[Congressional Record (Bound Edition), Volume 151 (2005), Part 4]
[Senate]
[Pages 5828-5865]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SMITH (for himself, Mr. Inouye, Ms. Snowe, Mr. Dorgan, Mr. 
        Sununu, Mr. Burns, Mr. Lautenberg, and Mr. Stevens):
  S. 714. A bill to amend section 227 of the Communications Act of 1934 
(47 U.S.C. 227) relating to the prohibition on junk fax transmissions; 
to the Committee on Commerce, Science, and Transportation.
  Mr. SMITH. Mr. President, I rise today with Senator Inouye and other 
colleagues to introduce the ``Junk Fax Prevention Act of 2005.'' This 
bill will strengthen existing laws by providing consumers the ability 
to prevent unsolicited fax advertisements and provide greater 
Congressional oversight of enforcement efforts by the Federal 
Communications Commission (FCC). This bill will also help businesses by 
allowing them to continue to send faxes to their customers in a manner 
that has proven successful with both businesses and consumers.
  In July of 2003, the FCC reconsidered its Telephone Consumer 
Protection Act (TCPA) rules and elected to eliminate the ability for 
businesses to contact their customers even where there exists an 
established business relationship. The effect of the FCC's rule would 
be to prevent a business from sending a fax solicitation to any person, 
whether it is a supplier or customer, without first obtaining prior 
written consent. This approach, while seemingly sensible, would impose 
significant costs on businesses in the form of extensive record 
keeping. Recognizing the problems created by this rule, the Commission 
has twice delayed the effective date, with the current extension of 
stay expiring on June 30, 2005.
  The purpose of this legislation is to preserve the established 
business relationship exception currently recognized under the TCPA. In 
addition, this bill will allow consumers to opt out of receiving 
further unsolicited faxes. This is a new consumer protection that does 
not exist under the TCPA today.
  We believe that this bipartisan bill strikes the appropriate balance 
in providing significant protections to consumers from unwanted 
unsolicited fax advertisements and preserves the many benefits that 
result from legitimate fax communications.
  In the 108th Congress, this legislation passed both the Senate and 
House but was not signed into law prior to the adjournment of Congress. 
We hope that both the Senate and House can pass this legislation in a 
timely manner, prior to June 30, 2005, when the FCC's stay expires.
  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:

[[Page 5829]]



                                 S. 714

       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 ``Junk Fax Prevention Act of 
     2005''.

     SEC. 2. PROHIBITION ON FAX TRANSMISSIONS CONTAINING 
                   UNSOLICITED ADVERTISEMENTS.

       (a) Prohibition.--Section 227(b)(1)(C) of the 
     Communications Act of 1934 (47 U.S.C. 227(b)(1)(C)) is 
     amended to read as follows:
       ``(C) to use any telephone facsimile machine, computer, or 
     other device to send, to a telephone facsimile machine, an 
     unsolicited advertisement, unless--
       ``(i) the unsolicited advertisement is from a sender with 
     an established business relationship with the recipient; and
       ``(ii) the unsolicited advertisement contains a notice 
     meeting the requirements under paragraph (2)(D), except that 
     the exception under clauses (i) and (ii) shall not apply with 
     respect to an unsolicited advertisement sent to a telephone 
     facsimile machine by a sender to whom a request has been made 
     not to send future unsolicited advertisements to such 
     telephone facsimile machine that complies with the 
     requirements under paragraph (2)(E); or''.
       (b) Definition of Established Business Relationship.--
     Section 227(a) of the Communications Act of 1934 (47 U.S.C. 
     227(a)) is amended--
       (1) by redesignating paragraphs (2) through (4) as 
     paragraphs (3) through (5), respectively; and
       (2) by inserting after paragraph (1) the following:
       ``(2) The term `established business relationship', for 
     purposes only of subsection (b)(1)(C)(i), shall have the 
     meaning given the term in section 64.1200 of title 47, Code 
     of Federal Regulations, as in effect on January 1, 2003, 
     except that--
       ``(A) such term shall include a relationship between a 
     person or entity and a business subscriber subject to the 
     same terms applicable under such section to a relationship 
     between a person or entity and a residential subscriber; and
       ``(B) an established business relationship shall be subject 
     to any time limitation established pursuant to paragraph 
     (2)(G)).''.
       (c) Required Notice of Opt-Out Opportunity.--Section 
     227(b)(2) of the Communications Act of 1934 (47 U.S.C. 
     227(b)(2)) is amended--
       (1) in subparagraph (B), by striking ``and'' at the end;
       (2) in subparagraph (C), by striking the period at the end 
     and inserting a semicolon; and
       (3) by adding at the end the following:
       ``(D) shall provide that a notice contained in an 
     unsolicited advertisement complies with the requirements 
     under this subparagraph only if--
       ``(i) the notice is clear and conspicuous and on the first 
     page of the unsolicited advertisement;
       ``(ii) the notice states that the recipient may make a 
     request to the sender of the unsolicited advertisement not to 
     send any future unsolicited advertisements to a telephone 
     facsimile machine or machines and that failure to comply, 
     within the shortest reasonable time, as determined by the 
     Commission, with such a request meeting the requirements 
     under subparagraph (E) is unlawful;
       ``(iii) the notice sets forth the requirements for a 
     request under subparagraph (E);
       ``(iv) the notice includes--

       ``(I) a domestic contact telephone and facsimile machine 
     number for the recipient to transmit such a request to the 
     sender; and
       ``(II) a cost-free mechanism for a recipient to transmit a 
     request pursuant to such notice to the sender of the 
     unsolicited advertisement; the Commission shall by rule 
     require the sender to provide such a mechanism and may, in 
     the discretion of the Commission and subject to such 
     conditions as the Commission may prescribe, exempt certain 
     classes of small business senders, but only if the Commission 
     determines that the costs to such class are unduly burdensome 
     given the revenues generated by such small businesses;

       ``(v) the telephone and facsimile machine numbers and the 
     cost-free mechanism set forth pursuant to clause (iv) permit 
     an individual or business to make such a request during 
     regular business hours; and
       ``(vi) the notice complies with the requirements of 
     subsection (d);''.
       (d) Request To Opt-Out of Future Unsolicited 
     Advertisements.--Section 227(b)(2) of the Communications Act 
     of 1934 (47 U.S.C. 227(b)(2)), as amended by subsection (c), 
     is further amended by adding at the end the following:
       ``(E) shall provide, by rule, that a request not to send 
     future unsolicited advertisements to a telephone facsimile 
     machine complies with the requirements under this 
     subparagraph only if--
       ``(i) the request identifies the telephone number or 
     numbers of the telephone facsimile machine or machines to 
     which the request relates;
       ``(ii) the request is made to the telephone or facsimile 
     number of the sender of such an unsolicited advertisement 
     provided pursuant to subparagraph (D)(iv) or by any other 
     method of communication as determined by the Commission; and
       ``(iii) the person making the request has not, subsequent 
     to such request, provided express invitation or permission to 
     the sender, in writing or otherwise, to send such 
     advertisements to such person at such telephone facsimile 
     machine;''.
       (e) Authority To Establish Nonprofit Exception.--Section 
     227(b)(2) of the Communications Act of 1934 (47 U.S.C. 
     227(b)(2)), as amended by subsections (c) and (d), is further 
     amended by adding at the end the following:
       ``(F) may, in the discretion of the Commission and subject 
     to such conditions as the Commission may prescribe, allow 
     professional or trade associations that are tax-exempt 
     nonprofit organizations to send unsolicited advertisements to 
     their members in furtherance of the association's tax-exempt 
     purpose that do not contain the notice required by paragraph 
     (1)(C)(ii), except that the Commission may take action under 
     this subparagraph only--
       ``(i) by regulation issued after public notice and 
     opportunity for public comment; and
       ``(ii) if the Commission determines that such notice 
     required by paragraph (1)(C)(ii) is not necessary to protect 
     the ability of the members of such associations to stop such 
     associations from sending any future unsolicited 
     advertisements; and''.
       (f) Authority To Establish Time Limit on Established 
     Business Relationship Exception.--Section 227(b)(2) of the 
     Communications Act of 1934 (47 U.S.C. 227(b)(2)), as amended 
     by subsections (c), (d), and (e) of this section, is further 
     amended by adding at the end the following:
       ``(G)(i) may, consistent with clause (ii), limit the 
     duration of the existence of an established business 
     relationship, however, before establishing any such limits, 
     the Commission shall--
       ``(I) determine whether the existence of the exception 
     under paragraph (1)(C) relating to an established business 
     relationship has resulted in a significant number of 
     complaints to the Commission regarding the sending of 
     unsolicited advertisements to telephone facsimile machines;
       ``(II) determine whether a significant number of any such 
     complaints involve unsolicited advertisements that were sent 
     on the basis of an established business relationship that was 
     longer in duration than the Commission believes is consistent 
     with the reasonable expectations of consumers;
       ``(III) evaluate the costs to senders of demonstrating the 
     existence of an established business relationship within a 
     specified period of time and the benefits to recipients of 
     establishing a limitation on such established business 
     relationship; and
       ``(IV) determine whether with respect to small businesses, 
     the costs would not be unduly burdensome; and
       ``(ii) may not commence a proceeding to determine whether 
     to limit the duration of the existence of an established 
     business relationship before the expiration of the 18-month 
     period that begins on the date of the enactment of the Junk 
     Fax Prevention Act of 2005.''.
       (g) Unsolicited Advertisement.--Section 227(a)(5) of the 
     Communications Act of 1934, as so redesignated by subsection 
     (b)(1), is amended by inserting ``, in writing or otherwise'' 
     before the period at the end.
       (h) Regulations.--Except as provided in section 
     227(b)(2)(G)(ii) of the Communications Act of 1934 (as added 
     by subsection (f)), not later than 270 days after the date of 
     enactment of this Act, the Federal Communications Commission 
     shall issue regulations to implement the amendments made by 
     this section.

     SEC. 3. FCC ANNUAL REPORT REGARDING JUNK FAX ENFORCEMENT.

       Section 227 of the Communications Act of 1934 (47 U.S.C. 
     227) is amended by adding at the end the following:
       ``(g) Junk Fax Enforcement Report.--The Commission shall 
     submit an annual report to Congress regarding the enforcement 
     during the past year of the provisions of this section 
     relating to sending of unsolicited advertisements to 
     telephone facsimile machines, which report shall include--
       ``(1) the number of complaints received by the Commission 
     during such year alleging that a consumer received an 
     unsolicited advertisement via telephone facsimile machine in 
     violation of the Commission's rules;
       ``(2) the number of citations issued by the Commission 
     pursuant to section 503 during the year to enforce any law, 
     regulation, or policy relating to sending of unsolicited 
     advertisements to telephone facsimile machines;
       ``(3) the number of notices of apparent liability issued by 
     the Commission pursuant to section 503 during the year to 
     enforce any law, regulation, or policy relating to sending of 
     unsolicited advertisements to telephone facsimile machines;
       ``(4) for each notice referred to in paragraph (3)--
       ``(A) the amount of the proposed forfeiture penalty 
     involved;
       ``(B) the person to whom the notice was issued;
       ``(C) the length of time between the date on which the 
     complaint was filed and the date on which the notice was 
     issued; and
       ``(D) the status of the proceeding;

[[Page 5830]]

       ``(5) the number of final orders imposing forfeiture 
     penalties issued pursuant to section 503 during the year to 
     enforce any law, regulation, or policy relating to sending of 
     unsolicited advertisements to telephone facsimile machines;
       ``(6) for each forfeiture order referred to in paragraph 
     (5)--
       ``(A) the amount of the penalty imposed by the order;
       ``(B) the person to whom the order was issued;
       ``(C) whether the forfeiture penalty has been paid; and
       ``(D) the amount paid;
       ``(7) for each case in which a person has failed to pay a 
     forfeiture penalty imposed by such a final order, whether the 
     Commission referred such matter for recovery of the penalty; 
     and
       ``(8) for each case in which the Commission referred such 
     an order for recovery--
       ``(A) the number of days from the date the Commission 
     issued such order to the date of such referral;
       ``(B) whether an action has been commenced to recover the 
     penalty, and if so, the number of days from the date the 
     Commission referred such order for recovery to the date of 
     such commencement; and
       ``(C) whether the recovery action resulted in collection of 
     any amount, and if so, the amount collected.''.

     SEC. 4. GAO STUDY OF JUNK FAX ENFORCEMENT.

       (a) In General.--The Comptroller General of the United 
     States shall conduct a study regarding complaints received by 
     the Federal Communications Commission concerning unsolicited 
     advertisements sent to telephone facsimile machines, which 
     study shall determine--
       (1) the mechanisms established by the Commission to 
     receive, investigate, and respond to such complaints;
       (2) the level of enforcement success achieved by the 
     Commission regarding such complaints;
       (3) whether complainants to the Commission are adequately 
     informed by the Commission of the responses to their 
     complaints; and
       (4) whether additional enforcement measures are necessary 
     to protect consumers, including recommendations regarding 
     such additional enforcement measures.
       (b) Additional Enforcement Remedies.--In conducting the 
     analysis and making the recommendations required under 
     subsection (a)(4), the Comptroller General shall specifically 
     examine--
       (1) the adequacy of existing statutory enforcement actions 
     available to the Commission;
       (2) the adequacy of existing statutory enforcement actions 
     and remedies available to consumers;
       (3) the impact of existing statutory enforcement remedies 
     on senders of facsimiles;
       (4) whether increasing the amount of financial penalties is 
     warranted to achieve greater deterrent effect; and
       (5) whether establishing penalties and enforcement actions 
     for repeat violators or abusive violations similar to those 
     established under section 1037 of title 18, United States 
     Code, would have a greater deterrent effect.
       (c) Report.--Not later than 270 days after the date of 
     enactment of this Act, the Comptroller General shall submit a 
     report on the results of the study under this section to the 
     Committee on Commerce, Science, and Transportation of the 
     Senate and the Committee on Energy and Commerce of the House 
     of Representatives.
                                 ______
                                 
      By Mr. HARKIN (for himself, Mr. Dayton, Mr. Durbin, and Mr. 
        Lautenberg):
  S. 715. A bill to amend the Internal Revenue Code of 1986 to 
encourage investment in facilities using wind to produce electricity, 
and for other purposes; to the Committee on Finance.
  Mr. HARKIN. Mr. President, I am introducing today the Wind Power Tax 
Incentives Act of 2005. I am pleased to be joined by Senators Dayton, 
Durbin and Lautenburg. This legislation makes it easier for farmers and 
others around the country to invest in wind power for commercial 
electricity production. Wind power is a clean, economical, and reliable 
source of renewable energy abundant on farms and in rural areas of Iowa 
and elsewhere.
  With this legislation we can help farmers help themselves by 
developing a new source of income, and help the rest of the country in 
the production of renewable energy. Farmers are ready to take on this 
challenge. A recent study found that 93 percent of corn producers 
support wind energy. They also strongly support the 2002 farm bill's 
historic energy title.
  This regulation complements the farm bill's energy programs and other 
wind power initiatives currently being considered by this body, and is 
strongly supported by the American Wind Energy Association and John 
Deere. Our bill changes Federal tax law to make the section 45 wind 
production tax credit more widely available to farmers, farm 
cooperatives, and other investors. Section 45 of the Federal tax code 
provides a tax credit, currently 1.8 cents per kilowatt-hour, for 
electricity produced and sold during the first ten years of the life of 
a wind turbine. The credit has been extraordinarily successful in 
spurring greater installation of new wind power capacity, making this 
sustainable energy source economically feasible. However, certain 
barriers have prevented many farmers and other investors from 
qualifying for the credit, thus impeding their participation.
  It is time to allow full participation by farmers and other investors 
in this important tax incentive. Our legislation removes barriers by 
making two important changes to the tax code.
  First, under current tax law most losses, deductions, and credits 
from passive investments cannot affect wages or other income or reduce 
taxes on such income. So a farmer who passively invests in wind energy 
could not use the credits to offset taxes on farm income. This bill 
creates an exception to passive loss restrictions for an interest in a 
wind facility that qualifies for the section 45 credit. The wind 
facility's loss or tax credits could then offset the income or taxes 
arising from the taxpayer's farming business. Existing law provides an 
even broader exception for oil and gas investments, but in contrast to 
existing law, our proposed exception for wind investment applies only 
to those with income under $1 million, in order to avoid potential 
windfalls or abuse.
  Second, the bill allows cooperatives to invest in qualified wind 
facilities and pass through the section 45 credits to cooperative 
members. This will allow farmers to join together and pool their 
resources in a cooperative and still take advantage of the credit.
  When we first introduced this bill in the 108th Congress, it also 
contained a measure providing alternative minimum tax (AMT) relief. 
This important piece of the equation was incorporated late last year in 
the American Jobs Creation Act, and passed into law. But there's more 
to be done.
  The benefits of this legislation are obvious. Increased renewable 
energy production lessens our dependence on foreign oil, provides 
environmental and public health gains, bolsters farm income, creates 
jobs and boosts economic growth, especially in rural areas. The Nation 
must move toward energy security, and domestically produced wind power, 
along with other forms of renewable energy like biofuels, plays an 
important part in this endeavor.
  I want to thank Senators Dayton, Durbin and Lautenburg for co-
sponsoring this legislation with me. Their leadership in this area will 
be instrumental to moving the bill forward. I am hopeful we can pass 
this legislation soon to help secure a brighter renewable energy future 
for our Nation's farmers and all citizens.
  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. 715

       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 ``Wind Power Tax Incentives 
     Act of 2005''.

     SEC. 2. OFFSET OF PASSIVE ACTIVITY LOSSES AND CREDITS OF AN 
                   ELIGIBLE TAXPAYER FROM WIND ENERGY FACILITIES.

       (a) In General.--Section 469 of the Internal Revenue Code 
     of 1986 (relating to passive activity losses and credits 
     limited) is amended--
       (1) by redesignating subsections (l) and (m) as subsections 
     (m) and (n), respectively; and
       (2) by inserting after subsection (k) the following:
       ``(l) Offset of Passive Activity Losses and Credits From 
     Wind Energy Facilities.--
       ``(1) In general.--Subsection (a) shall not apply to the 
     portion of the passive activity loss, or the deduction 
     equivalent (within the meaning of subsection (j)(5)) of the 
     portion of the passive activity credit, for any taxable year 
     which is attributable to all interests of an eligible 
     taxpayer in qualified facilities described in section 
     45(d)(1).
       ``(2) Eligible taxpayer.--For purposes of this subsection--

[[Page 5831]]

       ``(A) In general.--The term `eligible taxpayer' means, with 
     respect to any taxable year, a taxpayer the adjusted gross 
     income (taxable income in the case of a corporation) of which 
     does not exceed $1,000,000.
       ``(B) Rules for computing adjusted gross income.--Adjusted 
     gross income shall be computed in the same manner as under 
     subsection (i)(3)(F).
       ``(C) Aggregation rules.--All persons treated as a single 
     employer under subsection (a) or (b) of section 52 shall be 
     treated as a single taxpayer for purposes of this paragraph.
       ``(D) Pass-thru entities.--In the case of a pass-thru 
     entity, this paragraph shall be applied at the level of the 
     person to which the credit is allocated by the entity.''.
       (b) Effective Date.--The amendments made by this section 
     shall apply to facilities placed in service after the date of 
     the enactment of this Act.

     SEC. 3. APPLICATION OF CREDIT TO COOPERATIVES.

       (a) In General.--Section 45(e) of the Internal Revenue Code 
     of 1986 (relating to definitions and special rules) is 
     amended by adding at the end the following:
       ``(10) Allocation of credit to shareholders of 
     cooperative.--
       ``(A) Election to allocate.--
       ``(i) In general.--In the case of a cooperative 
     organization described in section 1381(a), any portion of the 
     credit determined under subsection (a) for the taxable year 
     may, at the election of the organization, be apportioned pro 
     rata among shareholders of the organization on the basis of 
     the capital contributions of the shareholders to the 
     organization.
       ``(ii) Form and effect of election.--An election under 
     clause (i) for any taxable year shall be made on a timely 
     filed return for such year. Such election, once made, shall 
     be irrevocable for such taxable year.
       ``(B) Treatment of organizations and patrons.--The amount 
     of the credit apportioned to any shareholders under 
     subparagraph (A)--
       ``(i) shall not be included in the amount determined under 
     subsection (a) with respect to the organization for the 
     taxable year, and
       ``(ii) shall be included in the amount determined under 
     subsection (a) for the taxable year of the shareholder with 
     or within which the taxable year of the organization ends.
       ``(C) Special rules for decrease in credits for taxable 
     year.--If the amount of the credit of a cooperative 
     organization determined under subsection (a) for a taxable 
     year is less than the amount of such credit shown on the 
     return of the cooperative organization for such year, an 
     amount equal to the excess of--
       ``(i) such reduction, over
       ``(ii) the amount not apportioned to such shareholders 
     under subparagraph (A) for the taxable year, shall be treated 
     as an increase in tax imposed by this chapter on the 
     organization. Such increase shall not be treated as tax 
     imposed by this chapter for purposes of determining the 
     amount of any credit under this subpart or subpart A, B, E, 
     or G.''.
       (b) Effective Date.--The amendments made by this section 
     shall apply to taxable years ending after the date of the 
     enactment of this Act.
                                 ______
                                 
      By Mr. AKAKA (for himself, Mr. Rockefeller, and Mr. Conrad):
  S. 716. A bill to amend title 38, United States Code, to enhance 
services provided by vet centers, to clarify and improve the provision 
of bereavement counseling by the Department of Veterans Affairs, and 
for other purposes; to the Committee on Veterans' Affairs.
  Mr. AKAKA. Mr. President, I rise today to introduce the ``Vet Center 
Enhancement Act of 2005.'' This legislation would enhance care and 
services provided through Vet Centers. Since their establishment over 
25 years ago, Vet Centers have become a safe place in the community 
where more and more veterans and their families have turned for 
assistance and services. This legislation would provide resources that 
Vet Centers need to serve and reach out to the growing number of 
Operation Enduring Freedom and Operation Iraqi Freedom (OEF/OIF) 
veterans and surviving family members.
  The legislation would allow the Department of Veterans Affairs (VA) 
to hire an additional 50 Global War on Terror outreach coordinators, 
strike the three-year authorization provision for these outreach 
workers, clarify that Vet Centers can provide bereavement counseling to 
family members including parents, and provide more funding for the Vet 
Center program.
  In February 2004, VA authorized the Vet Center program to hire 50 
OEF/OIF veterans to conduct outreach to their fellow Global War on 
Terrorism veterans. There are still many OEF/OIF veterans in need of 
readjustment services, which requires more workers. This legislation 
would authorize the hiring of 50 additional outreach coordinators to 
reach this underserved population of veterans. In addition, this 
legislation would also repeal the three- year authorization provision 
placed on these positions.
  The number of brave servicemembers who die while defending freedom 
continues to rise, leaving many surviving family members in need for 
help. Under current law, VA has the authority to provide bereavement 
counseling to the immediate family. However, it is necessary to clarify 
that parents of a deceased servicemember qualify for this bereavement 
counseling and that such care could be provided at Vet Centers. This 
legislation would make the clarifications.
  A recent article in the Washington Post detailed a mother's 
experience after her son was killed in Iraq and how she finally felt 
relief at an unexpected place, a Vet Center. The article also provided 
information concerning the Vet Center bereavement program and discussed 
the need for clarification of the Vet Center bereavement care program. 
This article paints a clear picture of the distress that surviving 
family members endure as a result of the death of a beloved soldier. I 
ask unanimous consent that the text of The Washington Post article be 
printed in the Record.
  As the War on Terrorism persists, the number of veterans seeking 
readjustment counseling and related mental health services through Vet 
Centers will continue to grow. Experts predict that as many as 30 
percent of those returning servicemembers may need psychiatric care. 
For these returning servicemembers who have suffered psychological 
wounds, the stigma surrounding these types of wounds creates a barrier 
that often times prevents them from seeking the care they need. Vet 
Centers, which have licensed mental health professionals, provide a 
means to overcome this barrier because of the center's location in the 
community and because veteran staff members can relate to the 
experiences of the veterans seeking services. In 2004, Vet Centers 
cared for 9,597 OEF/OIF veterans and 2005 projections are that Vet 
Centers will see 12,656 OEF/OIF veterans.
  Despite increases in the number of veterans coming for care to Vet 
Centers, the budget for the program has remained stagnant. This 
legislation would authorize funding for the program from $93 million to 
$180 million.
  We must make the readjustment period for the returning service 
members and the surviving family members of deceased servicemembers as 
smooth as possible.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Feb. 24, 2005]

                 VA Program Offers Solace to Civilians

                           (By David Finkel)

       Her son had been killed in Iraq, and Hope Veverka needed 
     someone to talk to.
       ``It was so horrific, the pain,'' said Veverka, the mother 
     of Army Pfc. Brandon Sapp, who died in August when he drove 
     his vehicle over a remote-controlled bomb. ``I didn't want it 
     to destroy me.''
       Unable to sleep, Veverka, 45, tried a hospice-based program 
     for dealing with grief. Unable to stop thinking about the 
     person who was the last to see her son while deliberately 
     pushing a detonator, she talked to friends and attended a 
     support group for parents who lost children. All helped 
     somewhat, she says, but it was in an unexpected place--a 
     readjustment center for veterans--where she finally felt some 
     relief.
       ``These guys, they have served,'' Veverka said of the 
     counselors she sees weekly at the Department of Veterans 
     Affairs' Vet Center near her home in West Palm Beach, Fla. 
     ``They get it. I can just talk, and they understand.''
       More and more relatives of service members who died are 
     learning the same thing, that because of a new bereavement 
     program, vet centers are not just for veterans anymore. In 
     August 2003, as the number of fatalities in Iraq passed the 
     250 mark, the 206 vet centers across the United States began 
     offering counseling and bereavement services to immediate 
     relatives of anyone in the military to die while on active 
     duty.
       The program marks the first time that non-veterans have 
     been eligible for a benefit previously restricted to 
     veterans. Before the program began, civilian family members 
     might go to a vet center as part of a living veteran's 
     counseling but had to go elsewhere if they needed counseling 
     of their own.

[[Page 5832]]

       ``It's a big deal,'' said Alfonso Batres, chief of the VA's 
     Office of Readjustment Counseling. ``And the families are so 
     grateful that anything is being done.''
       The program, which is free and allows unlimited visits, had 
     367 participants in connection with 252 deaths as of Feb. 1. 
     Eighty-six of the 367 were spouses, 119 were mothers, 64 were 
     fathers, 60 were siblings, 37 were children and one was a 
     grandparent.
       Batres says the numbers would be higher, but privacy 
     concerns prohibit counselors from contacting people to see 
     whether they are interested in getting help. Instead, initial 
     contact must come from the family members.
       Typically, relatives are referred to the program by 
     military casualty-assistance officers, who are the ones to 
     notify them of the death of their loved ones. A civilian 
     organization called TAPS, the Tragedy Assistance Program for 
     Survivors, which offers around-the-clock grief counseling and 
     peer support--but does not have professionally trained 
     counselors as at a vet center--also refers people to the 
     program.
       ``It's really, really significant,'' TAPS founder and 
     chairman Bonnie Carroll said of the VA's decision to treat 
     family members. ``From our perspective, it has just been 
     revolutionary.''
       Batres says that implementing the program has not been 
     problem-free. Especially in the early months, he says, some 
     counselors complained that they already had more to do than 
     they could handle. Others were concerned that expanding the 
     centers' mandate to non-veterans could create a bad 
     precedent.
       The provisional status of the program has also been 
     unsettling to some. Batres says he had hoped to get the 
     program authorized by Congress, which would have given it a 
     sense of permanence, but instead it was approved as an 
     unfunded initiative at the discretion of the secretary of the 
     VA.
       Nonetheless, Batres says, as the months have gone by, the 
     nature of the work has changed the misgivings of his staff 
     into a shared sense of mission. ``It's akin to going to a 
     disaster site'' is how he describes the work. ``This is a 
     death site. It's almost like going into a sacred place.''
       Joe Griffis, a counselor at the vet center in Lake Worth, 
     Fla., agrees that this first venture into treating non-
     veterans is worthwhile. ``We're here to help the veteran,'' 
     he said, ``and when they've been killed, it's the closest we 
     can get to them to give them that service.''
       Griffis says he has treated family members connected to 
     five deaths, four of which occurred from enemy fire and one 
     by suicide.
       ``They come in with grief, with a great sense of loss, 
     often with guilt feelings about what they could have done, 
     angry at the government, angry at God, angry at the child 
     himself,'' he said of his clients, most of whom have been 
     parents.
       Rather than diagnosing a condition, he says, his goal is to 
     ``let them ventilate all of their feelings. Their anger. 
     Their grief. Their sadness. No matter what it's about. And 
     let them have a feeling of relief before they walk out of the 
     session.''
       Veverka, who is one of Griffis's clients, says that is 
     exactly what has happened to her in her weekly sessions.
       ``There was something lacking,'' she said of the support 
     groups she attended in the first days after her son's death, 
     where she found herself undifferentiated from the parents 
     whose child had died of leukemia and the parents whose child 
     had been killed crossing a street. ``It was only addressing 
     half of my emotions. I needed something with the military.''
       Try the vet center, someone suggested.
       ``So I went,'' she said of a place so familiar to her now 
     that counselors have hung a photograph of her son for her to 
     see every time she walks in the door, ``and it ended up being 
     the door I needed.''
                                 ______
                                 
      By Mr. BIDEN (for himself, Mr. Specter, Mr. McConnell, Mrs. 
        Murray, Mr. Dayton, Mr. Chambliss, Mr. Corzine, and Ms. 
        Cantwell):
  S. 718. A bill to amend title I of the Omnibus Crime Control and Safe 
Streets Act of 1968 to provide standards and procedures to guide both 
State and local law enforcement agencies and law enforcement officers 
during internal investigations, interrogation of law enforcement 
officers, and administrative disciplinary hearings, and to ensure 
accountability of law enforcement officers, to guarantee the due 
process rights of law enforcement officers, and to require States to 
enact law enforcement discipline, accountability, and due process laws; 
to the Committee on the Judiciary.
  Mr. BIDEN. Mr. President, I rise to introduce the State and Local Law 
Enforcement Discipline, Accountability, and Due Process Act of 2005, 
along with Senator Specter, Senator McConnell, Senator Chambliss, 
Senator Dayton, Senator Murray, Senator Corzine, and Senator Cantwell.
  These are trying times for the men and women on our front lines who 
provide our domestic security and public safety--our Nation's law 
enforcement personnel. In fact, our men and women in blue are facing 
what I have called a perfect storm. First, they are being called upon 
to undertake more responsibilities than ever before. They are being 
required to undertake homeland security duties that weren't required 
before September 11, and, at the same time, the FBI is reprogramming 
its field agents from crime to terrorism cases. While I don't disagree 
that this shift in resources is appropriate, it undoubtedly leaves a 
gap in law enforcement efforts to combat drugs and crime, and State and 
local agencies must fill this gap. At the same time, budget shortages 
at the local level are forcing personnel lay-offs, an increasing use of 
overtime to meet demand, and the forced elimination of critical crime 
prevention programs. Local law enforcement is struggling to keep up 
with service calls. To add insult to injury, Federal assistance for 
State and local law enforcement has been reduced by billions over the 
last 2 years--with the proposed elimination of the COPS hiring 
program--a proven initiative that has been hailed as one of the keys to 
the crime-drop of the nineties. Quite simply, we are asking law 
enforcement to do more with less, and I believe that public safety is 
being compromised as a result of Congress's unfortunate choices on the 
Federal budget.
  We may argue about the Federal responsibility to provide financial 
assistance to State and local law enforcement, however, few will 
dispute the sacrifices that our men and women in law enforcement make 
for our nation. Indeed, they face one of the most difficult work 
environments imaginable--an average of 165 police officers are killed 
in the line of duty every year. Our Nation's law enforcement officers 
put themselves in harms way on a daily basis to ensure the safety of 
their fellow citizens and the domestic security of our Nation. 
Nevertheless, many times these brave officers do not receive basic 
rights if they become involved in internal police investigations or 
administrative hearings. According to the National Association of 
Police Organizations, ``[i]n roughly half of the states in this 
country, officers enjoy some legal protections against false 
accusations and abusive conduct, but hundreds of thousands of officers 
have very limited due process rights and confront limitations on their 
exercise of other rights, such as the right to engage in political 
activities.'' Similarly, the Fraternal Order of Police notes that, 
``[i]n a startling number of jurisdictions throughout this country, law 
enforcement officers have no procedural or administrative protections 
whatsoever; in fact, they can be, and frequently are, summarily 
dismissed from their jobs without explanation. Officers who lose their 
careers due to administrative or political expediency almost always 
find it impossible to find new employment in public safety. An 
officer's reputation, once tarnished by accusation, is almost 
impossible to restore.''
  The legislation that we introduce today, which is endorsed by the 
Fraternal Order of Police and of the National Association of Police 
Organizations, seeks to provide officers with certain basic protections 
in those jurisdictions where such workplace protections are not 
currently provided. First, this bill allows law enforcement officials 
to engage in political activities when they are off-duty. Second, it 
provides standards and procedures to guide State and local law 
enforcement agencies during internal investigations, interrogations, 
and administrative disciplinary hearings. Additionally, it calls upon 
States to develop and enforce these disciplinary procedures. The bill 
would preempt State laws which confer fewer rights than those provided 
for in the legislation, but it would not preempt any State or local 
laws that confer rights or protections that are equal to or exceed the 
rights and protections afforded in the bill. For example, my own State 
of Delaware has a law enforcement officers' bill of rights, and those 
procedures would not be impacted by the provisions of this bill.

[[Page 5833]]

  This bill will also include important provisions that will enhance 
the ability of citizens to hold their local police departments 
accountable. The legislation includes provisions that will ensure 
citizen complaints against police officers are investigated and that 
citizens are informed of the outcome of these investigations. The bill 
balances the rights of police officers with the rights of citizens to 
raise valid concerns about the conduct of some of these officers. In 
addition, I have consulted with constitutional experts who have opined 
that the bill is consistent with Congress' powers under the Commerce 
Clause and that it does not run afoul of the Supreme Court's Tenth 
Amendment jurisprudence.
  I would also like to note that I understand the objections that many 
management groups, including the International Association of Chiefs of 
Police, have to this measure. I have discussed this with them, and I've 
pledged that their views will be heard and considered as this bill is 
debated in Congress. It is my view that we must bridge this gap. 
Without a meeting of the minds between police management and union 
officials, the enactment of a meaningful law enforcement officers' bill 
of rights will be difficult. Law enforcement officials are facing 
unprecedented challenges, and management and labor simply must work 
together on this issue and the numerous other issues facing the law 
enforcement community.
  I urge my colleagues to join Senators Specter, McConnell, Chambliss, 
Dayton, Murray, Corzine, Cantwell, and me in providing all of the 
Nation's law enforcement officers with the basic rights they deserve.
  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. 718

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``State and Local Law 
     Enforcement Discipline, Accountability, and Due Process Act 
     of 2005''.

     SEC. 2. FINDINGS AND DECLARATION OF PURPOSE AND POLICY.

