do so. For these reasons, the legislation that I 
have introduced today contains a number of provisions designed to 
enhance voluntary compliance, and to provide technical assistance to 
the vast majority of employers that strive every day to ensure the 
health and safety of their employees. Thus, these bills contain 
provisions that encourage employers to engage the services of highly 
qualified third-party safety consultants to assist them in creating 
safer workplaces. The legislation also seeks to extend the benefits

[[Page 27309]]

of such worthwhile initiatives as the current Voluntary Protection Plan 
to smaller employers; and it increases the level of government outreach 
and technical help to employers seeking assistance in making their 
workplaces safer. It also provides for increased training of OSHA 
personnel and fosters a greater understanding of specific workplace 
safety issues through a unique cross- training and exchange program 
between OSHA and the business community. These last two initiatives are 
predicated on the common sense notion that the more we know and the 
more we collaborate toward a common goal, the more likely it is that we 
will achieve the desired result.
  While I believe that the interests of workplace safety compel us to 
dramatically increase our efforts at encouraging voluntary compliance, 
we cannot be unmindful that the Occupational Safety and Health Act is a 
regulatory statute; and that, like all regulation, there are points at 
which the process becomes adversarial. I certainly believe there should 
be a less adversarial process, however, when it does occur I believe it 
needs to be fair and regular. In the regulatory context, the power and 
resources of the Federal Government can be overwhelming, particularly 
to small businesses. We need to make sure that the adversarial playing 
field is a level one, and that the legitimate expectations of fairness 
and regularity of process are adequately met. For this reason, the 
bills which I have introduced today contain a number of provisions 
aimed at ensuring this result. Thus, the bill provides for the recovery 
of attorney's fees by small businesses that prevail in litigation 
against the government in an OSHA claim, and codifies procedural 
flexibility and fairness in the issuance and processing of disputed 
claims. The legislation also recognizes that no one, least of all 
employees, are well served by lengthy delays in the resolution of 
contested claims by increasing the size of the Review Commission and 
making additional changes designed to insure the issuance of more 
timely decisions. The legislation also returns the Review Commission to 
the status of a fully independent adjudicatory body as envisioned in 
the original OSHA legislation by insuring that its decisions are 
accorded appropriate legal deference. The legislation also injects some 
much needed flexibility into the administration and enforcement of the 
statute by permitting the use of alternative, site-specific compliance 
methods, giving inspectors a degree of compliance discretion, and 
encouraging the prompt correction of certain non-serious violations.
  In addition to these changes that are based upon procedural and 
regulatory fairness, the legislation also contains provisions designed 
to address the root cause of many industrial injuries, and others aimed 
at bringing a much-needed measure of simplicity and uniformity to our 
workplace safety laws.
  In the first instance, for too long we have held the one-dimensional 
view that work conditions and employer practices are the principal, if 
not exclusive, factors in workplace safety. The reality is that unsafe 
individual behavior also has an extraordinary impact. For example, it 
is estimated that 47 percent of all serious workplace accidents, and 40 
percent of all workplace fatalities involve drugs or alcohol. Some 38 
to 50 percent of all workers' compensation claims are related to drug 
or alcohol abuse in the workplace. An industrial accident typically 
takes only a split second to occur. The safest conceivable conditions 
and systems can be rendered useless in that instant by an employee 
whose judgment or reactions are impaired.
  Apart from substance abuse, we also cannot ignore the fact that any 
employer's safety policies and procedures can be rendered useless 
whenever someone breaks the rules.
  If we are serious about workplace safety we have to understand that 
the employer is not the only factor in the equation. And, if we propose 
to achieve workplace safety solely by regulating employer conduct, then 
we fail to adequately address the entire issue. At a minimum, we need 
to provide employers some tools and encouragement to control the 
safety-related behavior of others. We cannot mandate that employers 
take disciplinary action against their employees who violate safety 
rules, but we can encourage them to enforce such rules appropriately 
and consistently. We likewise cannot compel employers to institute drug 
and alcohol testing programs, but we can remove the legal barriers to 
their doing so. Today's legislation, by codifying the third party 
misconduct defense, and authorizing the establishment of substance 
testing, provides exactly the type of tools and encouragement that are 
necessary.
  It may be the employer's workplace, but workplace safety is 
everybody's job. We need laws that reflect the fact that a safer 
workplace is everybody's responsibility. For this reason today's 
legislation also contains a provision that allows OSHA to issue 
citations and impose limited fines on employees that violate rules and 
procedures regarding the use of company-supplied personal protective 
equipment. As noted, the authority here, although limited, is 
nonetheless intended to make clear the notion that safety is 
everybody's responsibility.
  Lastly, our current law provides that employers must communicate 
workplace hazards to their employees. This is an important, and 
appropriate goal. ``Communication,'' however, requires the delivery of 
clear, and meaningful information to the recipient. Unfortunately, in 
many respects our hazard communication efforts have become so 
complicated that the complexity stands in the way of the original 
notion that employees need plain information about workplace hazards so 
that they can take adequate precautions to protect themselves. This 
process has become even more complicated by the globalization of our 
economy, and the fact that many hazardous substances routinely in use 
in our workplaces originate outside our borders. These are likewise 
realities that we must address, and that the legislation offered today 
does. Thus, the HazCom Simplification and Modernization Act that is a 
part of the legislative package introduced today provides for the 
simplification of current hazard communication standards and it creates 
a commission designed to review and make recommendations regarding the 
implementation of the global harmonization of chemical labeling, hazard 
communication and a variety of related issues. I am particularly proud 
of the fact that this bill is the product of considerable bi-partisan 
effort, and I am particularly pleased to have Senator Murray as its 
cosponsor. I am deeply grateful for all her efforts in bringing this 
legislation to this point.
  It is my belief that the three bills introduced today reflect the 
correct and balanced approach to the goal of increased work place 
safety that all of us want to achieve.
  I ask unanimous consent that the text of the bills be printed in the 
Record.
  There being no objection, the bills were ordered to be printed in the 
Record, as follows:

                                S. 2065

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

     SECTION 1. SHORT TITLE; REFERENCES.

       (a) Short Title.--This Act may be cited as the 
     ``Occupational Safety Partnership Act''.
       (b) Reference.--Whenever in this Act an amendment or repeal 
     is expressed in terms of an amendment to, or repeal of, a 
     section or other provision, the reference shall be considered 
     to be made to a section or other provision of the 
     Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et 
     seq.).

     SEC. 2. PURPOSE.

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

      SEC. 3. THIRD PARTY CONSULTATION SERVICES PROGRAM.

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

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

       ``(a) Purpose.--It is the purpose of this section to 
     encourage employers to conduct voluntary safety and health 
     audits using the

[[Page 27310]]

     expertise of qualified safety and health consultants and to 
     proactively seek individualized solutions to workplace safety 
     and health concerns.
       ``(b) Establishment of Program.--
       ``(1) In general.--Not later than 18 months after the date 
     of enactment of this section, the Secretary shall establish 
     and implement, by regulation, a program that qualifies 
     individuals to provide consultation services to employers to 
     assist employers in the identification and correction of 
     safety and health hazards in the workplaces of employers.
       ``(2) Eligibility.--The following individuals shall be 
     eligible to be qualified under this program as certified 
     safety and health consultants:
       ``(A) An individual who is licensed by a State authority as 
     a physician, industrial hygienist, professional engineer, 
     safety engineer, safety professional, or registered nurse.
       ``(B) An individual who has been employed as an inspector 
     for a State plan State or as a Federal occupational safety 
     and health inspector for not less than a 5-year period.
       ``(C) An individual who is qualified in an occupational 
     health or safety field by an organization whose program has 
     been accredited by a nationally recognized private 
     accreditation organization or by the Secretary.
       ``(D) An individual who has not less than 10 years 
     experience in workplace safety and health.
       ``(E) Other individuals determined to be qualified by the 
     Secretary.
       ``(3) Geographical scope of consultation services.--A 
     consultant qualified under this program may provide 
     consultation services in any State.
       ``(4) Limitation based on expertise.--A consultant 
     qualified under this program may only provide consultation 
     services to an employer with respect to a worksite if the 
     work performed at that worksite coincides with the particular 
     expertise of the individual.
       ``(c) Safety and Health Registry.--The Secretary shall 
     develop and maintain a registry that includes all consultants 
     that are qualified under the program under subsection (b)(1) 
     to provide the consultation services described in subsection 
     (b) and shall publish and make such registry readily 
     available to the general public.
       ``(d) Disciplinary Actions.--The Secretary may revoke the 
     status of a consultant, or the participation of an employer 
     in the third party consultation program, if the Secretary 
     determines that the consultant or employer--
       ``(1) has failed to meet the requirements of the program; 
     or
       ``(2) has committed malfeasance, gross negligence, 
     collusion or fraud in connection with any consultation 
     services provided by the qualified consultant.
       ``(e) Program Requirements.--
       ``(1) General requirements.--The consultation services 
     described in subsection (b), and provided by a consultant 
     qualified under this program shall, at a minimum, consist of 
     the following elements:
       ``(A) A comprehensive, on-site, survey and audit of the 
     participating employer's workplace and operations by the 
     consultant.
       ``(B) The preparation of a consultation report by the 
     consultant.

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

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

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

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

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

      SEC. 4. PREVENTION OF ALCOHOL AND SUBSTANCE ABUSE.

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

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

       ``(a) Program Purpose.--In order to secure a safe 
     workplace, employers may establish and carry out an alcohol 
     and substance abuse testing program in accordance with 
     subsection (b).
       ``(b) Federal Guidelines.--
       ``(1) Requirements.--An alcohol and substance abuse testing 
     program described in subsection (a) shall meet the following 
     requirements:
       ``(A) Substance abuse.--A substance abuse testing program 
     shall permit the use of onsite or offsite testing.
       ``(B) Alcohol.--The alcohol testing component of the 
     program shall take the form of alcohol breath analysis and 
     shall conform to any guidelines developed by the Secretary of 
     Transportation for alcohol testing of mass transit employees 
     under the Department of Transportation and Related Agencies 
     Appropriations Act, 1992.
       ``(2) Definition.--For purposes of this section the term 
     `alcohol and substance abuse testing program' means any 
     program under

[[Page 27311]]

     which test procedures are used to take and analyze blood, 
     breath, hair, urine, saliva, or other body fluids or 
     materials for the purpose of detecting the presence or 
     absence of alcohol or a drug or its metabolites. In the case 
     of urine testing, the confirmation tests must be performed in 
     accordance with the mandatory guidelines for Federal 
     workplace testing programs published by the Secretary of 
     Health and Human Services on April 11, 1988, at section 11979 
     of title 53, Code of Federal Regulations (including any 
     amendments to such guidelines). Proper laboratory protocols 
     and procedures shall be used to assure accuracy and fairness, 
     and, laboratories must be subject to the requirements of 
     subpart B of the mandatory guidelines, State certification, 
     the Clinical Laboratory Improvements Act of the College of 
     American Pathologists.
       ``(c) Test Requirements.--This section shall not be 
     construed to prohibit an employer from requiring--
       ``(1) an applicant for employment to submit to and pass an 
     alcohol or substance abuse test before employment by the 
     employer; or
       ``(2) an employee, including managerial personnel, to 
     submit to and pass an alcohol or substance abuse test--
       ``(A) on a for-cause basis or where the employer has 
     reasonable suspicion to believe that such employee is using 
     or is under the influence of alcohol or a controlled 
     substance;
       ``(B) where such test is administered as part of a 
     scheduled medical examination;
       ``(C) in the case of an accident or incident, involving the 
     actual or potential loss of human life, bodily injury, or 
     property damage;
       ``(D) during the participation of an employee in an alcohol 
     or substance abuse treatment program, and for a reasonable 
     period of time (not to exceed 5 years) after the conclusion 
     of such program; or
       ``(E) on a random selection basis in work units, locations, 
     or facilities.
       ``(d) Construction.--Nothing in this section shall be 
     construed to require an employer to establish an alcohol and 
     substance abuse testing program for applicants or employees 
     or make employment decisions based on such test results.
       ``(e) Preemption.--The provisions of this section shall 
     preempt any provision of State law to the extent that such 
     State law is inconsistent with this section.
       ``(f) Investigations.--The Secretary is authorized to 
     conduct testing of employees (including managerial personnel) 
     of an employer for use of alcohol or controlled substances 
     during any investigations of a work-related fatality or 
     serious injury. Such testing shall be done as soon as 
     practicable after the incident giving rise to such work-
     related fatality or serious injury.''.

      SEC. 5. VOLUNTARY PROTECTION PROGRAMS.

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

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

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

      SEC. 7. TECHNICAL ASSISTANCE PROGRAM.

