Emergency Supplemental Appropriations for Disaster Relief Act, 2004

Will my friend from Nevada yield for a question?

Mr. President, I appreciate very much my distinguished copartner on the Transportation Subcommittee talking about the need to get this bill through quickly. He was discussing the difference between the bill we have now and the original bill.

I was wondering if it is correct that the original highway bill really didn't have any formulas; it was what one would have to call pork because it had various projects in it. It was an effort by the Congress to outline where money is needed. Is that not basically the form of the original highway bill?

Mr. President, if the Senator from Nevada will yield for another question, isn't it true that the scope of this bill, the size of it, reflects programs that Congresses in previous years decided are good for the national transportation policy? In other words, we are not creating a new formula; we have taken the formula, the apportionment that existed. Is it not true that we have attempted to construct this bill so that, working with the formula, every State gets up to 95 cents?

My State of Missouri was one of those States, when I got here in 1987, that was only getting back 77 cents. Every State will get up to 95 cents on the dollar. Every State, at a minimum, will get a 10- percent increase. Some States that would be getting much more money will only get a 40-percent or 40-plus-percent increase, which some may object to and say is not enough. But in this day and age, with a tight budget, it seems to me a 40-percent increase is not bad to take home from a compromise bill. Is that a fair assessment?

I thank the Senator.

Mr. President, I ask my colleague to yield about a matter.

We have a number of technical amendments. There is a question about whether we want to move to that. We are preparing a technical amendment. I have discussed this with both sides. Basically, this is a technical amendment that accomplishes a number of things. In essence, it achieves the original goal of an amendment offered by Senator Warner, which was to increase the metropolitan planning share or takedown from 1 percent to 1.5 percent. We are getting a technical amendment copied, and as soon as we get the copies, if there is no objection from the managers, I thought we would do that.

Mr. President, might we inquire of the managers on the Democratic side if they are ready to take this up?

I will be happy to withhold on that.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I am very pleased to announce there is an amendment at the desk. I ask for its immediate consideration.

I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, I offer this amendment on behalf of Senators Inhofe, Jeffords, and Reid. This is one small step for mankind toward a highway bill.

There had been some concern about offering amendments. This is a technical amendment. This changes a number of items that, when crafting the bill, were erroneous. Normally we would adopt these technical amendments without objection. But there may be some discussion on it. I wish to explain the one perhaps significant change in this technical amendment so everybody knows what we are doing.

In the previous bill, TEA-21, the metropolitan planning organizations received 1 percent from the Surface Transportation Program to do the work that these agencies are required to do in approving transportation plans, conforming them to air quality plans. This 1 percent takedown, as it is called, amounted to about $1.7 billion over the life of the bill.

In drafting the underlying bill, we increased spending on planning for metropolitan planning organizations by $800 million, almost a 50 percent increase.

When Senator Warner proposed making the takedown of the share for the metropolitan planning organizations 1.5 percent rather than 1 percent,

it was on the assumption that the total of the previous amount plus what we did in committee would amount to 1.5 percent. But as it was drafted and printed in the committee report, it wound up adding what we had previously put in the equity bonus on top of the 1.5 percent.

I believe this amendment restores the MPO portion to that originally proposed and adopted, i.e., a 1.5 percent share, which is what we have all agreed is needed for metropolitan planning organizations.

We have a letter that I will submit, signed by the executive director of the American Association of State Highway and Transportation Officials, the president and chief executive officer of the American Highway Users Alliance, the chief executive officer of Associated General Contractors of America, the executive director of American Road and Transportation Builders Association, and the executive director of the National Conference of State Legislatures.

The letter says, in substance--and I will submit the full letter-- that we write on behalf of the organizations to express concerns over the size of the total, the 1.5 percent-plus, the additional equity bonus. Their point is that the large increase results from a combination of adjustments, growth in the overall highway program, an increase in the percentage set-aside, and broadening of the program base subject to the metropolitan planning set-aside.

They believed that adding an additional $2.2 billion for planning would make that much less available for improving, constructing, maintaining, and operating a safe and efficient highway system.