       (a) Findings.--Congress finds that--
       (1) the rights of law enforcement officers to engage in 
     political activity or to refrain from engaging in political 
     activity, except when on duty, or to run as candidates for 
     public office, unless such service is found to be in conflict 
     with their service as officers, are activities protected by 
     the first amendment of the United States Constitution, as 
     applied to the States through the 14th amendment of the 
     United States Constitution, but these rights are often 
     violated by the management of State and local law enforcement 
     agencies;
       (2) a significant lack of due process rights of law 
     enforcement officers during internal investigations and 
     disciplinary proceedings has resulted in a loss of confidence 
     in these processes by many law enforcement officers, 
     including those unfairly targeted for their labor 
     organization activities or for their aggressive enforcement 
     of the laws, demoralizing many rank and file officers in 
     communities and States;
       (3) unfair treatment of officers has potentially serious 
     long-term consequences for law enforcement by potentially 
     deterring or otherwise preventing officers from carrying out 
     their duties and responsibilities effectively and fairly;
       (4) the lack of labor-management cooperation in 
     disciplinary matters and either the perception or the 
     actuality that officers are not treated fairly detrimentally 
     impacts the recruitment of and retention of effective 
     officers, as potential officers and experienced officers seek 
     other careers, which has serious implications and 
     repercussions for officer morale, public safety, and labor-
     management relations and strife and can affect interstate and 
     intrastate commerce, interfering with the normal flow of 
     commerce;
       (5) there are serious implications for the public safety of 
     the citizens and residents of the United States which 
     threatens the domestic tranquility of the United States 
     because of a lack of statutory protections to ensure--
       (A) the due process and political rights of law enforcement 
     officers;
       (B) fair and thorough internal investigations and 
     interrogations of and disciplinary proceedings against law 
     enforcement officers; and
       (C) effective procedures for receipt, review, and 
     investigation of complaints against officers, fair to both 
     officers and complainants; and
       (6) resolving these disputes and problems and preventing 
     the disruption of vital police services is essential to the 
     well-being of the United States and the domestic tranquility 
     of the Nation.
       (b) Declaration of Policy.--Congress declares that it is 
     the purpose of this Act and the policy of the United States 
     to--
       (1) protect the due process and political rights of State 
     and local law enforcement officers and ensure equality and 
     fairness of treatment among such officers;
       (2) provide continued police protection to the general 
     public;
       (3) provide for the general welfare and ensure domestic 
     tranquility; and
       (4) prevent any impediments to the free flow of commerce, 
     under the rights guaranteed under the United States 
     Constitution and Congress' authority thereunder.

     SEC. 3. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF 
                   OFFICERS.

       (a) In General.--Part H of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3781 et seq.) 
     is amended by adding at the end the following:

     ``SEC. 820. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF 
                   STATE AND LOCAL LAW ENFORCEMENT OFFICERS.

       ``(a) Definitions.--In this section:
       ``(1) Disciplinary action.--The term `disciplinary action' 
     means any adverse personnel action, including suspension, 
     reduction in pay, rank, or other employment benefit, 
     dismissal, transfer, reassignment, unreasonable denial of 
     secondary employment, or similar punitive action taken 
     against a law enforcement officer.
       ``(2) Disciplinary hearing.--The term `disciplinary 
     hearing' means an administrative hearing initiated by a law 
     enforcement agency against a law enforcement officer, based 
     on an alleged violation of law, that, if proven, would 
     subject the law enforcement officer to disciplinary action.
       ``(3) Emergency suspension.--The term `emergency 
     suspension' means the temporary action by a law enforcement 
     agency of relieving a law enforcement officer from the active 
     performance of law enforcement duties without a reduction in 
     pay or benefits when the law enforcement agency, or an 
     official within that agency, determines that there is 
     probable cause, based upon the conduct of the law enforcement 
     officer, to believe that the law enforcement officer poses an 
     immediate threat to the safety of that officer or others or 
     the property of others.
       ``(4) Investigation.--The term `investigation'--
       ``(A) means an action taken to determine whether a law 
     enforcement officer violated a law by a public agency or a 
     person employed by a public agency, acting alone or in 
     cooperation with or at the direction of another agency, or a 
     division or unit within another agency, regardless of a 
     denial by such an agency that any such action is not an 
     investigation; and
       ``(B) includes--
       ``(i) asking questions of any other law enforcement officer 
     or non-law enforcement officer;
       ``(ii) conducting observations;
       ``(iii) reviewing and evaluating reports, records, or other 
     documents; and
       ``(iv) examining physical evidence.
       ``(5) Law enforcement officer.--The terms `law enforcement 
     officer' and `officer' have the meaning given the term `law 
     enforcement officer' in section 1204, except the term does 
     not include a law enforcement officer employed by the United 
     States, or any department, agency, or instrumentality 
     thereof.
       ``(6) Personnel record.--The term `personnel record' means 
     any document, whether in written or electronic form and 
     irrespective of location, that has been or may be used in 
     determining the qualifications of a law enforcement officer 
     for employment, promotion, transfer, additional compensation, 
     termination or any other disciplinary action.
       ``(7) Public agency and law enforcement agency.--The terms 
     `public agency' and `law enforcement agency' each have the 
     meaning given the term `public agency' in section 1204, 
     except the terms do not include the United States, or any 
     department, agency, or instrumentality thereof.
       ``(8) Summary punishment.--The term `summary punishment' 
     means punishment imposed--
       ``(A) for a violation of law that does not result in any 
     disciplinary action; or
       ``(B) for a violation of law that has been negotiated and 
     agreed upon by the law enforcement agency and the law 
     enforcement officer, based upon a written waiver by the 
     officer of the rights of that officer under subsection (i) 
     and any other applicable law or constitutional provision, 
     after consultation with the counsel or representative of that 
     officer.
       ``(b) Applicability.--
       ``(1) In general.--This section sets forth the due process 
     rights, including procedures, that shall be afforded a law 
     enforcement officer who is the subject of an investigation or 
     disciplinary hearing.
       ``(2) Nonapplicability.--This section does not apply in the 
     case of--
       ``(A) an investigation of specifically alleged conduct by a 
     law enforcement officer that, if proven, would constitute a 
     violation

[[Page 5834]]

     of a statute providing for criminal penalties; or
       ``(B) a nondisciplinary action taken in good faith on the 
     basis of the employment related performance of a law 
     enforcement officer.
       ``(c) Political Activity.--
       ``(1) Right to engage or not to engage in political 
     activity.--Except when on duty or acting in an official 
     capacity, a law enforcement officer shall not be prohibited 
     from engaging in political activity or be denied the right to 
     refrain from engaging in political activity.
       ``(2) Right to run for elective office.--A law enforcement 
     officer shall not be--
       ``(A) prohibited from being a candidate for an elective 
     office or from serving in such an elective office, solely 
     because of the status of the officer as a law enforcement 
     officer; or
       ``(B) required to resign or take an unpaid leave from 
     employment with a law enforcement agency to be a candidate 
     for an elective office or to serve in an elective office, 
     unless such service is determined to be in conflict with or 
     incompatible with service as a law enforcement officer.
       ``(3) Adverse personnel action.--An action by a public 
     agency against a law enforcement officer, including requiring 
     the officer to take unpaid leave from employment, in 
     violation of this subsection shall be considered an adverse 
     personnel action within the meaning of subsection (a)(1).
       ``(d) Effective Procedures for Receipt, Review, and 
     Investigation of Complaints Against Law Enforcement 
     Officers.--
       ``(1) Complaint process.--Not later than 1 year after the 
     effective date of this section, each law enforcement agency 
     shall adopt and comply with a written complaint procedure 
     that--
       ``(A) authorizes persons from outside the law enforcement 
     agency to submit written complaints about a law enforcement 
     officer to--
       ``(i) the law enforcement agency employing the law 
     enforcement officer; or
       ``(ii) any other law enforcement agency charged with 
     investigating such complaints;
       ``(B) sets forth the procedures for the investigation and 
     disposition of such complaints;
       ``(C) provides for public access to required forms and 
     other information concerning the submission and disposition 
     of written complaints; and
       ``(D) requires notification to the complainant in writing 
     of the final disposition of the complaint and the reasons for 
     such disposition.
       ``(2) Initiation of an investigation.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     an investigation based on a complaint from outside the law 
     enforcement agency shall commence not later than 15 days 
     after the receipt of the complaint by--
       ``(i) the law enforcement agency employing the law 
     enforcement officer against whom the complaint has been made; 
     or
       ``(ii) any other law enforcement agency charged with 
     investigating such a complaint.
       ``(B) Exception.--Subparagraph (A) does not apply if--
       ``(i) the law enforcement agency determines from the face 
     of the complaint that each allegation does not constitute a 
     violation of law; or
       ``(ii) the complainant fails to comply substantially with 
     the complaint procedure of the law enforcement agency 
     established under this section.
       ``(3) Complainant or victim conflict of interest.--The 
     complainant or victim of the alleged violation of law giving 
     rise to an investigation under this subsection may not 
     conduct or supervise the investigation or serve as an 
     investigator.
       ``(e) Notice of Investigation.--
       ``(1) In general.--Any law enforcement officer who is the 
     subject of an investigation shall be notified of the 
     investigation 24 hours before the commencement of questioning 
     of such officer or to otherwise being required to provide 
     information to an investigating agency.
       ``(2) Contents of notice.--Notice given under paragraph (1) 
     shall include--
       ``(A) the nature and scope of the investigation;
       ``(B) a description of any allegation contained in a 
     written complaint;
       ``(C) a description of each violation of law alleged in the 
     complaint for which suspicion exists that the officer may 
     have engaged in conduct that may subject the officer to 
     disciplinary action; and
       ``(D) the name, rank, and command of the officer or any 
     other individual who will be conducting the investigation.
       ``(f) Rights of Law Enforcement Officers Prior to and 
     During Questioning Incidental to an Investigation.--If a law 
     enforcement officer is subjected to questioning incidental to 
     an investigation that may result in disciplinary action 
     against the officer, the following minimum safeguards shall 
     apply:
       ``(1) Counsel and representation.--
       ``(A) In general.--Any law enforcement officer under 
     investigation shall be entitled to effective counsel by an 
     attorney or representation by any other person who the 
     officer chooses, such as an employee representative, or both, 
     immediately before and during the entire period of any 
     questioning session, unless the officer consents in writing 
     to being questioned outside the presence of counsel or 
     representative.
       ``(B) Private consultation.--During the course of any 
     questioning session, the officer shall be afforded the 
     opportunity to consult privately with counsel or a 
     representative, if such consultation does not repeatedly and 
     unnecessarily disrupt the questioning period.
       ``(C) Unavailability of counsel.--If the counsel or 
     representative of the law enforcement officer is not 
     available within 24 hours of the time set for the 
     commencement of any questioning of that officer, the 
     investigating law enforcement agency shall grant a reasonable 
     extension of time for the law enforcement officer to obtain 
     counsel or representation.
       ``(2) Reasonable hours and time.--Any questioning of a law 
     enforcement officer under investigation shall be conducted at 
     a reasonable time when the officer is on duty, unless exigent 
     circumstances compel more immediate questioning, or the 
     officer agrees in writing to being questioned at a different 
     time, subject to the requirements of subsections (e) and 
     paragraph (1).
       ``(3) Place of questioning.--Unless the officer consents in 
     writing to being questioned elsewhere, any questioning of a 
     law enforcement officer under investigation shall take 
     place--
       ``(A) at the office of the individual conducting the 
     investigation on behalf of the law enforcement agency 
     employing the officer under investigation; or
       ``(B) the place at which the officer under investigation 
     reports for duty.
       ``(4) Identification of questioner.--Before the 
     commencement of any questioning, a law enforcement officer 
     under investigation shall be informed of--
       ``(A) the name, rank, and command of the officer or other 
     individual who will conduct the questioning; and
       ``(B) the relationship between the individual conducting 
     the questioning and the law enforcement agency employing the 
     officer under investigation.
       ``(5) Single questioner.--During any single period of 
     questioning of a law enforcement officer under investigation, 
     each question shall be asked by or through 1 individual.
       ``(6) Reasonable time period.--Any questioning of a law 
     enforcement officer under investigation shall be for a 
     reasonable period of time and shall allow reasonable periods 
     for the rest and personal necessities of the officer and the 
     counsel or representative of the officer, if such person is 
     present.
       ``(7) No threats, false statements, or promises to be 
     made.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     no threat against, false or misleading statement to, 
     harassment of, or promise of reward to a law enforcement 
     officer under investigation shall be made to induce the 
     officer to answer any question, give any statement, or 
     otherwise provide information.
       ``(B) Exception.--The law enforcement agency employing a 
     law enforcement officer under investigation may require the 
     officer to make a statement relating to the investigation by 
     explicitly threatening disciplinary action, including 
     termination, only if--
       ``(i) the officer has received a written grant of use and 
     derivative use immunity or transactional immunity by a person 
     authorized to grant such immunity; and
       ``(ii) the statement given by the law enforcement officer 
     under such an immunity may not be used in any subsequent 
     criminal proceeding against that officer.
       ``(8) Recording.--
       ``(A) In general.--All questioning of a law enforcement 
     officer under an investigation shall be recorded in full, in 
     writing or by electronic device, and a copy of the transcript 
     shall be provided to the officer under investigation before 
     any subsequent period of questioning or the filing of any 
     charge against that officer.
       ``(B) Separate recording.--To ensure the accuracy of the 
     recording, an officer may utilize a separate electronic 
     recording device, and a copy of any such recording (or the 
     transcript) shall be provided to the public agency conducting 
     the questioning, if that agency so requests.
       ``(9) Use of honesty testing devices prohibited.--No law 
     enforcement officer under investigation may be compelled to 
     submit to the use of a lie detector, as defined in section 2 
     of the Employee Polygraph Protection Act of 1988 (29 U.S.C. 
     2001).
       ``(g) Notice of Investigative Findings and Disciplinary 
     Recommendation and Opportunity to Submit a Written 
     Response.--
       ``(1) Notice.--Not later than 30 days after the conclusion 
     of an investigation under this section, the person in charge 
     of the investigation or the designee of that person shall 
     notify the law enforcement officer who was the subject of the 
     investigation, in writing, of the investigative findings and 
     any recommendations for disciplinary action.
       ``(2) Opportunity to submit written response.--
       ``(A) In general.--Not later than 30 days after receipt of 
     a notification under paragraph (1), and before the filing of 
     any charge seeking the discipline of such officer or the 
     commencement of any disciplinary proceeding under subsection 
     (h), the law enforcement officer who was the subject of the

[[Page 5835]]

     investigation may submit a written response to the findings 
     and recommendations included in the notification.
       ``(B) Contents of response.--The response submitted under 
     subparagraph (A) may include references to additional 
     documents, physical objects, witnesses, or any other 
     information that the law enforcement officer believes may 
     provide exculpatory evidence.
       ``(h) Disciplinary Hearings.--
       ``(1) Notice of opportunity for hearing.--Except in a case 
     of summary punishment or emergency suspension (subject to 
     subsection (k)), before the imposition of any disciplinary 
     action the law enforcement agency shall notify the officer 
     that the officer is entitled to a due process hearing by an 
     independent and impartial hearing officer or board.
       ``(2) Requirement of determination of violation.--No 
     disciplinary action may be taken against a law enforcement 
     officer unless an independent and impartial hearing officer 
     or board determines, after a hearing and in accordance with 
     the requirements of this subsection, that the law enforcement 
     officer committed a violation of law.
       ``(3) Time limit.--No disciplinary charge may be brought 
     against a law enforcement officer unless--
       ``(A) the charge is filed not later than the earlier of--
       ``(i) 1 year after the date on which the law enforcement 
     agency filing the charge had knowledge or reasonably should 
     have had knowledge of an alleged violation of law; or
       ``(ii) 90 days after the commencement of an investigation; 
     or
       ``(B) the requirements of this paragraph are waived in 
     writing by the officer or the counsel or representative of 
     the officer.
       ``(4) Notice of hearing.--Unless waived in writing by the 
     officer or the counsel or representative of the officer, not 
     later than 30 days after the filing of a disciplinary charge 
     against a law enforcement officer, the law enforcement agency 
     filing the charge shall provide written notification to the 
     law enforcement officer who is the subject of the charge, 
     of--
       ``(A) the date, time, and location of any disciplinary 
     hearing, which shall be scheduled in cooperation with the law 
     enforcement officer, or the counsel or representative of the 
     officer, and which shall take place not earlier than 30 days 
     and not later than 60 days after notification of the hearing 
     is given to the law enforcement officer under investigation;
       ``(B) the name and mailing address of the independent and 
     impartial hearing officer, or the names and mailing addresses 
     of the independent and impartial hearing board members; and
       ``(C) the name, rank, command, and address of the law 
     enforcement officer prosecuting the matter for the law 
     enforcement agency, or the name, position, and mailing 
     address of the person prosecuting the matter for a public 
     agency, if the prosecutor is not a law enforcement officer.
       ``(5) Access to documentary evidence and investigative 
     file.--Unless waived in writing by the law enforcement 
     officer or the counsel or representative of that officer, not 
     later than 15 days before a disciplinary hearing described in 
     paragraph (4)(A), the law enforcement officer shall be 
     provided with--
       ``(A) a copy of the complete file of the pre-disciplinary 
     investigation; and
       ``(B) access to and, if so requested, copies of all 
     documents, including transcripts, records, written 
     statements, written reports, analyses, and electronically 
     recorded information that--
       ``(i) contain exculpatory information;
       ``(ii) are intended to support any disciplinary action; or
       ``(iii) are to be introduced in the disciplinary hearing.
       ``(6) Examination of physical evidence.--Unless waived in 
     writing by the law enforcement officer or the counsel or 
     representative of that officer--
       ``(A) not later than 15 days before a disciplinary hearing, 
     the prosecuting agency shall notify the law enforcement 
     officer or the counsel or representative of that officer of 
     all physical, non-documentary evidence; and
       ``(B) not later than 10 days before a disciplinary hearing, 
     the prosecuting agency shall provide a reasonable date, time, 
     place, and manner for the law enforcement officer or the 
     counsel or representative of the law enforcement officer to 
     examine the evidence described in subparagraph (A).
       ``(7) Identification of witnesses.--Unless waived in 
     writing by the law enforcement officer or the counsel or 
     representative of the officer, not later than 15 days before 
     a disciplinary hearing, the prosecuting agency shall notify 
     the law enforcement officer or the counsel or representative 
     of the officer, of the name and address of each witness for 
     the law enforcement agency employing the law enforcement 
     officer.
       ``(8) Representation.--During a disciplinary hearing, the 
     law enforcement officer who is the subject of the hearing 
     shall be entitled to due process, including--
       ``(A) the right to be represented by counsel or a 
     representative;
       ``(B) the right to confront and examine all witnesses 
     against the officer; and
       ``(C) the right to call and examine witnesses on behalf of 
     the officer.
       ``(9) Hearing board and procedure.--
       ``(A) In general.--A State or local government agency, 
     other than the law enforcement agency employing the officer 
     who is subject of the disciplinary hearing, shall--
       ``(i) determine the composition of an independent and 
     impartial disciplinary hearing board;
       ``(ii) appoint an independent and impartial hearing 
     officer; and
       ``(iii) establish such procedures as may be necessary to 
     comply with this section.
       ``(B) Peer representation on disciplinary hearing board.--A 
     disciplinary hearing board that includes employees of the law 
     enforcement agency employing the law enforcement officer who 
     is the subject of the hearing, shall include not less than 1 
     law enforcement officer of equal or lesser rank to the 
     officer who is the subject of the hearing.
       ``(10) Summonses and subpoenas.--
       ``(A) In general.--The disciplinary hearing board or 
     independent hearing officer--
       ``(i) shall have the authority to issue summonses or 
     subpoenas, on behalf of--

       ``(I) the law enforcement agency employing the officer who 
     is the subject of the hearing; or
       ``(II) the law enforcement officer who is the subject of 
     the hearing; and

       ``(ii) upon written request of either the law enforcement 
     agency or the officer, shall issue a summons or subpoena, as 
     appropriate, to compel the appearance and testimony of a 
     witness or the production of documentary evidence.
       ``(B) Effect of failure to comply with summons or 
     subpoena.--With respect to any failure to comply with a 
     summons or a subpoena issued under subparagraph (A)--
       ``(i) the disciplinary hearing officer or board shall 
     petition a court of competent jurisdiction to issue an order 
     compelling compliance; and
       ``(ii) subsequent failure to comply with such a court order 
     issued pursuant to a petition under clause (i) shall--

       ``(I) be subject to contempt of a court proceedings 
     according to the laws of the jurisdiction within which the 
     disciplinary hearing is being conducted; and
       ``(II) result in the recess of the disciplinary hearing 
     until the witness becomes available to testify and does 
     testify or is held in contempt.

       ``(11) Closed hearing.--A disciplinary hearing shall be 
     closed to the public unless the law enforcement officer who 
     is the subject of the hearing requests, in writing, that the 
     hearing be open to specified individuals or to the general 
     public.
       ``(12) Recording.--All aspects of a disciplinary hearing, 
     including pre-hearing motions, shall be recorded by audio 
     tape, video tape, or transcription.
       ``(13) Sequestration of witnesses.--Either side in a 
     disciplinary hearing may move for and be entitled to 
     sequestration of witnesses.
       ``(14) Testimony under oath.--The hearing officer or board 
     shall administer an oath or affirmation to each witness, who 
     shall testify subject to the laws of perjury of the State in 
     which the disciplinary hearing is being conducted.
       ``(15) Final decision on each charge.--
       ``(A) In general.--At the conclusion of the presentation of 
     all the evidence and after oral or written argument, the 
     hearing officer or board shall deliberate and render a 
     written final decision on each charge.
       ``(B) Final decision isolated to charge brought.--The 
     hearing officer or board may not find that the law 
     enforcement officer who is the subject of the hearing is 
     liable for disciplinary action for any violation of law as to 
     which the officer was not charged.
       ``(16) Burden of persuasion and standard of proof.--The 
     burden of persuasion or standard of proof of the prosecuting 
     agency shall be--
       ``(A) by clear and convincing evidence as to each charge 
     alleging false statement or representation, fraud, 
     dishonesty, deceit, moral turpitude, or criminal behavior on 
     the part of the law enforcement officer who is the subject of 
     the charge; and
       ``(B) by a preponderance of the evidence as to all other 
     charges.
       ``(17) Factors of just cause to be considered by the 
     hearing officer or board.--A law enforcement officer who is 
     the subject of a disciplinary hearing shall not be found 
     guilty of any charge or subjected to any disciplinary action 
     unless the disciplinary hearing board or independent hearing 
     officer finds that--
       ``(A) the officer who is the subject of the charge could 
     reasonably be expected to have had knowledge of the probable 
     consequences of the alleged conduct set forth in the charge 
     against the officer;
       ``(B) the rule, regulation, order, or procedure that the 
     officer who is the subject of the charge allegedly violated 
     is reasonable;
       ``(C) the charging party, before filing the charge, made a 
     reasonable, fair, and objective effort to discover whether 
     the officer did in fact violate the rule, regulation, order, 
     or procedure as charged;
       ``(D) the charging party did not conduct the investigation 
     arbitrarily or unfairly, or in a discriminatory manner, 
     against the officer who is the subject of the charge, and the 
     charge was brought in good faith; and
       ``(E) the proposed disciplinary action reasonably relates 
     to the seriousness of the alleged violation and to the record 
     of service

[[Page 5836]]

     of the officer who is the subject of the charge.
       ``(18) No commission of a violation.--If the officer who is 
     the subject of the disciplinary hearing is found not to have 
     committed the alleged violation--
       ``(A) the matter is concluded;
       ``(B) no disciplinary action may be taken against the 
     officer;
       ``(C) the personnel record of that officer shall not 
     contain any reference to the charge for which the officer was 
     found not guilty; and
       ``(D) any pay and benefits lost or deferred during the 
     pendency of the disposition of the charge shall be restored 
     to the officer as though no charge had ever been filed 
     against the officer, including salary or regular pay, 
     vacation, holidays, longevity pay, education incentive pay, 
     shift differential, uniform allowance, lost overtime, or 
     other premium pay opportunities, and lost promotional 
     opportunities.
       ``(19) Commission of a violation.--
       ``(A) In general.--If the officer who is the subject of the 
     charge is found to have committed the alleged violation, the 
     hearing officer or board shall make a written recommendation 
     of a penalty to the law enforcement agency employing the 
     officer or any other governmental entity that has final 
     disciplinary authority, as provided by applicable State or 
     local law.
       ``(B) Penalty.--The employing agency or other governmental 
     entity may not impose a penalty greater than the penalty 
     recommended by the hearing officer or board.
       ``(20) Appeal.--Any officer who has been found to have 
     committed an alleged violation may appeal from a final 
     decision of a hearing officer or hearing board to a court of 
     competent jurisdiction or to an independent neutral 
     arbitrator to the extent available in any other 
     administrative proceeding under applicable State or local 
     law, or a collective bargaining agreement.
       ``(i) Waiver of Rights.--
       ``(1) In general.--An officer who is notified that the 
     officer is under investigation or is the subject of a charge 
     may, after such notification, waive any right or procedure 
     guaranteed by this section.
       ``(2) Written waiver.--A written waiver under this 
     subsection shall be--
       ``(A) in writing; and
       ``(B) signed by--
       ``(i) the officer, who shall have consulted with counsel or 
     a representative before signing any such waiver; or
       ``(ii) the counsel or representative of the officer, if 
     expressly authorized by subsection (h).
       ``(j) Summary Punishment.--Nothing in this section shall 
     preclude a public agency from imposing summary punishment.
       ``(k) Emergency Suspension.--Nothing in this section may be 
     construed to preclude a law enforcement agency from imposing 
     an emergency suspension on a law enforcement officer, except 
     that any such suspension shall--
       ``(1) be followed by a hearing in accordance with the 
     requirements of subsection (h); and
       ``(2) not deprive the affected officer of any pay or 
     benefit.
       ``(l) Retaliation for Exercising Rights.--There shall be no 
     imposition of, or threat of, disciplinary action or other 
     penalty against a law enforcement officer for the exercise of 
     any right provided to the officer under this section.
       ``(m) Other Remedies Not Impaired.--Nothing in this section 
     may be construed to impair any other right or remedy that a 
     law enforcement officer may have under any constitution, 
     statute, ordinance, order, rule, regulation, procedure, 
     written policy, collective bargaining agreement, or any other 
     source.
       ``(n) Declaratory or Injunctive Relief.--A law enforcement 
     officer who is aggrieved by a violation of, or is otherwise 
     denied any right afforded by, the Constitution of the United 
     States, a State constitution, this section, or any 
     administrative rule or regulation promulgated pursuant 
     thereto, may file suit in any Federal or State court of 
     competent jurisdiction for declaratory or injunctive relief 
     to prohibit the law enforcement agency from violating or 
     otherwise denying such right, and such court shall have 
     jurisdiction, for cause shown, to restrain such a violation 
     or denial.
       ``(o) Protection of Law Enforcement Officer Personnel 
     Files.--
       ``(1) Restrictions on adverse material maintained in 
     officers' personnel records.--
       ``(A) In general.--Unless the officer has had an 
     opportunity to review and comment, in writing, on any adverse 
     material generated after the effective date of the State and 
     Local Law Enforcement Discipline, Accountability, and Due 
     Process Act of 2005 to be included in a personnel record 
     relating to the officer, no law enforcement agency or other 
     governmental entity may--
       ``(i) include the adverse material in that personnel 
     record; or
       ``(ii) possess or maintain control over the adverse 
     material in any form as a personnel record within the law 
     enforcement agency or elsewhere in the control of the 
     employing governmental entity.
       ``(B) Responsive material.--Any responsive material 
     provided by an officer to adverse material included in a 
     personnel record pertaining to the officer shall be--
       ``(i) attached to the adverse material; and
       ``(ii) released to any person or entity to whom the adverse 
     material is released in accordance with law and at the same 
     time as the adverse material is released.
       ``(2) Right to inspection of, and restrictions on access to 
     information in, the officer's own personnel records.--
       ``(A) In general.--Subject to subparagraph (B), a law 
     enforcement officer shall have the right to inspect all of 
     the personnel records of the officer not less than annually.
       ``(B) Restrictions.--A law enforcement officer shall not 
     have access to information in the personnel records of the 
     officer if the information--
       ``(i) relates to the investigation of alleged conduct that, 
     if proven, would constitute or have constituted a definite 
     violation of a statute providing for criminal penalties, but 
     as to which no formal charge was brought;
       ``(ii) contains letters of reference for the officer;
       ``(iii) contains any portion of a test document other than 
     the results;
       ``(iv) is of a personal nature about another officer, and 
     if disclosure of that information in non-redacted form would 
     constitute a clearly unwarranted intrusion into the privacy 
     rights of that other officer; or
       ``(v) is relevant to any pending claim brought by or on 
     behalf of the officer against the employing agency of that 
     officer that may be discovered in any judicial or 
     administrative proceeding between the officer and the 
     employer of that officer.
       ``(p) States' Rights.--
       ``(1) In general.--Nothing in this section may be 
     construed--
       ``(A) to preempt any State or local law, or any provision 
     of a State or local law, in effect on the date of enactment 
     of the State and Local Law Enforcement Discipline, 
     Accountability, and Due Process Act of 2005, that confers a 
     right or a protection that equals or exceeds the right or 
     protection afforded by this section; or
       ``(B) to prohibit the enactment of any State or local law 
     that confers a right or protection that equals or exceeds a 
     right or protection afforded by this section.
       ``(2) State or local laws preempted.--A State or local law, 
     or any provision of a State or local law, that confers fewer 
     rights or provides less protection for a law enforcement 
     officer than any provision in this section shall be preempted 
     by this section.
       ``(q) Collective Bargaining Agreements.--Nothing in this 
     section may be construed to--
       ``(1) preempt any provision in a mutually agreed-upon 
     collective bargaining agreement, in effect on the date of 
     enactment of the State and Local Law Enforcement Discipline, 
     Accountability, and Due Process Act of 2005, that provides 
     for substantially the same or a greater right or protection 
     afforded under this section; or
       ``(2) prohibit the negotiation of any additional right or 
     protection for an officer who is subject to any collective 
     bargaining agreement.''.
       (b) Technical Amendment.--The table of contents of title I 
     of the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3711 et seq.) is amended by inserting after the item 
     relating to section 819 the following:

``Sec. 820. Discipline, accountability, and due process of State and 
              local law enforcement officers''.

     SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE AND LOCAL 
                   CRIMINAL JUSTICE AGENCIES.

       Nothing in this Act or the amendments made by this Act 
     shall be construed to authorize any department, agency, 
     officer, or employee of the United States to exercise any 
     direction, supervision, or control of any police force or any 
     criminal justice agency of any State or any political 
     subdivision thereof.

     SEC. 5. EFFECTIVE DATE.

       The amendments made by this Act shall take effect with 
     respect to each State on the earlier of--
       (1) 2 years after the date of enactment of this Act; or
       (2) the conclusion of the second legislative session of the 
     State that begins on or after the date of enactment of this 
     Act.
                                 ______
                                 
      By Mr. SARBANES (for himself and Ms. Mikulski):
  S. 719. A bill to extend Corridor O of the Appalachian Development 
Highway System from its currnet southern terminus at I-68 near 
Cumberland to Corridor H, which stretches from Weston, West Virginia, 
to Strasburg, Virginia; to the Committee on Environment and Public 
Works.
  Mr. SARBANES. Mr. President, today I am introducing legislation to 
add a 35.5 mile segment of a proposed new highway, extending south of 
Interstate 68 near Cumberland, MD to Corridor H in West Virginia, to 
the Appalachian Development Highway System (ADHS). Joining me in co-
sponsoring this legislation is my colleague Senator Mikulski.
  The development of a north-south Appalachian highway corridor has 
long

[[Page 5837]]

been a priority for elected officials, community leaders and citizens 
in the Potomac Highlands region of western Maryland, West Virginia and 
neighboring Pennsylvania counties. At least two Maryland State economic 
development task forces over the last decade have identified a north-
south corridor as their leading priority for the region. In order to 
help determine the need, potential alignments as well as the projected 
economic benefits and the social, transportation and environmental 
impacts of upgrading north-south corridors, six years ago, I helped 
secure a grant from the Federal Highway Administration to support a 
multi-state study. That study was completed in 2001 and identified two 
corridors as having the greatest potential for benefiting Appalachian 
economic development the US 219 Corridor in the north from I-68 in 
Maryland to the Pennsylvania Turnpike and the US 220 Corridor in south 
from Corridor H in West Virginia to I-68 in Maryland. The study also 
found that upgrading US 220 South of Interstate 68 would support the 
largest number of potential new jobs, 7,800-8,600 jobs, with the 
highest relative growth--19 percent--of any of the corridors and have 
fewer impacts than the alternatives.
  While US 220 north of I-68 is part of the ADHS, the segment south of 
the interstate is not currently part of the system, although it serves 
Appalachia. This area in Allegany County, MD--a county that has 
experienced some of the highest rates of unemployment and poverty in 
the State--has been targeted for economic development and job growth in 
the ``One Maryland'' economic development program. Major employers in 
the area--American Woodmark, Aliant Techsystems and MeadWestvaco--as 
well as others that might look at this region for the location of their 
next plant currently depend on a two-lane roadway running through 
residential neighborhoods and commercial areas. The area is well served 
by an important east and west corridor, I-68 (ADHS Corridor E), but 
North South transportation is inadequate and hampers the economic 
prosperity potential of Allegany and Garrett Counties and many of the 
surrounding Pennsylvania and West Virginia communities.
  Over the past four years, and with additional funding provided by the 
Congress in the Fiscal 2003 Transportation Appropriations bill, 
Maryland and West Virginia have been undertaking a detailed project 
planning phase of the 35.5 mile segment of US 220 south that was 
recommended in the feasibility study. Improvements which have been 
proposed include a four-lane divided highway, most of which would be on 
a new alignment, with at-grade intersections. Fifteen miles of the 
proposed road improvements are in Maryland and 20.5 miles in West 
Virginia.
  These upgrades would increase safety and alleviate traffic congestion 
between Cumberland and Keyser and provide an important link to the 83.2 
miles of Appalachian Development Highways in Maryland and in the system 
of 28 corridors throughout the 13 Appalachian States. The corridor 
would interconnect several important ADHS corridors including the East-
West Corridors P in Pennsylvania, E (I-68) in Maryland & West Virginia, 
H in West Virginia and Virginia along with the ADHS North-South 
Corridor O and Corridor N from Pennsylvania to the North. Currently ARC 
Corridors O & N dead end at I-68, and the closest interstate quality 
road continuing south is I-81 seventy miles east, or I-79 that is 
seventy miles to the west. The new Appalachian highway would also 
provide important linkages to the bi-State, Maryland and West Virginia, 
Greater Cumberland Airport, rail facilities in the area, and population 
centers of Cumberland, Maryland, Keyser, West Virginia, Romney, West 
Virginia, and Moorefield, West Virginia.
  The Congress recognized the need to help bring the Appalachian Region 
into the mainstream of the American economy in 1965 when it created the 
Appalachian Region Commission and authorized the Appalachian 
Development Highway System. Now, some 40 years later, with the original 
ADHS more than 85 percent complete or under construction, it is time to 
provide critical linkages to the east-west ADHS corridors, population 
centers, other inter-modal facilities such as air and rail, and the 
existing interstate system and to further boost the region's 
opportunity to advance towards economic parity. I hope that the 
Congress will swiftly approve this legislation.
                                 ______
                                 
      By Mr. VITTER:
  S. 721. A bill to authorize the Secretary of the Army to carry out a 
program for ecosystem restoration for the Louisiana Coastal Area, 
Louisiana; to the Committee on Environment and Public Works.
  Mr. VITTER. 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. 721

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

     SECTION. 1. LOUISIANA COASTAL AREA ECOSYSTEM RESTORATION, 
                   LOUISIANA.