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

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

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

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

       (a) In General.--The Secretary of Labor, acting through the 
     Occupational Safety and Health Administration, is authorized 
     to develop and implement at least one training and 
     educational exchange program with a specialty trade in the 
     construction industry for the purpose of--
       (1) facilitating the exchange of expertise and ideas 
     related to the interpretation, application, and 
     implementation of Federal occupational safety and health 
     standards and

[[Page 27312]]

     regulations applicable to the specialty trade involved 
     (referred to in this section as ``OSHA Rules'');
       (2) improving collaboration and coordination between the 
     Occupational Safety and Health Administration and such 
     specialty trade regarding OSHA Rules;
       (3) identifying OSHA Rules which the specialty trade and 
     Occupational Safety and Health Administration compliance 
     officers have repeatedly found to be difficult to interpret, 
     apply, or implement;
       (4) allowing qualified safety directors from the specialty 
     trade to train such compliance officers and others within the 
     Administration responsible for writing and interpreting OSHA 
     Rules, both on the jobsite and off, on the unique nature of 
     the specialty trade and the difficulties contractors and 
     safety directors encounter when attempting to comply with 
     OSHA Rules as well as the best practices within the specialty 
     trade;
       (5) seeking the means to ensure greater compliance with the 
     identified OSHA Rules, and reducing the number of citations 
     based on any misunderstanding by such compliance officers as 
     to the scope and application of an OSHA Rule or the unique 
     nature of the workplace construction; and
       (6) establishing within the Occupational Safety and Health 
     Administration Training Institute a trade-specific curriculum 
     to be taught jointly by qualified trade safety directors and 
     compliance officers.
       (b) Initial Program.--The initial training and educational 
     exchange program shall be established under subsection (a) 
     with the masonry construction industry.
       (c) Reports.--Upon the expiration of the 2-year program 
     under subsection (a), the Administrator of the Occupational 
     Safety and Health Administration, jointly with specialty 
     trades that participate in programs under such subsection, 
     shall prepare and submit to the Committee on Health, 
     Education, Labor, and Pensions of the Senate and the 
     Committee on Education and Workforce of the House of 
     Representatives a report on the activities and results of the 
     training and educational exchange program.
       (d) Definition.--In this section, the term ``qualified 
     safety director'' means an individual who has, at a minimum, 
     taken the 10-hour Occupational Safety and Health 
     Administration course and been employed a minimum of 5 years 
     as a safety director in the construction industry.
       (e) Authorization of Appropriations.--There are authorized 
     to be appropriated, such sums as may be necessary to carry 
     out this section.
       (f) Termination.--The programs established under subsection 
     (a) shall terminate on the date that is 2 years after the 
     date on which the first program is so established.

                                S. 2066

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

     SECTION 1. SHORT TITLE; REFERENCES.

       (a) Short Title.--This Act may be cited as the 
     ``Occupational Safety Fairness Act''.
       (b) Reference.--Whenever in this Act an amendment or repeal 
     is expressed in terms of an amendment to, or repeal of, a 
     section or other provision, the reference shall be considered 
     to be made to a section or other provision of the 
     Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et 
     seq.).

      SEC. 2. WORKSITE-SPECIFIC COMPLIANCE METHODS.

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

      SEC. 3. DISCRETIONARY COMPLIANCE ASSISTANCE.

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

      SEC. 4. EXPANDED INSPECTION METHODS.

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

     SEC. 5. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

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

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

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


                  ``Award of attorneys' fees and costs

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

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

     shall be awarded fees and other expenses as a prevailing 
     party under section 2412(d) of title 28, United States Code, 
     in accordance with the provisions of that section, but 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust. Any appeal of a determination of fees pursuant 
     to subsection (a) of this subsection shall be determined 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust.

[[Page 27313]]

       ``(c) Applicability.--
       ``(1) Commission proceedings.--Subsection (a) shall apply 
     to proceedings commenced on or after the date of enactment of 
     this section.
       ``(2) Court proceedings.--Subsection (b) shall apply to 
     proceedings for judicial review commenced on or after the 
     date of enactment of this section.''.

     SEC. 7. JUDICIAL DEFERENCE.

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

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

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

     SEC. 9. RIGHT TO CORRECT VIOLATIVE CONDITION.

       Section 9 of the Act (29 U.S.C. 658), as amended by section 
     2, is amended by adding at the end the following:
       ``(f) The Commission may not assess a penalty under section 
     17(c) for a non-serious violation that is not repeated or 
     willful if the employer corrects the violative condition and 
     provides the Secretary an abatement certification within 72 
     hours.''.

     SEC. 10. WRITTEN STATEMENT TO EMPLOYER FOLLOWING INSPECTION.

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

     SEC. 11. TIME PERIODS FOR ISSUING CITATIONS.

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

     SEC. 12. TIME PERIODS FOR CONTESTING CITATIONS.

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

     SEC. 13. PENALTIES.

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

     SEC. 14. UNANTICIPATED CONDUCT.

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

     SEC. 15. ADOPTION OF NON-GOVERNMENTAL STANDARDS.

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

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

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

     SEC. 16. EMPLOYEE RESPONSIBILITY.

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

     ``SEC. 9A. EMPLOYEE RESPONSIBILITY.

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

                                S. 2067

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``HazCom Simplification and 
     Modernization Act of 2005''.

     SEC. 2. PURPOSE.

       It is the purpose of this Act to assist chemical 
     manufacturers and importers in preparing material safety data 
     sheets pursuant to the requirements of the Hazard 
     Communication standard published at section 1910.1200 of 
     title 29, Code of Federal Regulations, and the Hazard 
     Communication standard published at part 47 of title 30, Code 
     of Federal Regulations, and to improve the accuracy, 
     consistency, and comprehensibility of such material safety 
     data sheets and to establish a Commission for the purpose of

[[Page 27314]]

     studying and making recommendations regarding the 
     implementation of the United Nations' Globally Harmonized 
     System of Classification and Labeling of Chemicals.

     SEC. 3. HAZARD COMMUNICATION.

       (a) In General.--
       (1) Model material safety data sheets for highly hazardous 
     chemicals.--The Secretary of Labor shall develop model 
     material safety data sheets for the list of highly hazardous 
     chemicals contained in Appendix A to the Process Safety 
     Management of Highly Hazardous Chemicals standard published 
     at section 1910.119 of title 29, Code of Federal Regulations. 
     Such model material safety data sheets shall--
       (A) comply with the requirements of the Hazard 
     Communication standard published at section 1910.100 of such 
     title 29 and the Hazard Communication standard published at 
     part 47 of title 30, Code of Federal Regulations;
       (B) be presented in a consistent format that enhances the 
     reliability and comprehensibility of information about 
     chemical hazards in the workplace and protective measures; 
     and
       (C) be made available to the public, including through 
     posting on the Occupational Safety and Health 
     Administration's website and the Mine Safety and Health 
     Administration's website, within 18 months after the date of 
     enactment of this Act.
       (2) Construction.--Nothing in this subsection shall be 
     construed to--
       (A) modify or amend the Hazard Communication standard 
     published at section 1910.1200 of title 29, Code of Federal 
     Regulations, the Process Safety Management of Highly 
     Hazardous Chemicals standard published at section 1910.119 of 
     such title 29, the Hazard Communication standard published at 
     part 47 of title 30, Code of Federal Regulations, or any 
     other provision of law; and
       (B) authorize the Secretary of Labor to include in the 
     model material safety data sheet developed under this 
     subsection any suggestion or recommendation as to permissible 
     or appropriate workplace exposure levels for these chemicals, 
     except as required by the Hazard Communication standard 
     published at section 1910.1200 of such title 29, and the 
     Hazard Communication standard published at part 47 of title 
     30, Code of Federal Regulations.
       (3) Authorization of appropriations.--There are authorized 
     to be appropriated to the Department of Labor such sums as 
     may be necessary to carry out this subsection.
       (b) Globally Harmonized System Commission.--
       (1) Establishment.--Not later than 6 months after the date 
     of enactment of this Act, there shall be established a 
     commission, to be known as the Global Harmonization 
     Commission (referred to in this subsection as the 
     ``Commission''), to consider the implementation of the United 
     Nations Globally Harmonized System of Classification and 
     Labeling of Chemicals to improve chemical hazard 
     communication and to make recommendations to Congress.
       (2) Membership.--The Commission shall be composed of 17 
     members of whom--
       (A) 1 shall be the Secretary of Labor (referred to in this 
     Act as the ``Secretary'');
       (B) 1 shall be the Secretary of Transportation;
       (C) 1 shall be the Secretary of Health and Human Services;
       (D) 1 shall be the Administrator of the Environmental 
     Protection Agency;
       (E) 1 shall be the Chairman of the Consumer Product Safety 
     Commission;
       (F) 1 shall be the Chairman of the Chemical Safety and 
     Hazard Investigation Board (or his or her designee);
       (F) 11 shall be appointed by the Secretary of Labor, of 
     whom--
       (i) 2 shall be representatives of manufacturers of 
     hazardous chemicals, including a representative of small 
     businesses;
       (ii) 2 shall be representatives of employers who are 
     extensive users of hazardous chemicals supplied by others, 
     including a representative of small businesses;
       (iii) 2 shall be representatives of labor organizations;
       (iv) 2 shall be individuals who are qualified in an 
     occupational health or safety field by an organization whose 
     program has been accredited by a nationally recognized 
     private accreditation organization or by the Secretary, who 
     have expertise in chemical hazard communications;
       (v) 1 shall be a representative of mining industry 
     employers;
       (vi) 1 shall be a representative of mining industry 
     employees; and
       (vii) 1 shall be a safety and health professional with 
     expertise in mining.
       (3) Chair and vice-chair.--The members of the Commission 
     shall select a chair and vice-chair from among its members.
       (4) Duties.--
       (A) Study and recommendations.--The Commission shall 
     conduct a thorough study of, and shall develop 
     recommendations on, the following issues relating to the 
     global harmonization of hazardous chemical communication:
       (i) Whether the United States should adopt any or all of 
     the elements of the United Nation's Globally Harmonized 
     System of Classification and Labeling of Chemicals (referred 
     to in this subsection and the ``Globally Harmonized 
     System'').
       (ii) How the Globally Harmonized System should be 
     implemented by the Federal agencies with relevant 
     jurisdiction, taking into consideration the role of the 
     States acting under delegated authority.
       (iii) How the Globally Harmonized System compares to 
     existing chemical hazard communication laws and regulations, 
     including the Hazard Communication standard published at 
     section 1910.1200 of title 29, Code of Federal Regulations 
     and the Hazard Communication standard published at part 47 of 
     title 30, Code of Federal Regulations.
       (iv) The impact of adopting the Globally Harmonized System 
     on the consistency, effectiveness, comprehensiveness, timing, 
     accuracy, and comprehensibility of chemical hazard 
     communication in the United States.
       (v) The impact of adopting the Globally Harmonized System 
     on occupational safety and health in the United States.
       (vi) The impact of adopting the Globally Harmonized System 
     on tort, insurance, and workers compensation laws in the 
     United States.
       (vii) The impact of adopting the Globally Harmonized System 
     on the ability to bring new products to the market in the 
     United States.
       (viii) The cost and benefits of adopting the Globally 
     Harmonized System to businesses, including small businesses, 
     in the United States.
       (ix) How effective compliance assistance, training, and 
     outreach can be used to help chemical manufacturers, 
     importers, and users, particularly small businesses, 
     understand and comply with the Globally Harmonized System.
       (B) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Commission shall submit to the 
     appropriate committees of Congress a report containing a 
     detailed statement of the findings and conclusions of the 
     Commission, together with its recommendations for such 
     legislation as the Commission considers appropriate.
       (5) Powers.--
       (A) Hearings.--The Commission shall hold at least one 
     public hearing, and may hold additional hearings, sit and act 
     at such times and places, take such testimony, and receive 
     such evidence as the Commission considers advisable to carry 
     out this section. The Commission shall, to the maximum extent 
     possible, use existing data and research to carry out this 
     section.
       (B) Information from federal agencies.--The Commission may 
     secure directly from any Federal department or agency such 
     information as the Commission considers necessary to carry 
     out this section. Upon request by the Commission, the head of 
     such department or agency shall promptly furnish such 
     information to the Commission.
       (C) Postal services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other departments and agencies of the Federal Government.
       (6) Personnel matters.--
       (A) Compensation; travel expenses.--Each member of the 
     Commission shall serve without compensation but shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (B) Staff and equipment.--The Department of the Labor shall 
     provide all financial, administrative, and staffing 
     requirements for the Commission including--
       (i) office space;
       (ii) furnishings; and
       (iii) equipment.
       (7) Termination.--The Commission shall terminate on the 
     date that is 90 days after the date on which the Commission 
     submits the report required under paragraph (3)(B).
       (8) Authorization of appropriations.--There are authorized 
     to be appropriated to the Department of Labor, such sums as 
     may be necessary to carry out this subsection.
       (c) Hazard Communication Demonstration Projects.--
       (1) In general.--Section 20(a) of the Act (29 U.S.C. 
     670(a)) is amended by adding at the end the following:
       ``(8) Subject to the availability of appropriations, the 
     Secretary, after consultation with others, as appropriate, 
     shall award grants to one or more qualified applicants in 
     order to carry out a demonstration project to develop, 
     implement, or evaluate strategies or programs to improve 
     chemical hazard communication in the workplace through the 
     use of technology, which may include electronic or Internet-
     based hazard communication systems.''.
       (2) Authorization of appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to carry out 
     the amendment made by paragraph (1).
                                 ______
                                 
      By Ms. COLLINS (for herself, Mr. Voinovich, and Mr. Akaka):
  S. 2068. A bill to preserve existing judgeships on the Superior Court 
of the District of Columbia; to the Committee on Homeland Security and 
Governmental Affairs.