They come out strongly in support--as we all are--of increasing the metropolitan planning funds. The number of MPOs has increased 340 to 378, and many more are looking at the prospect of being designated as nonattainment for the new ozone and fine particulate standards. They recommend an increase more comparable to the growth in MPOs, but they do not think tripling it is wise. So they have asked us to reconsider.

The purpose of this technical amendment, among other things, is to bring it back to the 1.5 percent increase, upon which we have previously agreed.

I ask unanimous consent that the letter be printed in the Record.

Mr. President, I see the majority leader is in the Chamber. We will not act on this amendment at this time. If somebody wishes to object to it after the majority leader speaks, we would ask that they come to the floor and make an objection. Otherwise, I propose that at 3 o'clock we ask that the amendment be adopted or, if we need a recorded vote, we will be happy to do that. One way or another, I hope we can have action on this by 3 o'clock.

With that, I yield the floor.

Mr. President, might I ask the Senator from New Hampshire what his substitute does?

Mr. President, this obviously is a very important issue the Senator has raised. Having this as an amendment to a technical amendment raises questions that I think perhaps should be answered.

First, I point out to my friends who are concerned about it that the number we have chosen for the highway portion of the bill was a number adopted by a 79-21 vote on the floor of this body. In addition, we understand the need to provide funding for highways. The Finance Committee has worked very hard to come up with the funding measures. I don't serve on the Finance Committee, but they have adopted fuel tax compliance measures. They have reformed the provisions for the ethanol exemption. It is a very valuable agricultural fuel that improves the environment. They will not charge the highway trust fund with that. They will pay down the existing interest owed to the highway trust fund and spend down the balance. They will clarify mobile machinery exemptions and transportation taxes, and discontinue refunds going from the trust fund into the general revenue fund for fuel tax exemptions. These are generally related to the highway trust fund.

Further, I will point out for those of us who said we want the trust fund used for highways, the trust fund right now is being used for other things that are not highway related, such as automobile, bus, and truck drivers. Some $36 billion will go to mass transit, a very valuable adjunct to the transportation system but not something that

people who pay highway trust fund taxes are using because they are putting the gas and diesel in their own vehicles.

There are also valuable environmental benefits in there such as CMAQ--congestion mitigation for air quality. There are also rails and trails and other easements in there that are a significant diversion of highway trust fund dollars from the direct highway trust fund purposes.

I hope my colleagues who have problems with strict application of highway funds being raised on highway uses deal with that in an amendment that is directly related to the highway bill transportation which is before us.

Obviously, one of the things one can do in the Senate is to offer amendments that are more properly the jurisdiction of other committees, which certainly collective bargaining is, I would say, such an effort. But this bill is so important to the United States, to our economy, and the safety and well-being of the people who use our highways and use our bridges in the United States that I hope we can get back to the main purpose of this measure, which is to continue the highway program, which builds better roads, better bridges, and provides jobs--47,000 jobs for each $1 billion of highway contracts--and provides the future for economic growth in our States.

As I have said on many occasions on this floor, I can tell you jobs are going to be located in the States where they have good transportation systems, and good highways are essential for that.

Finally, in my State it is a matter of saving lives. So I hope we can get back to dealing with the important measures in this bill. I hope we can deal with the specific needs, make the technical amendments that are normally permitted on such a bill, and debate the major provisions.

With that, I yield the floor.

Mr. President, picking up with the description of this bill, which we think is extremely important, I am going to share some other views. But I want to continue with this description of the bill.

Under the current law, there is a general prohibition against placing commercial establishments in recreation and safety rest areas on interstate rights-of-way. This bill creates a small exception to this prohibition by allowing States to place either electrification or other idling facilities that can be used for heating, air-conditioning, electricity, and communication. This will enable truck operators to receive services without continuing to run their engines, thereby reducing vehicle emissions. States, other public agencies, and private entities are already allowed to operate on the interstate system and may charge for the services provided under this new authority.