       (a) In General.--The Secretary may carry out a program for 
     ecosystem restoration, Louisiana Coastal Area, Louisiana, 
     substantially in accordance with the report of the Chief of 
     Engineers, dated January 31, 2005.
       (b) Priorities.--
       (1) In general.--In carrying out the program under 
     subsection (a), the Secretary shall give priority to--
       (A) any portion of the program identified in the report 
     described in subsection (a) as a critical restoration 
     feature;
       (B) any Mississippi River diversion project that--
       (i) protects a major population area of the Pontchartain, 
     Pearl, Breton Sound, Barataria, or Terrebonne Basin; and
       (ii) produces an environmental benefit to the coastal area 
     of the State of Louisiana or the State of Mississippi; and
       (C) any barrier island, or barrier shoreline, project 
     that--
       (i) is carried out in conjunction with a Mississippi River 
     diversion project; and
       (ii) protects a major population area.
       (c) Non-Federal Share.--
       (1) Credit for integral work.--The Secretary shall provide 
     credit (including in-kind credit) toward the non-Federal 
     share for the cost of any work carried out by the non-Federal 
     interest on a project that is part of the program under 
     subsection (a) if the Secretary determines that the work is 
     integral to the project.
       (2) Carryover of credits.--A credit provided under 
     paragraph (1) may be carried over between authorized projects 
     in the Louisiana Coastal Area ecosystem restoration program.
       (3) Nongovernmental organizations.--A nongovernmental 
     organization shall be eligible to contribute all or a portion 
     of the non-Federal share of the cost of a project under this 
     section.
       (d) Comprehensive Plan.--
       (1) In general.--The Secretary, in coordination with the 
     Governor of the State of Louisiana, shall--
       (A) develop a plan for protecting, preserving, and 
     restoring the coastal Louisiana ecosystem; and
       (B) not later than 1 year after the date of enactment of 
     this Act, and every 5 years thereafter, submit to Congress 
     the plan, or an update of the plan.
       (2) Inclusions.--The comprehensive plan shall include a 
     description of--
       (A) the framework of a long-term program that provides for 
     the comprehensive protection, conservation, and restoration 
     of the wetlands, estuaries (including the Barataria-
     Terrebonne estuary), barrier islands, shorelines, and related 
     land and features of the coastal Louisiana ecosystem, 
     including protection of a critical resource, habitat, or 
     infrastructure from the effects of a coastal storm, a 
     hurricane, erosion, or subsidence;
       (B) the means by which a new technology, or an improved 
     technique, can be integrated into the program under 
     subsection (a); and
       (C) the role of other Federal agencies and programs in 
     carrying out the program under subsection (a).
       (3) Consideration.--In developing the comprehensive plan, 
     the Secretary shall consider the advisability of integrating 
     into the program under subsection (a)--
       (A) a related Federal or State project carried out on the 
     date on which the plan is developed;
       (B) an activity in the Louisiana Coastal Area; or
       (C) any other project or activity identified in--
       (i) the Mississippi River and Tributaries program;
       (ii) the Louisiana Coastal Wetlands Conservation Plan;
       (iii) the Louisiana Coastal Zone Management Plan; or
       (iv) the plan of the State of Louisiana entitled ``Coast 
     2050: Toward a Sustainable Coastal Louisiana''.
       (e) Task Force.--

[[Page 5838]]

       (1) Establishment.--There is established a task force to be 
     known as the ``Coastal Louisiana Ecosystem Protection and 
     Restoration Task Force'' (referred to in this subsection as 
     the ``Task Force'').
       (2) Membership.--The Task Force shall consist of the 
     following members (or, in the case of the head of a Federal 
     agency, a designee at the level of Assistant Secretary or an 
     equivalent level):
       (A) The Secretary.
       (B) The Secretary of the Interior.
       (C) The Secretary of Commerce.
       (D) The Administrator of the Environmental Protection 
     Agency.
       (E) The Secretary of Agriculture.
       (F) The Secretary of Transportation.
       (G) The Secretary of Energy.
       (H) The Secretary of Homeland Security.
       (I) 3 representatives of the State of Louisiana appointed 
     by the Governor of that State.
       (3) Duties.--The Task Force shall make recommendations to 
     the Secretary regarding--
       (A) policies, strategies, plans, programs, projects, and 
     activities for addressing conservation, protection, 
     restoration, and maintenance of the coastal Louisiana 
     ecosystem;
       (B) financial participation by each agency represented on 
     the Task Force in conserving, protecting, restoring, and 
     maintaining the coastal Louisiana ecosystem, including 
     recommendations--
       (i) that identify funds from current agency missions and 
     budgets; and
       (ii) for coordinating individual agency budget requests; 
     and
       (C) the comprehensive plan under subsection (d).
       (4) Working groups.--The Task Force may establish such 
     working groups as the Task Force determines to be necessary 
     to assist the Task Force in carrying out this subsection.
       (5) Application of the federal advisory committee act.--The 
     Federal Advisory Committee Act (5 U.S.C. App.) shall not 
     apply to the Task Force or any working group of the Task 
     Force.
       (f) Mississippi River Gulf Outlet.--
       (1) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary shall develop a plan for 
     modifying the Mississippi River Gulf Outlet that addresses--
       (A) wetland losses attributable to the Mississippi River 
     Gulf Outlet;
       (B) channel bank erosion;
       (C) hurricane storm surges;
       (D) saltwater intrusion;
       (E) navigation interests; and
       (F) environmental restoration.
       (2) Report.--If the Secretary determines necessary, the 
     Secretary, in conjunction with the Chief of Engineers, shall 
     submit to Congress a report recommending modifications to the 
     Mississippi River Gulf Outlet, including measures to prevent 
     the intrusion of saltwater into the Outlet.
       (g) Science and Technology.--
       (1) In general.--The Secretary shall establish a coastal 
     Louisiana ecosystem science and technology program.
       (2) Purposes.--The purposes of the program established by 
     paragraph (1) shall be--
       (A) to identify any uncertainty relating to the physical, 
     chemical, geological, biological, and cultural baseline 
     conditions in coastal Louisiana;
       (B) to improve knowledge of the physical, chemical, 
     geological, biological, and cultural baseline conditions in 
     coastal Louisiana; and
       (C) to identify and develop technologies, models, and 
     methods to carry out this subsection.
       (3) Working groups.--The Secretary may establish such 
     working groups as the Secretary determines to be necessary to 
     assist the Secretary in carrying out this subsection.
       (4) Contracts and cooperative agreements.--In carrying out 
     this subsection, the Secretary may enter into a contract or 
     cooperative agreement with an individual or entity (including 
     a consortium of academic institutions in Louisiana and 
     Mississippi) with scientific or engineering expertise in the 
     restoration of aquatic and marine ecosystems for coastal 
     restoration and enhancement through science and technology.
       (h) Analysis of Benefits.--
       (1) In general.--Notwithstanding section 209 of the Flood 
     Control Act of 1970 (42 U.S.C. 1962-2) or any other provision 
     of law, in carrying out an activity to conserve, protect, 
     restore, or maintain the coastal Louisiana ecosystem, the 
     Secretary may determine that the environmental benefits 
     provided by the program under this section outweigh the 
     disadvantage of an activity under this section.
       (2) Determination of cost-effectiveness.--If the Secretary 
     determines that an activity under this section is cost-
     effective, no further economic justification for the activity 
     shall be required.
       (i) Apportionment.--
       (1) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Secretary, in consultation with 
     the non-Federal interest, shall enter into a contract with 
     the National Academy of Sciences under which the National 
     Academy of Sciences shall conduct a study.
       (2) Identification of causes and sources.--The study under 
     paragraph (1) shall, to the maximum extent practicable, 
     identify--
       (A) each cause of degradation of the Louisiana Coastal Area 
     ecosystem that is attributable to an action by the Secretary;
       (B) an apportionment of the sources of such degradation;
       (C) any potential reduction in the amount of Federal 
     emergency response funds that would occur as a result of 
     ecosystem restoration in the Louisiana Coastal Area; and
       (D) the reduction in costs associated with protection and 
     maintenance of infrastructure that is threatened or damaged 
     as a result of coastal erosion in Louisiana that would occur 
     as a result of ecosystem restoration in the Louisiana Coastal 
     Area.
       (j) Report.--Not later than July 1, 2006, the Secretary, in 
     conjunction with the Chief of Engineers, shall submit to 
     Congress a report describing the features included in table 3 
     of the report described in subsection (a).
       (k) Project Modifications.--
       (1) Review.--The Secretary, in cooperation with any non-
     Federal interest, shall review each federally-authorized 
     water resources project in the coastal Louisiana area in 
     existence on the date of enactment of this Act to determine 
     whether--
       (A) each project is in accordance with the program under 
     subsection (a); and
       (B) the project could contribute to ecosystem restoration 
     under subsection (a) through modification of the operations 
     or features of the project.
       (2) Public notice and comment.--Before modifying an 
     operation or feature of a project under paragraph (1)(B), the 
     Secretary shall provide an opportunity for public notice and 
     comment.
       (3) Report.--
       (A) In general.--Before modifying an operation or feature 
     of a project under paragraph (1)(B), the Secretary shall 
     submit to the Committee on Environment and Public Works of 
     the Senate and the Committee on Transportation and 
     Infrastructure of the House of Representatives a report 
     describing the modification.
       (B) Inclusion.--A report under paragraph (2)(B) shall 
     include such information relating to the timeline and cost of 
     a modification as the Secretary determines to be relevant.
       (4) Authorization of appropriations.--There is authorized 
     to be appropriated to the Secretary to carry out 
     modifications under this subsection $10,000,000.

  Mr. SANTORUM. Mr. President, today I am introducing legislation to 
amend the Internal Revenue Code of 1986 to reduce the tax on beer to 
its pre-1991 level. In 1990, Congress raised taxes on luxury items like 
expensive cars, fur coats, jewelry, yachts and private airplanes and 
doubled the Federal excise tax on beer.
  This was the single largest tax increase on beer in American history 
and resulted in some 60,000 people losing their jobs in brewing, 
distributing, retailing and related industries. The tax burden on beer 
is higher than the average consumer good in the American economy, an 
astounding 44 percent of its retail price. As a result of this tax 
increase the Government collects approximately seven times more in beer 
taxes than the Nation's brewers make in profits.
  The doubling of the beer excise tax in 1990 was regressive, and 
therefore unfair, because it hits lower income taxpayers the hardest. 
Most beer consumers have household incomes below $40,000. Regular beer 
drinkers--Americans raising a family--are the people most affected by 
the increase in the Federal excise tax on beer. Lowering the beer tax 
means more money in the pockets of these hard-working men and women.
  The beer excise tax was first enacted as an emergency measure to help 
finance the Civil War. It is an anachronism in our tax code. Since its 
enactment, dozens of corporate and payroll taxes have been imposed on 
brewers just as they have on other businesses. Yet the beer excise tax 
remains. A rollback of just the 1990 beer tax increase would also help 
maintain good-paying American manufacturing jobs and will create new 
opportunities and a boost to the economy. The U.S. system of alcohol 
beverage control has been the maintenance of a domestic presence for 
the industry with independent supplier, wholesale and retail tiers. 
Brewers, wholesalers and retailers are heavily regulated and to the 
extent the U.S. maintains a strong domestic industry, the Federal, 
State and local agencies will continue to ensure accountability and 
responsible business practices.
  The brewing industry has a major presence in many U.S. cities and 
provides a significant source of manufacturing jobs. The industry 
directly and

[[Page 5839]]

indirectly accounts for close to 2.5 million jobs nationwide--a 
reduction of the beer tax would help brewers maintain or grow their 
workforce. Brewing, wholesaling and retail combined contribute over 
41,000 jobs to the economy of my home State of Pennsylvania.
  All of the other luxury taxes enacted in 1990 have been repealed. Yet 
the beer tax increase remains in place. It is time to roll back the 
Federal excise tax increase on beer and provide another measure of tax 
relief to America's working men and women. The Federal Government will 
still collect almost $3.7 billion in excise taxes and the industry will 
pay an additional $21 billion in Federal, State, and local taxes. This 
is a modest and reasonable measure of tax relief to a significant 
American industry.
                                 ______
                                 
      By Ms. SNOWE (for herself, Mr. Bond, and Mr. Bingaman):
  S. 723. A bill to amend the Internal Revenue Code of 1986 to allow 
small businesses to set up simple cafeteria plans to provide nontaxable 
employee benefits to their employees, to make changes in the 
requirements for cafeteria plans, flexible spending accounts, and 
benefits provided under such plans or accounts, and for other purposes; 
to the Committee on Finance.
  Ms. SNOWE. Mr. President, I rise today to introduce the SIMPLE 
Cafeteria Plan Act of 2005'' to increase the access to quality, 
affordable health care for millions of small business owners and their 
employees. I am pleased that my good friend from Missouri, Senator 
Bond, as well as my good friend Senator Bingaman from New Mexico have 
agreed to co-sponsor this critical piece of legislation.
  Regrettably, our Nation's healthcare system is in the midst of a 
crisis. Each year, more and more Americans are unable to purchase 
health insurance, and there are no signs that things are improving. As 
evidence, the United States Census Bureau estimates that nearly 47 
million people did not have health insurance coverage for all of 2002. 
Sadly, this number rose from 41.2 million uninsured persons in 2001--a 
14.6 percent increase.
  As if these numbers on a national scale are not alarming enough, the 
results are even more troubling when we look specifically at the small 
business sector of our economy. Analysis conducted by the Employee 
Benefit Research Institute, a nonpartisan group dedicated to ensuring 
that all workers have access to affordable health care, suggests that 
the highest rates of uninsured occur among either self-employed workers 
or workers whose employer employees fewer than 25 persons. When 
compared to workers in firms that employ 1,000 or more employees, where 
just 12.6 percent of those workers do not have health insurance, it 
becomes clear that the majority of uninsured Americans work for small 
enterprises. Clearly, these numbers suggest that there is a direct 
correlation among those persons who do not have health insurance and 
the size of their employer.
  The question, then, is why are our Nation's small businesses, which 
are our country's job creators and the true engine of our national 
economy, so disadvantaged when it comes to purchasing health insurance.
  The main reason that small business owners are not able to offer 
their employees health insurance is because many small business owners 
are able to pay only a portion of their employees' health insurance 
premiums or, even worse, cannot afford to provide any health insurance 
or other employee benefits at all. As a result, many small business 
workers must acquire health insurance from the private sector rather 
than the work place--an unfair, and far more expensive alternative.
  Clearly, we have a problem on our hands. While we can debate among 
ourselves why this crisis exists and how we ended up here, what is not 
open for debate is that we need to start identifying ways to fix the 
system because it is simply unconscionable to do nothing while more and 
more Americans find themselves without health care.
  As you know, I re-introduced a bill earlier this year that will go a 
long ways towards improving the situation by creating Associated Health 
Plans for small businesses. In general, this bill would permit small 
businesses throughout the country to band together for purposes of 
obtaining an insurance quote from an insurance company. By pooling 
these businesses together, they would pay lower premiums because of the 
increased risk pool.
  Again, this bill would increase the number of Americans that would be 
able to afford health insurance because their insurance premiums would 
be based on a more reasonable number. The bill I am introducing today 
builds upon this and goes a step further by putting more small business 
owners and their employees on a level playing field when compared to 
workers of a larger company.
  Specifically, many large companies and even the Federal government 
enable their employees to purchase health insurance and other qualified 
benefits with taxfree dollars. Larger companies are able to do this by 
qualifying for certain employee benefit delivery mechanisms under the 
tax code.
  One such delivery mechanism is a cafeteria plan. As the name 
suggests, cafeteria plans are programs whereby employers offer their 
employees the opportunity to purchase certain qualified benefits of 
their choosing. The key here is that the employer provides the 
opportunity for the employee to purchase the benefit, and the employee 
is then free to chose whether to participate and which benefits to buy. 
Under current law, qualified benefits include health insurance, 
dependent-care reimbursement, and life and disability insurance. 
Typically, employer contributions, employee contributions, or a 
combination of the two fund these plans.
  Cafeteria plans offer valuable benefits to employees and are popular 
for many reasons. Specifically, they offer employees great flexibility 
in selecting their desired benefits while enabling them to disregard 
those benefits that do not fit their particular needs. Participating 
employees are also able to exclude any wages that they contribute to a 
cafeteria plan from their Federal taxable income, Social Security, and 
Medicare, which means they are using more valuable pre-tax dollars to 
buy these benefits. Moreover, the employees are usually purchasing 
these benefits at a lower cost because employers are oftentimes able to 
obtain a reduced price for the benefits through a group rate after they 
establish a cafeteria plan.
  Cafeteria plans also provide employers with valuable benefits, most 
notably as a recruiting tool. It certainly stands to reason that if 
more small business owners are able to offer their employees the chance 
to enjoy a variety of employee benefits, these owners then will be more 
likely to attract, recruit, and retain more talented workers, which 
will ultimately increase the firm's business output. Too often, we hear 
that small businesses loose skilled employees to larger companies 
simply because a big firm is able to offer a more attractive benefit 
package. Given that small businesses are responsible for a majority of 
the new jobs created in this country, we need to reverse that trend, 
and this bill will go a long way in rectifying this inequity.
  Clearly, cafeteria plans play a critical role in our Nation's health 
care system and economy in general. The problem, though, is that in 
order for companies to qualify for the tax benefits that cafeteria 
plans provide, they must satisfy strict nondiscrimination rules under 
the tax code. These rules exist to ensure that the benefits offered to 
highly compensated employees are offered to non-highly compensated 
employees as well. The rules also strive to ensure that non-highly 
compensated employees in fact receive a substantial portion of the 
benefits provided under the plan.
  Now I want to be clear when I say that these non-discrimination rules 
serve a legitimate purpose. Indeed, we need to be sure that employers 
are not able to game the tax system by implementing these cafeteria 
plans, and that the cafeteria plans that qualify for preferential tax 
treatment are used by a majority of the employees in the company.
  However, what I find to be unacceptable is the way the tax code 
attempts

[[Page 5840]]

to implement this policy under the existing rules. Currently, many 
small businesses simply cannot satisfy these mechanical rules because, 
through no fault of their own, they have relatively few employees and a 
high proportion of owners or highly compensated individuals. As such, 
were a small business to create a cafeteria plan and violate the non-
discrimination rules, certain workers within the company would be 
subject to a penalty and would be required to include a substantial 
portion of their contributions in their taxable income.
  Consequently, many small companies simply do not even bother to 
implement a cafeteria plan for fear that they will violate the non-
discrimination rules. According to the Employer's Council on Flexible 
Compensation, while 38.36 million U.S. workers had access to cafeteria 
plans in 1999, only 19 percent of those workers were employees of small 
businesses.
  To improve the current situation, the bill I am introducing today 
will allow and encourage more small businesses to offer employees the 
opportunity to purchase health insurance with tax-free dollars just as 
larger companies and the federal government do. My bill accomplishes 
this by creating a Simple Cafeteria Plan, which is modeled after the 
Savings Incentive Match Plan for Employees (SIMPLE) pension plan. As 
with the SIMPLE pension plan, a small business employer that is willing 
to make a minimum contribution for all employees or who is willing to 
match contributions will be permitted to waive the non-discrimination 
rules that currently prevent these owners from otherwise offering these 
benefits. This structure has worked extraordinarily well in the pension 
area with little risk of abuse, and I am confident that it will be just 
as successful when it comes to broad-based benefits offered through 
cafeteria plans.
  Under the SIMPLE Cafeteria Plan, small companies will not have to 
struggle with satisfying the burdensome non-discrimination rules that 
often prevent them from offering valuable employee benefits to their 
workers. As a result, more small business employers will be able to 
provide their workers with the employee benefits that are often 
reserved for larger employers and that are otherwise unavailable 
because of the non-discrimination rules.
  In addition my bill will expand the types of qualified benefits that 
will be able to be offered under ALL cafeteria plans--both those that 
qualify under existing law as well as the new SIMPLE cafeteria plans 
that will be created. Specifically, my bill modifies the rules 
governing benefits offered under cafeteria plans, such as flexible 
spending accounts and dependent-care assistance plans that many larger 
employers offer their employees. These modifications will increase the 
likelihood that employees of small businesses will utilize the 
available benefits and that will increase the benefits provided for all 
employees.
  For example, current rules impose a ``use it or lose it'' requirement 
with respect to flexible spending arrangement contributions. This means 
that the employee forfeits any money he or she contributes to the 
account but does not use during the plan. My bill would change that 
rule and allow employees to carry over up to $500 remaining in their 
account to the next plan year. The bill would also permit employees to 
carry-over any unused funds to a retirement account such as a 401(k) 
plan.
  In either case, any carried over contributions will reduce the amount 
that the employee otherwise would be able to contribute to the spending 
arrangement in the following year so that the carry-over option will 
not produce a greater dollar benefit for any employee. As a result, 
more employees are likely to participate in these spending arrangements 
because they will ultimately be able to use any funds that they 
contribute without any fear of forfeiting them simply because the funds 
were not used in the year of contribution.
  Additionally, this legislation modifies rules that pertain to 
employer-provided, dependent-care assistance plans. First, it would 
increase the current $5,000 annual contribution limitation of these 
plans to $10,000 if the contributing employee claims two or more 
dependents on his or her tax return. This increase is significant 
because it will provide these taxpayers with an opportunity to care for 
not only their children but also an elderly family member who is a 
dependent of an employee--a scenario that will become increasingly more 
likely as the current baby-boomer generation continues to age.
  Second, this bill would amend the current non-discrimination rules 
that dependent-care assistance plans must satisfy. As is often the case 
with the majority of small business owners who cannot, through any 
fault of their own, satisfy the non-discrimination rules for 
establishing a cafeteria plan, these rules often prevent the owner from 
offering this valuable benefit to their employees. To remedy this 
inequity, this bill would change the current mechanical thresholds such 
that more small businesses can provide dependent-care assistance plans 
to their employees but in a manner that does not encourage the type of 
abuse that the non-discrimination rules are intended to prevent.
  Small businesses are the backbone of the American economy. According 
to the Small Business Administration, small businesses represent 99 
percent of all employers, employ 51 percent of the private-sector 
workforce, and contribute 51 percent of the private-sector output. It 
is therefore critical that small businesses owners are able to offer 
their employees the benefits that cafeteria plans provide so that more 
of our nation's workers have the opportunity to purchase quality 
healthcare and provide security for their families.
  The ``SIMPLE Cafeteria Plan Act of 2005'' achieves those objectives, 
and it does so in a manner that the employers and employees are able to 
afford. Although the use of pre-tax dollars to acquire these benefits 
reduces current federal revenues, the opportunity to provide small 
business employees these same benefits to workers and their families 
rather than relying on the public sector more than justifies this 
minimal investment. Therefore, I urge my colleagues to join me in 
supporting this important legislation as we work with you to enact this 
bill into law.
  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. 723

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

     SECTION 1. SHORT TITLE.

       (a) Short Title.--This Act may be cited as the ``SIMPLE 
     Cafeteria Plan Act of 2005'' .
       (b) Amendment of 1986 Code.--Except as otherwise expressly 
     provided, 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 Internal 
     Revenue Code of 1986.

     SEC. 2. ESTABLISHMENT OF SIMPLE CAFETERIA PLANS FOR SMALL 
                   BUSINESSES.

       (a) In General.--Section 125 (relating to cafeteria plans) 
     is amended by redesignating subsections (h) and (i) as 
     subsections (i) and (j), respectively, and by inserting after 
     subsection (g) the following new subsection:
       ``(h) Simple Cafeteria Plans for Small Businesses.--
       ``(1) In general.--An eligible employer maintaining a 
     simple cafeteria plan with respect to which the requirements 
     of this subsection are met for any year shall be treated as 
     meeting any applicable nondiscrimination requirement with 
     respect to benefits provided under the plan during such year.
       ``(2) Simple cafeteria plan.--For purposes of this 
     subsection, the term `simple cafeteria plan' means a 
     cafeteria plan--
       ``(A) which is established and maintained by an eligible 
     employer, and
       ``(B) with respect to which the contribution requirements 
     of paragraph (3), and the eligibility and participation 
     requirements of paragraph (4), are met.
       ``(3) Contributions requirements.--
       ``(A) In general.--The requirements of this paragraph are 
     met if, under the plan--
       ``(i) the employer makes matching contributions on behalf 
     of each employee who is eligible to participate in the plan 
     and who is not a highly compensated or key employee in an 
     amount equal to the elective plan contributions of the 
     employee to the plan to the extent the employee's elective 
     plan contributions do not exceed 3 percent of the employee's 
     compensation, or
       ``(ii) the employer is required, without regard to whether 
     an employee makes any

[[Page 5841]]

     elective plan contribution, to make a contribution to the 
     plan on behalf of each employee who is not a highly 
     compensated or key employee and who is eligible to 
     participate in the plan in an amount equal to at least 2 
     percent of the employee's compensation.
       ``(B) Matching contributions on behalf of highly 
     compensated and key employees.--The requirements of 
     subparagraph (A)(i) shall not be treated as met if, under the 
     plan, the rate of matching contribution with respect to any 
     elective plan contribution of a highly compensated or key 
     employee at any rate of contribution is greater than that 
     with respect to an employee who is not a highly compensated 
     or key employee.
       ``(C) Special rules.--
       ``(i) Time for making contributions.--An employer shall not 
     be treated as failing to meet the requirements of this 
     paragraph with respect to any elective plan contributions of 
     any compensation, or employer contributions required under 
     this paragraph with respect to any compensation, if such 
     contributions are made no later than the 15th day of the 
     month following the last day of the calendar quarter which 
     includes the date of payment of the compensation.
       ``(ii) Form of contributions.--Employer contributions 
     required under this paragraph may be made either to the plan 
     to provide benefits offered under the plan or to any person 
     as payment for providing benefits offered under the plan.
       ``(iii) Additional contributions.--Subject to subparagraph 
     (B), nothing in this paragraph shall be treated as 
     prohibiting an employer from making contributions to the plan 
     in addition to contributions required under subparagraph (A).
       ``(D) Definitions.--For purposes of this paragraph--
       ``(i) Elective plan contribution.--The term `elective plan 
     contribution' means any amount which is contributed at the 
     election of the employee and which is not includible in gross 
     income by reason of this section.
       ``(ii) Highly compensated employee.--The term `highly 
     compensated employee' has the meaning given such term by 
     section 414(q).
       ``(iii) Key employee.--The term `key employee' has the 
     meaning given such term by section 416(i).
       ``(4) Minimum eligibility and participation requirements.--
       ``(A) In general.--The requirements of this paragraph shall 
     be treated as met with respect to any year if, under the 
     plan--
       ``(i) all employees who had at least 1,000 hours of service 
     for the preceding plan year are eligible to participate, and
       ``(ii) each employee eligible to participate in the plan 
     may, subject to terms and conditions applicable to all 
     participants, elect any benefit available under the plan.
       ``(B) Certain employees may be excluded.--For purposes of 
     subparagraph (A)(i), an employer may elect to exclude under 
     the plan employees--
       ``(i) who have less than 1 year of service with the 
     employer as of any day during the plan year,
       ``(ii) who have not attained the age of 21 before the close 
     of a plan year,
       ``(iii) who are covered under an agreement which the 
     Secretary of Labor finds to be a collective bargaining 
     agreement if there is evidence that the benefits covered 
     under the cafeteria plan were the subject of good faith 
     bargaining between employee representatives and the employer, 
     or
       ``(iv) who are described in section 410(b)(3)(C) (relating 
     to nonresident aliens working outside the United States).

     A plan may provide a shorter period of service or younger age 
     for purposes of clause (i) or (ii).
       ``(5) Eligible employer.--For purposes of this subsection--
       ``(A) In general.--The term `eligible employer' means, with 
     respect to any year, any employer if such employer employed 
     an average of 100 or fewer employees on business days during 
     either of the 2 preceding years. For purposes of this 
     subparagraph, a year may only be taken into account if the 
     employer was in existence throughout the year.
       ``(B) Employers not in existence during preceding year.--If 
     an employer was not in existence throughout the preceding 
     year, the determination under subparagraph (A) shall be based 
     on the average number of employees that it is reasonably 
     expected such employer will employ on business days in the 
     current year.
       ``(C) Growing employers retain treatment as small 
     employer.--If--
       ``(i) an employer was an eligible employer for any year (a 
     `qualified year'), and
       ``(ii) such employer establishes a simple cafeteria plan 
     for its employees for such year, then, notwithstanding the 
     fact the employer fails to meet the requirements of 
     subparagraph (A) for any subsequent year, such employer shall 
     be treated as an eligible employer for such subsequent year 
     with respect to employees (whether or not employees during a 
     qualified year) of any trade or business which was covered by 
     the plan during any qualified year. This subparagraph shall 
     cease to apply if the employer employs an average of 200 more 
     employees on business days during any year preceding any such 
     subsequent year.
       ``(D) Special rules.--The rules of section 220(c)(4)(D) 
     shall apply for purposes of this paragraph.
       ``(6) Applicable nondiscrimination requirement.--For 
     purposes of this subsection, the term `applicable 
     nondiscrimination requirement' means any requirement under 
     subsection (b) of this section, section 79(d), section 
     105(h), or paragraph (2), (3), (4), or (8) of section 129(d).
       ``(7) Compensation.--The term `compensation' has the 
     meaning given such term by section 414(s).''
       (b) Effective Date.--The amendments made by this section 
     shall apply to years beginning after December 31, 2004.

     SEC. 3. MODIFICATIONS OF RULES APPLICABLE TO CAFETERIA PLANS.

       (a) Application to Self-Employed Individuals.--
       (1) In general.--Section 125(d) (defining cafeteria plan) 
     is amended by adding at the end the following new paragraph:
       ``(3) Employee to include self-employed.--
       ``(A) In general.--The term `employee' includes an 
     individual who is an employee within the meaning of section 
     401(c)(1) (relating to self-employed individuals).
       ``(B) Limitation.--The amount which may be excluded under 
     subsection (a) with respect to a participant in a cafeteria 
     plan by reason of being an employee under subparagraph (A) 
     shall not exceed the employee's earned income (within the 
     meaning of section 401(c)) derived from the trade or business 
     with respect to which the cafeteria plan is established.''
       (2) Application to benefits which may be provided under 
     cafeteria plan.--
       (A) Group-term life insurance.--Section 79 (relating to 
     group-term life insurance provided to employees) is amended 
     by adding at the end the following new subsection:
       ``(f) Employee Includes Self-Employed.--
       ``(1) In general.--For purposes of this section, the term 
     `employee' includes an individual who is an employee within 
     the meaning of section 401(c)(1) (relating to self-employed 
     individuals).
       ``(2) Limitation.--The amount which may be excluded under 
     the exceptions contained in subsection (a) or (b) with 
     respect to an individual treated as an employee by reason of 
     paragraph (1) shall not exceed the employee's earned income 
     (within the meaning of section 401(c)) derived from the trade 
     or business with respect to which the individual is so 
     treated.''
       (B) Accident and health plans.--Section 105(g) is amended 
     to read as follows:
       ``(g) Employee Includes Self-Employed.--
       ``(1) In general.--For purposes of this section, the term 
     `employee' includes an individual who is an employee within 
     the meaning of section 401(c)(1) (relating to self-employed 
     individuals).
       ``(2) Limitation.--The amount which may be excluded under 
     this section by reason of subsection (b) or (c) with respect 
     to an individual treated as an employee by reason of 
     paragraph (1) shall not exceed the employee's earned income 
     (within the meaning of section 401(c)) derived from the trade 
     or business with respect to which the accident or health 
     insurance was established.''
       (C) Contributions by employers to accident and health 
     plans.--
       (i) In general.--Section 106, as amended by subsection (b), 
     is amended by adding after subsection (b) the following new 
     subsection:
       ``(c) Employer to Include Self-Employed.--
       ``(1) In general.--For purposes of this section, the term 
     `employee' includes an individual who is an employee within 
     the meaning of section 401(c)(1) (relating to self-employed 
     individuals).
       ``(2) Limitation.--The amount which may be excluded under 
     subsection (a) with respect to an individual treated as an 
     employee by reason of paragraph (1) shall not exceed the 
     employee's earned income (within the meaning of section 
     401(c)) derived from the trade or business with respect to 
     which the accident or health insurance was established.''
       (ii) Clarification of limitations on other coverage.--The 
     first sentence of section 162(l)(2)(B) is amended to read as 
     follows: ``Paragraph (1) shall not apply to any taxpayer for 
     any calendar month for which the taxpayer participates in any 
     subsidized health plan maintained by any employer (other than 
     an employer described in section 401(c)(4)) of the taxpayer 
     or the spouse of the taxpayer.
       (b) Long-Term Care Insurance Permitted to Be Offered Under 
     Cafeteria Plans and Flexible Spending Arrangements.--
       (1) Cafeteria plans.--The last sentence of section 125(f) 
     (defining qualified benefits) is amended to read as follows: 
     ``Such term shall include the payment of premiums for any 
     qualified long-term care insurance contract (as defined in 
     section 7702B) to the extent the amount of such payment does 
     not exceed the eligible long-term care premiums (as defined 
     in section 213(d)(10)) for such contract''.
       (2) Flexible spending arrangements.--Section 106 (relating 
     to contributions by employer to accident and health plans) is 
     amended by striking subsection (c).
       (c) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2004.

[[Page 5842]]



     SEC. 4. MODIFICATION OF RULES APPLICABLE TO FLEXIBLE SPENDING 
                   ARRANGEMENTS.

       (a) In General.--Section 125, as amended by section 2, is 
     amended by redesignating subsections (i) and (j) as 
     subsections (j) and (k), respectively, and by inserting after 
     subsection (h) the following new subsection:
       ``(i) Special Rules Applicable to Flexible Spending 
     Arrangements.--
       ``(1) In general.--For purposes of this title, a plan or 
     other arrangement shall not fail to be treated as a flexible 
     spending or similar arrangement solely because under the plan 
     or arrangement--
       ``(A) the amount of the reimbursement for covered expenses 
     at any time may not exceed the balance in the participant's 
     account for the covered expenses as of such time,
       ``(B) except as provided in paragraph (4)(A)(ii), a 
     participant may elect at any time specified by the plan or 
     arrangement to make or modify any election regarding the 
     covered benefits, or the level of covered benefits, of the 
     participant under the plan, and
       ``(C) a participant is permitted access to any unused 
     balance in the participant's accounts under such plan or 
     arrangement in the manner provided under paragraph (2) or 
     (3).
       ``(2) Carryovers and rollovers of unused benefits in health 
     and dependent care arrangements.--
       ``(A) In general.--A plan or arrangement may permit a 
     participant in a health flexible spending arrangement or 
     dependent care flexible spending arrangement to elect--
       ``(i) to carry forward any aggregate unused balances in the 
     participant's accounts under such arrangement as of the close 
     of any year to the succeeding year, or
       ``(ii) to have such balance transferred to a plan described 
     in subparagraph (E).

     Such carryforward or transfer shall be treated as having 
     occurred within 30 days of the close of the year.
       ``(B) Dollar limit on carryforwards.--
       ``(i) In general.--The amount which a participant may elect 
     to carry forward under subparagraph (A)(i) from any year 
     shall not exceed $500. For purposes of this paragraph, all 
     plans and arrangements maintained by an employer or any 
     related person shall be treated as 1 plan.
       ``(ii) Cost-of-living adjustment.--In the case of any 
     taxable year beginning in a calendar year after 2005, the 
     $500 amount under clause (i) shall be increased by an amount 
     equal to--

       ``(I) $500, multiplied by
       ``(II) the cost-of-living adjustment determined under 
     section 1(f)(3) for such calendar year, determined by 
     substituting `2004' for `1992' in subparagraph (B) thereof.