[[Page 27315]]


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

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

  This is a highly unusual situation for this body to have nominations 
pending before it for which there are no open positions. The bill I 
introduce today would rectify this problem by amending the District of 
Columbia Code to increase the cap on the number of associate judges on 
the superior court. This is not intended to create new seats on the 
Court; that was already done when the DC Family Court Act was enacted. 
Instead, this would preserve existing seats on the court and remedy a 
problem that is affecting not only the court but the Senate as well.
  I believe that it is also important to not only remedy the immediate 
problem before the Senate but also to ensure that all of the divisions 
of the superior court are fully staffed. This is more than just a 
procedural issue. It is also important for the citizens of the District 
of Columbia to know that all of the divisions, including criminal and 
civil, are operating at full capacity. Eliminating existing seats in 
the criminal and civil divisions will not improve the administration of 
justice in the District, but can only result an increased judicial 
caseload and delays at the courthouse.
  The legislation I introduce today is similar to legislation that was 
favorably reported by the Committee on Governmental Affairs and 
subsequently passed by the Senate by unanimous consent during the 108th 
Congress. I hope that my colleagues will join me in supporting this 
important legislation.
                                 ______
                                 
      By Ms. SNOWE (for herself, Mr. Bingaman, Ms. Collins, Mr. Dorgan, 
        and Mr. Rockefeller):
  S. 2071. A bill to amend title XVIII of the Social Security Act to 
clarify congressional intent regarding the counting of residents in the 
nonhospital setting under the medicare program; to the Committee on 
Finance.
  Ms. SNOWE. Mr. President, I rise today to introduce the Community and 
Rural Medical Residency Preservation Act of 2005, which will serve to 
ensure the continued viability of medical residency training programs 
in our local communities. I am particularly pleased to introduce this 
bill with several of my colleagues, Senators Bingaman, Collins, Dorgan, 
and Rockefeller, who share my concerns about the need to clarify 
congressional intent so that teaching hospitals will be able to offer 
these essential residency training programs in the community and so 
that medical residents, as well as many who live in these communities, 
will be able to continue to benefit from these programs.
  Many medical residency training programs have traditionally operated 
in sites located outside the hospital setting for their educational 
programs. These nonhospital settings are, in fact, where most of this 
type of physician training occurs. The community and rural sites which 
operate these programs include physician offices, nursing homes, and 
community health centers--cornerstones of ambulatory training for 
graduate medical education, GME, programs. These programs often rely 
upon volunteer physician faculty to provide educational opportunities 
in practice settings which are similar to those in which these 
physicians in training will ultimately practice.
  Congress clearly stated support for this concept as part of the 
Balanced Budget Act of 1997, when they reformed the GME funding 
formulas to allow funding for residents training in nonhospital 
settings. However, recent rulemaking, agency interpretations, and 
guidance issued by the Centers for Medicare and Medicaid Services, CMS, 
are creating a chilling effect on these training programs. Teaching 
programs across the Nation are facing audits and scrutiny as a result 
of confusing and unclear CMS policies and guidance on this issue. This 
has happened in my State, as well as many others, and is posing a 
serious threat to our future physician workforce and to teaching 
hospitals and medical schools which offer these programs.
  If these agency policies are not halted and reversed, teaching 
hospitals throughout the country will be forced to train all residents 
in the hospital setting or potentially eliminate their residency 
programs. Not only does this do a disservice to medical residents who 
are able to obtain practical experience and be exposed to settings 
where they may ultimately practice, but these programs provide 
individuals living in medically underserved and rural areas with access 
to health care which might otherwise not be available.
  Training medical residents outside the hospital setting is sound 
educational policy and a worthwhile public policy goal that Congress 
clearly mandated in 1997. In an effort to preserve the utilization of 
nonhospital training sites, I am therefore introducing legislation 
today which would clarify the meaning of the term ``all, or 
substantially all, of the costs for the training program,'' a phrase 
which has been subject to differing, and confusing, interpretations by 
CMS.
  My legislation would clarify that, for teaching hospitals and 
entities operating training programs outside the hospital setting, the 
teaching hospital shall not be required to pay the entity operating the 
nonhospital setting any amounts other than those determined by the 
hospital and the entity for the hospital to be considered to have 
incurred all, or substantially all, of the costs for the training 
program. Medical associations, teaching hospitals, and academic 
medicine all strongly support this legislation.
  This language will also make clear that hospitals shall not be 
required to pay an entity operating a nonhospital setting for any 
actual or imputed costs of time voluntarily spent supervising interns 
or residents as a condition for computing residents for purposes of 
receiving either direct graduate medical education payments or indirect 
medical education payments.
  We have received strong support from a number of organizations who 
are in the forefront of training America's future physicians and who 
have confirmed the critical need for this legislation, including the 
Association of

[[Page 27316]]

American Medical Colleges, the Academic Family Medicine Advocacy 
Alliance, representing the Society of Teachers of Family Medicine, the 
Association of Departments of Family Medicine, the Association of 
Family Medicine Residency Directors, and the North American Primary 
Care Research Group, and the American Osteopathic Association.
  I ask unanimous consent that the text of the bill and the letters of 
support from these organizations printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2071

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Community and Rural Medical 
     Residency Preservation Act of 2005''.

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

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

                                 American Osteopathic Association,


                           Department of Government Relations,

                                 Washington, DC, November 2, 2005.
     Hon. Olympia J. Snowe,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Snowe: As President of the American 
     Osteopathic Association (AOA), I write to express our strong 
     support for the ``Community and Rural Medical Residency 
     Preservation Act of 2005.'' On behalf of the 56,000 
     osteopathic physicians represented by the AOA, thank you for 
     your tireless efforts to protect and promote quality graduate 
     medical education.
       A majority of osteopathic residency programs, in all 
     specialties, use non-hospital settings in their educational 
     programs. These non-hospital sites, which consist of 
     physician offices, nursing homes, community health centers, 
     and other ambulatory settings, provide resident physicians 
     with valuable educational experiences in settings similar to 
     those in which they ultimately will practice. This concept is 
     a cornerstone of osteopathic graduate medical education.
       The training of residents in non-hospital settings is sound 
     educational policy and a worthwhile public policy goal that 
     Congress clearly mandated in 1997. It continues to enjoy 
     strong Congressional support. Congress endorsed this concept 
     as part of the Balanced Budget Act of 1997, when the graduate 
     medical education, GME, funding formulas were reformed to 
     allow funding for residents training in non-hospital settings 
     with volunteer faculty.
       However, recent rule-making, agency interpretations, and 
     guidance issued by the Centers for Medicare and Medicaid 
     Services, CMS, create a chilling effect on residency training 
     programs. If CMS policy is not halted, hospitals will be 
     forced to train all residents in the hospital setting or 
     potentially eliminate programs. Teaching programs across the 
     nation face audits and scrutiny as a result of confusing and 
     unclear CMS policy on this issue.
       Your legislation establishes, in statute, clear and concise 
     guidance on the use of ambulatory sites in teaching programs. 
     If enacted, it will preserve the quality education of 
     resident physicians originally envisioned by Congress in 
     1997. The AOA and our members stand ready to use all 
     available resources to ensure enactment of this important 
     legislation.
           Sincerely,
                                             Philip Shettle, D.O.,
     President.
                                  ____



                     Association of American Medical Colleges,

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

     Jordan Cohen, M.D.
                                  ____



                   Academic Family Medicine Advocacy Alliance,

                                                November 11, 2005.
     Hon. Olympia J. Snowe,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Snowe: On behalf of the undersigned academic 
     family medicine organizations I would like to commend you for 
     introducing the ``Community and Rural Medical Residency 
     Preservation Act of 2005'', legislation intended to solve a 
     longstanding problem in Medicare regulations that deals with 
     volunteer teachers of residents in nonhospital settings.
       We have appreciated your support through the years on this 
     issue, and value your continued efforts to find a solution to 
     the problem. As you know, the Balanced Budget Act, BBA, 
     included a change in statute that allowed forthe counting of 
     training time in non-hospital settings to be included in 
     Medicare cost reports forboth IME and DME FTE counts. As part 
     of that change, the statute, stated that a hospital must 
     incur ``all pr substantially all'' the costs ofthe training 
     in that setting. In the implementing regulations CMS (then 
     HCFA) added the faculty costs to the already included 
     residents' salary and benefits, and required a written 
     agreement between the hospital and the non hospital site.
       This change in regulation, and the interpretations of it 
     that CMS has used during audits have caused many hospitals to 
     lose the ability to count residents that train in non-
     hospital settings, and required them to refund large sums of 
     IMEand DME money to CMS.
       Congress made the change in statute. to encourage training 
     in rural and underserved settings. Unfortunately. CMS's, 
     actions have had just the opposite effect. It has had a 
     dampening effect on training in the non-hospital setting--
     including rural rotations. It has resulted in much training 
     being brought back into the hospital, ironically both at a 
     time when accrediting bodies are requiring more training 
     outside the hospital, and contrary to the wishes of Congress.
       As you are well aware, several of the Family Medicine 
     residency programs in Maine are at risk of closing due to the 
     financial implications of CMS's interpretations. We are also 
     aware of similar situations throughout the United States. For 
     example, if the current situation continues, we have heard 
     that in Iowa, four of the eight Family Medicine training 
     programs are at risk of closing in the next couple of years. 
     In Oregon, several residencies are at risk of losing many 
     FTE's, including Internal Medicine, Surgery, OB-Gyn, and 
     Emergency Medicine. In Montana, the only Family Medicine 
     residency program in the state is in danger of losing funding 
     oJ all it's outside rotations due to CMS's unreasonable 
     requirements related to non-hospital rotations. Across the 
     country, residency programs are at risk. CMS has had several 
     years

[[Page 27317]]

     to solve the problem. The report of the Office of Inspector 
     General (OIG) that was required by Congress in the MMA has 
     given CMS several options, and yet nothing has been done.
       We appreciate your efforts to put an end to this war of 
     attrition. Please count on us to support your efforts at 
     resolving this situation legislatively. Thank you for your 
     help in this area. We look forward to your moving this 
     legislation forward.
           Sincerely,
     William K. Mygdal, EdD,
       President, Society of Teachers of Family Medicine.
     Penny Tenzer, MD,
       President, Association of Family Practice Residency 
     Directors.
     Warren Newton, MD,
       President, Association of Departments of Family Medicine.
     Perry Dickinson, MD,
       President, North American Primary Care Research Group.
                                 ______
                                 
      By Mr. REID:
  S. 2072. A bill to provide for the conveyance of certain public lands 
in and around historic mining townsites in Nevada, and for other 
purposes; to the Committee on Energy and Natural Resources.
  Mr. REID. Mr. President, I rise today to introduce the Nevada Mining 
Townsite Conveyance Act, which addresses an important public land issue 
in rural Nevada. As you may know, the Federal Government controls more 
than 87 percent of the land in Nevada. That is more than 61 million 
acres of land. This fact makes it necessary for our State and our 
communities to pursue Federal remedies for problems that in other 
States can be handled in a much more expeditious manner.
  The residents of Ione and Gold Point in Nevada have asked for our 
help in settling longstanding trespass issues that affect these 
historic mining communities. These communities have been continuously 
occupied for over 100 years. Many residents live on land that their 
families have ostensibly owned for several decades. These citizens have 
paid their property taxes and made improvements to their properties, 
rehabilitated historic structures and built new ones.
  The documents by which many of these people claim possession of the 
properties date back many years. In fact, some of the deeds are 
historic documents themselves. Yet because many of these documents do 
not satisfy modern requirements for demonstrating land title, they have 
been deemed invalid. In other words, the Bureau of Land Management has 
determined that some of the residents of Ione and Gold Point are 
trespassing on Federal land. This unfortunate situation puts the BLM at 
odds with the local residents and county governments and is hampering 
efforts to improve basic community services such as fire protection, 
and water supply and treatment facilities.
  Nye County, Esmeralda County, and the BLM have worked together for 
nearly a decade to solve this problem. All of these parties support the 
legislation that we offer today as a solution to these land ownerships 
conflicts, and as a means of promoting responsible resource management. 
All of the land included in this bill has been identified by the BLM 
for disposal.
  This legislation represents the first of a two-part solution. Under 
this bill, specified lands within the historic mining townsites of Ione 
and Gold Point would be conveyed to the respective counties. Under the 
provisions of a State law passed several years ago in Nevada, the 
counties will then reconvey the land to these people or entities who 
can demonstrate ownership or longstanding occupancy of specific land 
parcels.
  My bill conveys, for no consideration, approximately 760 acres in the 
communities of Ione and Gold Point from the BLM to Nye and Esmeralda 
Counties. As a condition of the conveyance, all historic and cultural 
resources contained in the townsites shall be preserved and protected 
under applicable Federal and State law. It should also be noted that 
approximately 145 acres of the total land conveyed to Nye County will 
stay in county hands in order to simplify management of a cemetery, a 
landfill and an airstrip. These conveyances will benefit the agencies 
that manage Nevada's vast Federal lands as well as the proud citizens 
of our rural communities.
  I sincerely hope that my colleagues will support this legislation. It 
is a practical solution that deserves swift passage. We salute the 
Bureau of Land Management, the counties, and the local residents for 
their cooperation and hard work in crafting a reasonable solution to 
this problem.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2072

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Nevada Mining Townsite 
     Conveyance Act''.