Why is this important? This is tremendously important. If you travel in your State along an interstate, you will find now that the new hours-of-service regulations require truckers to take more frequent breaks. There are rest areas in my State which are crowded with trucks. There are entrances to and exits from interstate highways where significant numbers of trucks are parked. This is to make sure that the drivers get the rest they need. There has been some controversy over it, but this is the rule and they are abiding by that rule. But when they are shut down and idling, particularly in bitter cold weather so they can get heat in their cab while they get the necessary rest, No. 1, it is causing dangerous situations along the roadway, on the exit and entrance ramps to interstate highways, and they are needlessly burning fuel, polluting the atmosphere, and causing excessive use of imported petroleum at a time when we face a real energy crisis.

So while this is a small part of the bill, it is one which responds to very significant needs to maintain safety for the traveling public, especially the truckers, and also to eliminate air pollution that comes from idling trucks.

Another program that I think is vitally important to empower the improvements in tolling, section 1609, deals with tools for toll programs. One of the effective things that has been used in many highway locations for raising revenue and regulating the flow of traffic is tolling. This bill modifies the Interstate System Reconstruction and Rehabilitation Program, the ISRRP, and establishes a new variable toll pricing program. This variable pricing program replaces the pilot program which was authorized in the previous TEA-21.

The new variable toll pricing program enables the use of variable toll pricing on congested facilities in order to increase mobility and improve air quality. This says that the Secretary can permit a State or public authority to toll any highway, bridge, or tunnel, including facilities on the interstate system, to manage high levels of congestion or reduce emissions in a nonattainment area or maintenance area.

This is extremely important when you look at the kinds of congestion we have in many areas during high traffic time. If there are tolls imposed when there would otherwise be heavy congestion, then those who must necessarily travel at that time can continue to do so by paying a toll. This is the ultimate market-based system for assuring that people who do not have to travel at high congestion times will not. Obviously, this means better traffic flow, this means less congestion, and therefore less pollution. So I think this is extremely important.

The Secretary may permit a State or public authority to manage the levels. The States must provide the Secretary with a description of the congestion and air quality problems, and the goals. Any State or public authority already operating under a cooperative agreement under the existing pricing pilot program of TEA-21 can continue under the existing laws.

We also have included some changes in the tolling requirements because in some States there are interstates which are badly out of date and in need of substantial rehabilitation. In the current laws, the provision for establishing tolls on existing interstates has been limited to replacement. If you have ever traveled I-70 in the State of Missouri, which is the lifeline for our State and for much of the Nation for east-west traffic going from coast to coast, certainly traveling between Kansas City and St. Louis, you will find that there are tremendous delays occasioned because the roads are inadequate. They are two-lane roads that are like driving in city traffic, they are so filled with cars and congestion.

In addition, when there are accidents on these roads, it is not uncommon for us to experience an hour or 2-hour delay. In one instance, I managed to miss a 7-hour delay by taking some back roads which I knew about to get around a major disaster.

This measure expands the ability to say if it is substantial rehabilitation or reconstruction, the State, if it chooses, could use tolls to improve an interstate.

Right now, Interstate 70 has the distinction of being the first toll road in the United States. But it also means it is a half a century old and it is at least 20 years out of date. The total cost for repairing it and replacing it is about $3 billion.

Some of my colleagues will be surprised to know that I have not asked in this bill for $3 billion to replace this vital national link. But I do believe we need to provide options for States to deal with problems such as this one. Whether they do it is going to be up to them. In the State of Missouri, there would have to be a vote of the people.

They would have to authorize the issuance of bonds and a tolling authority. This does not by any means say we are going to put tolls on it. It provides an option for the legislature, the Governor, the Department of Transportation to consider as they look at how they want to deal with one of these very significant highway corridors, which has become far too often a parking lot rather than a means of facilitating transportation between our two major cities and for people traveling from far beyond, going east to west through the heartland of the Nation, through the State of Missouri.

I think this is a very important provision and one which will provide States reasonable flexibility, not allowing them, willy-nilly, to take roads already financed through the interstate program, to impose tolls on them to finance other activities, but to make sure that we continue to realize the dream of those who initially formulated the interstate highway program to make sure that we can see traffic continue to proceed.