     If any dollar amount as increased under this clause is not a 
     multiple of $100, such amount shall be rounded to the next 
     lowest multiple of $100.
       ``(C) Exclusion from gross income.--No amount shall be 
     required to be included in gross income under this chapter by 
     reason of any carryforward or transfer under this paragraph.
       ``(D) Coordination with limits.--
       ``(i) Carryforwards.--The maximum amount which may be 
     contributed to a health flexible spending arrangement or 
     dependent care flexible spending arrangement for any year to 
     which an unused amount is carried under this paragraph shall 
     be reduced by such amount.
       ``(ii) Rollovers.--Any amount transferred under 
     subparagraph (A)(ii) shall be treated as an eligible rollover 
     under section 219, 223(f)(5), 401(k), 403(b), or 457, 
     whichever is applicable, except that--

       ``(I) the amount of the contributions which a participant 
     may make to the plan under any such section for the taxable 
     year including the transfer shall be reduced by the amount 
     transferred, and
       ``(II) in the case of a transfer to a plan described in 
     clause (ii) or (iii) of subparagraph (E), the transferred 
     amounts shall be treated as elective deferrals for such 
     taxable year.

       ``(E) Plans.--A plan is described in this subparagraph if 
     it is--
       ``(i) an individual retirement plan,
       ``(ii) a qualified cash or deferred arrangement described 
     in section 401(k),
       ``(iii) a plan under which amounts are contributed by an 
     individual's employer for an annuity contract described in 
     section 403(b),
       ``(iv) an eligible deferred compensation plan described in 
     section 457, or
       ``(v) a health savings account described in section 223.
       ``(3) Distribution upon termination.--
       ``(A) In general.--A plan or arrangement may permit a 
     participant (or any designated heir of the participant) to 
     receive a cash payment equal to the aggregate unused account 
     balances in the plan or arrangement as of the date the 
     individual is separated (including by death or disability) 
     from employment with the employer maintaining the plan or 
     arrangement.
       ``(B) Inclusion in income.--Any payment under subparagraph 
     (A) shall be includible in gross income for the taxable year 
     in which such payment is distributed to the employee.
       ``(4) Terms relating to flexible spending arrangements.--
       ``(A) Flexible spending arrangements.--
       ``(i) In general.--For purposes of this subsection, a 
     flexible spending arrangement is a benefit program which 
     provides employees with coverage under which specified 
     incurred expenses may be reimbursed (subject to reimbursement 
     maximums and other reasonable conditions).
       ``(ii) Elections required.--A plan or arrangement shall not 
     be treated as a flexible spending arrangement unless a 
     participant may at least 4 times during any year make or 
     modify any election regarding covered benefits or the level 
     of covered benefits.
       ``(B) Health and dependent care arrangements.--The terms 
     `health flexible spending arrangement' and `dependent care 
     flexible spending arrangement' means any flexible spending 
     arrangement (or portion thereof) which provides payments for 
     expenses incurred for medical care (as defined in section 
     213(d)) or dependent care (within the meaning of section 
     129), respectively.''
       (b) Conforming Amendment.--
       (1) The heading for section 125 is amended by inserting 
     ``And flexible spending arrangements'' after ``Plans''.
       (2) The item relating to section 125 in the table of 
     sections for part III of subchapter B of chapter 1 is amended 
     by inserting ``and flexible spending arrangements'' after 
     ``plans''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to years beginning after December 31, 2004.

     SEC. 5. RULES RELATING TO EMPLOYER-PROVIDED HEALTH AND 
                   DEPENDENT CARE BENEFITS.

       (a) Health Benefits.--Section 106, as amended by section 3, 
     is amended by adding at the end the following new subsection:
       ``(e) Limitation on Contributions to Health Flexible 
     Spending Arrangements.--
       ``(1) In general.--Gross income of an employee for any 
     taxable year shall include employer-provided coverage 
     provided through 1 or more health flexible spending 
     arrangements (within the meaning of section 125(i)) to the 
     extent that the amount otherwise excludable under subsection 
     (a) with regard to such coverage exceeds the applicable 
     dollar limit for the taxable year.
       ``(2) Applicable dollar limit.--For purposes of this 
     subsection--
       ``(A) In general.--The applicable dollar limit for any 
     taxable year is an amount equal to the sum of--
       ``(i) $7,500, plus
       ``(ii) if the arrangement provides coverage for 1 or more 
     individuals in addition to the employee, an amount equal to 
     one-third of the amount in effect under clause (i) (after 
     adjustment under subparagraph (B)).
       ``(B) Cost-of-living adjustment.--In the case of taxable 
     years beginning in any calendar year after 2005, the $7,500 
     amount under subparagraph (A) shall be increased by an amount 
     equal to--
       ``(i) $7,500, multiplied by
       ``(ii) the cost-of-living adjustment determined under 
     section 1(f)(3) for the calendar year, determined by 
     substituting `2004' for `1992' in subparagraph (B) thereof.

     If any dollar amount as increased under this subparagraph is 
     not a multiple of $100, such dollar amount shall be rounded 
     to the next lowest multiple of $100.''
       (b) Dependent Care.--
       (1) Exclusion limit.--
       (A) In general.--Section 129(a)(2) (relating to limitation 
     on exclusion) is amended--
       (i) by striking ``$5,000'' and inserting ``the applicable 
     dollar limit'', and
       (ii) by striking ``$2,500'' and inserting ``one-half of 
     such limit''.
       (B) Applicable dollar limit.--Section 129(a) is amended by 
     adding at the end the following new paragraph:
       ``(3) Applicable dollar limit.--For purposes of this 
     subsection--
       ``(A) In general.--The applicable dollar limit is $5,000 
     ($10,000 if dependent care assistance is provided under the 
     program to 2 or more qualifying individuals of the employee).
       ``(B) Cost-of-living adjustments.--
       ``(i) $5,000 amount.--In the case of taxable years 
     beginning after 2005, the $5,000 amount under subparagraph 
     (A) shall be increased by an amount equal to--

       ``(I) $5,000, multiplied by
       ``(II) the cost-of-living adjustment determined under 
     section 1(f)(3) for the calendar year in which the taxable 
     year begins, determined by substituting `2004' for `1992' in 
     subparagraph (B) thereof.

     If any dollar amount as increased under this clause is not a 
     multiple of $100, such dollar amount shall be rounded to the 
     next lowest multiple of $100.
       ``(ii) $10,000 amount.--The $10,000 amount under 
     subparagraph (A) for taxable years beginning after 2005 shall 
     be increased to an amount equal to twice the amount the 
     $5,000 amount is increased to under clause (i).''
       (2) Average benefits test.--
       (A) In general.--Section 129(d)(8)(A) (relating to 
     benefits) is amended--
       (i) by striking ``55 percent'' and inserting ``60 
     percent'', and
       (ii) by striking ``highly compensated employees'' the 
     second place it appears and inserting ``employees receiving 
     benefits''.
       (B) Salary reduction agreements.--Section 129(d)(8)(B) 
     (relating to salary reduction agreements) is amended--
       (i) by striking ``$25,000'' and inserting ``$30,000'', and

[[Page 5843]]

       (ii) by adding at the end the following: ``In the case of 
     years beginning after 2005, the $30,000 amount in the first 
     sentence shall be adjusted at the same time, and in the same 
     manner, as the applicable dollar amount is adjusted under 
     subsection (a)(3)(B).''
       (3) Principal shareholders or owners.--Section 129(d)(4) 
     (relating to principal shareholders and owners) is amended by 
     adding at the end the following: ``In the case of any failure 
     to meet the requirements of this paragraph for any year, 
     amounts shall only be required by reason of the failure to be 
     included in gross income of the shareholders or owners who 
     are members of the class described in the preceding 
     sentence.''
       (c) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2004.
                                 ______
                                 
      By Mr. DODD (for himself, Mr. Durbin, and Mr. Salazar):
  S. 724. A bill to improve the No Child Left Behind Act of 2001, and 
for other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. DODD. Mr. President, today I am pleased to introduce with 
Senators Durbin and Salazar a very important piece of legislation, 
``The No Child Left Behind Reform Act.'' This legislation makes three 
basic changes to the No Child Left Behind Act which was signed into law 
in January of 2002.
  The No Child Left Behind Act received the support of this Senator and 
eighty-six of our colleagues. Like most, if not all, of our colleagues 
who supported this bill, I supported it because I care about improving 
the quality of education in America for all of our children. I believed 
that this law would help to achieve that goal by establishing more 
rigorous standards for measuring student achievement, by helping 
teachers do a better job of instructing students, and last but not 
least, by providing the resources desperately needed by our schools for 
even the most basic necessities to help put the reforms we passed into 
place.
  Regrettably, the high hopes that I and many others had for this law 
have not been realized. The law is being implemented by the 
Administration in a manner that is inflexible, unreasonable and 
unhelpful to students. Furthermore, the law is not only failing to help 
teachers do their best in the classroom, it also reflects, along with 
other Administration policies and pronouncements, a neglect and even 
hostility towards members of the teaching profession.
  Worse still, the Administration's promise of sufficient resources to 
implement No Child Left Behind's much needed reforms is a promise that 
has yet to be kept. Indeed, the current budget proposed by the Bush 
Administration underfunds No Child Left Behind by $12 billion. Since 
passage three years ago, the law has been funded at a level that is 
more than $39 billion below what was promised when the President signed 
the Act into law.
  As a result of the failures of the current Administration to fulfill 
its commitment to our nation's school children under this law, those 
children and their teachers are today shouldering new and noteworthy 
hardships. Throughout the State of Connecticut, for example, students, 
teachers, administrators and parents are struggling to implement 
requirements that are often confusing, inflexible and unrealistic. And 
they are struggling to do so without the additional resources they were 
promised to put them into place. According to a recent report put 
together by the Connecticut State Department of Education, through 
2008, it will cost the State of Connecticut $41.6 million over and 
above what the Federal Government is going to supply to meet the 
requirements of No Child Left Behind. Of that $41.6 million, $8 million 
will need to spent on testing alone. That is a significant amount of 
money--a significant amount of money that is going to fall on 
Connecticut taxpayers trying to simultaneously pay for their mortgage, 
basic health care and the rising cost of their children's tuition.
  As I have said on numerous occasions in the past, resources without 
reforms are a waste of money. By the same token, reforms without 
resources are a false promise--a false promise that has left students 
and their teachers grappling with new burdens and little help to bear 
them.
  The legislation I am introducing today proposes to make three changes 
to the No Child Left Behind Act. These changes will ease current 
burdens on our students, our teachers and our administrators without 
dismantling the fundamental underpinnings of the law.
  First, the No Child Left Behind Reform Act will allow schools to be 
given credit for performing well on measures other than test scores 
when calculating student achievement. Test scores are an important 
measure of student knowledge. However, they are not the only measure. 
There are others. These include dropout rates, the number of students 
who participate in advanced placement courses, and individual student 
improvement over time. Unfortunately, current law does not allow 
schools to use these additional ways to gauge school success in a 
constructive manner. Additional measures can only be used to further 
indicate how a school is failing, not how a school is succeeding. This 
legislation will allow schools to earn credit for succeeding.
  Second, the No Child Left Behind Reform Act will allow schools to 
target school choice and supplemental services to the students that 
actually demonstrate a need for them. As the current law is being 
implemented by the Administration, if a school is in need of 
improvement, it is expected to offer school choice and supplemental 
services to all students--even if not all students have demonstrated a 
need for them. That strikes me as a wasteful and imprecise way to help 
a school improve student performance. For that reason, this legislation 
will allow schools to target resources to the students that actually 
demonstrate that they need them. Clearly, this is the most efficient 
way to maximize their effect.
  Finally, the No Child Left Behind Reform Act introduces a greater 
degree of reasonableness to the teacher certification process. As it is 
being implemented, the law requires teachers to be ``highly qualified'' 
to teach every subject that they teach. Certainly none of us disagree 
with this policy as a matter of principle. But as a matter of practice, 
it is causing confusion and hardship for teachers, particularly 
secondary teachers and teachers in small school districts. For example, 
as the law is being implemented by the Administration, a high school 
science teacher could be required to hold degrees in biology, physics 
and chemistry to be considered highly qualified. In small schools where 
there may be only one 7th or 8th grade teacher teaching all subjects, 
these teachers could similarly be required to hold degrees in every 
subject area.
  Such requirements are unreasonable at a time when excellent teachers 
are increasingly hard to find. The legislation I introduce today will 
allow states to create a single assessment to cover multiple subjects 
for middle grade level teachers and allow states to issue a broad 
certification for science and social studies.
  In my view, the changes I propose will provide significant assistance 
to schools struggling to comply with the No Child Left Behind law all 
across America. As time marches on and more deadlines set by this law 
approach--including additional testing, a highly qualified teacher in 
every classroom and 100% proficiency for all students--we have a 
responsibility to reassess the law and do what we can to make sure that 
it is implemented in a reasonable manner. In doing so, we must also 
preserve the basic tenets of the law--providing a world class education 
for all American students and closing the achievement gap across 
demographic and socioeconomic lines. Again, no child should left 
behind--no special education student, no English language learning 
student, no minority student and no low-income student. I stand by this 
commitment.
  Obviously, funding this law is beyond the scope of this bill. I would 
note, however, that efforts to increase education funding to authorized 
levels have thus far been unsuccessful. Despite this, I remain 
committed to work to change this outcome as well. Clearly, our children 
deserve the resources needed to make their dreams for a better 
education a reality.
  I ask unanimous consent that the text of the bill be printed in the 
Record.

[[Page 5844]]

  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 724

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``No Child Left Behind Reform 
     Act''.

     SEC. 2. ADEQUATE YEARLY PROGRESS.

       (a) Definition of Adequate Yearly Progress.--Section 
     1111(b)(2) of the Elementary and Secondary Education Act of 
     1965 (20 U.S.C. 6311(b)(2)) is amended--
       (1) in subparagraph (C)(vii)--
       (A) by striking ``such as'';
       (B) by inserting ``such as measures of individual or cohort 
     growth over time based on the academic assessments 
     implemented in accordance with paragraph (3),'' after 
     ``described in clause (v),''; and
       (C) by striking ``attendance rates,''; and
       (2) in subparagraph (D)--
       (A) by striking clause (ii);
       (B) by striking ``the State'' and all that follows through 
     ``ensure'' and inserting ``the State shall ensure''; and
       (C) by striking ``; and'' and inserting a period.
       (b) Academic Assessment and Local Educational Agency and 
     School Improvement.--Section 1116(a)(1)(B) of the Elementary 
     and Secondary Education Act of 1965 (20 U.S.C. 6316(a)(1)(B)) 
     is amended by striking ``, except that'' and all that follows 
     through ``action or restructuring''.

     SEC. 3. GRANTS FOR INCREASING DATA CAPACITY FOR PURPOSES OF 
                   AYP.

       Subpart 1 of part A of title I of the Elementary and 
     Secondary Education Act of 1965 (20 U.S.C. 6311 et seq.) is 
     amended by adding at the end the following:

     ``SEC. 1120C. GRANTS FOR INCREASING DATA CAPACITY FOR 
                   PURPOSES OF AYP.

       ``(a) Grant Authority.--The Secretary may award grants, on 
     a competitive basis, to State educational agencies to enable 
     the State educational agencies--
       ``(1) to develop or increase the capacity of data systems 
     for accountability purposes; and
       ``(2) to award subgrants to increase the capacity of local 
     educational agencies to upgrade, create, or manage 
     information databases for the purpose of measuring adequate 
     yearly progress.
       ``(b) Priority.--In awarding grants under this section the 
     Secretary shall give priority to State educational agencies 
     that have created, or are in the process of creating, a 
     growth model or proficiency index as part of their adequate 
     yearly progress determination.
       ``(c) State Use of Funds.--Each State that receives a grant 
     under this section shall use--
       ``(1) not more than 20 percent of the grant funds for the 
     purpose of increasing the capacity of, or creating, State 
     databases to collect information related to adequate yearly 
     progress; and
       ``(2) not less than 80 percent of the grant funds to award 
     subgrants to local educational agencies within the State to 
     enable the local educational agencies to carry out the 
     authorized activities described in subsection (d).
       ``(d) Authorized Activities.--Each local educational agency 
     that receives a subgrant under this section shall use the 
     subgrant funds to increase the capacity of the local 
     educational agency to upgrade databases or create unique 
     student identifiers for the purpose of measuring adequate 
     yearly progress, by--
       ``(1) purchasing database software or hardware;
       ``(2) hiring additional staff for the purpose of managing 
     such data;
       ``(3) providing professional development or additional 
     training for such staff; and
       ``(4) providing professional development or training for 
     principals and teachers on how to effectively use such data 
     to implement instructional strategies to improve student 
     achievement.
       ``(e) State Application.--Each State educational agency 
     desiring a grant under this section shall submit an 
     application to the Secretary at such time, in such manner, 
     and containing such information as the Secretary may require.
       ``(f) LEA Application.--Each local educational agency 
     desiring a subgrant under this section shall submit an 
     application to the State educational agency at such time, in 
     such manner, and containing such information as the State 
     educational agency may require. Each such application shall 
     include, at a minimum, a demonstration of the local 
     educational agency's ability to put such a database in place.
       ``(g) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this part 
     $80,000,000 for each of fiscal years 2006, 2007, and 2008.''

     SEC. 4. TARGETING TRANSFER OPTIONS AND SUPPLEMENTAL SERVICES.

       (a) Targeting Transfer Options and Supplemental Services.--
     Section 1116 of the Elementary and Secondary Education Act of 
     1965 (20 U.S.C. 6316) is amended--
       (1) in paragraphs (1)(E)(i), (5)(A), (7)(C)(i), and 
     (8)(A)(i) of subsection (b), by striking the term ``all 
     students enrolled in the school'' each place such term 
     appears and inserting ``all students enrolled in the school, 
     who are members of a group described in section 
     1111(b)(2)(C)(v) that fails to make adequate yearly progress 
     as defined in the State's plan under section 1111(b)(2),'';
       (2) in subsection (b)(1), by adding at the end the 
     following:
       ``(G) Maintenance of least restrictive environment.--A 
     student who is eligible to receive services under the 
     Individuals with Disabilities Education Act and who uses the 
     option to transfer under subparagraph (E), paragraph (5)(A), 
     (7)(C)(i), or (8)(A)(i), or subsection (c)(10)(C)(vii), shall 
     be placed and served in the least restrictive environment 
     appropriate, in accordance with the Individuals with 
     Disabilities Education Act.'';
       (3) in clause (vii) of subsection (c)(10)(C), by inserting 
     ``, who are members of a group described in section 
     1111(b)(2)(C)(v) that fails to make adequate yearly progress 
     as defined in the State's plan under section 1111(b)(2),'' 
     after ``Authorizing students''; and
       (4) in subparagraph (A) of subsection (e)(12), by inserting 
     ``, who is a member of a group described in section 
     1111(b)(2)(C)(v) that fails to make adequate yearly progress 
     as defined in the State's plan under section 1111(b)(2)'' 
     after ``under section 1113(c)(1)''.
       (b) Student Already Transferred.--A student who transfers 
     to another public school pursuant to section 1116(b) of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6316(b)) before the effective date of this section and the 
     amendments made by this section, may continue enrollment in 
     such public school after the effective date of this section 
     and the amendments made by this section.
       (c) Effective Date.--This section and the amendments made 
     by this section shall be effective for each fiscal year for 
     which the amount appropriated to carry out title I of the 
     Elementary and Secondary Education Act of 1965 for the fiscal 
     year, is less than the amount authorized to be appropriated 
     to carry out such title for the fiscal year.

     SEC. 5. DEFINITION OF HIGHLY QUALIFIED TEACHERS.

       Section 9101(23)(B)(ii) of the Elementary and Secondary Act 
     of 1965 (20 U.S.C. 7801(23)(B)(ii)) is amended--
       (1) in subclause (I), by striking ``or'' after the 
     semicolon;
       (2) in subclause (II), by striking ``and'' after the 
     semicolon; and
       (3) by adding at the end the following:

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

                                 ______
                                 
       By Mr. DODD (for himself, Ms. Snowe, Mr. Kennedy, Ms. Collins, 
        Mrs. Murray, Mr. Durbin, Mrs. Clinton, Mr. Inouye, Mr. Levin, 
        Mr. Lautenberg, and Mr. Johnson):
  S. 725. A bill a improve the Child Care Access Means Parents in 
School Program; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. DODD. Mr. PresIdent, I am pleased to rise today with Senators 
Snowe, Kennedy, Collins, Murray, Durbin, Clinton, Inouye, Levin, 
Lautenberg and Johnson to introduce legislation which would supply 
greatly needed support to college students struggling to balance their 
roles as parents with their roles as students. The Child Care Access 
Means Parents in School Act (CCAMPIS) would increase access to, support 
for, and retention of low-income, nontraditional students who are 
struggling to complete college degrees while caring for their children.
  The typical college student is no longer an 18-year-old recent high 
school graduate. According to a 2002 study by the National Center for 
Education Statistics, only 27 percent of undergraduates meet the 
``traditional'' undergraduate criteria of earning a high school 
diploma, enrolling full-time, depending on parents for financial 
support and not working or working part-time. This means that 73 
percent of today's students are considered non-traditional in some way. 
Clearly, non-traditional students--older students, students with 
children and students with various job and life experiences--are 
filling the ranks of college classes. Why? Because they recognize the 
importance of college to future success. It is currently estimated that 
a full-time worker with a bachelor's degree earns about 60 percent more 
than

[[Page 5845]]

a full-time worker with only a high school diploma. This amounts to a 
lifetime gap in earnings of more than $1 million.
  Today's non-traditional students face barriers unheard of by 
traditional college students of earlier years. Many are parents and 
must provide for their children while in school. Access to affordable, 
quality and convenient child care is a necessity for these students. 
But obtaining the child care that they need is often difficult because 
of their limited income and non-traditional schedules, compounded by 
declining assistance for child care through other supports. Campus-
based child care can fill the gap. It is conveniently located, 
available during the right hours, and of high quality and lower cost. 
Unfortunately, it is unavailable at many campuses. Even when programs 
do exist, they are often available to only a fraction of the eligible 
students. That is where the Dodd-Snowe CCAMPIS Act comes in.
  The Dodd-Snowe CCAMPIS Act increases and expands the availability of 
campus-based child care in three ways. First, it raises the minimum 
grant amount from $10,000 to $30,000. For most institutions of higher 
education, $10,000 has proven too small relative to the cost and effort 
required to complete a federal application.
  Second, the Dodd-Snowe CCAMPIS Act ensures that a wider range of 
students are able to access services. Present language defines low-
income students as students eligible to receive a Federal Pell Grant. 
This language excludes graduate students, international students, and 
students who may be low-income but make slightly more than is allowed 
to qualify for Pell grants. CCAMPIS will open eligibility for these 
additional populations.
  Third, the CCAMPIS Act raises the program's current authorization 
level from $45 million to $75 million so that we not only expand 
existing programs, but create new ones as well.
  Research demonstrates that campus-based child care is of high quality 
and that it increases the educational success of both parents and 
students. Furthermore, recipients of campus-based child care assistance 
who are on public assistance are more likely to never return to welfare 
and to obtain jobs paying good wages.
  Currently, there are approximately 1,850 campus-based child care 
programs but over 6,000 colleges and universities eligible to 
participate in the CCAMPIS program. Currently, CCAMPIS funds only 427 
programs in states and the District of Columbia. Meanwhile, the number 
of non-traditional students across America is increasing. As these 
numbers increase, the need for campus-based child care will increase as 
well.
  Just last week in Connecticut, I went to Eastern Connecticut State 
University where I met a number of students who would benefit from this 
legislation. One woman is attending part-time as an accounting major. 
She works as a restaurant supervisor and just gave birth to her first 
child. She is balancing work, family and school. Another woman is a 
junior social work major with two children. Having already received an 
associate's degree, she is now working towards a bachelor's degree to 
increase her competitiveness in the job market. A third woman is 
pursuing her second degree in physical and health education. A stay-at-
home mom prior to re-enrolling, she has three children at home. These 
are the students that need our assistance--hard working parents trying 
to improve their lot in life for the good of their children.
  This is a modest measure that will make a major difference to 
students. It will offer them new hope for starting and staying in 
school. I am hopeful that it can be considered and enacted as part of 
the Higher Education Act. I look forward to working with my colleagues 
to move this important measure forward.
  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. 725

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

     SECTION 1. CHILD CARE ACCESS MEANS PARENTS IN SCHOOL PROGRAM.

       (a) Minimum Grant.--Section 419N(b)(2)(B) of the Higher 
     Education Act of 1965 (20 U.S.C. 1070e(b)(2)(B)) is amended 
     by striking ``$10,000'' and inserting ``$30,000''.
       (b) Definition of Low-Income Student.--Section 419N(b)(7) 
     of such Act is amended to read as follows:
       ``(7) Definition of low-income student.--For the purpose of 
     this section, the term `low-income student' means a student 
     who--
       ``(A) is eligible to receive a Federal Pell Grant for the 
     fiscal year for which the determination is made; or
       ``(B) would otherwise be eligible to receive a Federal Pell 
     Grant for the fiscal year for which the determination is 
     made, except that the student fails to meet the requirements 
     of--
       ``(i) section 401(c)(1) because the student is enrolled in 
     a graduate or first professional course of study; or
       ``(ii) section 484(a)(5) because the student is in the 
     United States for a temporary purpose.''.
       (c) Authorization of Appropriations.--Section 419N(g) of 
     such Act is amended by striking ``$45,000,000 for fiscal year 
     1999'' and inserting ``$75,000,000 for fiscal year 2006''.
                                 ______
                                 
      By Mr. ALEXANDER (for himself and Mr. Johnson):
  S. 726. A bill to promote the conservation and production of natural 
gas; to the Committee on Energy and Natural Resources.
                                 ______
                                 
      By Mr. ALEXANDER (for himself and Mr. Johnson):
  S. 727. A bill to provide tax incentives to promote the conservation 
and production of natural gas; to the Committee on Finance.
  Mr. ALEXANDER. Mr. President, today I am introducing the Natural Gas 
Price Reduction Act of 2005 and the ``Tax Provisions for Natural Gas 
Price Reduction Act of 2005.'' I send to the desk two pieces of 
legislation. One is the substantive provisions of the bill and one is 
the tax provisions of the bill.
  Mr. President, I offer the legislation on behalf of myself and the 
Senator from South Dakota, Mr. Johnson, who is the lead Democratic 
sponsor on the legislation. I do so with appreciation to the chairman 
of our Energy and Natural Resources Committee, Chairman Pete Domenici, 
and the staff of that committee who have worked very closely with us on 
the development of this comprehensive piece of legislation, and with 
thanks to my own staff, Sharon Segner, who has worked on it for several 
months.
  This is a piece of legislation to address aggressively and 
comprehensively the rising cost of natural gas in the United States. 
This is legislation for the blue-collar worker, for the American 
farmer, and for the American homeowner.
  Natural gas prices in the United States are at record levels. We have 
gone from having the lowest natural gas prices in the industrial world 
to the highest. These high prices are threatening millions of our jobs. 
Our farmers are getting a 10-percent pay cut. Homeowners are having a 
hard time paying their heating and cooling bills because of our 
contradictory policies.
  Our policies boil down to this: We are restricting the supply of 
natural gas, and we are encouraging the use of natural gas. You do not 
have to go very far in an economics class at the University of Oklahoma 
or the University of Tennessee to know that if you restrict supply and 
encourage demand, the inevitable result is higher prices. And higher 
prices is a very serious problem for U.S. workers, U.S. homeowners, and 
U.S. farmers.
  Only an ambitious and comprehensive approach that both increases 
supply and controls demand can lower the price of natural gas and keep 
our economy growing. This is not a question of tweaking our natural gas 
policy. It is time, aggressively, to revamp it. We need aggressive 
conservation. We need aggressive use of alternative fuels. We need 
aggressive research and development. We need aggressive production. 
And, for the time being, we need aggressive importation of liquefied 
natural gas from other parts of the world.
  Here on this chart is an idea of where we are today. This is the 
United States of America: $7 per unit for natural gas--the highest in 
the industrialized

[[Page 5846]]

world. Until recently, we had the lowest natural gas prices in the 
world.
  What that means is large parts of our industries--the chemical 
industry, for example--were built on the idea of $1.50 or $2 for 
natural gas, but today it is $7.
  A million Americans work in those blue-collar manufacturing jobs in 
every State in our country. Now, if they are paying $7 here, and it is 
$5.55 in Canada and $5.15 in the United Kingdom and $2.65 in Turkey and 
$1.70 in the Ukraine, where do you suppose, though, a million blue-
collar jobs are going to be 5 years from now, if we do not do something 
about the $7 price? They are not going to be in the United States. They 
are going to be moving out of the United States, to the United Kingdom, 
to Germany, to the Ukraine, to other parts of the world. And people are 
going to be writing their Congressmen and saying: Why didn't you do 
something?
  So here is what we can do. By aggressive conservation, I mean setting 
stronger appliance and equipment standards for natural gas efficiency 
so that a commercial air conditioner will cool the same while using 
less natural gas doing it. Those standards have been generally agreed 
upon by environmental groups with the industry. If they were put in 
place, by a rough estimate, they might save the equivalent energy that 
could be produced by 30 or 35 powerplants.
  By aggressive use of alternative fuels, I mean, for example, fully 
commercializing coal gasification. Coal gasification is taking this 
abundant supply of coal we have in the United States--we are the 
``OPEC,'' the ``Saudi Arabia'' of coal; we have a 400- or 500-year 
supply--and finding a clean way to use it instead of importing oil from 
a part of the world where people are blowing each other up.
  That means starting with support so we can have six coal gasification 
plants in this country by the year 2013. Coal gasification means, you 
burn the coal to create gas, and then you burn the gas to create power. 
If we can do that commercially, we will not only be passing a clean 
energy bill, we will be passing a clean air bill, because if you do 
that, you remove most of the mercury, most of the nitrogen, most of the 
sulfur. And by additional research, we may be able to find a way to 
recapture the carbon that is produced and put that in the ground and 
solve the carbon problems that a lot of people are talking about around 
the world.
  In addition to helping ourselves, we would help ourselves by helping 
others. China and India and other parts of the world are building 
hundreds of coal plants. We would much rather them build a coal 
gasification plant, one that is clean and does not contribute to air 
pollution. Because if China and India and Brazil build dirty coal 
plants, that air blows around the world, and it blows into Tennessee 
and it blows into South Carolina. It blows into Oklahoma.
  So aggressive alternative fuels is a part of a natural gas supply. 
Aggressive research and development includes investment and research in 
gas hydrates. Gas hydrates is gas that is in the ground. Methane 
hydrates hold tremendous potential to provide abundant supplies of 
natural gas. Hydrates are like ice solid structures, consisting of 
water and gases, mainly methane, compressed to greater than normal 
densities.
  Coastal U.S. areas are rich in this resource. The United States is 
estimated to contain one-fourth of the world's supply. We need to find 
a way to use that gas so we do not have $7 per unit natural gas prices. 
That sends millions of jobs overseas. That cuts the income of farmers. 
And that raises home heating prices and cooling prices for residential 
Americans.
  Aggressive production means, among other things, allowing States to 
selectively waive the Federal moratoria on offshore production of gas 
and collect significant revenues from such production. Let me give you 
an example. Within the last few weeks, the legislature of Virginia 
decided it might like to explore the idea of drilling for gas offshore. 
Now, why would Virginia want to do that? Because there is probably a 
lot of gas offshore. What would that mean for Virginia? Well, they 
could put a gas rig out in the ocean, beyond 20 miles, so nobody in 
Virginia or North Carolina could see it, run a pipeline underground to 
Virginia, and take their share of the revenues. And they can lower 
taxes in Virginia and put the rest of the money in a trust fund to 
build the best colleges and universities in America. That is what they 
could do in Virginia.
  If Tennessee had a coastline, and I were Governor of Tennessee, that 
is what I would be asking the Congress to let me do.
  I think as other Governors and other legislatures and other people 
look at Texas and Louisiana and Alabama and see what they are doing and 
decide that they can in an environmentally sensitive way exercise a 
State option to drill for gas in Federal waters so far out you can't 
see it, that they will find that a good option because it will help 
lower the price of gas. It can build up the schools and keep taxes 
down, and it can avoid other worse forms of energy.
  For example, you would have to have 46 square miles of windmills, 
these things that are 100 yards tall, in order to equal one gas rig 
that you couldn't see out in the ocean. This is a State option. 
Aggressive importation of liquefied natural gas starts with giving the 
Federal Energy Regulatory Commission exclusive authority for siting and 
regulating what we call LNG terminals. This means importing liquefied 
natural gas from other parts of the world. There is a lot of it around 
the world. They freeze it and put it in tankers, and they bring it here 
and put it in our pipelines, and then we have it.
  That seems like a pretty big waste of effort when we have plenty of 
natural gas here in the United States that we don't have access to. But 
if we want an adequate supply of natural gas, we are going to have to 
import some from around the world, and that means we are going to need 
terminals to which to bring it. Some of them may be offshore. They 
might be 10, 12, 14 miles offshore. Some of them, like the four we have 
today, may need to be onshore. There is no silver bullet. There is no 
single answer. That is why we need aggressive conservation. If, for 
example, the United States adopted the conservation attitudes towards 
natural gas that California did a few years ago, it might equal what 50 
powerplants could produce in the United States. If that is so, we ought 
to do it today. That would begin to bring this $7 figure down.
  Aggressive use of alternative fuels such as coal gasification. I also 
would say nuclear power is the most obvious alternative fuel to natural 
gas. If we had more nuclear power, we would use less natural gas. In 
our country today, what do you suppose we are using to create 
electricity when we need more electricity even though the cost of it is 
$7 a unit, the highest in the world? Natural gas, because natural gas 
plants can be built for a few hundred million dollars, and we have 
created an environment where we can't use nuclear.
  We haven't built a new nuclear plant since the 1970s, even though we 
invented the technology, even though France has 80 percent of its power 
now produced by nuclear power, even though Japan builds a new nuclear 
plant every year or so. We invented it. Our Navy has operated nuclear 
reactors since the 1950s without ever having a single accident. It is a 
clean, obvious alternative to $7 natural gas, and we haven't built a 
plant since the 1970s. So we need to think seriously about aggressive 
conservation, aggressive use of alternative fuels, aggressive research 
and development for solar, for methane hydrates, aggressive production, 
and that includes giving States the option of deciding whether they 
would like to drill offshore and take some of the revenues and put some 
of the revenues into a conservation fund, and aggressive importation of 
liquefied natural gas from overseas at least for the time being.
  In March of 2002, the Secretary of Energy requested that the National 
Petroleum Council undertake an extensive study on the natural gas 
crisis. That advisory council produced a study. It talked about the 
results I have described. Our Senate Energy

[[Page 5847]]