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

       (a) Findings.--Congress finds the following:
       (1) The Federal Government owns real property in and around 
     historic mining townsites in the counties of Esmeralda and 
     Nye in the State of Nevada.
       (2) While the real property is under the jurisdiction of 
     the Secretary of the Interior, acting through the Bureau of 
     Land Management, some of the real property land has been 
     occupied for decades by persons who took possession by 
     purchase or other documented and putatively legal 
     transactions, but whose continued occupation of the real 
     property constitutes a ``trespass'' upon the title held by 
     the Federal Government.
       (3) As a result of the confused and conflicting ownership 
     claims, the real property is difficult to manage under 
     multiple use policies and creates a continuing source of 
     friction and unease between the Federal Government and local 
     residents.
       (4) All of the real property is appropriate for disposal 
     for the purpose of promoting administrative efficiency and 
     effectiveness, and the Bureau of Land Management has already 
     identified certain parcels of the real property for disposal.
       (5) Some of the real property contains historic and 
     cultural values that must be protected.
       (6) To promote responsible resource management of the real 
     property, certain parcels should be conveyed to the county in 
     which the property is situated in accordance with land use 
     management plans of the Bureau of Land Management so that the 
     county can, among other things, dispose of the property to 
     persons residing on or otherwise occupying the property.
       (b) Mining Townsite Defined.--In this section, the term 
     ``mining townsite'' means real property in the counties of 
     Esmeralda and Nye, Nevada, that is owned by the Federal 
     Government, but upon which improvements were constructed 
     because of a mining operation on or near the property and 
     based upon the belief that--
       (1) the property had been or would be acquired from the 
     Federal Government by the entity that operated the mine; or
       (2) the person who made the improvement had a valid claim 
     for acquiring the property from the Federal Government.
       (c) Conveyance Authority.--
       (1) In general.--Notwithstanding sections 202 and 203 of 
     the Federal Land Policy and Management Act of 1976 (43 U.S.C. 
     1712, 1713), the Secretary of the Interior, acting through 
     the Bureau of Land Management, shall convey, without 
     consideration, all right, title, and interest of the United 
     States in and to mining townsites (including improvements 
     thereon) identified for conveyance on the maps entitled 
     ``Original Mining Townsite, Ione, Nevada'' and ``Original 
     Mining Townsite, Gold Point, Nevada'' and dated October 17, 
     2005.
       (2) Availability of maps.--The maps referred to in 
     paragraph (1) shall be on file and available for public 
     inspection in the appropriate offices of the Secretary of the 
     Interior, including the office of the Bureau of Land 
     Management located in the State of Nevada.
       (d) Recipients.--
       (1) Original recipient.--Subject to paragraph (2), the 
     conveyance of a mining townsite under subsection (c) shall be 
     made to the county in which the mining townsite is situated.
       (2) Reconveyance to occupants.--In the case of a mining 
     townsite conveyed under subsection (c) for which a valid 
     interest is proven by one or more persons, under the 
     provisions of Nevada Revised Statutes Chapter 244, the county 
     that received the mining townsite under paragraph (1) shall 
     reconvey the property to that person or persons by 
     appropriate deed or other legal conveyance as provided in 
     that State law. The county is not required to recognize a 
     claim under this paragraph submitted more than 10 years after 
     the date of the enactment of this Act.

[[Page 27318]]

       (e) Protection of Historic and Cultural Resources.--As a 
     condition on the conveyance or reconveyance of a mining 
     townsite under subsection (c), all historic and cultural 
     resources (including improvements) on the mining townsite 
     shall be preserved and protected in accordance with 
     applicable Federal and State law.
       (f) Valid Existing Rights.--The conveyance of a mining 
     townsite under this section shall be subject to valid 
     existing rights, including any easement or other right-of-way 
     or lease in existence as of the date of the conveyance. All 
     valid existing rights and interests of mining claimants shall 
     be maintained, unless those rights or interests are deemed 
     abandoned and void or null and void under--
       (1) section 2320 of the Revised Statutes (30 U.S.C. 21 et 
     seq.);
       (2) the Federal Land Policy and Management Act of 1976 (43 
     U.S.C. 1701 et seq.); or
       (3) subtitle B of title X of the Omnibus Budget 
     Reconciliation Act of 1993 (30 U.S.C. 28(f)-(k)), including 
     regulations promulgated under section 3833.1 of title 43, 
     Code of Federal Regulations or any successor regulation.
       (g) Survey.--A mining townsite to be conveyed by the United 
     States under this section shall be sufficiently surveyed to 
     legally describe the land for patent conveyance.
       (h) Release.--On completion of the conveyance of a mining 
     townsite under subsection (c), the United States shall be 
     relieved from liability for, and shall be held harmless from, 
     any and all claims arising from the presence of improvements 
     and materials on the conveyed property.
       (i) Authorization of Appropriations.--There is authorized 
     to be appropriated to the Secretary of the Interior such 
     amounts as may be necessary to carry out the conveyances 
     required by this section, including funds to cover the costs 
     of cadastral and mineral surveys, mineral potential reports, 
     hazardous materials, biological, cultural and archaeological 
     clearances, validity examinations and other expenses 
     incidental to the conveyances.
                                 ______
                                 
      By Mrs. CLlNTON:
  S. 2073. A bill to amend the Internal Revenue Code of 1986 to provide 
a tax credit for property owners who remove lead-based paint hazards; 
to the Committee on Finance.
  Mrs. CLINTON. Mr. President, I rise today to discuss a serious, 
persistent, and entirely preventable threat to the health and well-
being of our children.
  Lead is highly toxic and continues to be a major environmental health 
problem in the United States, especially for infants, children, and 
pregnant women. A CDC survey conducted between 1999-2002, estimated 
that 310,000 American children under 6 were at risk for exposure to 
harmful lead levels in United States. Childhood lead poisoning has been 
linked to impaired growth and function of vital organs and problems 
with intellectual and behavioral development. A study from the New 
England Journal of Medicine also found that children suffered up to a 
7.4-percent decrease in IQ at lead levels that CDC considers safe. At 
very high levels, lead poisoning can cause seizures, coma, and even 
death.
  The most common source of lead exposure for children today is lead 
paint in older housing and the contaminated lead dust it generates. 
Despite a ban on lead paint in 1978, there are still over 24 million 
housing units in the United States that have lead paint hazards, with 
about 1.2 million in New York State alone. According to 2000 census 
data, New York State has over 37 percent of homes that were built prior 
to 1950 and more pre-1950 housing units available for occupancy than 
any other State.
  Though New York State has made considerable progress in prevention 
and early identification of childhood lead poisoning, more needs to be 
done to minimize the risk of lead exposure in the home, by our kids. 
About 5 percent of New York children screened for lead poisoning at age 
2 were found to have elevated levels of lead in the blood, more than 
twice the national average. Minority and poor children are 
disproportionately at risk, as these groups are more likely to live in 
older housing with poor building maintenance, where the risk of lead 
paint hazards are greater. Low-income children are eight times more 
likely to develop lead poisoning than more affluent children, and 
African-American and Mexican-American children are five and two times 
more likely, respectively, to have toxic blood lead levels than white 
children. In New York City, about 95 percent of children with elevated 
blood levels were African American, Hispanic or Asian.
  I am glad that the U.S. Department of Health and Human Services 
considers lead poisoning to be a priority, and established a national 
goal of ending childhood lead poisoning by 2010. However, Federal 
programs only have resources to remove lead-based paint hazards from 
less than 0.1 percent of the 24 million housing units that have these 
hazards. At this pace, we will not be able to end childhood lead 
poisoning by 3010, let alone 2010.
  We will never stop childhood lead poisoning unless we get lead out of 
the buildings in which children live, work, and play. In Brooklyn, more 
than a third of the buildings in one community have a lead-based paint 
hazard. Parents of children with lead poisoning are being told that 
nothing can be done until their children's lead poisoning becomes 
worse. How can we ask parents to watch and wait while their sons and 
daughters suffer from lead poisoning before we remove the lead from 
their homes?
  That is why today, I am proud to introduce the Home Lead Safety Tax 
Credit Act of 2005 with my colleagues, Senators DeWine, Obama, and 
Smith. This legislation would provide a tax credit to aide and 
encourage homeowners and landlords to engage in the safe removal of 
lead-based paint hazards from their homes and rental units. 
Specifically, it would change the IRS Code of 1986 to provide a tax 
credit for 50 percent of the allowable costs paid by the taxpayer, up 
to a maximum of $3000 and $1000 for lead abatement and interim control 
measures, respectively. Interim control measures, which can include 
replacement of windows, specialized maintenance, safe repainting and 
renovation work practices to eliminate lead hazards, are a cost-
effective means of protecting the largest number of children in the 
near term. While total elimination of lead paint in housing is the most 
desirable, interim control measures typically cost three to nine times 
less and can be equally effective at removing the lead hazard.
  The credit is targeted to homes that contain children less than 6 
years of age or a woman of childbearing age, low-income residents, and 
to buildings built before 1960, as these include more than 96 percent 
of all units where lead-based paint is prevalent. In Massachusetts, a 
similar tax credit helped reduce the number of new cases of childhood 
lead poisoning by almost two-thirds in a decade.
  The Home Lead Safety Tax Credit Act of 2005 would help homeowners 
make over 80,000 homes each year safe from lead, which is more than 10 
times the number of homes made lead safe by current Federal programs. 
It would greatly accelerate our progress in ridding our Nation of the 
significant problem of childhood lead poisoning. I ask my colleagues to 
join me in supporting this legislation, which will provide needed 
incentives for property owners to ensure that our homes are safeguarded 
against environmental hazards that detrimentally affect the health and 
safety of our children.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2073

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

     SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

       (a) Short Title.--This Act may be cited as the ``Home Lead 
     Safety Tax Credit Act of 2005''.
       (b) Findings.--Congress finds that:
       (1) Of the 98,000,000 housing units in the United States, 
     38,000,000 have lead-based paint.
       (2) Of the 38,000,000 housing units with lead-based paint, 
     25,000,000 pose a hazard, as defined by Environmental 
     Protection Agency and Department of Housing and Urban 
     Development standards, due to conditions such as peeling 
     paint and settled dust on floors and windowsills that contain 
     lead at levels above Federal safety standards.
       (3) Though the number of children in the United States ages 
     1 through 5 with blood levels higher than the Centers for 
     Disease Control action level of 10 micrograms per deciliter 
     has declined to 300,000, lead poisoning remains a serious, 
     entirely preventable threat to a child's intelligence, 
     behavior, and learning.

[[Page 27319]]

       (4) The Secretary of Health and Human Services has 
     established a national goal of ending childhood lead 
     poisoning by 2010.
       (5) Current Federal lead abatement programs, such as the 
     Lead Hazard Control Grant Program of the Department of 
     Housing and Urban Development, only have resources sufficient 
     to make approximately 7,000 homes lead-safe each year. In 
     many cases, when State and local public health departments 
     identify a lead-poisoned child, resources are insufficient to 
     reduce or eliminate the hazards.
       (6) Old windows typically pose significant risks because 
     wood trim is more likely to be painted with lead-based paint, 
     moisture causes paint to deteriorate, and friction generates 
     lead dust. The replacement of old windows that contain lead 
     based paint significantly reduces lead poisoning hazards in 
     addition to producing significant energy savings.
       (7) Childhood lead poisoning can be dramatically reduced by 
     the abatement or complete removal of all lead-based paint. 
     Empirical studies also have shown substantial reductions in 
     lead poisoning when the affected properties have undergone 
     so-called ``interim control measures'' that are far less 
     costly than abatement.
       (c) Purpose.--The purpose of this section is to encourage 
     the safe removal of lead hazards from homes and thereby 
     decrease the number of children who suffer reduced 
     intelligence, learning difficulties, behavioral problems, and 
     other health consequences due to lead-poisoning.