Committee, under the chairman, Senator Domenici, has paid a lot of 
attention to that report. Senator Domenici hosted what we called a 
natural gas roundtable that was well attended by Senators and went on 
for 3 or 4 hours. There were more than 100 proposals presented.
  I am chairman of the subcommittee of that full committee, and so my 
purpose today is to take many of the ideas that we heard that made the 
most sense, some of which people haven't been willing to advocate, and 
put them into the discussion. Again, because I do not want to be a 
Senator who 10 years from now somebody comes up to and says: How did 
you let farmers get a 20-percent pay cut because of $7, $8, $9 natural 
gas; how did you let millions of jobs in the chemical industry, the 
auto industry go overseas because of $7, $8, and $9 natural gas; how 
did you let prices of natural gas for home heating or cooling get so 
high that middle-income Americans can't even afford to heat their 
homes? I don't want to be that kind of Senator. So I am here today with 
a comprehensive proposal across the board even though some of the ideas 
will create that kind of controversy.
  I have summarized in a few words the provisions of a 250-page piece 
of legislation.
  We were ambushed in the United States on September 11, 2001. Even 
though you could argue that we might have known it was coming, 
terrorism wasn't new on September 11, 2001.
  I remember being in a meeting with Prime Minister Rabin of Israel in 
1994. At the end of a long day, I asked him: What is the greatest 
challenge threatening the world? And he said terrorism. That was many 
years before we were attacked. He was right. He was dead within a few 
months at the hands of terrorists within his own country. We didn't see 
the terrorism coming. We were ambushed, and we have paid a terrible 
price--in lives, in dollars. We have had to create whole new 
departments. We have had to interrupt the lives of thousand of national 
guardsmen and Army reservists and send them overseas, some to die and 
some to be wounded, because of terrorism. Maybe we couldn't have seen 
exactly that act coming, but we knew it was out there.
  We are about to have another big surprise. That is to our standard of 
living. We are 5 to 6 percent of all the people in the world. Yet we 
produce a third of all the money in the world. We could wake up 10 
years from now and that picture could be very changed. One way is if we 
lose our brainpower advantage. And we could lose it. Half of our new 
jobs have been created by science and technology since the end of World 
War II. And if we go through our budget balancing, deficit controlling 
exercise for the next 10 years and we don't double investments for the 
physical sciences and retake the lead in advanced computing, and if we 
don't see that we have plenty of graduate students in science and 
engineering, we are going to find most of the R&D will be done in other 
parts of the world. We are going to find most of the engineers who 
produce this brainpower that creates jobs in other parts of the world.
  They are thinking in China, and they are thinking in India. There is 
no real good reason why the United States should make a third of all 
the money in the world every year with just 5 or 6 percent of the 
people, and we have so little. So they are keeping their bright people 
home. They are building up their universities. They are doing what we 
need to keep doing. That is one place we could get a big surprise.
  But the other is in energy. We have taken energy for granted for a 
long time. I know I come from Tennessee. We have had the Tennessee 
Valley Authority. It has sat there since the 1930s, and it has produced 
reliable, low-cost electricity. Homes that have never been lit, barns 
that have never been lit, rural areas that have never been lit have 
enjoyed that. That is within my lifetime.
  And then while I was Governor in the 1990s, I remember that one of 
the big attractions for Saturn and Nissan and the automobile industry 
coming into Tennessee was low-cost reliable power. But when I had a 
natural gas roundtable last fall in Tennessee, there was the president 
of Saturn, the president of Nissan, the head of the Tennessee Farm 
Bureau. There was the head of the University of Tennessee. They were 
all saying: We can't live in Tennessee on $7 natural gas. What do they 
do if they can't? It is very easy what they do. They don't have to have 
those jobs in Tennessee or South Carolina. They can move them to 
Germany, they can move them to Mexico, they can move them to Canada, 
and they are doing it every day.
  And Tennessee Eastman in the upper part of east Tennessee, which we 
think is just like the great Smokey Mountains, has been there so long. 
There are 12,000 people there, real good incomes. What do they use to 
make chemicals there? They use natural gas.
  How long are they going to be there? If we have $7 gas and they have 
$3 and $4 gas in other parts of the world, I am afraid they are not 
going to be there too long. And somebody is going to say to me: What 
did you do about it? At least my answer is I stood up on the floor of 
the Senate and said this is not the time to tweak our natural gas 
policy.
  We do not need to sit around and wait for a big surprise on energy 
like we had a big surprise on September 11 on terrorism. We need an 
aggressive policy. We need a comprehensive policy. We need aggressive 
conservation. That is where we should start. We need aggressive 
alternative fuels. That means nuclear and that means coal gasification. 
We need aggressive research and development, whether it is hydrogen or 
whether it is solar, or whether it is methane gas hydrates. We need 
aggressive production. We have lots of gas in the United States. We 
should be using it if we have $7 gas.
  For the time being, we need to create the terminals that will permit 
us to import enough liquefied natural gas to get that $7 price down to 
$6 or $5 or $4.
  Mr. President, I thank Senator Johnson from South Dakota for joining 
me in this comprehensive aggressive approach. I thank Senator Domenici 
for taking the lead on an energy bill. I thank Senator Bingaman, who is 
the ranking Democrat on our committee, because I notice on our 
committee a greater sense of urgency, a greater sense of bipartisan 
cooperation on coming up with an energy bill this year. Our blue-collar 
workers, our farmers, our homeowners in Tennessee and across this 
country expect it from us.
  Senator Johnson's and my contribution today is to introduce this 
comprehensive 250-page bill and to get on the table all the aggressive 
ideas we can think of that make sense about how to reduce the price of 
natural gas for workers, for farmers, and for homeowners. We hope it 
contributes to the discussion. We hope we find lots of these provisions 
in an ambitious energy bill.
  I look forward to working with my colleagues, as I know Senator 
Johnson does, on a bipartisan basis to help lower the price of natural 
gas, keep our jobs, keep our homes cool and warm, and make it possible 
for farmers to make a living.
  Natural gas prices are at record levels and the highest of any 
industrialized country. High natural gas prices are threatening our 
jobs, our farms, and hurting Americans who are trying to heat and cool 
their homes. Only an ambitious, comprehensive approach that both 
increases supply and controls demand can lower the price of natural gas 
and keep our growing economic recovery from becoming recent history.
  This is not a question of tweaking our natural gas policy. It is time 
to aggressively revamp it. We need aggressive conservation, aggressive 
use of alternative fuels, aggressive research and development, 
aggressive production and for the time being, aggressive imports of 
liquefied natural gas.
  Aggressive conservation, for example, means setting stronger 
appliance and equipment standards for natural gas efficiency so that a 
commercial air conditioner will cool the same while using less natural 
gas to do it.
  Aggressive use of alternative fuels, for example, means fully 
commercializing coal gasification, starting with support for the 
deployment of six

[[Page 5848]]

coal gasification plants by 2013. Coal gasification means that you burn 
coal to produce power but get the much lower pollution output of using 
natural gas.
  Aggressive research and development includes investment in research 
of gas hydrates. Methane hydrates hold tremendous potential to provide 
abundant supplies of natural gas. Hydrates are ice-like solid 
structures consisting of water and gases, mainly methane, compressed to 
greater than normal densities. Coastal U.S. areas are rich in this 
resource. The U.S. is estimated to contain one-fourth of the world's 
supply.
  Aggressive production means, among other changes, allowing states to 
selectively waive the federal moratoria on off-shore production and 
collect significant revenues from such production.
  And aggressive importation of liquefied natural gas starts with 
giving the Federal Energy Regulatory Commission exclusive authority for 
siting and regulating LNG terminals, while still preserving states' 
authorities under the Coastal Zone Management Act and other acts.
  In March 2002, Secretary of Energy Abraham requested that the 
National Petroleum Council undertake an extensive study on the natural 
gas crisis. That council, a Federal advisory committee to the Secretary 
of Energy, produced in late 2003 one of the most extensive policy 
studies and recommendations on the natural gas crisis to date. Since 
that time, other prominent groups, such as the National Commission on 
Energy Policy, have also produced extensive studies on the natural gas 
crisis. In October 2004, I held a roundtable on the impact of soaring 
natural gas prices on Tennessee farmers and jobs. The Senate Energy 
Committee has held numerous hearings over the last 2 years and recently 
held an extensive natural gas roundtable on the subject on January 24, 
2005. Over 100 proposals were submitted to the Senate Energy Committee 
on natural gas issues.
  The conclusion of all of these forums has been clear.
  High natural gas prices are threatening our country's economic 
competitiveness and costing us jobs. For example, high natural gas 
prices have been the equivalent of a 10 percent pay cut to American 
farmers.
  The situation is urgent.
  There are no silver bullets. We cannot conserve our way out of this 
problem, nor can we drill our way out of this problem. We will need to 
be aggressive on all fronts, in order to keep our industries 
competitive.
  High natural gas costs are also tied to high oil prices. We need to 
address both natural gas and oil prices in order to lower natural gas 
costs.
  Our country has contradictory policies on natural gas--on one hand, 
we encourage its use. On the other hand, we limit access to its supply. 
We need to amend our contradictory natural gas and environmental 
policies.
  That's why I am introducing the ``Natural Gas Price Reduction Act.'' 
It is an aggressive, bold approach to tackle this issue. This 250-page 
legislation is an attempt to start a very difficult, but balanced, 
legislative discussion in the United States Senate on natural gas 
prices. I have taken the best ideas that I have heard in these 
roundtable discussions and from the various policy studies. I have met 
with hundreds of people in the past year discussing natural gas prices. 
This legislation is an attempt to be more aggressive on all areas 
impacting natural gas prices--energy efficiency and fuel diversity, 
natural gas supply, and improved infrastructure for importation of 
liquefied natural gas.
  Half our Nation's increase in natural gas demand in the last decade 
has come from the power sector. So to conserve natural gas, one must 
not only reduce consumption of gas itself, but also of electricity. 
And, as I noted, since oil prices affect natural gas prices, conserving 
oil is also important. My bill addresses conservation in five ways.
  The bill creates a 4-year national consumer education program on the 
urgent need for energy conservation. A statewide California effort to 
educate energy consumers resulted in savings of 10 percent at peak 
usage--the equivalent of five-and-a-half 1,000 Megawatt coal-powered 
power plants. My bill aims to take that effort to the entire nation.
  The legislation sets higher appliance and equipment standards for 
natural gas efficiency. These standards have been negotiated between 
consumer and industry representatives and are codified in the bill. For 
example, the standards would require a new kitchen oven to produce the 
same heat while using less natural gas to do it. The American Council 
for an Energy-Efficient Economy estimates that these standards will 
reduce natural gas use by about 125 BCF in 2010 and 525 BCF in 2020. In 
addition these standards will reduce peak electric demand by about 
33,500 MW in 2020, equivalent to 34 coal power plants of 1000 MW each, 
and will save consumers and businesses more than $60 billion.
  The bill creates tax incentives and provides regulatory relief to 
enable manufacturing facilities to more easily produce their own power 
and steam from a single source--a process called cogeneration or CHP 
which saves money and energy while also reducing pollutants. A CHP 
system can produce the same electrical and thermal output at 75 percent 
fuel conversion efficiency as compared to 49 percent separate steam and 
power. This is a 50 percent gain in overall efficiency, resulting in a 
35 percent fuel savings. Large industrial plants, such as International 
Paper, Alcoa and Eastman in my home State of Tennessee all use 
cogeneration in their manufacturing processes. More companies could do 
the same, and the bill particularly focuses on providing incentive for 
smaller cogeneration projects.
  The Alexander bill provides incentive for public utilities to utilize 
their natural gas plants based on efficiency. The process of activating 
different power plants to meet demand during a given day is called 
``dispatching.'' For example, on a hot summer day in Tennessee, the 
demand for electricity, for air conditioning, might be highest in the 
early afternoon, so then a power company would have to dispatch the 
most power plants to provide the energy. But during the cooler night, 
they might dispatch less plants since less power is needed. If power 
companies dispatched their most efficient plants first, this would save 
us a significant amount of natural gas. As you can see, the highest 
saving will be in the medium-term--2010-2015--but real savings continue 
for many years.
  Our reliance on foreign oil is the silent elephant in the room when 
it comes to high natural gas prices. My legislation includes a 
provision that requires the President report to Congress annually on 
efforts to reduce U.S. dependence on imported petroleum 1.75 million 
barrels a day from projected 2013 levels, almost 10 percent. As I noted 
earlier, oil and gas are usually produced together; and, typically, 
there is a 6:1 ratio between natural gas and oil prices. Reducing 
dependence on foreign oil will help bring natural gas prices down.
  Conservation of natural gas and related energy sources is critical to 
lowering prices and keeping our manufacturing and farming jobs here in 
the United States. But conservation alone is not enough. The second 
focus must be to develop alternative sources of energy. The ``Keep 
Manufacturing and Farming Jobs in the United States Act'' encourages 
the use of three alternative fuels:
  The bill initiates a national coal gasification strategy. Eastman 
Chemical in Kingsport, TN, has been using coal gasification with a 95% 
availability factor for the past 20 years. Tampa Electric has 
successfully demonstrated large-scale coal gasification. It is time for 
this process to be more widely used. Coal gasification is a process 
whereby gas derived from burning coal is used as a source of energy or 
a raw material. When used in a power plant, coal gasification means 
that you burn coal but get the much lower pollution output of using 
natural gas. My legislation provides up to $2 billion in tax or other 
incentives to support the construction of six new coal gasification 
power plants. Similarly, the legislation provides up to $2 billion in 
assistance for industrial

[[Page 5849]]

gasification projects. The bill also provides streamlined permitting 
for coal gasification facilities. Coal is an abundant resource in the 
United States; we should use it to produce clean energy and raw 
material for industrial applications.
  Solar energy is another clean, alternative fuel source that could be 
developed further. Solar energy can be used directly for heating as 
well as to create electricity. To push an aggressive solar energy 
strategy, the Alexander legislation provides tax incentives for 
investment in solar power generation. Specifically, it provides 
businesses a tax credit for investing in geothermal or solar heating 
and/or power generation--10 percent heating, 25 percent for generating 
or displacing electricity.
  My bill also contains language to invest in new technologies to use 
hydrogen to power fuel cell vehicles. The language in this bill mirrors 
language I offered in the last session of Congress on the Energy Bill 
that would have enacted President Bush's Hydrogenl/Fuel Cell 
Initiative. When I visited Japan last year, I visited a hydrogen fuel 
station--that looked much like a gas station--and saw fuel cell 
vehicles that range from small cars to SUVs. These cars not only allow 
us to use an alternative fuel source but are also great for the 
environment--their only byproduct is water vapor. The bill invests in 
research and development of technologies and infrastructure for 2 
hydrogen and fuel cell vehicles.
  Methane hydrates hold tremendous potential to provide abundant 
supplies of natural gas. Hydrates are ice-like solid structures 
consisting of water and gases--mainly methane--compressed to greater 
than normal densities. Coastal US areas are rich in this resource--the 
U.S. is estimated to contain one-fourth of the world's supply. My bill 
invests $200 million over the next 4 years in research for this 
promising new resource, a number consistent with recommendations from 
the National Commission on Energy Policy.
  Conserving natural gas and using alternative fuels will take us a 
long way to reducing gas prices and keeping jobs here in the U.S., but 
we must also address the other side of the equation: supply. As Energy 
Committee members learned at our Natural Gas Roundtable, our current 
policy encourages consumption of natural gas while restricting the 
supply. We need to stop putting unnecessary restrictions on production 
and supply of natural gas, and my legislation does so by addressing 
production off-shore and in the Rocky Mountains as well as the 
importation of liquid natural gas from abroad.
  We have plenty of natural gas here in the U.S., we just cannot get to 
it. There are large fields off the coasts, especially the Atlantic, and 
in the Rocky Mountains. There is no reason for natural gas prices here 
in the U.S. to be so high when we have so much available here--if only 
we would use it.
  Today, there are two moratoria on our outer continental shelf, OCS--a 
congressional moratorium and a Presidential moratorium. The Atlantic 
Coast--40 miles off the coast is believed to be largely natural gas-
prone. The Pacific Coast is believed--to be mainly oil-prone. The Gulf 
of Mexico is both. Today, when production is greater than 9 miles 
offshore, a State that has oil and gas production gets zero percent of 
the production revenues. This is radically different than onshore 
production; on Federal lands, States get 50 percent of the production 
revenues. Alaska gets 90 percent of the production revenues. In order 
to have a constructive dialogue on OCS production, the right framework 
needs to be established.
  My legislation provides the Department of the Interior with the legal 
authority to issue natural gas only leases. Currently, Interior can 
only issue combination gas and oil leases. Since there is greater 
hesitation about the environmental impact of producing oil off-shore, 
issuing natural gas-only leases may alleviate some concerns.
  It also instructs the Secretary of the Interior to draw the state 
boundary between Alabama and Florida regarding Lease 181--a disputed 
area off the coast of both states in the Gulf of Mexico in which 
Alabama may wish to permit production while Florida may not. The 
boundaries shall be drawn using established international law. Under my 
bill, portions of Lease 181, which are not in the state of Florida and 
greater than 30 miles off of the coast of Alabama, shall be leased by 
December 31, 2007. However, of those portions of Lease 181 that are in 
the State of Florida, the State of Florida may keep the moratoria. 
Leasing would not be allowed to interfere with U.S. military operations 
in the Gulf Coast.
  Finally, under the bill, States will have the authority to request 
studies of natural gas resources off their coasts and be permitted to 
waive Federal moratoria on offshore production. The states shall not 
have the authority to lift the moratoria at National Marine Sanctuaries 
or National Wildlife Refuge Area. The State of Virginia recently 
engaged on this issue, and the state ought to have the ability to 
license off-shore production--especially if it is far enough off-shore 
that you cannot even see it from land. My bill also allows States to 
collect significant revenue from such production, and designates that a 
portion of revenues also go to a conservation royalty. The conservation 
royalty would be shared equally by the Federal land and water 
conservation fund, state land and water conservation fund and wildlife 
grants.
  Importing liquefied natural gas--LNG--requires the infrastructure to 
receive it. LNG comes to the U.S. by ship, and terminals to receive 
these ships and unload LNG must be built and appropriate infrastructure 
developed to transport gas from those terminals to users across the 
country.
  My bill streamlines the development of offshore liquefied natural gas 
terminals. The siting of LNG terminals has become a difficult issue 
since we all want cheaper natural gas, but no one seems to want an LNG 
terminal in ``their backyard.'' The Alexander legislation gives FERC 
clear authority for regulating liquid natural gas terminals, but, 
unlike a related House bill, still preserves States' authorities under 
the Coastal Zone Management Act and other acts. I hope this will 
provide some balance so that LNG terminals can be sited, but 
environmental concerns will play a significant role in choosing their 
sites. In an effort to speed the siting of pipelines that allow natural 
gas to reach all parts of the country, the bill also requires that FERC 
grant or deny a terminal or pipeline application within one year.
  Our country is facing an energy crisis. We are consuming more and 
more electricity. Gasoline prices are poised to reach all time highs. 
The price of oil is up. And so, too, is the price of natural gas.
  The bill I introduce today, the ``Natural Gas Price Reduction Act,'' 
addresses high natural gas prices. Natural gas is not just used for 
heating homes, a source of electricity, it is a raw material for 
industries, and it is an important component in fertilizers used by 
farmers. High natural gas prices have cost farmers a 10-percent pay cut 
and are shipping manufacturing and chemical jobs overseas. We can not 
afford to let this problem fester any longer.
  Bold action is required, and that is what my legislation provides. 
This bill takes a comprehensive approach to addressing the problem by 
encouraging conservation, developing alternative fuel sources, and 
reducing roadblocks to the production and importation of natural gas. I 
urge my colleagues to support it.
                                 ______
                                 
      By Mr. BOND (for himself, Mr. Inhofe, Mr. Vitter, Mr. Warner, Mr. 
        Voinovich, Mr. Isakson, Mr. Thune, Ms. Murkowski, Mr. Obama, 
        Ms. Landrieu, Mr. Grassley, Mr. Harkin, Mr. Talent, Mr. Cornyn, 
        Mr. Cochran, Mr. Domenici, and Mr. Coleman):
  S. 728. A bill to provide for the consideration and development of 
water and related resources, to authorize the Secretary of the Army to 
construct various projects for improvements to rivers and harbors of 
the United States, and for other purposes; to the Committee on 
Environment and Public Works.

[[Page 5850]]


  Mr. BOND. Mr. President, I rise today to introduce, with Senators 
Inhofe, Vitter, Warner, Voinovich, Isakson, Thune, Murkowski, Obama, 
Landrieu, Grassley, Harkin, Talent, Cornyn, Cochran, Domenici, and 
Coleman, the 2005 Water Resources Development Act.
  The programs administered by the U.S. Army Corps of Engineers are 
invaluable to this Nation. They provide drinking water, electric power 
production, river transportation, environmental protection and 
restoration, protection from floods, emergency response, and 
recreation. Few agencies in the Federal Government touch so many 
citizens and they do it on a relatively small budget. They provide one-
quarter of our Nation's total hydropower output; operate 456 lakes in 
43 States hosting 33 percent of all freshwater lake fishing; move 630 
million tons of cargo valued at over $73 billion annually through our 
inland system; manage over 12 million acres of land and water; provide 
3 trillion gallons of water for use by local communities and business; 
and have prevented an estimated $706 billion in flood damage within the 
past 25 years with an investment one-seventh that value. During the 
1993 flood alone, an estimated $19.1 billion in flood damage was 
prevented by flood control facilities in place at that time. Our ports 
move over 95 percent of U.S. overseas trade by weight and 75 percent by 
value. Between 1970 and 2003, the value of U.S. trade increased 24 
fold, and 70 percent since 1994. That was an average annual growth rate 
of 10.2 percent, which was nearly double the pace of the Gross Domestic 
Product growth during the same period. Unfortunately, the American 
Society of Civil Engineers grades navigable waterways infrastructure D- 
with over 50 percent of the locks ``functionally obsolete'' despite 
increased demand.
  This bipartisan bill is one that traditionally is produced by the 
Congress every two years, however, we have not passed a WRDA bill since 
2000 and the longer we wait, the more unmet needs pile up and the more 
complicated the demands upon the bill become making it harder and 
harder to win approval. For some, this bill is too small and for 
others, too big. For some, the new regulations are too onerous and for 
others, the new regulations are not onerous enough. Nevertheless, I 
believe we have struck a balance here that disciplines the new projects 
to criteria fairly applied while addressing a great number of water 
resources priorities.
  With the new regulations, we have embraced a common sense bipartisan 
proposal by Senators Landrieu and Cochran similar to the bi-partisan 
House agreement that requires major projects to be subject to 
independent peer review and requires that necessary mitigation for 
projects be completed at the same time the project is completed, or, in 
special cases, no longer than one year after project completion. This 
will impose a cost on communities, particularly smaller communities, 
but it is not as onerous as the new regulations proposed last year 
which ultimately prevented a final agreement from being reached between 
the House and Senate.
  The commanding feature of the bill is its landmark environmental and 
ecosystem restoration authorities. Nearly 60 percent of the bill 
authorizes such efforts, including environmental restoration of the 
Everglades, Coastal Louisiana, Chesapeake Bay, Missouri River, Long 
Island Sound, Salton Sea, Upper Connecticut, and the Illinois and 
Mississippi Rivers, and others.
  Additionally, it is important to understand the budget implications 
of this legislation in the real world. We are contending with difficult 
budget realities currently and it is critical that we be mindful of 
those realities as we make investments in the infrastructure that 
supports the people in our nation who make and grow and buy and sell 
things so that we can grow our economy, create jobs, and secure our 
future. This is an authorization bill. It does not spend one dollar. I 
repeat, it does not spend one dollar. It makes projects eligible for 
funding through the appropriations process that operates within the 
restrictions of the budget Congress provides it. With the allocation 
provided, the Appropriations Committee and the Congress and the 
President will fund such projects deemed of the highest priority and 
those remaining will not be funded because the budget will not permit 
it. This WRDA process simply permits project consideration during the 
process of appropriations and I expect some will measure up and others 
will not. I hear some suggest that we should not authorize anything new 
until all other previously-authorized projects are funded. That, of 
course, is nonsense because it assumes falsely that all projects 
authorized five and 10 and 50 years ago are higher priority than those 
in this package. We have de-authorized a great number of projects in 
this bill and I expect there will be more added as we proceed and then 
the remainder will have to face the stingy budget process that will 
prioritize the rest.
  While the majority of this legislation is for environmental 
protection and restoration, a key bipartisan economic initiative we 
include provides transportation efficiency and environmental 
sustainability on the Mississippi and Illinois Rivers.
  As the world becomes more competitive, we must also. In the 
heartland, the efficiency, reliability, capacity, and safety of our 
transportation options are critical--often make-or-break. In Missouri 
alone, we ship 34.7 million tons of commodities with a combined value 
of more than $4 billion which include coal, petroleum, aggregates, 
grain, chemicals, iron, steel, minerals and other commodities.
  As we look 50 years into the future, and as we anticipate and try to 
promote commercial and economic growth, we have to ask ourselves a 
fundamental question: should we have a system that permits and promotes 
growth, or should we be satisfied to restrict our growth to the 
confines of a transportation straight jacket designed not for 2050, but 
for 1950 for paddle wheel boats?
  Further, we must ask ourselves if dramatic investments should be made 
to address environmental problems and opportunities that exist on these 
great waterways. In both cases, the answer is, ``Of course we should 
modernize and improve.''
  We have a system which is in environmental and economic decline. Jobs 
and markets and the availability of habitat for fish and wildlife are 
at stake. We cannot be for increased trade, commercial growth, and job 
creation without supporting the basic transportation infrastructure 
necessary to move goods from buyers to sellers. New efficiency helps 
give our producers an edge that can make or break opportunities in the 
international marketplace.
  Seventy years ago, some argued that a transportation system on the 
Mississippi River was not justified. Congress decided that its role was 
not to try to predict the future but to shape the future and decided to 
invest in a system despite the naysayers. Over 84 million tons per year 
later, it is clear that the decision was wise.
  Now, that system that was designed for paddlewheel boats and to last 
50 years is nearly 70 years old and we must make decisions that will 
shape the next 50-70 years. As we look ahead, we must promote growth 
policies that help Americans who produce and employ.
  We must work for policies that promote economic growth, job creation, 
and environmental sustainability. We know that trade and economic 
growth can be fostered or it can be discouraged by policies and other 
realities which include the quality of our transportation 
infrastructure.
  So in 20 and 30 and 40 and 50 years, where will the growth in 
transportation occur to accommodate the growth in demand for commercial 
shipping? The Department of Transportation suggests that congestion on 
our roads and rails will double in the next quarter century. The fact 
of the matter is that the great untapped capacity is on our water.
  This is good news because water transportation is efficient, it is 
safe, it conserves fuel, and it protects the air and the environment. 
One medium-

[[Page 5851]]

sized barge tow can carry the freight of 870 trucks. That fact alone 
speaks volumes to the benefits of water. If we can, would we rather 
have 870 diesel engines on the roads of downtown St. Louis, or two 
diesel engines on the water.
  The veteran Chief Economist at USDA testified that transportation 
efficiency and the ability of farmers to win markets are higher prices 
are ``fundamentally related.'' He predicts that corn exports over the 
next 10 years will rise 45 percent, 70 percent of which will travel 
down the Mississippi.
  Over the past 35 years, waterborne commerce on the Upper Mississippi 
River has more than tripled. The system currently carries 60 percent of 
our Nation's corn exports and 45 percent of our Nation's soybean 
exports and it does so at two-thirds the cost of rail--when rail is 
available.
  Over the previous 12 years, the U.S. Army Corps of Engineers have 
spent $70 million completing a six year study. During that period, 
there have been 35 meetings of the Governors Liaison Committee, 28 
meetings on the Economic Coordinating Committee, among the States along 
the Upper Mississippi and Illinois waterways, and there have been 44 
meetings of the Navigation and Environmental Coordination Committee. 
Additionally, there have been 130 briefings for special interest 
groups, 24 newsletters. There have been six sets of public meetings in 
46 locations with over 4,000 people in attendance. To say the least, 
this has been a very long, very transparent, and very representative 
process.
  However, while we have been studying, our competitors have been 
building. Given the extraordinary delay so far, and given the reality 
that large scale construction takes not weeks or months, but decades, 
further delay is no longer an option. This is why I am pleased to be 
joined by a bipartisan group of Senators who agree that we must improve 
the efficiency and the environmental sustainability of our great 
resources.
  This plan gets the Corps back in the business of building the future, 
rather than just haggling about predicting the future. More will need 
to be done later on ecosystem and lock expansions further upstream, but 
this begins the improvement schedule underway.
  In this legislation, we authorize $1.58 billion for ecosystem 
restoration-almost 2 times the federal cost of lock capacity expansion 
which we authorize on locks 20-25 on the Mississippi River and Peoria 
and LaGrange on the Illinois. The new 1,200 foot locks on the 
Mississippi River will provide equal capacity in the bottleneck region 
below the 1,200 foot lock 19 at Keokuk and above locks 26 and 27 near 
St. Louis. Half the cost of the new locks will be paid for by private 
users who pay into the Inland Waterways Trust fund. Additional funds 
will be provided for mitigation and small scale and nonstructural 
measures to improve efficiency.
  As we look ahead, the locks at 14-18 will have to be addressed as 
will further investments to ecosystem restoration efforts.
  This effort is supported by a broad-based group of the States, farm 
groups, shippers, labor, and those who pay taxes into the Trust Fund 
for improvements. Of particular note, I appreciate the strong support 
from the carpenters, corngrowers, farm bureau, soybeans, the diverse 
membership of MARC2000.
  I thank my colleagues and their staff for the hard work devoted to 
this difficult matter and I thank particularly chairman Inhofe for his 
forbearance. I believe that if members work cooperatively and aim for 
the center and not the fringe, that we can get a bill completed this 
year. If demands exist that the bill be away from the center toward the 
fringe, we will go another Congress without completing our work as we 
witnessed last year.
  Mr. INHOFE. Mr. President, first, I would like to thank Senator Bond 
for the leadership he and his subcommittee staff have demonstrated in 
bringing this piece of legislation together.
  I have great hopes for getting a WRDA bill passed this session. We 
have not enacted a WRDA bill since 2000, and the water resources are in 
much need of this authorization. We made great progress and were very 
close to finishing a bill at the end of the 108th Congress. That effort 
has provided a great stepping stone toward quick completion this year.
  The Army Corps of Engineers has provided a valuable service to the 
Nation for over 200 years. It has been instrumental in creating one of 
the most dynamic inland waterway systems in the world. For example, the 
Corps activities have provided Tulsa, OK with one of the Nation's most 
inland ports and provides the dredging needed to keep the San Francisco 
Bay navigable. There is not a State in the Union that does not reap the 
benefits of the Army Corps.
  I am well aware of the stacks of requests that have come in from 
every State for projects to be included in the bill. While it is 
important that we insure the Corps is capable of meeting our future 
water resource needs, it is also very important that we do not demand 
more of the Corps than it is capable of providing. No Federal agency 
could complete all of the projects requested by all of the Senators. 
Considering the limited staff and budget of the Corps, an ``authorize 
everything'' approach may leave everyone with nothing. While I know 
that each Senator has his or her own priorities, we all must understand 
the limitations with which we reside. I look forward to working with my 
colleagues to ensure that we give clear direction to the Corps to focus 
on completing the highest priority and most beneficial projects.
                                 ______
                                 
      By Mr. DURBIN:
  S. 729. A bill to establish the Food Safety Administration to protect 
the public health by preventing food-borne illness, ensuring the safety 
of food, improving research on contaminants leading to food-borne 
illness, and improving security of food from intentional contamination, 
and for other purposes; to the Committee on Agriculture, Nutrition, and 
Forestry.
  Mr. DURBIN. Mr. President, a single food safety agency with authority 
to protect the food supply based on sound scientific principles would 
provide this country with the greatest hope of reducing foodborne 
illnesses and preventing or minimizing the harm from a bioterrorist 
attack on our food supply. Right now, our food is the safest in the 
world, but there are widening gaps in our food safety net due to 
emerging threats and the fact that food safety oversight has evolved 
over time to spread across several agencies. This mismatched, piecemeal 
approach to food safety could spell disaster if we do not act quickly 
and decisively.
  But don't take it from me. Former HHS Secretary Tommy Thompson told 
reporters in December as he resigned that he worries ``every single 
night'' about a massive attack on the U.S. food supply. ``I, for the 
life of me, cannot understand why the terrorists have not, you know, 
attacked our food supply, because it is so easy to do,'' Thompson said. 
``And we are importing a lot of food from the Middle East, and it would 
be easy to tamper with that,'' he said.
  No wonder he feels that way. Several Federal agencies, all with 
different and conflicting missions, work to ensure our food is safe. 
For example, there is no standardization for inspections--processed 
food facilities may see a Food and Drug Administration inspector once 
every 5 to 6 years, while meat and poultry operations are inspected 
daily by the U.S. Department of Agriculture.
  The Centers for Disease Control and Prevention (CDC) estimates that 
as many as 76 million people suffer from food poisoning each year. Of 
those individuals, approximately 325,000 will be hospitalized, and more 
than 5,000 will die. Factors such as emerging pathogens, an aging 
population at high risk for foodborne illnesses, an increasing volume 
of food imports, and people eating outside their homes more often 
underscore the need for us to take charge and shed the old bureaucratic 
shackles that have tied us to the overlapping and inefficient ad hoc 
food safety system of the past.
  That is why I come to the Senate floor today to introduce the Safe 
Food

[[Page 5852]]

Act of 2005. My House counterpart, Representative Rosa DeLauro, is 
introducing the bill in the other body. This legislation would create a 
single, independent Federal food safety agency to administer all 
aspects of Federal food safety inspections, enforcement, standards-
setting and research in order to protect public health. The components 
of the agencies now charged with protecting the food supply, primarily 
housed at the Food and Drug Administration and the Agriculture 
Department, would be transferred to this new agency.
  The new Food Safety Administrator would be responsible for the safety 
of the food supply, and would fulfill that charge by implementing the 
registration and recordkeeping requirements of the 2002 bioterrorism 
law; ensuring slaughterhouses and food processing plants have 
procedures in place to prevent and reduce food contamination; regularly 
inspecting domestic food facilities, with inspection frequency based on 
risk; and centralizing the authority to detain, seize, condemn and 
recall food that is adulterated or misbranded. The Administrator would 
be charged with requiring food producers to code their products so 
those products could be traced in the event of a foodborne illness 
outbreak in order to minimize the health impact of such an event.
  The Administrator would also have the power examine the food safety 
practices of foreign countries and work with the states to impose 
various civil and criminal penalties for serious violations of the food 
safety laws. The Administrator would also actively oversee public 
education and research programs on foodborne illness.
  It is time to create a single food safety agency in this country. I 
am encouraged by a February 2005 Government Accountability Office 
report in which government officials in seven other high-income 
countries who have consolidated their food safety systems consistently 
state that the benefits of consolidation outweigh the costs.
  In this era of limited budgets, it is our responsibility to 
streamline the Federal food safety system. The United States simply 
cannot afford to continue operating multiple redundant systems. This is 
not about more regulation, a super agency, or increased bureaucracy. It 
is about common sense and the more effective marshaling of our existing 
resources.
  I urge my colleagues to join me in cosponsoring 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. 729

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Safe Food 
     Act of 2005''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings; purposes.
Sec. 3. Definitions.

          TITLE I--ESTABLISHMENT OF FOOD SAFETY ADMINISTRATION

Sec. 101. Establishment of Food Safety Administration.
Sec. 102. Consolidation of separate food safety and inspection services 
              and agencies.
Sec. 103. Additional duties of the Administration.

            TITLE II--ADMINISTRATION OF FOOD SAFETY PROGRAM

Sec. 201. Administration of national program.
Sec. 202. Registration of food establishments and foreign food 
              establishments.
Sec. 203. Preventative process controls to reduce adulteration of food.
Sec. 204. Performance standards for contaminants in food.
Sec. 205. Inspections of food establishments.
Sec. 206. Food production facilities.
Sec. 207. Federal and State cooperation.
Sec. 208. Imports.
Sec. 209. Resource plan.
Sec. 210. Traceback.

                   TITLE III--RESEARCH AND EDUCATION

Sec. 301. Public health assessment system.
Sec. 302. Public education and advisory system.
Sec. 303. Research.

                         TITLE IV--ENFORCEMENT

Sec. 401. Prohibited Acts.
Sec. 402. Food detention, seizure, and condemnation.
Sec. 403. Notification and recall.
Sec. 404. Injunction proceedings.
Sec. 405. Civil and criminal penalties.
Sec. 406. Presumption.
Sec. 407. Whistleblower protection.
Sec. 408. Administration and enforcement.
Sec. 409. Citizen civil actions.

                        TITLE V--IMPLEMENTATION

Sec. 501. Definition.
Sec. 502. Reorganization plan.
Sec. 503. Transitional authorities.
Sec. 504. Savings provisions.
Sec. 505. Conforming amendments.
Sec. 506. Additional technical and conforming amendments.
Sec. 507. Regulations.
Sec. 508. Authorization of appropriations.
Sec. 509. Limitation on authorization of appropriations.
Sec. 510. Effective date.

     SEC. 2. FINDINGS; PURPOSES.

       (a) Findings.--Congress finds that--
       (1) the safety of the food supply of the United States is 
     vital to the public health, to public confidence in the food 
     supply, and to the success of the food sector of the Nation's 
     economy;
       (2) lapses in the protection of the food supply and loss of 
     public confidence in food safety are damaging to consumers 
     and the food industry, and place a burden on interstate 
     commerce;
       (3) the safety and security of the food supply requires an 
     integrated, system-wide approach to preventing food-borne 
     illness, a thorough and broad-based approach to basic and 
     applied research, and intensive, effective, and efficient 
     management of the Nation's food safety program;
       (4) the task of preserving the safety of the food supply of 
     the United States faces tremendous pressures with regard to--
       (A) emerging pathogens and other contaminants and the 
     ability to detect all forms of contamination;
       (B) an aging and immune compromised population, with a 
     growing number of people at high-risk for food-borne 
     illnesses, including infants and children;
       (C) an increasing volume of imported food, without adequate 
     monitoring and inspection; and
       (D) maintenance of rigorous inspection of the domestic food 
     processing and food service industries;
       (5) Federal food safety standard setting, inspection, 
     enforcement, and research efforts should be based on the best 
     available science and public health considerations and food 
     safety resources should be systematically deployed in ways 
     that most effectively prevent food-borne illness;
       (6) the Federal food safety system is fragmented, with at 
     least 12 Federal agencies sharing responsibility for food 
     safety, and operates under laws that do not reflect current 
     conditions in the food system or current scientific knowledge 
     about the cause and prevention of food-borne illness;
       (7) the fragmented Federal food safety system and outdated 
     laws preclude an integrated, system-wide approach to 
     preventing food-borne illness, to the effective and efficient 
     operation of the Nation's food safety program, and to the 
     most beneficial deployment of food safety resources;
       (8) the National Academy of Sciences recommended in the 
     report ``Ensuring Safe Food from Production to Consumption'' 
     that Congress establish by statute a unified and central 
     framework for managing Federal food safety programs, and 
     recommended modifying Federal statutes so that inspection, 
     enforcement, and research efforts are based on scientifically 
     supportable assessments of risks to public health; and
       (9) the lack of a single focal point for food safety 
     leadership in the United States undercuts the ability of the 
     United States to exert food safety leadership 
     internationally, which is detrimental to the public health 
     and the international trade interests of the United States.
       (b) Purposes.--The purposes of this Act are--
       (1) to establish a single agency to be known as the ``Food 
     Safety Administration'' to--
       (A) regulate food safety and labeling to strengthen the 
     protection of the public health;
       (B) ensure that food establishments fulfill their 
     responsibility to produce food in a manner that protects the 
     public health of all people in the United States;
       (C) lead an integrated, system-wide approach to food safety 
     and to make more effective and efficient use of resources to 
     prevent food-borne illness;
       (D) provide a single focal point for food safety 
     leadership, both nationally and internationally; and
       (E) provide an integrated food safety research capability, 
     utilizing internally-generated, scientifically and 
     statistically valid studies, in cooperation with academic 
     institutions and other scientific entities of the Federal and 
     State governments, to achieve the continuous improvement of 
     research on food-borne illness and contaminants;
       (2) to transfer to the Food Safety Administration the food 
     safety, labeling, inspection, and enforcement functions that, 
     as of the

[[Page 5853]]

     day before the effective date of this Act, are performed by 
     other Federal agencies; and
       (3) to modernize and strengthen the Federal food safety 
     laws to achieve more effective application and efficient 
     management of the laws for the protection and improvement of 
     public health.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Administration.--The term ``Administration'' means the 
     Food Safety Administration established under section 
     101(a)(1).
       (2) Administrator.--The term ``Administrator'' means the 
     Administrator of Food Safety appointed under section 
     101(a)(3).
       (3) Adulterated.--
       (A) In general.--The term ``adulterated'' has the meaning 
     described in subsections (a) through (c) of section 402 of 
     the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342).
       (B) Inclusion.--The term ``adulterated'' includes bearing 
     or containing a contaminant that causes illness or death 
     among sensitive populations.
       (4) Agency.--The term ``agency'' has the meaning given that 
     term in section 551 of title 5, United States Code.
       (5) Category 1 food establishment.--The term ``category 1 
     food establishment'' means a food establishment that 
     slaughters animals for food.
       (6) Category 2 food establishment.--The term ``category 2 
     food establishment'' means a food establishment that 
     processes raw meat, poultry, seafood products, regardless of 
     whether the establishment also has a kill step, and animal 
     feed and other products that the Administrator determines by 
     regulation to be at high risk of contamination and the 
     processes of which do not include a step validated to destroy 
     contaminants.
       (7) Category 3 food establishment.--The term ``category 3 
     food establishment'' means a food establishment that 
     processes meat, poultry, seafood products, and other products 
     that the Administrator determines by regulation to be at high 
     risk of contamination and whose processes include a step 
     validated to destroy contaminants.
       (8) Category 4 food establishment.--The term ``category 4 
     food establishment'' means a food establishment that 
     processes all other categories of food products not described 
     in paragraphs (5) through (7).
       (9) Category 5 food establishment.--The term ``category 5 
     food establishment'' means a food establishment that stores, 
     holds, or transports food products prior to delivery for 
     retail sale.
       (10) Contaminant.--The term ``contaminant'' includes a 
     bacterium, chemical, natural or manufactured toxin, virus, 
     parasite, prion, physical hazard, or other human pathogen 
     that when found on or in food can cause human illness, 
     injury, or death.
       (11) Contamination.--The term ``contamination'' refers to a 
     presence of a contaminant in food.
       (12) Food.--
       (A) In general.--The term ``food'' means a product intended 
     to be used for food or drink for a human or an animal.
       (B) Inclusions.--The term ``food'' includes any product 
     (including a meat food product, as defined in section 1(j) of 
     the Federal Meat Inspection Act (21 U.S.C. 601(j))), capable 
     for use as human food that is made in whole or in part from 
     any animal, including cattle, sheep, swine, or goat, or 
     poultry (as defined in section 4 of the Poultry Products 
     Inspection Act (21 U.S.C. 453)), and animal feed.
       (C) Exclusion.--The term ``food'' does not include dietary 
     supplements, as defined in section 201(ff) of the Federal 
     Food, Drug, and Cosmetic Act (21 U.S.C. 321(ff)).
       (13) Food establishment.--
       (A) In general.--The term ``food establishment'' means a 
     slaughterhouse, factory, warehouse, or facility owned or 
     operated by a person located in any State that processes food 
     or a facility that holds, stores, or transports food or food 
     ingredients.
       (B) Exclusions.--For the purposes of registration, the term 
     ``food establishment'' does not include a farm, restaurant, 
     other retail food establishment, nonprofit food establishment 
     in which food is prepared for or served directly to the 
     consumer, or fishing vessel (other than a fishing vessel 
     engaged in processing, as that term is defined in section 
     123.3 of title 21, Code of Federal Regulations).
       (14) Food production facility.--The term ``food production 
     facility'' means any farm, ranch, orchard, vineyard, 
     aquaculture facility, or confined animal-feeding operation.
       (15) Food safety law.--The term ``food safety law'' means--
       (A) the provisions of the Federal Food, Drug, and Cosmetic 
     Act (21 U.S.C. 301 et seq.) related to and requiring the 
     safety, labeling, and inspection of food, infant formulas, 
     food additives, pesticide residues, and other substances 
     present in food under that Act;
       (B) the provisions of the Federal Food, Drug, and Cosmetic 
     Act (21 U.S.C. 301 et seq.) and of any other Act that are 
     administered by the Center for Veterinary Medicine of the 
     Food and Drug Administration;
       (C) the Poultry Products Inspection Act (21 U.S.C. 451 et 
     seq.);
       (D) the Federal Meat Inspection Act (21 U.S.C. 601 et 
     seq.);
       (E) the Egg Products Inspection Act (21 U.S.C. 1031 et 
     seq.);
       (F) the Sanitary Food Transportation Act of 1990 (49 U.S.C. 
     App. 2801 et seq.);
       (G) the provisions of the Humane Methods of Slaughter Act 
     of 1978 (Public Law 95-448) administered by the Food Safety 
     and Inspection Service;
       (H) the provisions of this Act; and
       (I) such other provisions of law related to and requiring 
     food safety, labeling, inspection, and enforcement as the 
     President designates by Executive order as appropriate to 
     include within the jurisdiction of the Administration.
       (16) Foreign food establishment.--The term ``foreign food 
     establishment'' means a slaughterhouse, factory, warehouse, 
     or facility located outside the United States that processes 
     food for consumption that is imported into the United States 
     or food ingredients.
       (17) Interstate commerce.--The term ``interstate commerce'' 
     has the meaning given that term in section 201(b) of the 
     Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(b)).
       (18) Misbranded.--The term ``misbranded'' has the meaning 
     given that term in section 403 of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 343).
       (19) Process.--The term ``process'' or ``processing'' means 
     the commercial harvesting, slaughter, packing, preparation, 
     or manufacture of food.
       (20) Safe.--The term ``safe'' refers to human and animal 
     health.
       (21) State.--The term ``State'' means--
       (A) a State;
       (B) the District of Columbia;
       (C) the Commonwealth of Puerto Rico; and
       (D) any other territory or possession of the United States.
       (22) Validation.--The term ``validation'' means the 
     obtaining of evidence that the food hygiene control measure 
     or measures selected to control a hazard in food is capable 
     of effectively and consistently controlling the hazard.
       (23) Statistically valid.--With respect to a study, the 
     term ``statistically valid'' means evaluated and conducted 
     under standards set by the National Institute of Standards 
     and Technology.

          TITLE I--ESTABLISHMENT OF FOOD SAFETY ADMINISTRATION

     SEC. 101. ESTABLISHMENT OF FOOD SAFETY ADMINISTRATION.

       (a) Establishment.--
       (1) In general.--There is established in the executive 
     branch an agency to be known as the ``Food Safety 
     Administration''.
       (2) Status.--The Administration shall be an independent 
     establishment (as defined in section 104 of title 5, United 
     States Code).
       (3) Head of administration.--The Administration shall be 
     headed by the Administrator of Food Safety, who shall be 
     appointed by the President, by and with the advice and 
     consent of the Senate.
       (b) Duties of Administrator.--The Administrator shall--
       (1) administer and enforce the food safety law;
       (2) serve as a representative to international food safety 
     bodies and discussions;
       (3) promulgate regulations to ensure the security of the 
     food supply from all forms of contamination, including 
     intentional contamination; and
       (4) oversee--
       (A) implementation of Federal food safety inspection, 
     enforcement, and research efforts, to protect the public 
     health;
       (B) development of consistent and science-based standards 
     for safe food;
       (C) coordination and prioritization of food safety research 
     and education programs with other Federal agencies;
       (D) prioritization of Federal food safety efforts and 
     deployment of Federal food safety resources to achieve the 
     greatest possible benefit in reducing food-borne illness;
       (E) coordination of the Federal response to food-borne 
     illness outbreaks with other Federal and State agencies; and
       (F) integration of Federal food safety activities with 
     State and local agencies.

     SEC. 102. CONSOLIDATION OF SEPARATE FOOD SAFETY AND 
                   INSPECTION SERVICES AND AGENCIES.

       (a) Transfer of Functions.--For each Federal agency 
     specified in subsection (b), there are transferred to the 
     Administration all functions that the head of the Federal 
     agency exercised on the day before the effective date of this 
     Act (including all related functions of any officer or 
     employee of the Federal agency) that relate to administration 
     or enforcement of the food safety law, as determined by the 
     President.
       (b) Transferred Agencies.--The Federal agencies referred to 
     in subsection (a) are--
       (1) the Food Safety and Inspection Service of the 
     Department of Agriculture;
       (2) the Center for Food Safety and Applied Nutrition of the 
     Food and Drug Administration;
       (3) the part of the Agriculture Marketing Service that 
     administers shell egg surveillance services established under 
     the Egg Products Inspection Act (21 U.S.C. 1031 et seq.);
       (4) the resources and facilities of the Office of 
     Regulatory Affairs of the Food and Drug Administration that 
     administer and conduct inspections of food establishments and 
     imports;

[[Page 5854]]

       (5) the resources and facilities of the Office of the 
     Commissioner of the Food and Drug Administration that 
     support--
       (A) the Center for Food Safety and Applied Nutrition;
       (B) the Center for Veterinary Medicine; and
       (C) the Office of Regulatory Affairs facilities and 
     resources described in paragraph (4);
       (6) the Center for Veterinary Medicine of the Food and Drug 
     Administration;
       (7) the resources and facilities of the Environmental 
     Protection Agency that control and regulate pesticide 
     residues in food;
       (8) the part of the Research, Education, and Economics 
     mission area of the Department of Agriculture related to food 
     safety and animal feed research;
       (9) the part of the National Marine Fisheries Service of 
     the National Oceanic and Atmospheric Administration of the 
     Department of Commerce that administers the seafood 
     inspection program;
       (10) the Animal and Plant Inspection Health Service of the 
     Department of Agriculture; and
       (11) such other offices, services, or agencies as the 
     President designates by Executive order to carry out this 
     Act.

     SEC. 103. ADDITIONAL DUTIES OF THE ADMINISTRATION.

       (a) Officers and Employees.--The Administrator may--
       (1) appoint officers and employees for the Administration 
     in accordance with the provisions of title 5, United States 
     Code, relating to appointment in the competitive service; and
       (2) fix the compensation of those officers and employees in 
     accordance with chapter 51 and with subchapter III of chapter 
     53 of that title, relating to classification and General 
     Schedule pay rates.
       (b) Experts and Consultants.--The Administrator may--
       (1) procure the services of temporary or intermittent 
     experts and consultants as authorized by section 3109 of 
     title 5, United States Code; and
       (2) pay in connection with those services the travel 
     expenses of the experts and consultants, including 
     transportation and per diem in lieu of subsistence while away 
     from the homes or regular places of business of the 
     individuals, as authorized by section 5703 of that title.
       (c) Bureaus, Offices, and Divisions.--The Administrator may 
     establish within the Administration such bureaus, offices, 
     and divisions as the Administrator determines are necessary 
     to perform the duties of the Administrator.
       (d) Advisory Committees.--
       (1) In general.--The Administrator shall establish advisory 
     committees that consist of representatives of scientific 
     expert bodies, academics, industry specialists, and 
     consumers.
       (2) Duties.--The duties of an advisory committee 
     established under paragraph (1) may include developing 
     recommendations with respect to the development of new 
     processes, research, communications, performance standards, 
     and inspection.

            TITLE II--ADMINISTRATION OF FOOD SAFETY PROGRAM

     SEC. 201. ADMINISTRATION OF NATIONAL PROGRAM.

       (a) In General.--The Administrator shall--
       (1) administer a national food safety program (referred to 
     in this section as the ``program'') to protect public health; 
     and
       (2) ensure that persons who produce or process food meet 
     their responsibility to prevent or minimize food safety 
     hazards related to their products.
       (b) Comprehensive Analysis.--The program shall be based on 
     a comprehensive analysis of the hazards associated with 
     different food and with the processing of different food, 
     including the identification and evaluation of--
       (1) the severity of the potential health risks;
       (2) the sources and specific points of potential 
     contamination extending from the farm or ranch to the 
     consumer that may render food unsafe;
       (3) the potential for persistence, multiplication, or 
     concentration of naturally occurring or added contaminants in 
     food;
       (4) opportunities across the food production, processing, 
     distribution, and retail system to reduce potential health 
     risks; and
       (5) opportunities for intentional contamination.
       (c) Program Elements.--In carrying out the program, the 
     Administrator shall--
       (1) adopt and implement a national system for the 
     registration of food establishments and foreign food 
     establishments and regular unannounced inspection of food 
     establishments;
       (2) enforce the adoption of process controls in food 
     establishments, based on best available scientific and public 
     health considerations and best available technologies;
       (3) establish and enforce science-based standards for--
       (A) substances that may contaminate food; and
       (B) safety and sanitation in the processing and handling of 
     food;
       (4) implement a statistically valid sampling program to 
     ensure that industry programs and procedures that prevent 
     food contamination are effective on an ongoing basis and that 
     food meets the standards established under this Act;
       (5) implement procedures and requirements to ensure the 
     safety and security of imported food;
       (6) coordinate with other agencies and State or local 
     governments in carrying out inspection, enforcement, 
     research, and monitoring;
       (7) have access to the surveillance data of the Centers for 
     Disease Control and Prevention, and other Federal Government 
     agencies, in order to implement a national surveillance 
     system to assess the health risks associated with the human 
     consumption of food or to create surveillance data and 
     studies;
       (8) develop public education risk communication and 
     advisory programs;
       (9) implement a basic and applied research program to 
     further the purposes of this Act; and
       (10) coordinate and prioritize food safety research and 
     educational programs with other agencies, including State or 
     local agencies.

     SEC. 202. REGISTRATION OF FOOD ESTABLISHMENTS AND FOREIGN 
                   FOOD ESTABLISHMENTS.

       (a) In General.--The Administrator shall by regulation 
     require that any food establishment or foreign food 
     establishment engaged in processing food in the United States 
     be registered with the Administrator.
       (b) Registration Requirements.--
       (1) In general.--To be registered under subsection (a)--
       (A) in the case of a food establishment, the owner, 
     operator, or agent in charge of the food establishment shall 
     submit a registration to the Administrator; and
       (B) in the case of a foreign food establishment, the owner, 
     operator, or agent in charge of the foreign food 
     establishment shall--
       (i) submit a registration to the Administrator; and
       (ii) provide the name, address, and emergency contact 
     information of the United States agent for the foreign food 
     establishment.
       (2) Registration.--A food establishment or foreign food 
     establishment shall submit a registration under paragraph (1) 
     to the Administrator that--
       (A) identifies the name, address, and emergency contact 
     information of each food establishment or foreign food 
     establishment that the registrant operates under this Act and 
     all trade names under which the registrant conducts business 
     relating to food;
       (B) lists the primary purpose and business activity of each 
     food establishment or foreign food establishment, including 
     the dates of operation if the food establishment or foreign 
     food establishment is seasonal;
       (C) lists the types of food processed or sold at each food 
     establishment or, for foreign food establishments selling 
     food for consumption in the United States, identifies the 
     specific food categories of that food as listed under section 
     170.3 of title 21, Code of Federal Regulations; and
       (D) not later than 30 days after a change in the products, 
     function, or legal status of the food establishment or 
     foreign food establishment (including cessation of business 
     activities), notifies the Administrator of the change.
       (3) Procedure.--Upon receipt of a completed registration 
     described in paragraph (1), the Administrator shall notify 
     the registrant of the receipt of the registration, designate 
     each establishment as a category 1, 2, 3, 4, or 5 food 
     establishment, and assign a registration number to each food 
     establishment and foreign food establishment.
       (4) List.--The Administrator shall compile and maintain an 
     up-to-date list of food establishments and foreign food 
     establishments that are registered under this section. The 
     Administrator may establish regulations by which such list 
     may be shared with other governmental authorities.
       (5) Disclosure exemption.--The disclosure requirements 
     under section 552 of title 5, United States Code, shall not 
     apply to--
       (A) the list compiled under paragraph (4); and
       (B) information derived from the list under paragraph (4), 
     to the extent that it discloses the identity or location of a 
     specific registered person.
       (6) Suspension of registration.--
       (A) In general.--The Administrator may suspend the 
     registration of a food establishment or foreign food 
     establishment, including the facility of an importer, for 
     violation of a food safety law.
       (B) Notice and opportunity for hearing.--The Administrator 
     shall provide notice to a registrant immediately upon the 
     suspension of the registration of the facility and provide 
     registrant with an opportunity for a hearing within 3 days of 
     the suspension.
       (7) Reinstatement.--A registration that is suspended under 
     this section may be reinstated pursuant to criteria published 
     in the Federal Register by the Administrator.

     SEC. 203. PREVENTATIVE PROCESS CONTROLS TO REDUCE 
                   ADULTERATION OF FOOD.

       (a) In General.--The Administrator shall, upon the basis of 
     best available public health, scientific, and technological 
     data,

[[Page 5855]]

     promulgate regulations to ensure that food establishments 
     carry out their responsibilities to--
       (1) process food in a sanitary manner so that it is free of 
     dirt and filth;
       (2) limit the presence of potentially harmful contaminants 
     in food;
       (3) implement appropriate measures of preventative process 
     control to minimize and reduce the presence and growth of 
     contaminants in food and meet the performance standards 
     established under section 204;
       (4) process all fully processed or ready-to-eat food in a 
     sanitary manner, using reasonably available techniques and 
     technologies to eliminate any potentially harmful 
     contaminants; and
       (5) label food intended for final processing outside 
     commercial food establishments with instructions for handling 
     and preparation for consumption that will destroy 
     contaminants.
       (b) Regulations.--Not later than 1 year after the effective 
     date of this Act, the Administrator shall promulgate 
     regulations that--
       (1) require all food establishments to adopt preventative 
     process controls that are--
       (A) adequate to protect the public health;
       (B) meet relevant regulatory and food safety standards; and
       (C) limit the presence and growth of contaminants in food 
     prepared in a food establishment;
       (2) set standards for sanitation;
       (3) meet any performance standards for contaminants 
     established under section 204;
       (4) require recordkeeping to monitor compliance;
       (5) require sampling and testing at a frequency and in a 
     manner sufficient to ensure that process controls are 
     effective on an ongoing basis and that regulatory standards 
     are being met; and
       (6) provide for agency access to records kept by food 
     establishments and submission of copies of the records to the 
     Administrator, as the Administrator determines appropriate.
       (c) Processing Controls.--The Administrator may require any 
     person with responsibility for or control over food or food 
     ingredients to adopt process controls, if the process 
     controls are needed to ensure the protection of the public 
     health.

     SEC. 204. PERFORMANCE STANDARDS FOR CONTAMINANTS IN FOOD.

       (a) In General.--To protect the public health, the 
     Administrator shall establish by regulation and enforce 
     performance standards that define, with respect to specific 
     food-borne contaminants and foods, the level of food safety 
     performance that a person responsible for producing, 
     processing, or selling food shall meet.
       (b) Identification of Contaminants; Performance 
     Standards.--
       (1) In general.--Not later than 6 months after the date of 
     enactment of this Act, the Administrator shall identify the 
     food-borne contaminants and food that contribute 
     significantly to the risk of food-borne illness.
       (2) Performance standards.--As soon as practicable after 
     the identification of the contaminants under paragraph (1), 
     the Administrator shall establish appropriate performance 
     standards to protect against all food-borne contaminants.
       (3) Significant contaminants.--The Administrator shall 
     establish performance standards for the 5 contaminants that 
     contribute to the greatest number of illnesses or deaths 
     associated with raw meat, poultry, and seafood not later than 
     3 years after the date of enactment of this Act. The 
     Administrator shall revise such standards not less often than 
     every 3 years.
       (c) Performance Standards.--
       (1) In general.--The performance standards established 
     under this section shall include--
       (A) health-based standards that set the level of a 
     contaminant that can safely and lawfully be present in food;
       (B) zero tolerances, including zero tolerances for fecal 
     matter, in addition to any zero-tolerance standards in effect 
     on the day before the date of enactment of this Act, when 
     necessary to protect against significant adverse health 
     outcomes;
       (C) process standards, such as log reduction criteria for 
     cooked products, when sufficient to ensure the safety of 
     processed food; and
       (D) in the absence of data to support a performance 
     standard described in subparagraph (A), (B), or (C), 
     standards that define required performance in terms of ``best 
     reasonably achievable performance'', using best available 
     technologies, interventions, and practices.
       (2) Best reasonably achievable performance standards.--In 
     developing best reasonably achievable performance standards, 
     the Administrator shall collect, or contract for the 
     collection of, data on current best practices and food safety 
     outcomes related to the contaminants and foods in question, 
     as the Administrator determines necessary.
       (3) Revocation by administrator.--All performance 
     standards, tolerances, action levels, or other similar 
     standards in effect on the date of enactment of this Act 
     shall remain in effect until revised or revoked by the 
     Administrator.
       (d) Enforcement.--
       (1) In general.--Not later than 1 year after the 
     promulgation of a performance standard under this section, 
     the Administrator shall implement a statistically significant 
     sampling program to determine whether food establishments are 
     complying with the performance standards promulgated under 
     this section. The program established under this paragraph 
     shall be at least as stringent as the Hazard Analysis and 
     Critical Control Point System requirements established under 
     part 417 of title 9, Code of Federal Regulations (or 
     successor regulation).
       (2) Inspections.--If the Administrator determines that a 
     food establishment fails to meet a standard promulgated under 
     this section, and such establishment fails to take 
     appropriate corrective action as determined by the 
     Administrator, the Administrator shall, as appropriate--
       (A) detain, seize, or condemn food from the food 
     establishment under section 402;
       (B) order a recall of food from the food establishment 
     under section 403;
       (C) increase the inspection frequency for the food 
     establishment;
       (D) withdraw the mark of inspection from the food 
     establishment, if in use; or
       (E) take other appropriate enforcement action concerning 
     the food establishment, including withdrawal of registration.
       (e) Newly Identified Contaminants.--Notwithstanding any 
     other provision of this section, the Administrator shall 
     promulgate interim performance standards for newly identified 
     contaminants as necessary to protect the public health.

     SEC. 205. INSPECTIONS OF FOOD ESTABLISHMENTS.

       (a) In General.--The Administrator shall establish an 
     inspection program, which shall include sampling and testing 
     of food and food establishments, to determine if each food 
     establishment--
       (1) is operating in a sanitary manner;
       (2) has continuous systems, interventions, and processes in 
     place to minimize or eliminate contaminants in food;
       (3) is in compliance with applicable performance standards 
     established under section 203, and other regulatory 
     requirements;
       (4) is processing food that is safe and not adulterated or 
     misbranded;
       (5) maintains records of process control plans under 
     section 203, and other records related to the processing, 
     sampling, and handling of food; and
       (6) is in compliance with the requirements of the food 
     safety law.
       (b) Establishment Categories and Inspection Frequencies.--
     The resource plan required under section 209, including the 
     description of resources required to carry out inspections of 
     food establishments, shall be based on the following 
     categories and inspection frequencies, subject to subsections 
     (c), (d), and (e):
       (1) Category 1 food establishments.--A category 1 food 
     establishment shall be subject to antemortem, postmortem, and 
     continuous inspection of each slaughter line during all 
     operating hours, and other inspection on a daily basis, 
     sufficient to verify that--
       (A) diseased animals are not offered for slaughter;
       (B) the food establishment has successfully identified and 
     removed from the slaughter line visibly defective or 
     contaminated carcasses, has avoided cross-contamination, and 
     destroyed or reprocessed them in a manner acceptable to the 
     Administrator; and
       (C) that applicable performance standards and other 
     provisions of the food safety law, including those intended 
     to eliminate or reduce pathogens, have been satisfied.
       (2) Category 2 food establishments.--A category 2 food 
     establishment shall be randomly inspected at least daily.
       (3) Category 3 food establishments.--A category 3 food 
     establishment shall--
       (A) have ongoing verification that its processes are 
     controlled; and
       (B) be randomly inspected at least monthly.
       (4) Category 4 food establishments.--A category 4 food 
     establishment shall be randomly inspected at least quarterly.
       (5) Category 5 food establishments.--A category 5 food 
     establishment shall be randomly inspected at least annually.
       (c) Establishment of Inspection Procedures.--The 
     Administrator shall establish procedures under which 
     inspectors or safety officers shall take random samples, 
     photographs, and copies of records in food establishments.
       (d) Alternative Inspection Frequencies.--With respect to a 
     category 2, 3, 4, or 5 food establishment, the Administrator 
     may establish alternative increasing or decreasing inspection 
     frequencies for subcategories of food establishments or 
     individual establishments, to foster risk-based allocation of 
     resources, subject to the following criteria and procedures:
       (1) Subcategories of food establishments and their 
     alternative inspection frequencies shall be defined by 
     regulation, subject to paragraphs (2) and (3).
       (2) Regulations of alternative inspection frequencies for 
     subcategories of food establishments under paragraph (1) and 
     for a specific food establishment under paragraph (4) shall 
     provide that--
       (A) category 2 food establishments shall be inspected at 
     least monthly; and

[[Page 5856]]

       (B) category 3, 4, and 5 food establishments shall be 
     inspected at least annually.
       (3) In defining subcategories of food establishments and 
     their alternative inspection frequencies under paragraphs (1) 
     and (2), the Administrator shall consider--
       (A) the nature of the food products being processed, 
     stored, or transported;
       (B) the manner in which food products are processed, 
     stored, or transported;
       (C) the inherent likelihood that the products will 
     contribute to the risk of food-borne illness;
       (D) the best available evidence concerning reported 
     illnesses associated with the foods produced in the proposed 
     subcategory of establishments; and
       (E) the overall record of compliance with the food safety 
     law among establishments in the proposed subcategory, 
     including compliance with applicable performance standards 
     and the frequency of recalls.
       (4) The Administrator may adopt alternative inspection 
     frequencies for increased or decreased inspection for a 
     specific establishment, subject to paragraphs (2) and (5) and 
     shall periodically publish a list of establishments subject 
     to alternative inspections.
       (5) In adopting alternative inspection frequencies for a 
     specific establishment, the Administrator shall consider--
       (A) the criteria in paragraph (3);
       (B) whether products from the specific establishment have 
     been associated with a case or an outbreak of food-borne 
     illness; and
       (C) the record of the establishment of compliance with the 
     food safety law, including compliance with applicable 
     performance standards and the frequency of recalls.
       (6) Before establishing decreased alternative inspection 
     frequencies for subcategories of establishments or individual 
     establishments, the Administrator shall--
       (A) determine, based on the best available evidence, that 
     the alternative uses of the resources required to carry out 
     the inspection activity would make a greater contribution to 
     protecting the public health and reducing the risk of food-
     borne illness than the use of resources described in 
     subsection (b);
       (B) describe the alternative uses of resources in general 
     terms when issuing the regulation or order that establishes 
     the alternative inspection frequency;
       (C) consider the supporting evidence that an individual 
     food establishment shall submit related to whether an 
     alternative inspection frequency should be established for 
     such establishment by the Administrator; and
       (D) include a description of the alternative uses in the 
     annual resource plan required in section 209.
       (e) Inspection Transition.--The Administrator shall manage 
     the transition to the inspection system described in this Act 
     as follows:
       (1) In the case of a category 1 or 2 food establishment, 
     the Administrator shall continue to implement the applicable 
     inspection mandates of the Federal Meat Inspection Act (21 
     U.S.C. 601 et seq.), the Poultry Products Inspection Act (21 
     U.S.C. 451 et seq.), and the Federal Food, Drug, and Cosmetic 
     Act (21 U.S.C. 301 et seq.) until--
       (A) regulations required to implement this section have 
     been promulgated;
       (B) the performance standards required by section 204(c) 
     have been promulgated and implemented for 1 year; and
       (C) the establishment has achieved compliance with the 
     other applicable provisions of the food safety law.
       (2) In the case of a category 1 or 2 food establishment 
     that, within 2 years after the promulgation of the 
     performance standards required by section 204(c), has not 
     achieved compliance with the food safety law, the 
     Administrator shall--
       (A) issue an order prohibiting the establishment from 
     operating pending a demonstration by the establishment that 
     sufficient changes in facilities, procedures, personnel, or 
     other aspects of the process control system have been made 
     such that the Administrator determines that compliance with 
     the food safety law is achieved; and
       (B) following the demonstration required in subparagraph 
     (A), issue an order authorizing the food establishment to 
     operate subject, at a minimum, to--
       (i) the inspection requirement applicable to the 
     establishment under subsection (b) (1) or (2); and
       (ii) such other inspection or compliance measures 
     determined by the Administrator necessary to assure 
     compliance with the applicable food safety law.
       (3) In the case of a category 3 food establishment, the 
     Administrator shall continue to implement the applicable 
     inspection mandates of the Federal Meat Inspection Act (21 
     U.S.C. 601 et seq.), the Poultry Products Inspection Act (21 
     U.S.C. 451 et seq.), and the Federal Food, Drug, and Cosmetic 
     Act (21 U.S.C. 301 et seq.) until--
       (A) the regulations required to implement this section have 
     been promulgated;
       (B) the first resource plan under section 209 has been 
     submitted; and
       (C) for individual establishments, compliance with the food 
     safety law has been demonstrated.
       (4) In the case of a category 3 food establishment that, 
     within 1 year after the promulgation of the regulations 
     required to implement this section, have not demonstrated 
     compliance with the food safety law, the Administrator 
     shall--
       (A) issue an order prohibiting the establishment from 
     operating, pending a demonstration by the establishment that 
     sufficient changes in facilities, procedures, personnel, or 
     other aspects of the process control system have been made 
     such that the Administrator determines that compliance with 
     the food safety law is achieved; and
       (B) following the demonstration required in subparagraph 
     (A), issue an order authorizing the establishment to operate 
     subject, at a minimum, to--
       (i) the inspection requirement applicable to the 
     establishment under subsection (b)(3); and
       (ii) such other inspection or compliance measures 
     determined by the Administrator necessary to assure 
     compliance with the food safety law.
       (5) In the case of a category 4 or 5 food establishment, 
     the inspection requirements of this Act shall be implemented 
     as soon as possible after--
       (A) the promulgation of the regulations required to 
     implement this section;
       (B) the publication of the first resource plan under 
     section 209; and
       (C) the commencement of the first fiscal year in which the 
     Administration is operating with budgetary resources that 
     Congress has appropriated following consideration of the 
     resource plan under section 209.
       (f) Official Mark.--
       (1) In general.--
       (A) Establishment.--Before the completion of the transition 
     process under paragraphs (1) through (3) of subsection (e), 
     the Administrator shall by regulation establish an official 
     mark that shall be affixed to a food product produced in a 
     category 1, 2, or 3 establishment, subject to subparagraph 
     (B).
       (B) Prerequisite.--The official mark required under 
     subparagraph (A) shall be affixed to a food product by the 
     Administrator if the establishment has been inspected by the 
     Administrator in accordance with the inspection frequencies 
     under this section and the establishment is in compliance 
     with the food safety law.
       (C) Removal of official mark.--The Administrator shall 
     promulgate regulations that provide for the removal of the 
     official mark under this subsection if the Administrator 
     makes a finding that the establishment is not in compliance 
     with the food safety law.
       (2) Category 1, 2, or 3 food establishments.--In the case 
     of products produced in a category 1, 2, or 3 food 
     establishment--
       (A) products subject to Federal Meat Inspection Act (21 
     U.S.C. 601 et seq.), the Poultry Products Inspection Act (21 
     U.S.C. 451 et seq.), the Egg Products Inspection Act (21 
     U.S.C. 1031 et seq.), and the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 301 et seq.) as of the date of 
     enactment of this Act shall remain subject to the requirement 
     under those Acts that they bear the mark of inspection 
     pending completion of the transition process under paragraphs 
     (1) through (3) of subsection (e);
       (B) the Administrator shall publicly certify on a monthly 
     basis that the inspection frequencies required under this Act 
     have been achieved; and
       (C) a product from an establishment that has not been 
     inspected in accordance with the required frequencies under 
     this section shall not bear the official mark and shall not 
     be shipped in interstate commerce.
       (3) Category 4 and 5 food establishments.--In the case of a 
     product produced in a category 4 or 5 food establishment the 
     Administrator shall provide by regulation for the voluntary 
     use of the official mark established under paragraph (1), 
     subject to--
       (A) such minimum inspection frequencies as determined 
     appropriate by the Administrator;
       (B) compliance with applicable performance standards and 
     other provisions of the food safety law; and
       (C) such other requirements the Administrator considers 
     appropriate.
       (g) Implementation.--Not later than 1 year after the 
     effective date of this Act, the Administrator shall issue 
     regulations to implement subsections (b) through (e).
       (h) Maintenance and Inspection of Records.--
       (1) In general.--
       (A) Records.--A food establishment shall--
       (i) maintain such records as the Administrator shall 
     require by regulation, including all records relating to the 
     processing, distributing, receipt, or importation of any 
     food; and
       (ii) permit the Administrator, in addition to any authority 
     of the food safety agencies in effect on the day before the 
     date of enactment of this Act, upon presentation of 
     appropriate credentials and at reasonable times and in a 
     reasonable manner, to have access to and copy all records 
     maintained by or on behalf of such food establishment 
     representative in any format (including paper or electronic) 
     and at any location, that are necessary to assist the 
     Administrator--

       (I) to determine whether the food is contaminated or not in 
     compliance with the food safety law; or
       (II) to track the food in commerce.