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

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

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

       ``(a) Allowance of Credit.--There shall be allowed as a 
     credit against the tax imposed by this chapter for the 
     taxable year an amount equal to 50 percent of the lead hazard 
     reduction activity cost paid or incurred by the taxpayer 
     during the taxable year for each eligible dwelling unit.
       ``(b) Limitation.--The amount of the credit allowed under 
     subsection (a) for any eligible dwelling unit for any taxable 
     year shall not exceed--
       ``(1) either--
       ``(A) $3,000 in the case of lead hazard reduction activity 
     cost including lead abatement measures described in clauses 
     (i), (ii), (iv) and (v) of subsection (c)(1)(A), or
       ``(B) $1,000 in the case of lead hazard reduction activity 
     cost including interim lead control measures described in 
     clauses (i), (iii), (iv), and (v) of subsection (c)(1)(A), 
     reduced by
       ``(2) the aggregate lead hazard reduction activity cost 
     taken into account under subsection (a) with respect to such 
     unit for all preceding taxable years.
       ``(c) Definitions and Special Rules.--For purposes of this 
     section:
       ``(1) Lead hazard reduction activity cost.--
       ``(A) In general.--The term `lead hazard reduction activity 
     cost' means, with respect to any eligible dwelling unit--
       ``(i) the cost for a certified risk assessor to conduct an 
     assessment to determine the presence of a lead-based paint 
     hazard,
       ``(ii) the cost for performing lead abatement measures by a 
     certified lead abatement supervisor, including the removal of 
     paint and dust, the permanent enclosure or encapsulation of 
     lead-based paint, the replacement of painted surfaces, 
     windows, or fixtures, or the removal or permanent covering of 
     soil when lead-based paint hazards are present in such paint, 
     dust, or soil,
       ``(iii) the cost for performing interim lead control 
     measures to reduce exposure or likely exposure to lead-based 
     paint hazards, including specialized cleaning, repairs, 
     maintenance, painting, temporary containment, ongoing 
     monitoring of lead-based paint hazards, and the establishment 
     and operation of management and resident education programs, 
     but only if such measures are evaluated and completed by a 
     certified lead abatement supervisor using accepted methods, 
     are conducted by a qualified contractor, and have an expected 
     useful life of more than 10 years,
       ``(iv) the cost for a certified lead abatement supervisor, 
     those working under the supervision of such supervisor, or a 
     qualified contractor to perform all preparation, cleanup, 
     disposal, and clearance testing activities associated with 
     the lead abatement measures or interim lead control measures, 
     and
       ``(v) costs incurred by or on behalf of any occupant of 
     such dwelling unit for any relocation which is necessary to 
     achieve occupant protection (as defined under section 35.1345 
     of title 24, Code of Federal Regulations).
       ``(B) Limitation.--The term `lead hazard reduction activity 
     cost' does not include any cost to the extent such cost is 
     funded by any grant, contract, or otherwise by another person 
     (or any governmental agency).
       ``(2) Eligible dwelling unit.--
       ``(A) In general.--The term `eligible dwelling unit' means, 
     with respect to any taxable year, any dwelling unit--
       ``(i) placed in service before 1960,
       ``(ii) located in the United States,
       ``(iii) in which resides, for a total period of not less 
     than 50 percent of the taxable year, at least 1 child who has 
     not attained the age of 6 years or 1 woman of child-bearing 
     age, and
       ``(iv) each of the residents of which during such taxable 
     year has an adjusted gross income of less than 185 percent of 
     the poverty line (as determined for such taxable year in 
     accordance with criteria established by the Director of the 
     Office of Management and Budget).
       ``(B) Dwelling unit.--The term `dwelling unit' has the 
     meaning given such term by section 280A(f)(1).
       ``(3) Lead-based paint hazard.--The term `lead-based paint 
     hazard' has the meaning given such term by section 745.61 of 
     title 40, Code of Federal Regulations.
       ``(4) Certified lead abatement supervisor.--The term 
     `certified lead abatement supervisor' means an individual 
     certified by the Environmental Protection Agency pursuant to 
     section 745.226 of title 40, Code of Federal Regulations, or 
     an appropriate State agency pursuant to section 745.325 of 
     title 40, Code of Federal Regulations.
       ``(5) Certified inspector.--The term `certified inspector' 
     means an inspector certified by the Environmental Protection 
     Agency pursuant to section 745.226 of title 40, Code of 
     Federal Regulations, or an appropriate State agency pursuant 
     to section 745.325 of title 40, Code of Federal Regulations.
       ``(6) Certified risk assessor.--The term `certified risk 
     assessor' means a risk assessor certified by the 
     Environmental Protection Agency pursuant to section 745.226 
     of title 40, Code of Federal Regulations, or an appropriate 
     State agency pursuant to section 745.325 of title 40, Code of 
     Federal Regulations.
       ``(7) Qualified contractor.--The term `qualified 
     contractor' means any contractor who has successfully 
     completed a training course on lead safe work practices which 
     has been approved by the Department of Housing and Urban 
     Development and the Environmental Protection Agency.
       ``(8) Documentation required for credit allowance.--No 
     credit shall be allowed under subsection (a) with respect to 
     any eligible dwelling unit for any taxable year unless--
       ``(A) after lead hazard reduction activity is complete, a 
     certified inspector or certified risk assessor provides 
     written documentation to the taxpayer that includes--
       ``(i) evidence that--

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

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

[[Page 27320]]

     paragraph (36), by striking the period and inserting ``, 
     and'' in paragraph (37), and by inserting at the end the 
     following new paragraph:
       ``(38) in the case of an eligible dwelling unit with 
     respect to which a credit for any lead hazard reduction 
     activity cost was allowed under section 30D, to the extent 
     provided in section 30D(c)(9).''.
       (2) The table of sections for subpart B of part IV of 
     subchapter A of chapter 1 of such Code is amended by 
     inserting after the item relating to section 30C the 
     following new item:

``Sec. 30D. Home lead hazard reduction activity.''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to lead hazard reduction activity costs incurred 
     after December 31, 2005, in taxable years ending after that 
     date.
                                 ______
                                 
      By Mr. BINGAMAN (for himself, Mr. Baucus, Mr. Dorgan, Mrs. 
        Murray, Ms. Cantwell, and Mr. Johnson):
  S. 2074. A bill to amend title XIX of the Social Security Act to 
provide for fair treatment of services furnished to Indians under the 
medicaid program, and for other purposes; to the Committee on Finance.
  Mr. BINGAMAN. Mr. President, I am pleased to be introducing the 
Indian Medicaid Health Act of 2005 with Senators Baucus, Dorgan, 
Murray, Cantwell and Johnson.
  This legislation addresses a number of technical but critically 
important provisions within the Medicaid Program that devote special 
attention to Native Americans, the Indian Health Service, IHS, tribal 
health organizations, and urban Indian health organizations. These 
provisions would:
  No. 1, codify protections that American Indians and Alaska Natives 
have obtained over the years in the Medicaid program, such as the 
requirement that states consult with tribes and tribal health 
organizations prior to seeking a federal Medicaid waiver;
  No. 2, clarify that American Indians and Alaska Natives are not 
subject to additional cost sharing or benefit limitations within 
Medicaid that will result in nothing more than a cost-shift from the 
Medicaid program to IHS or tribal health providers;
  No. 3, codify critically important provisions that provide 
protections against states or the federal government taking Indian 
property or tribal lands in exchange for medical services delivered 
through Medicaid; and,
  No. 4, eliminate certain inequities such as the lack of 100 percent 
federal matching payments within Medicaid for care delivered to Native 
Americans at urban Indian health clinics.
  American Indians and Alaska Natives continue to suffer enormous 
disparities in the health and medical care they receive. It should not 
come as a surprise to anyone at the Federal level that health care 
funding for American Indians and Alaska Natives, AI/AN, is well below 
what it should be and, consequently, Native Americans received rationed 
health care services that deny them access to the quality and medically 
necessary health care services.
  However, year after year, budget and appropriations amendments are 
offered to more fully fund health care for Native Americans but both 
the administration and Congress routinely fail to provide adequate 
funding. The result is a continued and growing divide between the 
health of American Indians and Alaska Natives compared to that of the 
general population.
  The U.S. Commission on Civil Rights, USCCR, held meetings in 
Albuquerque, NM, and visited the Gallup Indian Medical Center in 2003 
as part of a factfinding mission to review the current disparities in 
the health status and outcomes of Native Americans. What they found 
served as a basis for the release of their report in September 2004 
entitled Broken Promises: Evaluating the Native American Health Care 
System. The opening line in that report reads, ``Today, in Indian 
Country, health-related problems and the lack of adequate health care 
are the enemy.''
  This is in large part due to the fact that the IHS operates on just 
57 percent of the budget it needs and had more than $3 billion in unmet 
needs in 2003. USCCR cites estimates by the Department of Health and 
Human Services, HHS, that per capita health spending for all Americans 
at $4,065, while IHS spent about $1,914 per person and average spending 
on Navajo patients is just $1,187.
  The USCCR adds, ``In fact, the federal government spends nearly twice 
as much money for a federal prisoner's health care than it does for an 
American Indian or Alaska Native.''
  Consequently and not surprisingly, this disparity in funding 
translates into severe health disparities for Native Americans. For 
example, life expectancy is 6 years less than the rest of the U.S. 
citizens. Tuberculosis rates are four times the national average. 
Complications due to diabetes are almost three times the national 
average and death rates exceed the Healthy People 2010 targets by 233 
percent. Infant mortality rates are 1.7 times higher than the rate for 
white infants.
  In recognition of these facts, the National Indian Health Board has 
said, ``The travesty in looking at the deplorable health of American 
Indians and Alaska Natives is recognizing that the poor health 
indicators could be improved if funding was available to provide even a 
basic level of care.''
  The U.S. Commission on Civil Rights adds, ``In this light, this 
report should be considered a clarion call to those who inexplicably 
fail to acknowledge the present state of Native American health care 
and to those who lack a commitment necessary to address the 
overwhelming need for clear and decisive action. Such a call is 
certainly appropriate for our political leadership and the message is 
clear--it is finally time to honor our nation's commitment to 
protecting the health of Native Americans.''
  Such an agenda is actually a fairly simple one. It would include:
  No. 1, full funding for the Indian Health Service and tribal health 
organizations, which should include conversion of IHS into an 
entitlement program;
  No. 2, increased numbers and funding of urban Indian health 
organizations;
  No. 3, reauthorization of the Indian Health Care Improvement Act;
  No. 4, coverage of as many American Indians and Alaska Natives who 
qualify for federal health programs, such as Medicare and Medicaid, as 
possible to ensure they are enrolled and receiving benefits in order to 
augment funding to IHS facilities; and,
  No. 5, targeted efforts to address health disparities in Indian 
Country, such as diabetes.
  For this reason, I strongly support the annual budget and 
appropriations efforts, which have been led by Senator Daschle in the 
past and Senator Dorgan this year, to increase funding for the Indian 
Health Service. Unfortunately, those efforts continue to be voted down 
in the Congress.
  I also strongly support reauthorization of the Indian Health Care 
Improvement Act, IHCIA, which is led by Senators McCain and Dorgan. 
This effort has been ongoing for 6 years and it is long past time for 
the Congress to take up and pass IHCIA. Unfortunately, due to continued 
opposition to certain provisions by the administration, the legislation 
continues to be bottled up in the Congress and has not even been 
reintroduced in the House of Representatives.
  As a member of the Senate Finance Committee, one area that I have 
been able to focus on in recent years is to improve coverage for Native 
Americans in both Medicare and Medicaid. I was able to pass 
legislation, the Native American Breast and Cervical Cancer Treatment 
Technical Amendment Act of 2001 or Public Law 107-121, to correct 
problems whereby Native American women had previously been wrongly 
denied coverage under Medicaid's breast and cervical cancer treatment 
option. After a year of work, we were able to pass legislation to 
correct that outrageous and discriminatory error.
  I was also able to pass two provisions in 2003 from my bill, the 
Medicare Indian Health Fairness Act of 2003, that expanded 
reimbursement to IHS and tribal health providers for all Medicare Part 
B services and limited the amount that providers outside the IHS system 
can charge for services delivered to Native Americans through the 
contract health services, CHS, program. As with anything related to 
Native Americans

[[Page 27321]]

in this Administration, the Department of Health and Human Services, 
HHS, continues to fail to publish regulations necessary to implement 
the latter provision, even though the law required publishing of those 
regulations in December 2004.
  Although most involved in Indian health feel frustrated and argue 
that we are taking one step forward and two steps back with respect to 
Indian health care policy, it is in the area of Medicare, Medicaid and 
the State Children's Health Insurance Program, SCHIP, policy that we 
have been making some progress. The legislation I am introducing today, 
the Medicaid Indian Health Care Act of 2005, seeks to protect the gains 
that have been made and to take another few steps forward.
  For one, while IHS funding continues to fall further and further 
behind what is needed, the one bright spot is that collections from 
third party payers has increased over time with Medicaid playing a 
fundamental role in that growth.
  IHS was first authorized to seek Medicaid payment for services 
delivered in Indian health facilities, whether operated by the IHS 
directly or by tribes as part of the Indian Health Care Improvement Act 
of 1976 or Public Law 94-437.
  As Indian health experts Mim Dixon and Kris Locke said, ``This 
entitlement funding was expected to provide critical resources to 
improve the quality of health care for AI/AN and to reduce the health 
status disparities. To support this outcome, there is an additional 
provision in the IHCIA that Medicaid and Medicare revenues shall not 
offset Congressional appropriations for the IHS, so that the total 
amount of funding for Indian health care would increase and not merely 
be shifted from one funding stream to another.''
  With regard to that requirement, however, the U.S. Commission on 
Civil Rights adds, ``. . . Congress included language to articulate the 
express intent that increased collections not be used to justify lower 
appropriations levels. Congress has failed to abide by this clear 
mandate. Only enhanced collection efforts have made up for shortfalls 
created by inflation and population growth, and prevented a continuous 
decline from 1991 until today.''
  Growth in Medicaid collections has been used to partially offset the 
dramatic decline in IHS purchasing power over the years, despite the 
Federal provision stating that such revenues should not reduce overall 
IHS spending.
  The U.S. Commission on Civil Rights noted that `` . . . collections 
from third parties increased 453 percent from 1991 to 2003.'' Without 
that increase, the fate of IHS and health care services for Native 
Americans would even be more severe.
  According to the Government Accountability Office, GAO, in its August 
2005 report entitled ``Indian Health Service: Health Care Services Are 
Not Always Available to Native Americans'', ``In fiscal year 2004, IHS-
funded facilities obtained approximately $628 million in 
reimbursements, with 92 percent collected from Medicare and Medicaid 
and 8 percent from private insurance.''
  Medicaid collections, alone, have by 2004 ``grown to $446 million, 
which is 71 percent of the total third party collections reported by 
IHS In FY 2004, . . . Medicaid collections provided about 16.8 percent 
of the IHS budget for clinical services,'' according to Dixon and 
Locke.
  Consequently, the administration's own congressional justification 
document for its IHS budget proposes just a 2.1-percent increase, or 
$62.9 million, in additional IHS funding in fiscal year 2006 while 
noting that the IHS will increase their Medicare and Medicaid 
collections by another $8.4 million in fiscal year 2006. The Northwest 
Portland Area Indian Health Board estimates it will take $371 million 
to maintain current services for IHS and tribally operated health 
programs. Therefore, the administration's ridiculously low proposed 
increase for IHS combined with their estimated increase in Medicare and 
Medicaid collections will still fall $300 million short of providing 
current services.
  Whether intentional or not, as direct IHS funding continues to fail 
to cover inflation or population growth year after year, Medicaid 
collections are now a growing and critical component to providing basic 
health care services by IHS and tribal health organizations. Yet, while 
Medicaid has become critically important to the health of American 
Indians and Alaska Natives, Native Americans constitute a small share 
of overall Medicaid costs. As the Northwest Portland Area Indian Health 
Board has found, Medicaid accounts for almost 20 percent of the IHS 
budget but less than 0.5 percent of Medicaid expenditures go to Indian 
health.
  Consequently, the legislation I am introducing today with Senators 
Baucus, Dorgan, Murray, Cantwell, and Johnson entitled the ``Medicaid 
Indian Health Act of 2005'' is primarily an attempt to prevent the 
Federal Government and States from inflicting harm on the health and 
well-being of American Indians and Alaska Natives, but it also seeks to 
take a few steps forward as well.
  What is at stake? First, from the ``do no harm'' prescriptive, both 
the National Governors' Association, NGA, and the House of 
Representatives budget reconciliation legislation contemplate major 
changes to the Medicaid program to achieve $10 billion or more in 
proposed budget cuts to Medicaid and Medicare. Unfortunately, it is 
clear that neither the NGA nor the House of Representatives considered 
the tremendous impact that the cuts they are proposing will have on the 
health and well-being of Native Americans across this Nation.
  For example, both the NGA and the House budget reconciliation package 
provide for States being able to impose additional premiums, 
copayments, and other forms of cost-sharing on low-income Medicaid 
beneficiaries, including Native Americans. Such changes can have 
enormous consequences for AI/ANs as well as the Indian Health Service, 
tribal, and urban Indian, I/T/U providers from whom many Native 
Americans receive health services.
  As Andy Schneider of Medicaid Policy, LLC, stated at a meeting in 
August of this year on Medicaid and Indian health care, ``Regrettably, 
the NGA recommendations [which have been adopted as part of the House 
budget reconciliation package] could well make matters even worse for 
AI/ANs and the I/T/U providers that serve them. The NGA proposal to 
increase beneficiary cost-sharing could impose additional financial 
burdens on IHS and tribal health budgets. The NGA proposal for more 
benefits package `flexibility' could result in significant 
reimbursement losses to I/T/U providers.''
  How would this occur? With respect to additional cost sharing, 
evidence shows that additional cost sharing either results in reduced 
use of medical services, which could result in further a decline in the 
health status of AI/ANs, or that the I/T/U providers will pick up the 
added cost sharing burden. As Schneider points out, ``These costs 
include not only the amounts of the copayments and deductibles but also 
the administrative expense of processing them and tracking the 
cumulative out-of-pocket payments, particularly if the services subject 
to cost-sharing are delivered by a non-I/T/U provider.''
  Even if you subscribe to the ideology that Medicaid beneficiaries 
should pay more for their health care, as Dixon and Locke point out, 
``The intended outcome of enrollee cost sharing is not achieved in the 
Indian health system and actually acts to further deplete funding.''
  Put simply, added copayments in Medicaid would result in the 
unintended effect of shifting Medicaid costs directly upon the already 
horribly underfunded IHS system. In other words, the imposition of 
consumer cost-sharing provisions by Medicaid on Native American 
populations would effectively reduce the level and quality of health 
care services in Indian communities.
  With respect to benefit flexibility as proposed by NGA and adopted in 
the House budget reconciliation package, according to Schneider, ``The 
effect of reducing Medicaid coverage will be to reduce Medicaid 
revenues to the I/T/U providers that furnish covered services

[[Page 27322]]

to this population. Services for which the I/T/U could previously 
collect Medicaid revenues will no longer be reimburseable because the 
patient is no longer eligible for Medicaid.''
  To address these concerns, the Northwest Portland Area Indian Health 
Board has recommended, ``The Medicaid program could be a more effective 
means of financial Indian health programs if it would exempt American 
Indians and Alaska Natives from cost sharing including co-pays, 
premiums and any form of cost sharing. It makes little sense to Indian 
people to sign up for a health program that charges them for health 
care services that their tribe gave up lands and others considerations 
to secure for all generations. The practical effect is that they will 
not sign up for Medicaid and the IHS funded programs will end up paying 
all the costs of their health care. If this becomes the case, CMS will 
save the federal government millions of dollars, but renege on rights 
guaranteed by law and treaties.''
  In order to address these important points, one need look no further 
than the State Children's Health Insurance Program, SCHIP, rules and 
regulations. As Schneider adds, ``Federal regulations prohibit states 
from imposing premiums, deductibles, coinsurance, or copayments or AI/
AN children enrolled in their SCHIP programs. There is no comparable 
regulatory protection for AI/AN children or adults enrolled in 
Medicaid.''
  Consequently, to prevent harm to the health and well-being of Native 
Americans, section 3 of the Medicaid Indian Health Act of 2005 would 
explicitly prohibit imposing such things as premiums or other forms of 
cost sharing on Native Americans within Medicaid, just as SCHIP already 
does. Section 4 adds a prohibition on the recovery of the estates of 
AI/AN Medicaid beneficiaries or tribal property by States through the 
Medicaid Program. Furthermore, section 8 of the legislation allows 
States to include special provisions exempting Native Americans from 
additional cost sharing or from benefit reductions in recognition of 
the special circumstances of Native Americans in the Medicaid Program.
  In light of the failure of the NGA to consider the special 
circumstances of American Indians and Alaska Natives with respect to 
Medicaid policy, section 5 of the legislation recognizes the Federal 
trust responsibility and requires the Secretary, prior to the approval 
of any State Medicaid waivers, to assure that there has been 
consultation with tribes whose members or tribal health programs could 
be adversely affected by the waiver. Otherwise, the current waiver 
process can result in the approval of waivers that may include 
reductions in Medicaid eligibility, benefits and/or reimbursement or 
increases in cost sharing that can have a negative impact on Native 
Americans or tribal health programs.
  In short, sections 3, 4, 5, and 8 seek to adopt a policy of ``do no 
harm'' by preventing changes in Medicaid policy from having negative 
consequences for Native Americans. Meanwhile, sections 2, 6, and 7 in 
the bill seek to make some additional progress on behalf of Native 
Americans through the Medicaid Program.
  Foremost among those provisions in section 2, which provides for 100 
percent Federal Medicaid matching funds for services delivered to AI/AN 
Medicaid beneficiaries at urban Indian health programs. Although the 
Medicaid statute currently provides for 100 percent Federal Medicaid 
matching funds for Medicaid services delivered to AI/ANs through IHS 
facilities and a subsequent Memorandum of Agreement, MOA, in 1996 
clarified those payments also apply to services provided through 
tribally owned facilities, the 100 Percent Federal Medical Assistance 
Percentage, FMAP, does not apply to urban Indian clinics.
  In short, if an AI/AN Medicaid beneficiary received services from an 
IHS or tribal facility, the Federal Government is paying 100 percent of 
the cost, but if the same individual received the same services from an 
urban Indian health program funded by the IHS, the Federal Government 
shifts part of the costs of that care to the State in proportion to the 
State's share of the FMAP. There is no justification for this cost 
shift. Just as IHS and tribal facilities are part of the I/T/U delivery 
system for Native Americans, so are urban Indian health programs and, 
as part of the ``Federal trust responsibility,'' States should not be 
required to subsidize any element of this system.
  Section 6 of the legislation would simply ensure that I/T/U providers 
that do not have the status of federally qualified health centers, 
FQHCs, receive the same level of reimbursement from Medicaid managed 
care organizations, MCOs, as they would if they were a FQHC. If 
Medicaid MCOs are continued to be allowed to pay I/T/U providers less 
for the same services that they pay other network providers, the I/T/U 
providers will, effectively, be subsidizing the MCO or other network 
providers, which is not an appropriate use of limited federal IHS 
resources.
  And finally, section 7 of the Medicaid Indian Health Act of 2005 
ensures that IHS spending on behalf of a Native American does not 
disqualify them for Medicaid coverage under the ``medically needy 
option.'' Current policy prohibits such care from counting toward the 
``spend down'' requirements for qualifying as ``medically needy'' in 
Medicaid. Receiving services at an IHS facility should certainly not 
disqualify anybody from Medicaid coverage and, once again, IHS should 
not be subsidizing the Medicaid program.
  In total, the provisions in the Medicaid Indian Health Act of 2005 
might at first glance appear to be a hodge podge set of provisions 
related to both Medicaid and Indian health. However, they are not. They 
reflect a concerted effort on behalf of Native American people to 
protect the gains that have already been made within the Medicaid 
Program for American Indians and Alaska Natives and the need to make 
additional strides to improve the delivery of health services 
throughout to Native people, including those in urban areas, through 
Medicaid.
  Furthermore, this is just the first in a series of bills addressing 
Indian issues within the Medicaid and Medicare Programs. The next two 
will focus, respectively, on improving the Medicare Program and fixing 
problems with respect to the Medicare prescription drug program for 
Native Americans and Indian health providers.
  As part of the Indian Health Care Improvement Act of 1976 report, the 
Congress said, ``The most basic human right must be the right to enjoy 
decent health. Certainly, any effort to fulfill Federal 
responsibilities to the Indian people must begin with the provision of 
health services. In fact, health services must be the cornerstone upon 
which rest all the other Federal programs for the benefit of Indians. 
Without a proper health status, the Indian people will be unable to 
fully avail themselves of the many economic, educational, and social 
programs already directed to them or which this Congress and future 
Congresses will provide them.''
  The Federal Government has a ``Federal trust responsibility'' to 
Indian people that it is simple not fulfilling. This administration and 
this Congress can and simply must do better. Part of that multipronged 
agenda should include passage of the Medicaid Indian Health Act of 
2005.
  This could occur in a variety of ways. First, the provision from this 
bill could be incorporated in any budget reconciliation conference 
report package. Consequently, during Finance Committee consideration of 
the Senate's version of the budget reconciliation package on October 
25, 2005, I offered an amendment that included a number of the 
provisions from this bill. Opponents of the amendment, which failed on 
a 9-to-11 party-line vote with Democrats in favor and Republicans 
opposing it, argued at the time that the budget reconciliation package 
was not the right vehicle but that we should look to the 
reauthorization bill for the Indian Health Care Improvement Act to 
attach these provisions instead.
  Two days later, on October 27, 2005, the Committee on Indian Affairs 
took up and passed S. 1057, the Indian Health Care Improvement Act 
Amendments of 2005, but did not include any of the Medicaid provisions 
I have been discussing as part of this bill. They were

[[Page 27323]]

told that inclusion of Medicaid provisions within IHCIA was objected to 
by both the administration and the Senate Finance Committee. However, 
in light of the Senate Finance Committee's failure to take up the 
amendment earlier this month, another possible vehicle should be the 
reauthorization bill for the Indian Health Care Improvement Act when it 
comes to the Senate floor.
  And finally, if we fail to get these provisions included in either of 
those legislative vehicles, we will push to get the Medicaid Indian 
Health Act of 2005 passed as a free standing piece of legislation. 
Medicaid has become such a crucial and necessary piece in maintaining 
and improving the health and well-being of American Indians and Alaska 
Natives that it is unacceptable that the various Senate committees 
point to each other as being in charge while not taking the necessary 
responsibility to get this important protections for Native Americans 
passed into law.
  The Federal Government and the States also point figures at each 
other as to who is in charge. As Jim Crouch, executive director of the 
California Rural Indian Health Board, has said, ``The joint operation 
of the Medicaid program by federal and state authorities often ignores 
the governmental status of Tribes and the unique needs of Tribal 
citizens. It is always appropriate for the federal government to 
establish special provisions that are in the best interest of Tribes 
and American Indians due to the governmental status of federally 
recognized tribes.''
  Mr. President, it is well past time to enact legislative initiatives 
such as the Medicaid Indian Health Act of 2005 and reauthorization of 
IHCIA. Years of broken promises to Indian Country must come to an end. 
Passage of the provisions in both the Medicaid Indian Health Act of 
2005 and IHCIA reauthorization are just two of the pieces that the 
Federal Government must take in order to fulfill the Federal trust 
responsibility and make real progress at providing the full array of 
medically necessary health services that have been long promised to 
American Indians.
  I ask unanimous consent that the text of the bill and a fact sheet 
describing the various provisions in the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2074

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Medicaid Indian Health Act 
     of 2005''.