[[Page 5857]]

       (B) Required disclosure.--A food establishment shall have 
     an affirmative obligation to disclose to the Administrator 
     the results of testing or sampling of food, equipment, or 
     material in contact with food, that is positive for any 
     contaminant.
       (2) Maintenance of records.--The records in paragraph (1) 
     shall be maintained for a reasonable period of time, as 
     determined by the Administrator.
       (3) Requirements.--The records in paragraph (1) shall 
     include records describing--
       (A) the origin, receipt, delivery, sale, movement, holding, 
     and disposition of food or ingredients;
       (B) the identity and quantity of ingredients used in the 
     food;
       (C) the processing of the food;
       (D) the results of laboratory, sanitation, or other tests 
     performed on the food or in the food establishment;
       (E) consumer complaints concerning the food or packaging of 
     the food;
       (F) the production codes, open date codes, and locations of 
     food production; and
       (G) other matters reasonably related to whether food is 
     unsafe, is adulterated or misbranded, or otherwise fails to 
     meet the requirements of this Act.
       (i) Protection of Sensitive Information.--
       (1) In general.--The Administrator shall develop and 
     maintain procedures to prevent the unauthorized disclosure of 
     any trade secret or confidential information obtained by the 
     Administrator.
       (2) Limitation.--The requirement under this subsection does 
     not--
       (A) limit the authority of the Administrator to inspect or 
     copy records or to require the establishment or maintenance 
     of records under this Act;
       (B) have any legal effect on section 1905 of title 18, 
     United States Code;
       (C) extend to any food recipe, financial data, pricing 
     data, personnel data, or sales data (other than shipment 
     dates relating to sales);
       (D) limit the public disclosure of distribution records or 
     other records related to food subject to a voluntary or 
     mandatory recall under section 403; or
       (E) limit the authority of the Administrator to promulgate 
     regulations to permit the sharing of data with other 
     governmental authorities.
       (j) Bribery of or Gifts to Inspector or Other Officers and 
     Acceptance of Gifts.--Section 22 of the Federal Meat 
     Inspection Act (21 U.S.C. 622) shall apply under this Act.

     SEC. 206. FOOD PRODUCTION FACILITIES.

       In carrying out the duties of the Administrator and the 
     purposes of this Act, the Administrator shall have the 
     authority, with respect to food production facilities, to--
       (1) visit and inspect food production facilities in the 
     United States and in foreign countries to investigate 
     bioterrorism threats and for other critical food safety 
     purposes;
       (2) review food safety records as required to be kept by 
     the Administrator to carry out traceback and for other 
     critical food safety purposes;
       (3) set good practice standards to protect the public and 
     animal health and promote food safety;
       (4) conduct monitoring and surveillance of animals, plants, 
     products, or the environment, as appropriate; and
       (5) collect and maintain information relevant to public 
     health and farm practices.

     SEC. 207. FEDERAL AND STATE COOPERATION.

       (a) In General.--The Administrator shall work with the 
     States to carry out activities and programs that create a 
     national food safety program so that Federal and State 
     programs function in a coordinated and cost-effective manner.
       (b) State Action.--The Administrator shall work with States 
     to--
       (1) continue, strengthen, or establish State food safety 
     programs, especially with respect to the regulation of retail 
     commercial food establishments, transportation, harvesting, 
     and fresh markets;
       (2) continue, strengthen, or establish inspection programs 
     and requirements to ensure that food under the jurisdiction 
     of the State is safe; and
       (3) support recall authorities at the State and local 
     levels.
       (c) Assistance.--To assist in planning, developing, and 
     implementing a food safety program, the Administrator may 
     provide and continue to a State--
       (1) advisory assistance;
       (2) technical and laboratory assistance and training 
     (including necessary materials and equipment); and
       (3) financial, in kind, and other aid.
       (d) Service Agreements.--
       (1) In general.--The Administrator may, under agreements 
     entered into with Federal, State, or local agencies, use on a 
     reimbursable basis or otherwise, the personnel and services 
     of those agencies in carrying out this Act.
       (2) Training.--Agreements with a State under this 
     subsection may provide for training of State employees.
       (3) Maintenance of agreements.--The Administrator shall 
     maintain any agreement that is in effect on the day before 
     the date of enactment of this Act until the Administrator 
     evaluates such agreement and determines whether to maintain 
     or substitute such agreement.
       (e) Audits.--
       (1) In general.--The Administrator shall annually conduct a 
     comprehensive review of each State program that provides 
     services to the Administrator in carrying out the 
     responsibilities under this Act, including mandated 
     inspections under section 205.
       (2) Requirements.--The review shall--
       (A) include a determination of the effectiveness of the 
     State program; and
       (B) identify any changes necessary to ensure enforcement of 
     Federal requirements under this Act.
       (f) No Federal Preemption.--Nothing in this Act shall be 
     construed to preempt the enforcement of State food safety 
     laws and standards that are at least as stringent as those 
     under this Act.

     SEC. 208. IMPORTS.

       (a) In General.--Not later than 2 years after the effective 
     date of this Act, the Administrator shall establish a system 
     under which a foreign government or foreign food 
     establishment seeking to import food to the United States 
     shall submit a request for certification to the 
     Administrator.
       (b) Certification Standard.--A foreign government or 
     foreign food establishment requesting a certification to 
     import food to the United States shall demonstrate, in a 
     manner determined appropriate by the Administrator, that food 
     produced under the supervision of a foreign government or by 
     the foreign food establishment has met standards for food 
     safety, inspection, labeling, and consumer protection that 
     are at least equivalent to standards applicable to food 
     produced in the United States.
       (c) Certification Approval.--
       (1) Request by foreign government.--Prior to granting the 
     certification request of a foreign government, the 
     Administrator shall review, audit, and certify the food 
     safety program of a requesting foreign government (including 
     all statutes, regulations, and inspection authority) as at 
     least equivalent to the food safety program in the United 
     States, as demonstrated by the foreign government.
       (2) Request by foreign food establishment.--Prior to 
     granting the certification request of a foreign food 
     establishment, the Administrator shall certify, based on an 
     onsite inspection, the food safety programs and procedures of 
     a requesting foreign firm as at least equivalent to the food 
     safety programs and procedures of the United States.
       (d) Limitation.--A foreign government or foreign firm 
     approved by the Administrator to import food to the United 
     States under this section shall be certified to export only 
     the approved food products to the United States for a period 
     not to exceed 5 years.
       (e) Withdrawal of Certification.--The Administrator may 
     withdraw certification of any food from a foreign government 
     or foreign firm--
       (1) if such food is linked to an outbreak of human illness;
       (2) following an investigation by the Administrator that 
     finds that the foreign government programs and procedures or 
     foreign food establishment is no longer equivalent to the 
     food safety programs and procedures in the United States; or
       (3) following a refusal to allow United States officials to 
     conduct such audits and investigations as may be necessary to 
     fulfill the requirements under this section.
       (f) Renewal of Certification.--The Administrator shall 
     audit foreign governments and foreign food establishments at 
     least every 5 years to ensure the continued compliance with 
     the standards set forth in this section.
       (g) Required Routine Inspection.--The Administrator shall 
     routinely inspect food and food animals (via a physical 
     examination) before it enters the United States to ensure 
     that it is--
       (1) safe;
       (2) labeled as required for food produced in the United 
     States; and
       (3) otherwise meets requirements under the food safety law.
       (h) Enforcement.--The Administrator is authorized to--
       (1) deny importation of food from any foreign government 
     that does not permit United States officials to enter the 
     foreign country to conduct such audits and inspections as may 
     be necessary to fulfill the requirements under this section;
       (2) deny importation of food from any foreign government or 
     foreign firm that does not consent to an investigation by the 
     Administration when food from that foreign country or foreign 
     firm is linked to a food-borne illness outbreak or is 
     otherwise found to be adulterated or mislabeled; and
       (3) promulgate rules and regulations to carry out the 
     purposes of this section, including setting terms and 
     conditions for the destruction of products that fail to meet 
     the standards of this Act.
       (i) Detention and Seizure.--Any food imported for 
     consumption in the United States may be detained, seized, or 
     condemned pursuant to section 402.

     SEC. 209. RESOURCE PLAN.

       (a) In General.--The Administrator shall prepare and update 
     annually a resource plan describing the resources required, 
     in the best professional judgment of the Administrator, to 
     develop and fully implement the national

[[Page 5858]]

     food safety program established under this Act.
       (b) Contents of Plan.--The resource plan shall--
       (1) describe quantitatively the personnel, financial, and 
     other resources required to carry out the inspection of food 
     establishments under section 205 and other requirements of 
     the national food safety program;
       (2) allocate inspection resources in a manner reflecting 
     the distribution of risk and opportunities to reduce risk 
     across the food supply to the extent feasible based on the 
     best available information, and subject to section 205; and
       (3) describe the personnel, facilities, equipment, and 
     other resources needed to carry out inspection and other 
     oversight activities, at a total resource level equal to at 
     least 50 percent of the resources required to carry out 
     inspections in food establishments under section 205--
       (A) in foreign establishments;
       (B) at the point of importation; and
       (C) at the point of production on farms, ranches, and 
     feedlots.
       (c) Grants.--The resource plan shall include 
     recommendations for funding to provide grants to States and 
     local governments to carry out food safety activities in 
     retail and food service facilities and the required 
     inspections in food establishments.
       (d) Submission of Plan.--The Administrator shall submit 
     annually to the Committee on Appropriations of the Senate, 
     the Committee on Appropriations of the House of 
     Representatives, and other relevant committees of Congress, 
     the resource plan required under this section.

     SEC. 210. TRACEBACK.

       (a) In General.--The Administrator, in order to protect the 
     public health, shall establish requirements for a national 
     system for tracing food and food producing animals from point 
     of origin to retail sale, subject to subsection (b).
       (b) Applicability.--Traceability requirements shall--
       (1) be established in accordance with regulations and 
     guidelines issued by the Administrator; and
       (2) apply to food production facilities and food 
     establishments.
       (c) Relationship to Country of Origin Labeling.--Nothing 
     contained in this section prevents or interferes with 
     implementation of the country of origin labeling requirements 
     of subtitle D of the Agricultural Marketing Act of 1946 (7 
     U.S.C. 1638 et seq.).

                   TITLE III--RESEARCH AND EDUCATION

     SEC. 301. PUBLIC HEALTH ASSESSMENT SYSTEM.

       (a) In General.--The Administrator, acting in coordination 
     with the Director of the Centers for Disease Control and 
     Prevention and with the Research Education and Economics 
     mission area of the Department of Agriculture, shall--
       (1) have access to the applicable data systems of the 
     Centers for Disease Control and Prevention and to the 
     databases made available by a State;
       (2) maintain an active surveillance system of food, food 
     products, and epidemiological evidence submitted by States to 
     the Centers for Disease Control and Prevention based on a 
     representative proportion of the population of the United 
     States;
       (3) assess the frequency and sources of human illness in 
     the United States associated with the consumption of food;
       (4) maintain a state-of-the-art DNA matching system and 
     epidemiological system dedicated to food-borne illness 
     identification, outbreaks, and containment; and
       (5) have access to the surveillance data created via 
     monitoring and statistical studies conducted as part of its 
     own inspection.
       (b) Public Health Sampling.--
       (1) In general.--Not later than 1 year after the effective 
     date of this Act, the Administrator shall establish 
     guidelines for a sampling system under which the 
     Administrator shall take and analyze samples of food--
       (A) to assist the Administrator in carrying out this Act; 
     and
       (B) to assess the nature, frequency of occurrence, and 
     quantities of contaminants in food.
       (2) Requirements.--The sampling system described in 
     paragraph (1) shall provide--
       (A) statistically valid monitoring, including market-based 
     studies, on the nature, frequency of occurrence, and 
     quantities of contaminants in food available to consumers; 
     and
       (B) at the request of the Administrator, such other 
     information, including analysis of monitoring and 
     verification samples, as the Administrator determines may be 
     useful in assessing the occurrence of contaminants in food.
       (c) Assessment of Health Hazards.--
       (1) In general.--Through the surveillance system referred 
     to in subsection (a) and the sampling system described in 
     subsection (b), the Administrator shall--
       (A) rank food categories based on the hazard to human 
     health presented by the food category;
       (B) identify appropriate industry and regulatory approaches 
     to minimize hazards in the food supply; and
       (C) assess the public health environment for emerging 
     diseases, including zoonosis, for their risk of appearance in 
     the United States food supply.
       (2) Components of analysis.--The analysis under subsection 
     (b)(1) may include--
       (A) a comparison of the safety of commercial processing 
     with the health hazards associated with food that is 
     harvested for recreational or subsistence purposes and 
     prepared noncommercially;
       (B) a comparison of the safety of food that is domestically 
     processed with the health hazards associated with food that 
     is processed outside the United States;
       (C) a description of contamination originating from 
     handling practices that occur prior to or after the sale of 
     food to consumers; and
       (D) use of comparative risk assessments.

     SEC. 302. PUBLIC EDUCATION AND ADVISORY SYSTEM.

       (a) Public Education.--
       (1) In general.--The Administrator, in cooperation with 
     private and public organizations, including the cooperative 
     extension services and building on the efforts of appropriate 
     State and local entities, shall establish a national public 
     education program on food safety.
       (2) Requirements.--The program shall provide--
       (A) information to the public regarding Federal standards 
     and best practices and promotion of public awareness, 
     understanding, and acceptance of those standards and 
     practices;
       (B) information for health professionals--
       (i) to improve diagnosis and treatment of food-related 
     illness; and
       (ii) to advise individuals at special risk for food-related 
     illnesses; and
       (C) such other information or advice to consumers and other 
     persons as the Administrator determines will promote the 
     purposes of this Act.
       (b) Health Advisories.--The Administrator, in consultation 
     with other Federal departments and agencies as the 
     Administrator determines necessary, shall work with the 
     States and other appropriate entities--
       (1) to develop and distribute regional and national 
     advisories concerning food safety;
       (2) to develop standardized formats for written and 
     broadcast advisories;
       (3) to incorporate State and local advisories into the 
     national public education program established under 
     subsection (a); and
       (4) to present prompt, specific information regarding foods 
     found to pose a threat to the public health.

     SEC. 303. RESEARCH.

       (a) In General.--The Administrator shall conduct research 
     to carry out this Act, including studies to--
       (1) improve sanitation and food safety practices in the 
     processing of food;
       (2) develop improved techniques to monitor and inspect 
     food;
       (3) develop efficient, rapid, and sensitive methods to 
     detect contaminants in food;
       (4) determine the sources of contamination of contaminated 
     food;
       (5) develop food consumption data;
       (6) identify ways that animal production techniques could 
     improve the safety of the food supply;
       (7) draw upon research and educational programs that exist 
     at the State and local level;
       (8) utilize the DNA matching system and other processes to 
     identify and control pathogens;
       (9) address common and emerging zoonotic diseases;
       (10) develop methods to reduce or destroy harmful pathogens 
     before, during, and after processing;
       (11) analyze the incidence of antibiotic resistence as it 
     pertains to the food supply and develop new methods to reduce 
     the transfer of antibiotic resistance to humans; and
       (12) conduct other research that supports the purposes of 
     this Act.
       (b) Contract Authority.--The Administrator may enter into 
     contracts and agreements with any State, university, Federal 
     Government agency, or person to carry out this section.

                         TITLE IV--ENFORCEMENT

     SEC. 401. PROHIBITED ACTS.

       It is prohibited--
       (1) to manufacture, introduce, deliver for introduction, or 
     receive into interstate commerce any food that is 
     adulterated, misbranded, or otherwise unsafe;
       (2) to adulterate or misbrand any food in interstate 
     commerce;
       (3) for a food establishment or foreign food establishment 
     to fail to register under section 202, or to operate without 
     a valid registration;
       (4) to refuse to permit access to a food establishment for 
     the inspection and copying of a record as required under 
     section 205(h);
       (5) to fail to establish or maintain any record or to make 
     any report as required under section 205(h);
       (6) to refuse to permit entry to or inspection of a food 
     establishment as required under section 205;
       (7) to fail to provide to the Administrator the results of 
     a testing or sampling of a food, equipment, or material in 
     contact with contaminated food under section 205(i);
       (8) to fail to comply with a provision, regulation, or 
     order of the Administrator under section 202, 203, 204, or 
     208;

[[Page 5859]]

       (9) to slaughter an animal that is capable for use in whole 
     or in part as human food at a food establishment processing 
     any such food for commerce, except in compliance with the 
     food safety law;
       (10) to transfer food in violation of an administrative 
     detention order under section 402 or to remove or alter a 
     required mark or label identifying the food as detained;
       (11) to fail to comply with a recall or other order under 
     section 403; or
       (12) to otherwise violate the food safety law.

     SEC. 402. FOOD DETENTION, SEIZURE, AND CONDEMNATION.

       (a) Administrative Detention of Food.--
       (1) Expanded authority.--The Administrator shall have 
     authority under section 304 of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 334) to administratively detain and 
     seize any food that the Administrator has reason to believe 
     is unsafe, is adulterated or misbranded, or otherwise fails 
     to meet the requirements of the food safety law.
       (2) Detention authority.--If, during an inspection 
     conducted in accordance with section 205 or 208, an officer, 
     employee, or agent of the Administration making the 
     inspection has reason to believe that a domestic food, 
     imported food, or food offered for import is unsafe, is 
     adulterated or misbranded, or otherwise fails to meet the 
     requirements of this Act, the officer or employee may order 
     the food detained.
       (3) Period of detention.--
       (A) In general.--A food may be detained for a reasonable 
     period, not to exceed 20 days, unless a longer period, not to 
     exceed 30 days, is necessary for the Administrator to 
     institute a seizure action.
       (B) Perishable food.--The Administrator shall provide by 
     regulation for procedures to institute a seizure action on an 
     expedited basis with respect to perishable food.
       (4) Security of detained food.--
       (A) In general.--A detention order--
       (i) may require that the food be labeled or marked as 
     detained; and
       (ii) shall require that the food be removed to a secure 
     facility, if appropriate.
       (B) Food subject to an order.--A food subject to a 
     detention order shall not be transferred by any person from 
     the place at which the food is removed, until released by the 
     Administrator or until the expiration of the detention period 
     applicable under the order, whichever occurs first.
       (C) Delivery of food.--This subsection does not authorize 
     the delivery of a food in accordance with execution of a bond 
     while the article is subject to the order.
       (b) Appeal of Detention Order.--
       (1) In general.--A person who would be entitled to be a 
     claimant for a food subject to a detention order if the food 
     were seized under section 304 of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 334), may appeal the order to the 
     Administrator.
       (2) Action by the administrator.--Not later than 5 days 
     after an appeal is filed under paragraph (1), the 
     Administrator, after providing an opportunity for an informal 
     hearing, shall confirm, modify, or terminate the order 
     involved.
       (3) Final agency action.--Confirmation, modification, or 
     termination by the Administrator under paragraph (2) shall be 
     considered a final agency action for purposes of section 702 
     of title 5, United States Code.
       (4) Termination.--The order shall be considered to be 
     terminated if, after 5 days, the Administrator has failed--
       (A) to provide an opportunity for an informal hearing; or
       (B) to confirm, modify, or terminate the order.
       (5) Effect of instituting court action.--If the 
     Administrator initiates an action under section 302 of the 
     Federal Food, Drug, and Cosmetic Act (21 U.S.C. 332) or 
     section 304(a) of that Act (21 U.S.C. 334(a)), the process 
     for the appeal of the detention order shall terminate.
       (c) Condemnation of Food.--
       (1) In general.--After confirming a detention order, the 
     Administrator may order the food condemned.
       (2) Destruction of food.--Any food condemned shall be 
     destroyed under the supervision of the Administrator.
       (3) Release of food.--If the Administrator determines that, 
     through reprocessing, relabeling, or other action, a detained 
     food can be brought into compliance with this Act, the food 
     may be released following a determination by the 
     Administrator that the relabeling or other action as 
     specified by the Administrator has been performed.
       (d) Temporary Holds at Ports of Entry.--
       (1) In general.--If an officer or qualified employee of the 
     Administration has reason to believe that a food is unsafe, 
     is adulterated or misbranded, or otherwise fails to meet the 
     requirements of this Act, and the officer or qualified 
     employee is unable to inspect, examine, or investigate the 
     food when the food is offered for import at a port of entry 
     into the United States, the officer or qualified employee 
     shall request the Secretary of Homeland Security to hold the 
     food at the port of entry for a reasonable period of time, 
     not to exceed 24 hours, to enable the Administrator to 
     inspect or investigate the food as appropriate.
       (2) Removal to secure facility.--The Administrator shall 
     work in coordination with the Secretary of Homeland Security 
     to remove a food held in accordance with paragraph (1) to a 
     secure facility as appropriate.
       (3) Prohibition on transfer.--During the period in which 
     the food is held, the food shall not be transferred by any 
     person from the port of entry into the United States, or from 
     the secure facility to which the food has been removed.
       (4) Delivery in accordance with a bond.--The delivery of 
     the food in accordance with the execution of a bond while the 
     food is held is not authorized.
       (5) Prohibition on reexport.--A food found unfit for human 
     or animal consumption shall be prohibited from reexport 
     without further processing to remove the contamination and 
     reinspection by the Administration.

     SEC. 403. NOTIFICATION AND RECALL.

       (a) Notice to Administrator of Violation.--
       (1) In general.--A person that has reason to believe that 
     any food introduced into or in interstate commerce, or held 
     for sale (whether or not the first sale) after shipment in 
     interstate commerce, may be in violation of the food safety 
     law shall immediately notify the Administrator of the 
     identity and location of the food.
       (2) Manner of notification.--Notification under paragraph 
     (1) shall be made in such manner and by such means as the 
     Administrator may require by regulation.
       (b) Recall and Consumer Notification.--
       (1) Voluntary actions.--If the Administrator determines 
     that food is in violation of the food safety law when 
     introduced into or while in interstate commerce or while held 
     for sale (whether or not the first sale) after shipment in 
     interstate commerce and that there is a reasonable 
     probability that the food, if consumed, would present a 
     threat to public health, as determined by the Administrator, 
     the Administrator shall give the appropriate persons 
     (including the manufacturers, importers, distributors, or 
     retailers of the food) an opportunity to--
       (A) cease distribution of the food;
       (B) notify all persons--
       (i) processing, distributing, or otherwise handling the 
     food to immediately cease such activities with respect to the 
     food; or
       (ii) to which the food has been distributed, transported, 
     or sold, to immediately cease distribution of the food;
       (C) recall the food;
       (D) in conjunction with the Administrator, provide notice 
     of the finding of the Administrator--
       (i) to consumers to whom the food was, or may have been, 
     distributed; and
       (ii) to State and local public health officials; or
       (E) take any combination of the measures described in this 
     paragraph, as determined by the Administrator to be 
     appropriate in the circumstances.
       (2) Mandatory actions.--If a person referred to in 
     paragraph (1) refuses to or does not adequately carry out the 
     actions described in that paragraph within the time period 
     and in the manner prescribed by the Administrator, the 
     Administrator shall--
       (A) have authority to control and possess the food, 
     including ordering the shipment of the food from the food 
     establishment to the Administrator--
       (i) at the expense of the food establishment; or
       (ii) in an emergency (as determined by the Administrator), 
     at the expense of the Administration; and
       (B) by order, require, as the Administrator determines to 
     be necessary, the person to immediately--
       (i) cease distribution of the food; and
       (ii) notify all persons--

       (I) processing, distributing, or otherwise handling the 
     food to immediately cease such activities with respect to the 
     food; or
       (II) if the food has been distributed, transported, or 
     sold, to immediately cease distribution of the food.

       (3) Notification to consumers by administrator.--The 
     Administrator shall, as the Administrator determines to be 
     necessary, provide notice of the finding of the Administrator 
     under paragraph (1)--
       (A) to consumers to whom the food was, or may have been, 
     distributed; and
       (B) to State and local public health officials.
       (4) Nondistribution by notified persons.--A person that 
     processes, distributes, or otherwise handles the food, or to 
     which the food has been distributed, transported, or sold, 
     and that is notified under paragraph (1)(B) or (2)(B) shall 
     immediately cease distribution of the food.
       (5) Availability of records to administrator.--Each person 
     referred to in paragraph (1) that processed, distributed, or 
     otherwise handled food shall make available to the 
     Administrator information necessary to carry out this 
     subsection, as determined by the Administrator, regarding--
       (A) persons that processed, distributed, or otherwise 
     handled the food; and
       (B) persons to which the food has been transported, sold, 
     distributed, or otherwise handled.
       (c) Informal Hearings on Orders.--
       (1) In general.--The Administrator shall provide any person 
     subject to an order under

[[Page 5860]]

     subsection (b) with an opportunity for an informal hearing, 
     to be held as soon as practicable but not later than 2 
     business days after the issuance of the order.
       (2) Scope of the hearing.--In a hearing under paragraph 
     (1), the Administrator shall consider the actions required by 
     the order and any reasons why the food that is the subject of 
     the order should not be recalled.
       (d) Post-Hearing Recall Orders.--
       (1) Amendment of order.--If, after providing an opportunity 
     for an informal hearing under subsection (c), the 
     Administrator determines that there is a reasonable 
     probability that the food that is the subject of an order 
     under subsection (b), if consumed, would present a threat to 
     the public health, the Administrator, as the Administrator 
     determines to be necessary, may--
       (A) amend the order to require recall of the food or other 
     appropriate action;
       (B) specify a timetable in which the recall shall occur;
       (C) require periodic reports to the Administrator 
     describing the progress of the recall; and
       (D) provide notice of the recall to consumers to whom the 
     food was, or may have been, distributed.
       (2) Vacation of orders.--If, after providing an opportunity 
     for an informal hearing under subsection (c), the 
     Administrator determines that adequate grounds do not exist 
     to continue the actions required by the order, the 
     Administrator shall vacate the order.
       (e) Remedies Not Exclusive.--The remedies provided in this 
     section shall be in addition to, and not exclusive of, other 
     remedies that may be available.

     SEC. 404. INJUNCTION PROCEEDINGS.

       (a) Jurisdiction.--The district courts of the United 
     States, and the United States courts of the territories and 
     possessions of the United States, shall have jurisdiction, 
     for cause shown, to restrain a violation of section 202, 203, 
     204, 207, or 401 (or a regulation promulgated under that 
     section).
       (b) Trial.--In a case in which violation of an injunction 
     or restraining order issued under this section also 
     constitutes a violation of the food safety law, trial shall 
     be by the court or, upon demand of the accused, by a jury.

     SEC. 405. CIVIL AND CRIMINAL PENALTIES.

       (a) Civil Sanctions.--
       (1) Civil penalty.--
       (A) In general.--Any person that commits an act that 
     violates the food safety law (including a regulation 
     promulgated or order issued under a Federal food safety law) 
     may be assessed a civil penalty by the Administrator of not 
     more than $10,000 for each such act.
       (B) Separate offense.--Each act described in subparagraph 
     (A) and each day during which that act continues shall be 
     considered a separate offense.
       (2) Other requirements.--
       (A) Written order.--The civil penalty described in 
     paragraph (1) shall be assessed by the Administrator by a 
     written order, which shall specify the amount of the penalty 
     and the basis for the penalty under subparagraph (B) 
     considered by the Administrator.
       (B) Amount of penalty.--Subject to paragraph (1)(A), the 
     amount of the civil penalty shall be determined by the 
     Administrator, after considering--
       (i) the gravity of the violation;
       (ii) the degree of culpability of the person;
       (iii) the size and type of the business of the person; and
       (iv) any history of prior offenses by the person under the 
     food safety law.
       (C) Review of order.--The order may be reviewed only in 
     accordance with subsection (c).
       (b) Criminal Sanctions.--
       (1) In general.--Except as provided in paragraphs (2) and 
     (3), a person that knowingly produces or introduces into 
     commerce food that is unsafe or otherwise adulterated or 
     misbranded shall be imprisoned for not more than 1 year or 
     fined not more than $10,000, or both.
       (2) Severe violations.--A person that commits a violation 
     described in paragraph (1) after a conviction of that person 
     under this section has become final, or commits such a 
     violation with the intent to defraud or mislead, shall be 
     imprisoned for not more than 3 years or fined not more than 
     $100,000, or both.
       (3) Exception.--No person shall be subject to the penalties 
     of this subsection--
       (A) for having received, proffered, or delivered in 
     interstate commerce any food, if the receipt, proffer, or 
     delivery was made in good faith, unless that person refuses 
     to furnish (on request of an officer or employee designated 
     by the Administrator)--
       (i) the name, address and contact information of the person 
     from whom that person purchased or received the food;
       (ii) copies of all documents relating to the person from 
     whom that person purchased or received the food; and
       (iii) copies of all documents pertaining to the delivery of 
     the food to that person; or
       (B) if that person establishes a guaranty signed by, and 
     containing the name and address of, the person from whom that 
     person received in good faith the food, stating that the food 
     is not adulterated or misbranded within the meaning of this 
     Act.
       (c) Judicial Review.--
       (1) In general.--An order assessing a civil penalty under 
     subsection (a) shall be a final order unless the person--
       (A) not later than 30 days after the effective date of the 
     order, files a petition for judicial review of the order in 
     the United States court of appeals for the circuit in which 
     that person resides or has its principal place of business or 
     the United States Court of Appeals for the District of 
     Columbia; and
       (B) simultaneously serves a copy of the petition by 
     certified mail to the Administrator.
       (2) Filing of record.--Not later than 45 days after the 
     service of a copy of the petition under paragraph (1)(B), the 
     Administrator shall file in the court a certified copy of the 
     administrative record upon which the order was issued.
       (3) Standard of review.--The findings of the Administrator 
     relating to the order shall be set aside only if found to be 
     unsupported by substantial evidence on the record as a whole.
       (d) Collection Actions for Failure To Pay.--
       (1) In general.--If any person fails to pay a civil penalty 
     assessed under subsection (a) after the order assessing the 
     penalty has become a final order, or after the court of 
     appeals described in subsection (b) has entered final 
     judgment in favor of the Administrator, the Administrator 
     shall refer the matter to the Attorney General, who shall 
     institute in a United States district court of competent 
     jurisdiction a civil action to recover the amount assessed.
       (2) Limitation on review.--In a civil action under 
     paragraph (1), the validity and appropriateness of the order 
     of the Administrator assessing the civil penalty shall not be 
     subject to judicial review.
       (e) Penalties Paid Into Account.--The Administrator--
       (1) shall deposit penalties collected under this section in 
     an account in the Treasury; and
       (2) may use the funds in the account, without further 
     appropriation or fiscal year limitation--
       (A) to carry out enforcement activities under food safety 
     law; or
       (B) to provide assistance to States to inspect retail 
     commercial food establishments or other food or firms under 
     the jurisdiction of State food safety programs.
       (f) Discretion of the Administrator to Prosecute.--Nothing 
     in this Act requires the Administrator to report for 
     prosecution, or for the commencement of an action, the 
     violation of the food safety law in a case in which the 
     Administrator finds that the public interest will be 
     adequately served by the assessment of a civil penalty under 
     this section.
       (g) Remedies Not Exclusive.--The remedies provided in this 
     section may be in addition to, and not exclusive of, other 
     remedies that may be available.

     SEC. 406. PRESUMPTION.

       In any action to enforce the requirements of the food 
     safety law, the connection with interstate commerce required 
     for jurisdiction shall be presumed to exist.

     SEC. 407. WHISTLEBLOWER PROTECTION.

       (a) In General.--No Federal employee, employee of a Federal 
     contractor or subcontractor, or any individual employed by a 
     company (referred to in this section as a ``covered 
     individual''), may be discharged, demoted, suspended, 
     threatened, harassed, or in any other manner discriminated 
     against, because of any lawful act done by the covered 
     individual to--
       (1) provide information, cause information to be provided, 
     or otherwise assist in an investigation regarding any conduct 
     that the covered individual reasonably believes constitutes a 
     violation of any law, rule, or regulation, or that the 
     covered individual reasonably believes constitutes a threat 
     to the public health, when the information or assistance is 
     provided to, or the investigation is conducted by--
       (A) a Federal regulatory or law enforcement agency;
       (B) a Member or committee of Congress; or
       (C) a person with supervisory authority over the covered 
     individual (or such other individual who has the authority to 
     investigate, discover, or terminate misconduct);
       (2) file, cause to be filed, testify, participate in, or 
     otherwise assist in a proceeding or action filed or about to 
     be filed relating to a violation of any law, rule, or 
     regulation; or
       (3) refused to violate or assist in the violation of any 
     law, rule, or regulation.
       (b) Enforcement Action.--
       (1) In general.--A covered individual who alleges discharge 
     or other discrimination by any person in violation of 
     subsection (a) may seek relief under subsection (c) by filing 
     a complaint with the Secretary of Labor. If the Secretary of 
     Labor has not issued a final decision within 180 days after 
     the date on which the complaint is filed and there is no 
     showing that such delay is due to the bad faith of the 
     claimant, the claimant may bring an action at law or equity 
     for de novo review in the appropriate district court of the 
     United States, which shall have jurisdiction over such an 
     action without regard to the amount in controversy.
       (2) Procedure.--
       (A) In general.--An action under paragraph (1) shall be 
     governed under the rules

[[Page 5861]]

     and procedures set forth in section 42121(b) of title 49, 
     United States Code.
       (B) Exception.--Notification under section 42121(b)(1) of 
     title 49, United States Code, shall be made to the person 
     named in the complaint and to the person's employer.
       (C) Burdens of proof.--An action brought under paragraph 
     (1) shall be governed by the legal burdens of proof set for 
     in section 42121(b) of title 49, United States Code.
       (D) Statute of limitations.--An action under paragraph (1) 
     shall be commenced not later than 90 days after the date on 
     which the violation occurs.
       (c) Remedies.--
       (1) In general.--A covered individual prevailing in any 
     action under subsection (b)(1) shall be entitled to all 
     relief necessary to make the covered individual whole.
       (2) Compensatory damages.--Relief for any action described 
     in paragraph (1) shall include--
       (A) reinstatement with the same seniority status that the 
     covered individual would have had, but for the 
     discrimination;
       (B) the amount of any back pay, with interest; and
       (C) compensation for any special damages sustained as a 
     result of the discrimination, including litigation costs, 
     expert witness fees, and reasonable attorney's fees.
       (d) Rights Retained by the Covered Individual.--Nothing in 
     this section shall be construed to diminish the rights, 
     privileges, or remedies of any covered individual under any 
     Federal or State law, or under any collective bargaining 
     agreement.