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

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

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

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

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

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

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

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

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

       Section 1903(m)(2)(A)(ii) of the Social Security Act (42 
     U.S.C. 1396b(m)(2)(A)(ii)) is amended to read as follows:
       ``(ii) such contract provides, in the case of entity that 
     has entered into a contract for the provision of services 
     with a facility or program of the Indian Health Service, 
     whether operated by the Service or an Indian tribe or tribal 
     organization (as defined in section 4 of the Indian Health 
     Care Improvement Act) or an urban Indian health program 
     receiving funds under title V of the Indian Health Care 
     Improvement Act , that is not a Federally-qualified health 
     center or a rural health clinic, that the entity shall 
     provide payment that is not less than the highest level and 
     amount of payment that the entity would make for the services 
     if the services were furnished by a provider that is not a 
     facility or program of the Indian Health Service;''.

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

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

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

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

     SEC. 9. EFFECTIVE DATE.

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


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

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

[[Page 27324]]




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

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


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

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


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

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


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

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


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

     Current Law
       Under section 1115 of the Social Security Act, the 
     Secretary of HHS has the authority to waive certain 
     requirements of federal Medicaid law to enable states to 
     conduct demonstrations that, in his judgment, ``is likely to 
     assist in promoting the objectives of'' the Medicaid program. 
     Section 1115 contains no requirement that the Secretary 
     consult with Indian tribes prior to approval of Medicaid 
     demonstration waivers that may adversely affect their members 
     or their tribal health programs. The January 2005 HHS tribal 
     consultation policy does not specify that consultation is 
     required in these specific circumstances, although the 
     previous July 2001 guidance had.
     Proposed Change
       Require the Secretary, prior to approval of any new section 
     1115 waiver or renewal of any existing section 1115 waiver to 
     consult with tribes whose members or tribal health programs 
     could be affected by the waiver.
     Justification
       Section 1115 waivers are commonly negotiated by the 
     Secretary (acting through CMS) and the Governor of the state 
     seeking the waiver (through his Medicaid or Budget director). 
     Affected Indian tribes have no formal role in these 
     negotiations, even when those negotiations result in 
     reductions in Medicaid eligibility, benefits, and/or 
     reimbursement or increases in premiums and cost-sharing that 
     have an adverse impact on tribal members or tribal health 
     programs.


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

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


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

     Current Law
       States have the option of extending Medicaid coverage to 
     individuals who are ``medically needy''--that is, individuals 
     who ``spend-down'' by incurring high medical expenses that, 
     when subtracted from their incomes, reduce their incomes to 
     below the state eligibility threshold. If the IHS or a

[[Page 27325]]

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


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

     Current Law
       CMS policy has been to acknowledge the federal government's 
     unique responsibilities under the trust obligation and to 
     take into account special circumstances of American Indians 
     and Alaska Natives in Medicaid and SCHIP programs. As such, 
     states have historically been allowed to include special 
     provisions with respect to Tribes and Indian people in their 
     Medicaid and SCHIP programs. However, in 2004, CMS informed 
     Oregon and Washington that it would not approve waiver 
     amendments containing special provisions for Indian 
     participation in the Medicaid program.
     Proposed Change
       Secretary shall not disapprove a state Plan amendment, or 
     deny a state request for a waiver under section 1115, on the 
     grounds that the amendment or waiver would exempt eligible 
     Indians (as defined in section 4 of the Indian Health Care 
     Improvement Act) from:
       (1) any restriction on eligibility for medical assistance 
     under this Title that would otherwise apply under the 
     amendment or waiver;
       (2) any imposition of premiums, deductibles, copayments or 
     other cost-sharing that would otherwise apply under the 
     amendment or waiver; or
       (3) any reduction in covered services or supplies that 
     would otherwise apply under the amendment or waiver.''
     Justification
       The federal government should continue to acknowledge the 
     federal government's unique responsibilities under the trust 
     obligation and to take into account and allow states to take 
     into account the special circumstances of American Indians 
     and Alaska Natives in Medicaid and SCHIP programs.
                                 ______
                                 
      By Mr. DURBIN (for himself, Mr. Hagel, Mr. Lugar, Mr. Kennedy, 
        Mr. McCain, Mr. Leahy, Mr. Coleman, Mr. Lieberman, Mr. Craig, 
        Mr. Feingold, Mr. DeWine, Mr. Obama, and Mr. Crapo):
  S. 2075. A bill to amend the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 to permit States to determine State 
residency for higher education purposes and to authorize the 
cancellation of removal and adjustment of status of certain alien 
students who are long-term United States residents and who entered the 
United States as children, and for other purposes; to the Committee on 
the Judiciary.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2075

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Development, Relief, and 
     Education for Alien Minors Act of 2005'' or the ``DREAM Act 
     of 2005''.

     SEC. 2. DEFINITIONS.

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

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

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

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

       (a) Special Rule for Certain Long-Term Residents Who 
     Entered the United States as Children.--
       (1) In general.--Notwithstanding any other provision of law 
     and except as otherwise provided in this Act, the Secretary 
     of Homeland Security may cancel removal of, and adjust to the 
     status of an alien lawfully admitted for permanent residence, 
     subject to the conditional basis described in section 5, an 
     alien who is inadmissible or deportable from the United 
     States, if the alien demonstrates that--
       (A) the alien has been physically present in the United 
     States for a continuous period of not less than 5 years 
     immediately preceding the date of enactment of this Act, and 
     had not yet reached the age of 16 years at the time of 
     initial entry;
       (B) the alien has been a person of good moral character 
     since the time of application;
       (C) the alien--
       (i) is not inadmissible under paragraph (2), (3), (6)(B), 
     (6)(C), (6)(E), (6)(F), or (6)(G) of section 212(a) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(a)), or, if 
     inadmissible solely under subparagraph (C) or (F) of 
     paragraph (6) of such subsection, the alien was under the age 
     of 16 years at the time the violation was committed; and
       (ii) is not deportable under paragraph (1)(E), (1)(G), (2), 
     (3)(B), (3)(C), (3)(D), (4), or (6) of section 237(a) of the 
     Immigration and Nationality Act (8 U.S.C. 1227(a)), or, if 
     deportable solely under subparagraphs (C) or (D) of paragraph 
     (3) of such subsection, the alien was under the age of 16 
     years at the time the violation was committed;
       (D) the alien, at the time of application, has been 
     admitted to an institution of higher education in the United 
     States, or has earned a high school diploma or obtained a 
     general education development certificate in the United 
     States; and
       (E) the alien has never been under a final administrative 
     or judicial order of exclusion, deportation, or removal, 
     unless the alien has remained in the United States under 
     color of law or received the order before attaining the age 
     of 16 years.
       (2) Waiver.--The Secretary of Homeland Security may waive 
     the grounds of ineligibility under section 212(a)(6) of the 
     Immigration and Nationality Act and the grounds of 
     deportability under paragraphs (1), (3), and (6) of section 
     237(a) of that Act for humanitarian purposes or family unity 
     or when it is otherwise in the public interest.
       (3) Procedures.--The Secretary of Homeland Security shall 
     provide a procedure by regulation allowing eligible 
     individuals to apply affirmatively for the relief available 
     under this subsection without being placed in removal 
     proceedings.
       (b) Termination of Continuous Period.--For purposes of this 
     section, any period of continuous residence or continuous 
     physical presence in the United States of an alien who 
     applies for cancellation of removal under this section shall 
     not terminate when the alien is served a notice to appear 
     under section 239(a) of the Immigration and Nationality Act 
     (8 U.S.C. 1229(a)).
       (c) Treatment of Certain Breaks in Presence.--
       (1) In general.--An alien shall be considered to have 
     failed to maintain continuous physical presence in the United 
     States under subsection (a) if the alien has departed from 
     the United States for any period in excess of 90 days or for 
     any periods in the aggregate exceeding 180 days.
       (2) Extensions for exceptional circumstances.--The 
     Secretary of Homeland Security may extend the time periods 
     described in paragraph (1) if the alien demonstrates that the 
     failure to timely return to the United States was due to 
     exceptional circumstances. The exceptional circumstances 
     determined sufficient to justify an extension should be no 
     less compelling than serious illness of the alien, or death 
     or serious illness of a parent, grandparent, sibling, or 
     child.
       (d) Exemption From Numerical Limitations.--Nothing in this 
     section may be construed to apply a numerical limitation on 
     the number of aliens who may be eligible for cancellation of 
     removal or adjustment of status under this section.
       (e) Regulations.--
       (1) Proposed regulations.--Not later than 180 days after 
     the date of enactment of this Act, the Secretary of Homeland 
     Security shall publish proposed regulations implementing this 
     section. Such regulations shall be effective immediately on 
     an interim basis, but are subject to change and revision 
     after public notice and opportunity for a period for public 
     comment.
       (2) Interim, final regulations.--Within a reasonable time 
     after publication of the interim regulations in accordance 
     with paragraph (1), the Secretary of Homeland Security shall 
     publish final regulations implementing this section.
       (f) Removal of Alien.--The Secretary of Homeland Security 
     may not remove any alien who has a pending application for 
     conditional status under this Act.

[[Page 27326]]



     SEC. 5. CONDITIONAL PERMANENT RESIDENT STATUS.

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

     SEC. 6. RETROACTIVE BENEFITS UNDER THIS ACT.

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

     SEC. 7. EXCLUSIVE JURISDICTION.

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

     SEC. 8. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.

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

     SEC. 9. CONFIDENTIALITY OF INFORMATION.

       (a) Prohibition.--No officer or employee of the United 
     States may--
       (1) use the information furnished by the applicant pursuant 
     to an application filed under this Act to initiate removal 
     proceedings against any persons identified in the 
     application;

[[Page 27327]]

       (2) make any publication whereby the information furnished 
     by any particular individual pursuant to an application under 
     this Act can be identified; or
       (3) permit anyone other than an officer or employee of the 
     United States Government or, in the case of applications 
     filed under this Act with a designated entity, that 
     designated entity, to examine applications filed under this 
     Act.
       (b) Required Disclosure.--The Attorney General or the 
     Secretary of Homeland Security shall provide the information 
     furnished under this section, and any other information 
     derived from such furnished information, to--
       (1) a duly recognized law enforcement entity in connection 
     with an investigation or prosecution of an offense described 
     in paragraph (2) or (3) of section 212(a) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(a)), when such information 
     is requested in writing by such entity; or
       (2) an official coroner for purposes of affirmatively 
     identifying a deceased individual (whether or not such 
     individual is deceased as a result of a crime).
       (c) Penalty.--Whoever knowingly uses, publishes, or permits 
     information to be examined in violation of this section shall 
     be fined not more than $10,000.

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

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

     SEC. 11. HIGHER EDUCATION ASSISTANCE.

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

     SEC. 12. GAO REPORT.