     SEC. 408. ADMINISTRATION AND ENFORCEMENT.

       (a) In General.--For the efficient administration and 
     enforcement of the food safety law, the provisions (including 
     provisions relating to penalties) of sections 6, 8, 9, and 10 
     of the Federal Trade Commission Act (15 U.S.C. 46, 48, 49, 
     and 50) (except subsections (c) through (h) of section 6 of 
     that Act), relating to the jurisdiction, powers, and duties 
     of the Federal Trade Commission and the Attorney General to 
     administer and enforce that Act, and to the rights and duties 
     of persons with respect to whom the powers are exercised, 
     shall apply to the jurisdiction, powers, and duties of the 
     Administrator and the Attorney General in administering and 
     enforcing the provisions of the food safety law and to the 
     rights and duties of persons with respect to whom the powers 
     are exercised, respectively.
       (b) Inquiries and Actions.--
       (1) In general.--The Administrator, in person or by such 
     agents as the Administrator may designate, may prosecute any 
     inquiry necessary to carry out the duties of the 
     Administrator under the food safety law in any part of the 
     United States.
       (2) Powers.--The powers conferred by sections 9 and 10 of 
     the Federal Trade Commission Act (15 U.S.C. 49 and 50) on the 
     United States district courts may be exercised for the 
     purposes of this chapter by any United States district court 
     of competent jurisdiction.

     SEC. 409. CITIZEN CIVIL ACTIONS.

       (a) Civil Actions.--A person may commence a civil action 
     against--
       (1) a person that violates a regulation (including a 
     regulation establishing a performance standard), order, or 
     other action of the Administrator to ensure the safety of 
     food; or
       (2) the Administrator (in his or her capacity as the 
     Administrator), if the Administrator fails to perform an act 
     or duty to ensure the safety of food that is not 
     discretionary under the food safety law.
       (b) Court.--
       (1) In general.--The action shall be commenced in the 
     United States district court for the district in which the 
     defendant resides, is found, or has an agent.
       (2) Jurisdiction.--The court shall have jurisdiction, 
     without regard to the amount in controversy, or the 
     citizenship of the parties, to enforce a regulation 
     (including a regulation establishing a performance standard), 
     order, or other action of the Administrator, or to order the 
     Administrator to perform the act or duty.
       (3) Damages.--The court may--
       (A) award damages, in the amount of damages actually 
     sustained; and
       (B) if the court determines it to be in the interest of 
     justice, award the plaintiff the costs of suit, including 
     reasonable attorney's fees, reasonable expert witness fees, 
     and penalties.
       (c) Remedies Not Exclusive.--The remedies provided for in 
     this section shall be in addition to, and not exclusive of, 
     other remedies that may be available.

                        TITLE V--IMPLEMENTATION

     SEC. 501. DEFINITION.

       For purposes of this title, the term ``transition period'' 
     means the 12-month period beginning on the effective date of 
     this Act.

     SEC. 502. REORGANIZATION PLAN.

       (a) Submission of Plan.--Not later than 180 days after the 
     effective date of this Act, the President shall transmit to 
     the appropriate congressional committees a reorganization 
     plan regarding the following:
       (1) The transfer of agencies, personnel, assets, and 
     obligations to the Administration pursuant to this Act.
       (2) Any consolidation, reorganization, or streamlining of 
     agencies transferred to the Administration pursuant to this 
     Act.
       (b) Plan Elements.--The plan transmitted under subsection 
     (a) shall contain, consistent with this Act, such elements as 
     the President determines appropriate, including the 
     following:
       (1) Identification of any functions of agencies designated 
     to be transferred to the Administration pursuant to this Act 
     that will not be transferred to the Administration under the 
     plan.
       (2) Specification of the steps to be taken by the 
     Administrator to organize the Administration, including the 
     delegation or assignment of functions transferred to the 
     Administration among the officers of the Administration in 
     order to permit the Administration to carry out the functions 
     transferred under the plan.
       (3) Specification of the funds available to each agency 
     that will be transferred to the Administration as a result of 
     transfers under the plan.
       (4) Specification of the proposed allocations within the 
     Administration of unexpended funds transferred in connection 
     with transfers under the plan.
       (5) Specification of any proposed disposition of property, 
     facilities, contracts, records, and other assets and 
     obligations of agencies transferred under the plan.
       (6) Specification of the proposed allocations within the 
     Administration of the functions of the agencies and 
     subdivisions that are not related directly to ensuring the 
     safety of food.
       (c) Modification of Plan.--The President may, on the basis 
     of consultations with the appropriate congressional 
     committees, modify, or revise any part of the plan until that 
     part of the plan becomes effective in accordance with 
     subsection (d).
       (d) Effective Date.--
       (1) In general.--The reorganization plan described in this 
     section, including any modifications or revisions of the plan 
     under subsection (c), shall become effective for an agency on 
     the earlier of--
       (A) the date specified in the plan (or the plan as modified 
     pursuant to subsection (c)), except that such date may not be 
     earlier than 90 days after the date the President has 
     transmitted the reorganization plan to the appropriate 
     congressional committees pursuant to subsection (a); or
       (B) the end of the transition period.
       (2) Statutory construction.--Nothing in this subsection may 
     be construed to require the transfer of functions, personnel, 
     records, balances of appropriations, or other assets of an 
     agency on a single date.
       (3) Supercedes existing law.--Paragraph (1) shall apply 
     notwithstanding section 905(b) of title 5, United States 
     Code.

     SEC. 503. TRANSITIONAL AUTHORITIES.

       (a) Provision of Assistance by Officials.--Until the 
     transfer of an agency to the Administration, any official 
     having authority over or function relating to the agency 
     immediately before the effective date of this Act shall 
     provide the Administrator such assistance, including the use 
     of personnel and assets, as the Administrator may request in 
     preparing for the transfer and integration of the agency to 
     the Administration.
       (b) Services and Personnel.--During the transition period, 
     upon the request of the Administrator, the head of any 
     executive agency may, on a reimbursable basis, provide 
     services or detail personnel to assist with the transition.
       (c) Acting Officials.--
       (1) In general.--During the transition period, pending the 
     advice and consent of the Senate to the appointment of an 
     officer required by this Act to be appointed by and with such 
     advice and consent, the President may designate any officer 
     whose appointment was required to be made by and with such 
     advice and consent and who was such an officer immediately 
     before the effective date of this Act (and who continues to 
     be in office) or immediately before such designation, to act 
     in such office until the same is filled as provided in this 
     Act.
       (2) Compensation.--While acting pursuant to paragraph (1), 
     such officers shall receive compensation at the higher of--
       (A) the rates provided by this Act for the respective 
     offices in which they act; or
       (B) the rates provided for the offices held at the time of 
     designation.
       (3) Limitation.--Nothing in this Act shall be construed to 
     require the advice and consent of the Senate to the 
     appointment by the President to a position in the 
     Administration of any officer whose agency is transferred to 
     the Administration pursuant to this Act and whose duties 
     following such transfer are germane to those performed before 
     such transfer.
       (d) Transfer of Personnel, Assets, Obligations, and 
     Function.--
       (1) In general.--Consistent with section 1531 of title 31, 
     United States Code, the personnel, assets, liabilities, 
     contracts, property, records, and unexpended balances of 
     appropriations, authorizations, allocations, and other funds 
     that relate to the functions transferred under subsection (a) 
     from a Federal agency shall be transferred to the 
     Administration.
       (2) Unexpended funds.--Unexpended funds transferred under 
     this subsection shall be used by the Administration only for 
     the purposes for which the funds were originally authorized 
     and appropriated.

[[Page 5862]]



     SEC. 504. SAVINGS PROVISIONS.

       (a) Completed Administrative Actions.--The enactment of 
     this Act or the transfer of functions under this Act shall 
     not affect any order, determination, rule, regulation, 
     permit, personnel action, agreement, grant, contract, 
     certificate, license, registration, privilege, or other 
     administrative action issued, made, granted, or otherwise in 
     effect or final with respect to that agency on the day before 
     the transfer date with respect to the transferred functions
       (b) Pending Proceedings.--Subject to the authority of the 
     Administrator under this Act--
       (1) pending proceedings in an agency, including notices of 
     proposed rulemaking, and applications for licenses, permits, 
     certificates, grants, and financial assistance, shall 
     continue notwithstanding the enactment of this Act or the 
     transfer of the agency to the Administration, unless 
     discontinued or modified under the same terms and conditions 
     and to the same extent that such discontinuance could have 
     occurred if such enactment or transfer had not occurred; and
       (2) orders issued in such proceedings, and appeals 
     therefrom, and payments made pursuant to such orders, shall 
     issue in the same manner on the same terms as if this Act had 
     not been enacted or the agency had not been transferred, and 
     any such order shall continue in effect until amended, 
     modified, superceded, terminated, set aside, or revoked by an 
     officer of the United States or a court of competent 
     jurisdiction, or by operation of law.
       (c) Pending Civil Actions.--Subject to the authority of the 
     Administrator under this Act, any civil action commenced with 
     regard to that agency pending before that agency on the day 
     before the transfer date with respect to the transferred 
     functions shall continue notwithstanding the enactment of 
     this Act or the transfer of an agency to the Administration.
       (d) References.--
       (1) In general.--After the transfer of functions from a 
     Federal agency under this Act, any reference in any other 
     Federal law, Executive order, rule, regulation, directive, 
     document, or other material to that Federal agency or the 
     head of that agency in connection with the administration or 
     enforcement of the food safety laws shall be deemed to be a 
     reference to the Administration or the Administrator, 
     respectively.
       (2) Statutory reporting requirements.--Statutory reporting 
     requirements that applied in relation to such an agency 
     immediately before the effective date of this Act shall 
     continue to apply following such transfer if they refer to 
     the agency by name.

     SEC. 505. CONFORMING AMENDMENTS.

       (a) Executive Schedule.--Section 5313 of title 5, United 
     States Code, is amended by inserting at the end the following 
     new item:
     ``Administrator of Food Safety.''.
       (b) Repeal of Certain Provisions.--Section 18 of the 
     Poultry Products Inspection Act (21 U.S.C. 467), section 401 
     of the Federal Meat Inspection Act (21 U.S.C. 671), and 
     section 18 of the Egg Products Inspection Act (21 U.S.C. 
     1047) are repealed.

     SEC. 506. ADDITIONAL TECHNICAL AND CONFORMING AMENDMENTS.

       Not later than 60 days after the submission of the 
     reorganization plan under section 502, the President shall 
     prepare and submit proposed legislation to Congress 
     containing necessary and appropriate technical and conforming 
     amendments to the Acts listed in section 3(15) of this Act to 
     reflect the changes made by this Act.

     SEC. 507. REGULATIONS.

       The Administrator may promulgate such regulations as the 
     Administrator determines are necessary or appropriate to 
     perform the duties of the Administrator.

     SEC. 508. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as are 
     necessary to carry out this Act.

     SEC. 509. LIMITATION ON AUTHORIZATION OF APPROPRIATIONS.

       For the fiscal year that includes the effective date of 
     this Act, the amount authorized to be appropriated to carry 
     out this Act shall not exceed--
       (1) the amount appropriated for that fiscal year for the 
     Federal agencies identified in section 102(b) for the purpose 
     of administering or enforcing the food safety law; or
       (2) the amount appropriated for those agencies for that 
     purpose for the preceding fiscal year, if, as of the 
     effective date of this Act, appropriations for those agencies 
     for the fiscal year that includes the effective date have not 
     yet been made.

     SEC. 510. EFFECTIVE DATE.

       This Act takes effect on the date of enactment of this Act.
                                 ______
                                 
      By Mr. LEAHY (for himself and Ms. Snowe):
  S. 730. A bill to amend the Clean Air Act to establish requirements 
concerning the operation of fossil fuel-fired electric utility steam 
generating units, commercial and industrial boiler units, solid waste 
incineration units, medical waste incinerators, hazardous waste 
combustors, chlor-alkali plants, and Portland cement plants to reduce 
emissions of mercury to the environment, and for other purposes; to the 
Committee on Environment and Public Works.
  Mr. LEAHY. Mr. President, today I again will discuss mercury 
pollution and the serious and immediate health risks it poses to the 
health of citizens across our Nation.
  This is not a new issue. We have known about mercury pollution for 
decades, and it remains one of, if not the last, major toxic pollutant 
without a comprehensive plan to control its release. We know where the 
sources mercury pollution are, we know where the pollution deposits, 
and we definitely know what harm it causes to people and to wildlife.
  We need to confront mercury pollution because it is a threat to 
pregnant women and children. The Environmental Protection Agency's own 
scientists estimate that one of every six women of child-bearing age 
has elevated levels of mercury in her body above safe thresholds.
  Mercury can cause neurological harm to children exposed to increased 
mercury levels while in the womb and during the first few years of 
their lives, which can lead to increased risk for learning 
disabilities, developmental delays, and other serious problems.
  Just last year EPA scientists nearly doubled the previous estimate of 
the number of children at increased risk from exposure to elevated 
mercury levels in their mothers' wombs from 300,000 to over 600,000. 
This finding should alarm all of us and spur this Administration to 
promptly develop strong controls on mercury pollution from power plants 
that meet the requirements of the Clean Air Act and that fully protect 
women and children.
  Yet unfortunately, this Administration has not done that. The 
Administration's new mercury rule and the so- called ``Clear Skies'' 
proposal turn back progress, ignore available clean air technology, and 
will leave more toxic mercury in our air, water, and fish and for a 
longer time than is necessary.
  Because of this, on behalf of Senator Snowe and myself, I am 
reintroducing legislation today that will confront this problem 
directly and that will reduce mercury pollution from all sources.
  Our bill will reduce mercury emissions from coal-fired power plants 
by 90 percent by 2010. The cap-and-trade approach the Administration is 
pushing for in both the mercury rule and the President's Clear Skies 
proposal would only reduce emissions by less than 50 percent in the 
near future and possibly 70 percent over the next 15 years.
  I introduce this legislation on the heels of two recent reports about 
the proposed EPA mercury rule, one from the Government Accountability 
Office and one from the EPA Inspector General. Both the IG and GAO 
reports severely criticize this Administration's mercury rulemaking 
process, saying it violated EPA policy, OMB guidance, Presidential 
Executive Orders and, in some instances, important provisions of the 
Clean Air Act.
  I find this extremely troublesome. These are serious problems that 
greatly undermine the credibility of this Administration and that led 
them to create policies that fail to adequately protect the children in 
my state of Vermont and those all across the country. Rather than 
develop unbiased science-based limits on mercury pollution, they 
instead developed limits to fit predetermined numbers found in the 
President's industry friendly Clear Skies proposal.
  The GAO found critical flaws with the economic analysis that 
basically prevent anyone from actually verifying the supposed benefits 
of the cap-and-trade approach proposed in both EPA's rule and in the 
Clear Skies plan. In simple terms you could call it another example of 
the smoke and mirrors this Administration has used to support its 
flawed dirty air pollution policies.
  Not only were the supposed benefits of the cap-and-trade proposal 
virtually undocumented, they did not even bother to analyze whatsoever 
the health benefits to women and children from

[[Page 5863]]

controlling toxic mercury. If protecting the health of women and 
children is truly important to this Administration, then why would they 
skip such an important analysis?
  Not surprisingly, the EPA Inspector General confirmed what the GAO 
found. That EPA staff were directed to ignore the Clean Air Act and 
instead write a mercury rule to fit the weak mercury caps in the 
President's Clear Skies initiative.
  Rather than let EPA's capable scientists and engineers do their jobs, 
they decided to play politics and bow to special interest groups. How 
else did industry favorable policies and analyses found in memos 
written by industry lobbyists make it into the rule, verbatim?
  Both the GAO and IG reports make it clear that EPA staff were 
pressured to ignore parts of the Clean Air Act and to propose weaker 
mercury reductions than what are technically feasible and required 
under the law.
  The President's Clear Skies proposal formed the basis for the flawed 
mercury rule, so it obviously shares the same flaws. These two reports 
confirm what many of us already suspected, that Clear Skies is based on 
biased analyses, inadequate and faulty justifications.
  This Administration must stop the shenanigans. They need to stop 
downplaying the health risks of mercury pollution and stop catering to 
the special interests of the power industry and their lobbyists.
  The clarity and diversity of voices opposed to their poor mercury 
policies are unprecedented in the 30-year history of EPA. Now is the 
time for them to listen to the voices of more than 600,000 citizens and 
more than one million sportsmen and women nationwide that sent EPA 
letters opposing the weak mercury rule.
  Now is the time to listen to the nearly 100 national and local church 
leaders, representing dozens of denominations and millions of 
congregants, who sent a letter to President Bush expressing ``grave 
moral concern'' about his misleadingly titled Clear Skies Initiative.
  I call on the Administration to take immediate action to correct the 
serious problems in EPA's proposed power plant mercury rules. Instead, 
I hope that we can begin to meet the targets set out in this bill and 
start protecting the health of women and children.
  I ask unanimous consent that a summary of the bill be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Overview of the Omnibus Mercury Emissions Reduction Act of 2005

         Sponsored by Senators Patrick Leahy and Olympia Snowe

     What will the Omnibus Mercury Emissions Reduction Act of 2005 
         do?
       The Omnibus Mercury Emissions Reduction Act of 2005 
     mandates substantial reductions in mercury emissions from all 
     major sources in the United States. It is the only 
     comprehensive legislation to control mercury emissions from 
     all major sources. It directs EPA to issue new standards for 
     unregulated sources and to monitor and report on the progress 
     of currently regulated sources. It sets an aggressive 
     timetable for these reductions so that mercury emissions are 
     reduced as soon as possible.
       With these emissions reductions, the bill requires the safe 
     disposal of mercury recovered from pollution control systems, 
     so that the hazards of mercury are not merely transferred 
     from one environmental medium to another. It requires annual 
     public reporting--in both paper and electronic form--of 
     facility-specific mercury emissions. It phases out mercury 
     use in consumer products, requires product labeling, and 
     mandates international cooperation. It supports research into 
     the retirement of excess mercury, the handling of mercury 
     waste, the effectiveness of fish consumption advisories, and 
     the magnitude of previously uninventoried sources.
     Section 3. Mercury emission standards for fossil fuel-fired 
         electric utility steam generating units
       The EPA's Mercury Study Report to Congress estimated 52 
     tons of mercury emissions occur per year from coal- and oil-
     fired electric utility steam generating units. More recently, 
     an EPA inventory estimated 48 tons of mercury from coal-fired 
     power plants. Collectively, these power plants constitute the 
     largest source of mercury emissions in the United States. In 
     December 2000, the EPA issued a positive determination to 
     regulate these mercury emissions. But these rules will take 
     years to write and implement, and there is already vigorous 
     industry opposition. It is uncertain what form these rules 
     will take or how long they may be delayed. This section 
     requires EPA to set a Amaximum achievable control technology 
     (MACT) standard for these emissions, such that nationwide 
     emissions decrease by at least 90 percent.
     Section 4. Mercury emission standards for coal- and oil-fired 
         commercial and industrial boiler units
       The EPA's report on its study estimates that 29 tons of 
     mercury is emitted per year from coal- and oil-fired 
     commercial and industrial boiler units. This section requires 
     EPA to set a MACT standard for these mercury emissions, such 
     that nationwide emissions decrease by at least 90 percent.
     Section 5. Reduction of mercury emissions from solid waste 
         incineration units
       The EPA study estimates that 30 tons of mercury emissions 
     are released each year from municipal waste combustors. These 
     emissions result from the presence of mercury-containing 
     items such as fluorescent lamps, fever thermometers, 
     thermostats and switches, in municipal solid waste streams. 
     In 1995, EPA promulgated final rules for these emissions, and 
     these rules took effect in 2000. This section reaffirms those 
     rules and requires stricter rules for units that do not 
     comply. The most effective way to reduce mercury emissions 
     from incinerators is to reduce the volume of mercury-
     containing items before they reach the incinerator. That is 
     why this section also requires the separation of mercury-
     containing items from the waste stream, the labeling of 
     mercury-containing items to facilitate this separation, and 
     the phase-out of mercury in consumer products within three 
     years, allowing for the possibility of exceptions for 
     essential uses.
     Section 6. Mercury emission standards for chlor-alkali plants
       The EPA study estimates that 7 tons of mercury emissions 
     are released per year from chlor-alkali plants that use the 
     mercury cell process to produce chlorine. EPA has not issued 
     rules to regulate these emissions. This section requires each 
     chlor-alkali plant that uses the mercury cell process to 
     reduce its mercury emissions by 95 percent. The most 
     effective way to meet this standard would be to switch to the 
     more energy efficient membrane cell process, which many 
     plants already use.
     Section 7. Mercury emission standards for Portland cement 
         plants
       The EPA study estimates that 5 tons of mercury emissions 
     are released each year from Portland cement plants. In 1999 
     EPA promulgated final rules for emissions from cement plants, 
     but these rules did not include mercury. This section 
     requires each Portland cement plant to reduce its mercury 
     emissions by 95 percent.
     Section 8. Report on implementation of mercury emission 
         standards for medical waste incinerators
       The EPA study estimates that 16 tons of mercury emissions 
     are released per year from medical waste incinerators. In 
     1997 EPA issued final rules for emissions from hospital/
     medical/infectious waste incinerators. This section requires 
     EPA to report on the success of these rules in reducing these 
     mercury emissions.
     Section 9. Report on implementation of mercury emission 
         standards for hazardous waste combustors
       The EPA study estimates that 7 tons of mercury emissions 
     are released each year from hazardous waste incinerators. In 
     1999 EPA promulgated final rules for these emissions. This 
     section requires EPA to report on the success of these rules 
     in reducing these mercury emissions.
     Section 10. Defense activities
       This section requires the Department of Defense to report 
     on its use of mercury, including the steps it is taking to 
     reduce mercury emissions and to stabilize and recycle 
     discarded mercury. This section also prohibits the Department 
     of Defense from returning the nearly 5,000 tons of mercury in 
     the National Defense Stockpile to the global market.
     Section 11. International activities
       This section directs EPA to work with Canada and Mexico to 
     study mercury pollution in North America, including the 
     sources of mercury pollution, the pathways of the pollution, 
     and options for reducing the pollution.
     Section 12. Mercury research
       This section supports a variety of mercury research 
     projects. First, it promotes accountability by mandating an 
     interagency report on the effectiveness of this act in 
     reducing mercury pollution. Second, it mandates an EPA study 
     on mercury sedimentation trends in major bodies of water. 
     Third, it directs EPA to evaluate and improve

[[Page 5864]]

     state-level mercury data and fish consumption advisories. 
     Fourth, it mandates a National Academy of Sciences report on 
     the retirement of excess mercury, such as stockpiled 
     industrial mercury that is no longer needed due to plant 
     closures or process changes. Fifth, it mandates an EPA study 
     of mercury emissions from electric arc furnaces, a source not 
     studied in the EPA's study report. Finally, it authorizes 
     $2,000,000 for modernization and expansion of the Mercury 
     Deposition Network, plus $10,000,000 over ten years for 
     operational support of that network.
                                 ______
                                 
      By Mr. CONRAD (for himself, Mr. Burns, Mr. Johnson, Mr. Dorgan, 
        Mr. Kohl, Mr. Domenici, Mr. Bingaman, and Mr. Thune):
  S. 731. A bill to recruit and retain more qualified individuals to 
teach in Tribal Colleges or Universities; to the Committee on Indian 
Affairs.
  Mr. CONRAD. Mr. President, three years ago, Senator Burns and I 
formed the bipartisan Task Force on Tribal Colleges and Universities to 
raise awareness of the important role that the tribal colleges and 
universities play in their respective communities as educational, 
economic, and cultural centers. The Task Force seeks to advance 
initiatives that help improve the quality education the colleges 
provide.
  For more than three decades, tribal colleges have been providing a 
quality education to help Native Americans of all ages reach their 
fullest potential. More than 30,000 students from 250 tribes nationwide 
attend tribal colleges. Tribal colleges serve young people preparing to 
enter the job market, dislocated workers learning new skills, and 
people seeking to move off welfare. I am a strong supporter of our 
Nation's tribal colleges because, more than any other factor, they are 
bringing hope and opportunity to America's Indian communities.
  Over the years, I have met with many tribal college students, and I 
am always impressed by their commitment to their education, their 
families and their communities. Tribal colleges and universities have 
been highly successful in helping Native Americans obtain a higher 
education. Congress has recognized the importance of these institutions 
and the significant gains they have achieved in helping more 
individuals obtain their education. While Congress has steadily 
increased its financial support of these institutions, many challenges 
still remain.
  One of the challenges that the tribal college presidents have 
expressed to me is the frustration and difficulty they have in 
attracting qualified individuals to teach at the colleges. Recruitment 
and retention are difficult for many of the colleges because of their 
geographic isolation and low faculty salaries.
  To help tackle the challenges of recruiting and retaining qualified 
teachers, I am introducing the Tribal Colleges and Universities Teacher 
Loan Forgiveness Act. This legislation will provide student loan 
forgiveness to individuals who commit to teach for up to five years in 
one of the tribal colleges nationwide. Individuals who have Perkins, 
Direct, or Guaranteed loans may qualify to receive up to $15,000 in 
loan forgiveness. This program will provide these institutions with 
extra help in attracting qualified teachers, and thus help ensure that 
deserving students receive a quality education.
  I would be remiss if I did not recognize that former Senator Daschle 
was responsible for spearheading this initiative for a number of years. 
The tribal colleges lost a true champion, but I am pleased to carry 
forward his vision and support for the colleges.
  I am pleased that Senators Burns, Johnson, Dorgan, Kohl, Domenici, 
and Bingaman are original cosponsors of this bill, and I look forward 
to working with my colleagues to pass this important legislation.
  Mr. BURNS. Mr. President, I am pleased to join my colleague, Senator 
Conrad, in sponsoring legislation to provide student loan forgiveness 
to educators who commit to teaching in our tribal colleges. This 
legislation will provide up to $15,000 in loan forgiveness--a strong 
recruitment and retention tool for tribal colleges which often can't 
pay the same salaries as larger institutions.
  I am, and have been for years, a strong supporter of Montana's tribal 
colleges as well as tribal colleges nationwide. They contribute greatly 
to our Native American communities, providing the tools for our tribal 
children to succeed in the world of higher education. Graduates often 
continue their education at Montana State or the University of Montana 
and take this knowledge and expertise back to their communities. These 
students strengthen and improve both our tribal communities and our 
State as a whole. They add to the social, economic, political and 
cultural fabric that is unique to Indian Country.
  I know how hard our tribal colleges work to achieve success and to 
maintain high standards. A talented faculty is key to those goals, but 
too often tight budgets for tribal colleges limit their ability to 
recruit and retain faculty. Our tribal colleges and their students 
deserve quality teachers, and providing loan forgiveness will help 
attract and keep good faculty in what can be very rural areas.
  In addition to forgiveness for Perkins, direct or guaranteed loans, 
this legislation will also provide assistance for nursing faculty at 
tribal colleges. The nursing shortage is a nationwide problem, 
particularly in rural areas and specifically in Indian Country. 
Graduates of tribal colleges often stay near or return home, and that 
holds true for nursing graduates as well. Supporting nursing programs 
at tribal colleges addresses that shortage by training professionals 
who are familiar with the acute medical needs and cultural differences 
in rural areas and are often willing to stay and wage the battles. This 
legislation will provide nursing loan forgiveness to nursing 
instructors at tribal colleges and will help strengthen a valuable 
program in Montana and around the country.
                                 ______
                                 
      By Mr. INHOFE:
  S. 732. A bill to authorize funds to Federal aid highways, highway 
safety programs, and transit programs, and for other purposes; from the 
Committee on Environment and Public Works; placed on the calendar.
  Mr. INHOFE. Mr. President, I am introducing today the Safe, 
Accountable, Flexible and Efficient Transportation Equity Act of 2005, 
SAFETEA, which the Committee on Environment and Public Works reported 
out on March 16, 2005. This bill reauthorizes the Federal aid highway 
program which has been operating on extensions since it expired on 
September 30, 2003. The bill I am introducing today is essentially S. 
1072 as passed by the Senate in the 108th Congress, with the exception 
that the overall funding level has been changed from $318 billion over 
6 years to reflect the President's proposed funding level of $283.9 
billion over 6 years.
  Last year, this body voted 76 to 21 to adopt S. 1072. Clearly, there 
was overwhelming support for this measure then, and in conversations 
with Members this year, I am confident that there is a real desire to 
get this bill done. We are already to take the bill up on the Senate 
floor just as soon as it is scheduled by the leadership.
  It has been nearly 18 months since the current program, 
Transportation Equity Act for the 21 Century--TEA-21, expired. To date, 
we have done a total of six extensions with the current extension due 
to expire on May 31. This next deadline is fast approaching, and in 
addition to completing action on the floor, we still must conference 
with the House which has a very different formula program than proposed 
last year. We will have more challenging issues to address and need as 
much time as possible to do so.
  Briefly, as in the bill passed by the Senate last year, the bill I am 
introducing today will address several critical issues in our 
transportation system. Specifically, the language improves on the 
existing program in the following areas:
  Safety: Nearly 43,000 people died in 2002 on our Nation's highways. 
This represents the single greatest cause of accidental death in 
America. The Environment and Public Works Committee bill addresses this 
by creating a new core safety program and funding it accordingly.
  Congestion: According to the Department of Transportation, time spent 
in

[[Page 5865]]

congestion increased from 31.7 percent in 1992 to 33.1 percent in 2000. 
Based on this rate, a typical ``rush hour'' in an urbanized area is 5.3 
hours per day. The problem is not in just urban areas; cities with 
populations less than 500,000 have experienced the greatest growth in 
travel delays, according to the DOT. Under this proposal, we would 
address the congestion problem by establishing a new Transportation 
Freight Gateway program which targets bottlenecks around ports and 
intermodal facilities.
  Environment: This bill addresses the need to reduce delays in project 
delivery in several ways. The bill contains carefully balanced language 
on incorporating environmental concerns into planning and project 
review as early as practicable, while ensuring that disagreements over 
such concerns don't indefinitely delay much needed transportation 
projects. The language on the section 4(f) process will also help 
reduce unnecessary delays by enabling projects with de minimis impacts 
on 4(f) resources to proceed in a timely manner.
  Also, the bill seeks to correct the inconsistencies between the 
transportation planning and air quality planning that must take place 
in areas in nonattainment under the Clean Air Act. The bill 
rationalizes the schedules for developing transportation plans and 
demonstrating conformity and aligns the length of the transportation 
plan considered under conformity with the length of the air quality 
plan.
  Equity: The bill provides all States at least 10 percent growth over 
TEA-21 while increasing the rate of return for donor States from the 
current 90.5 percent to 92 percent by 2009. We maintain the TEA-21 
scope of 92.5 percent.
  The longer we delay enactment of a multiyear bill, we are negatively 
affecting economic growth. According to DOT estimates, every $1 billion 
of Federal Funds invested in highway improvements creates 47,000 jobs. 
The same $1 billion investment yields $500 million in new orders for 
the manufacturing sector and $500 million spread throughout other 
sectors of the economy.
  States contract awards for the 2005 spring and summer construction 
season are going out to bid. If we fail to pass this bill soon, States 
will not know what to expect in Federal funding and the uncertainty 
will potentially force States to delay putting these projects out for 
bid. According to the American Association of State Highway 
Transportation Officials, AASHTO, an estimated 90,000 jobs are at 
stake. This problem is exacerbated for northern States which have 
shorter construction seasons. Many State transportation departments 
have advanced State dollars to construct projects eligible for Federal 
funding in anticipation of our action to reauthorize the program. 
Without a new bill, States are essentially left ``holding the bag.''
  Over the past 6 years under TEA-21, we have made great progress in 
preserving and improving the overall physical condition and operation 
of our transportation system; however, more needs to be done. A safe, 
effective transportation system is the foundation of our economy. We 
are past due to fulfill an obligation to this country and the American 
people.
  As mentioned earlier, the bill is essentially the same bill that was 
passed on the Senate floor last year--a bipartisan product of many 
months of hard work and compromise. It remains a very good piece of 
legislation.
  The most significant difference with this bill, of course, is that it 
is drafted at the $283.9 billion level over 6 years. Since 2004 is 
behind us, the Environment and Public Works Committee bill includes 
only years 2005 to 2009 which is effectively $283.9 minus fiscal year 
2004. S. 1072 passed the Senate last year and guaranteed all donor 
States a rate of return of 95 percent. At a lower funding level, we 
were able only to achieve a 92-percent rate of return but kept the 10 
percent floor over TEA-21.
  I am certain my colleagues share my strong desire to get a 
transportation reauthorization bill passed and signed into law by the 
President. I urge the leadership to schedule consideration of this bill 
this month so we can get it done.
                                 ______
                                 
      By Mr. SPECTER:
  S. 738. A bill to provide relief for the cotton shirt industry; to 
the Committee on Finance.
  Mr. SPECTER. Mr. President, today I seek recognition to introduce 
legislation entitled the ``Cotton Shirt Industry Tariff Relief and 
Technical Corrections Act.'' This legislation will strengthen our 
domestic dress shirt manufacturers and the pima cotton growers. My bill 
is a technical correction that levels the playing field by correcting 
an anomaly from previous trade agreements that has unfairly advantaged 
foreign producers and sent hundreds of jobs offshore.
  This legislation reduces duties levied on cotton shirting fabric that 
is not made in the United States. Currently, U.S. law recognizes this 
lack of fabric availability and grants special favorable trade 
concessions to manufacturers in Canada, Mexico, the Caribbean, the 
Andean region, and Africa. The U.S. has allowed shirts to enter this 
country duty-free from many other countries, while we have failed to 
reduce tariffs on those manufacturers that stayed in the U.S. and were 
forced to compete on these uneven terms. My bill will correct this 
inequity.
  This legislation also recognizes the need to creatively promote the 
U.S. shirting manufacturing and textiles sectors, and does so through 
the creation of a Cotton Competitiveness grant program, which is funded 
through a portion of previously collected duties.
  Our country has experienced an enormous loss of jobs in the 
manufacturing sector. It is critical that our domestic manufacturers 
are able to compete on a level playing field. In the case of the 
domestic dress shirt industry, the problem is our own government 
imposing a tariff of up to eleven percent upon the import of fabric 
made from U.S. pima cotton. My legislation is a concrete step that this 
Congress can take to reduce the hemorrhaging of U.S. manufacturing 
jobs.
  One group of beneficiaries of this amendment is a Gitman Brothers 
factory in Ashland, PA. The Ashland Shirt and Pajama factory was built 
in 1948 and employs 265 workers. This factory in the Lehigh Valley 
turns out world class shirts with such labels as Burberry and Saks 
Fifth Avenue that are shipped across the U.S. Currently, Gitman pays an 
average tariff of eleven percent on the fabric it imports to make 
shirts. Their shirts are made of pima cotton that is grown in the 
Southwestern U.S., but spun into fabric only by special mills in 
Western Europe. Gitman must compete against Canadian shirt companies 
that import the same fabric tariff-free and who can then ship their 
shirts into the U.S. tariff-free under NAFTA. These workers and their 
families deserve trade laws that do not chase their jobs offshore.
  This legislation enjoys the support of the domestic shirting 
industry, UNITE, and the Pima cotton associations. I offer this 
legislation on behalf of the men and women of the Gitman factory in 
Ashland, the domestic dress shirting industry, and the pima cotton 
growers, so that for them free trade will indeed be fair trade as well.

                          ____________________