       Seven years after the date of enactment of this Act, the 
     Comptroller General of the United States shall submit a 
     report to the Committees on the Judiciary of the Senate and 
     the House of Representatives setting forth--
       (1) the number of aliens who were eligible for cancellation 
     of removal and adjustment of status under section 4(a);
       (2) the number of aliens who applied for adjustment of 
     status under section 4(a);
       (3) the number of aliens who were granted adjustment of 
     status under section 4(a); and
       (4) the number of aliens whose conditional permanent 
     resident status was removed under section 5.
                                 ______
                                 
      By Mr. LEAHY (for himself, Mr. Hatch, Ms. Mikulski, Mr. Durbin, 
        Mr. DeWine, Mr. Biden, Mrs. Feinstein, Mr. Feingold, Mr. Smith, 
        Mr. Dodd, Mr. Chambliss, Mr. Rockefeller, Mr. Lieberman, Mrs. 
        Boxer, Mr. Wyden, Mr. Nelson of Florida, and Mr. Corzine):
  S. 2076. A bill to amend title 5, United States Code, to provide to 
assistant United States attorneys the same retirement benefits as are 
afforded to Federal law enforcement officers; to the Committee on 
Homeland Security and Governmental Affairs.
  Mr. LEAHY. I am pleased to join with Senator Hatch in introducing the 
Assistant United States Attorney Retirement Benefit Equity Act of 2005. 
This bill was previously introduced in the 107th and 108th Congresses. 
A House companion bill, H.R. 3183, has already been introduced and 
currently has 43 bipartisan cosponsors.
  Fairness is the driving force behind this legislation. The bill would 
correct an inequity that exists under current law, whereby AUSAs 
receive substantially less favorable retirement benefits than nearly 
all other people involved in the Federal criminal justice system. The 
bill would increase the retirement benefits given to AUSAs, as well as 
other designated attorneys employed by DOJ who act primarily as 
criminal prosecutors, by including them in the Civil Service Retirement 
System. This change would bring their retirement benefits inline with 
thousands of other employees involved in the Federal criminal justice 
system.
  Enhanced retirement benefits will allow us to attract and retain the 
best and the brightest for these vital positions in Government. As a 
former prosecutor, I know that experienced prosecutors are needed to 
bring ever more sophisticated cases under increasingly complex federal 
criminal laws. The Government's success in combating the threats posed 
by organized crime, drug cartels, terrorist groups, and other 
sophisticated criminals depends upon representation by skilled, 
experienced litigators.
  Because of the lure of higher salaries and benefits, the average 
assistant U.S. attorney remains with the Department of Justice only 8 
years. The hours are long, the pay is low, and they place themselves in 
harm's way by prosecuting criminals. Surveys of assistant U.S. 
attorneys have shown that a fair retirement benefit is the foremost 
incentive that would increase their tenure with the Department of 
Justice. Creating an enticement for them to remain with the Department 
of Justice for the length of their careers would be a tremendous 
victory for the American people. This legislation would improve public 
safety for us all by ensuring a strong, knowledgeable, and experienced 
crop of prosecutors at the federal level.
  I want to thank Senators Hatch, Mikulski, Durbin, DeWine, Biden, 
Feinstein, Feingold, Smith, Dodd, Chambliss, Rockefeller, Lieberman, 
Boxer, Wyden, Nelson, and Corzine, for cosponsoring this important 
legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2076

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Assistant United States 
     Attorney Retirement Benefit Equity Act of 2005''.

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

       (a) Civil Service Retirement System.--
       (1) Assistant united states attorney defined.--Section 8331 
     of title 5, United States Code, is amended--
       (A) in paragraph (28), by striking ``and'' at the end;
       (B) in the first paragraph (29), by striking the period and 
     inserting a semicolon;
       (C) in the second paragraph (29)--
       (i) by striking ``(29)'' and inserting ``(30)''; and
       (ii) by striking the period and inserting ``; and''; and
       (D) by adding at the end the following:
       ``(31) `assistant United States attorney' means--
       ``(A) an assistant United States attorney under section 542 
     of title 28; and
       ``(B) any other attorney employed by the Department of 
     Justice occupying a position designated by the Attorney 
     General upon finding that the position--
       ``(i) involves routine employee responsibilities that are 
     substantially similar to those of assistant United States 
     attorneys; and
       ``(ii) is critical to the Department's successful 
     accomplishment of an important mission.''.
       (2) Retirement treatment.--Chapter 83 of title 5, United 
     States Code, is amended by adding after section 8351 the 
     following:

     ``Sec. 8352. Assistant United States attorneys

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

``8352. Assistant United States attorneys.''
       (B) Section 8335(a) of such title is amended by striking 
     ``8331(29)(A)'' and inserting ``8331(30)(A)''.
       (b) Federal Employees' Retirement System.--
       (1) Assistant united states attorney defined.--Section 8401 
     of title 5, United States Code, is amended--
       (A) in paragraph (34), by striking ``and'' at the end;
       (B) in paragraph (35), by striking the period and inserting 
     ``; and'' ; and
       (C) by adding at the end the following:
       ``(36) `assistant United States attorney' means--
       ``(A) an assistant United States attorney under section 542 
     of title 28; and
       ``(B) any other attorney employed by the Department of 
     Justice occupying a position

[[Page 27328]]

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

     SEC. 3. PROVISIONS RELATING TO INCUMBENTS.

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

     SEC. 4. DEPARTMENT OF JUSTICE ADMINISTRATIVE ACTIONS.

       (a) Regulations.--
       (1) In general.--Not later than 120 days after the date of 
     enactment of this Act, the Attorney General, in consultation 
     with the Office of Personnel Management, shall promulgate 
     regulations for designating attorneys described under section 
     3(a)(1)(B).
       (2) Contents.--Any regulation promulgated under paragraph 
     (1) shall ensure that attorneys designated as assistant 
     United States attorneys described under section 3(a)(1)(B) 
     have routine employee responsibilities that are substantially 
     similar to those of assistant United States attorneys.
       (b) Designations.--The designation of any attorney as an 
     assistant United States attorney described under section 
     3(a)(1)(B) shall be at the discretion of the Attorney 
     General.
                                 ______
                                 
      By Mr. McCAIN:
  S. 2078. A bill to amend the Indian Gaming Regulatory Act to clarify 
the authority of the National Indian Gaming Commission to regulate 
class III gaming, to limit the lands eligible for gaming, and for other 
purposes; to the Committee on Indian Affairs.
  Mr. McCAIN. Mr. President, I am introducing today a bill to amend 
regulatory provisions of the Indian Gaming Regulatory Act (IGRA). The 
bill clarifies that the National Indian Gaming Commission (NIGC) has 
authority to promulgate and enforce Minimum Internal Control Standards 
as to Class III gaming; grants the NIGC Chairman authority to approve 
contracts, and expands contract approval to include contracts not only 
for management contracts but also for gaming operation development 
contracts and consulting services, as well as for any contract the fees 
for which are to be paid as a percentage of gaming revenue; tightens 
restrictions on off-reservation gaming; gives the NIGC authority to 
issue complaints against any individual or entity, not just against 
tribes or management contractors, that violate IGRA or federal 
regulations; and requires all tribes to pay fees to the NIGC.
  When IGRA was enacted in 1988, Indian gaming was a $200 million 
dollar industry. Today, the industry earns $19 billion a year and is 
spread throughout the nation. The amendments reflect the need to re-
evaluate what constitutes appropriate regulation of this vastly changed 
enterprise. I have always been and continue to be a supporter of the 
rights of Indian tribes to conduct gaming, a right guaranteed by the 
Supreme Court in the California v. Cabazon decision and codified in 
IGRA, but I also continue to believe that effective regulation of these 
enterprises are critical to tribes' continued success.
  Ensuring that the NIGC is able to continue its oversight of Class III 
gaming is necessary to this effective regulation. On August 24, 2005, 
the U.S. District Court for the District of Columbia

[[Page 27329]]

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

                                S. 2078

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

     SECTION 1. SHORT TITLE.

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

     SEC. 2. DEFINITIONS.

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

     SEC. 3. NATIONAL INDIAN GAMING COMMISSION.

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

     SEC. 4. POWERS OF THE CHAIRMAN.

       Section 6 of the Indian Gaming Regulatory Act (25 U.S.C. 
     2705) is amended--
       (1) in subsection (a)--
       (A) in paragraph (3), by striking ``and'' at the end;
       (B) by striking paragraph (4) and inserting the following:
       ``(4) approve gaming-related contracts for class II gaming 
     and class III gaming under section 12; and''; and
       (C) by adding at the end the following:
       ``(5) conduct a background investigation and make a 
     determination with respect to the suitability of a gaming-
     related contractor, as the Chairman determines to be 
     appropriate.''; and
       (2) by adding at the end the following:
       ``(c) Delegation of Authority.--
       ``(1) In general.--The Chairman may delegate any authority 
     under this section to any

[[Page 27330]]

     member of the Commission, as the Chairman determines to be 
     appropriate.
       ``(2) Requirement.--In carrying out an activity pursuant to 
     a delegation under paragraph (1), a member of the Commission 
     shall be subject to, and act in accordance with--
       ``(A) the general policies formally adopted by the 
     Commission; and
       ``(B) the regulatory decisions, findings, and 
     determinations of the Commission pursuant to Federal law.''.

     SEC. 5. POWERS OF THE COMMISSION.

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

     SEC. 6. COMMISSION STAFFING.

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

     SEC. 7. TRIBAL GAMING ORDINANCES.

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

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

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

     SEC. 8. GAMING-RELATED CONTRACTS.

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

     ``SEC. 12. GAMING-RELATED CONTRACTS.

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

       ``(I) In general.--If each gaming-related contractor has 
     been determined by the Chairman to be suitable under 
     paragraph (2) on or before the date on which the gaming-
     related contract is submitted to the Chairman, the Chairman 
     shall approve or disapprove the gaming-related contract by 
     not

[[Page 27331]]

     later than 30 days after the date on which the gaming-related 
     contract is submitted.
       ``(II) Failure to determine.--If the Chairman fails to make 
     a determination by the date described in subclause (I), a 
     gaming-related contract described in that subclause shall be 
     considered to be approved.
       ``(III) Amendments.--The Chairman may require the parties 
     to a gaming-related contract considered to be approved under 
     subclause (II) to amend the gaming-related contract, as the 
     Chairman considers to be appropriate to meet the requirements 
     under subsection (b).

       ``(iii) Early operation.--

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

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

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

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

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

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

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

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

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

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

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

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

[[Page 27332]]

       ``(D) Dissent.--
       ``(i) In general.--If the Commission dissents from a 
     determination of the Chairman under this subsection, the 
     Chairman may--

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

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

     SEC. 9. CIVIL PENALTIES.

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

     ``SEC. 14. CIVIL PENALTIES.

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

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

       (iii) in the second sentence--

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

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

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

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

     SEC. 10. GAMING ON LATER-ACQUIRED LAND.

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

     SEC. 11. CONFORMING AMENDMENT.

       (a) In General.--Section 123(a)(2) of the Department of the 
     Interior and Related Agencies Appropriations Act, 1998 
     (Public Law 105-83; 111 Stat. 1566) is amended--
       (1) in subparagraph (A), by adding ``and'' at the end;
       (2) in subparagraph (B), by striking ``; and'' and 
     inserting a period; and
       (3) by striking subparagraph (C).
       (b) Applicability.--Notwithstanding any other provision of 
     law, section 18(a) of the Indian Gaming Regulatory Act (25 
     U.S.C. 2717(a)) shall apply to all Indian tribes.
                                 ______
                                 
      By Mr. SMITH (for himself, Mr. Thune, Mr. Allard, Mr. Burns, and 
        Mr. Thomas):
  S. 2079. A bill to improve the ability of the Secretary of 
Agriculture and the Secretary of the Interior to promptly implement 
recovery treatments in response to catastrophic events affecting the 
natural resources of Forest Service land and Bureau of Land Management 
Land, respectively, to support the recovery of non-Federal land damaged 
by catastrophic events, to assist impacted communities, to revitalize 
Forest Service experimental forests, and for other purposes; to the 
Committee on Energy and Natural Resources.
  Mr. BURNS. Mr. President, I rise today in support of the Forests for 
Future Generations Act, because it addresses a very serious problem in 
our National Forests. I am not sure how many people in this body have 
witnessed the devastation of a catastrophic wildfire, but I recommend 
that everyone tour a burned over forest. It is a sobering reality, 
often resembling a moonscape.
  The worst fire year in recent Montana history was the summer of 2000, 
when we burned 945,000 acres of productive Montana land. After months 
of smoke-filled air, we were left with decimated wildlife habitat, 
charred hillsides, sediment-filled streams, and millions of board feet 
of dead, standing timber. Active forest management would require that 
restoration of these fragile soils and ecosystems begin as soon as 
possible, but that is almost never the case on national forest land. 
Instead, we spend millions of dollars and thousands of hours writing a 
plan to restore the burned area, which is inevitably appealed, 
challenged, and litigated by an environmental group. We end up arguing 
in the courtroom when we should be working in the forest.
  I have seen side-by-side sections of land where private landowners or 
even the State of Montana has taken quick action and removed some dead 
or dying timber then replanted the forest. News are growing on the 
private land before any of the Federal timber is even harvested. It is 
amazing to me, and it

[[Page 27333]]

makes absolutely no sense. For that reason I am happy to cosponsor this 
bill, because it is time to reintroduce some common sense into a system 
that has gone far off the tracks.

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