Let me move to another provision in the bill. It is section 1610, which merely directs the EPA to study the ability to monitor differentiation between fine and coarse particulate matter.

As we find out more about the dangers of pollutants, we find they are greater risks in the fine particulates in many instances which can cause far more significant harm than a coarse particulate because of the impact on the lungs.

Section 1611 adds particulate matter areas to the Congestion, Mitigation, and Air Quality Program. The funds under this provision are apportioned on the basis of a ratio of total weighted population of a State's nonattainment or maintenance areas to the total weighted population of all nonattainment or maintenance areas in the Nation.

If you didn't follow me on that, if a State has air quality problems in an area which is one-twentieth of all of the areas in the Nation, then they would get one-twentieth of the total funds available.

It sounds convoluted, but it really targets the CMAQ funds to the areas with greatest needs. Since many areas will need assistance to meet the new 8-hour ozone standard and the new fine particulate matter standard, the CMAQ formula is modified to include those areas. Adjustment factors are used to account for the number of pollutants for areas in nonattainment or maintenance. Section 1611 says CMAQ funds can be used for alternative fuel infrastructure under TEA-21. This bill goes further and encourages the use of CMAQ funds by listing the purchase of alternative fuel and the purchase of biodiesel fuel as eligible activities under CMAQ.

Due to some confusion in some DOT and EPA field and regional offices, we have also clarified that projects to control the extended idling of vehicles are indeed eligible for funding under the CMAQ program.

The bill also fixes oversight under current law that prevents States that do not have any nonattainment or maintenance areas from using CMAQ funds for CMAQ projects. Frankly, this allows us to get more homegrown clean fuels used with the assistance of CMAQ funds.

I happen to know something about soy diesel and about biodiesel. I am a great champion of it, because if you have followed a bus or a truck down the road that is burning straight diesel, you know what an unpleasant smell that can cause and what damage that can do to the environment. Biodiesel is a soybean-based or other biomass-based fuel which operates in a much cleaner burning environment. Several years ago we started a pilot project at the great training facility at Fort Leonard Wood, MO that needed to train soldiers to fight in smoke conditions on the battlefield. They had been burning diesel to provide that smoke. We felt that was not necessarily a good idea to be burning diesel and exposing our finest troops to the diesel pollution and the smoke that was caused. We worked with the Department of Defense to switch that to soy diesel. There was smoke. I asked them after they implemented what the byproducts were. They said, Obviously, we are not polluting the environment with petroleum-based diesel. We are burning a much cleaner soy-based fuel. It is much less harmful to the soldiers. The only problem is it smells like French fries and they get hungry. But given the alternative, that seems to be a good idea.

To the extent we get more buses and trucks using biodiesel, we are going to have greater benefits.

Let me give you two areas where soy diesel or any biodiesel can be a great improvement.

No. 1, firehouses: The fire men and women who live and stay in firehouses have complained for years. When they fire up the firetrucks, they get the diesel fumes coming up into the rest area. Sometimes, our valiant firefighters have to live and sleep in heavily polluted diesel- fuel-soaked areas. This is not only unhealthy, but it is very unpleasant. Fire stations have been some of the first places where we have used biodiesel. It has been extremely popular. Certainly when we are trying to talk about taking care of our first responders and the valiant firefighters who are on the line making sure the engines and the firetrucks below them are burning a clean-burning feel, it is a step in the right direction.

Another important area we have talked a lot about is school bus safety. When you have kids on school buses, the fumes from petroleum- based diesel come into that school bus. Do you know where they are the most dangerous? They are most dangerous when they are at low levels-- where the small children are. The smallest children are likely to be exposed to petroleum-based diesel fumes.

We are working to encourage more and more school buses to use soy diesel, and put aside the fact that kids are going to get hungry when they smell something that smells like french fries. But it is vitally important that we lessen the danger to our schoolchildren as well as lessening the use of diesel fuel and providing a significant benefit to those who produce soybean and other biomass.

I see a couple of our colleagues are here. Senator Thomas wishes to speak. We have lots more to talk about, but I will discontinue at this point and thank the Chair and thank my colleagues for coming to the floor.

Mr. President, we are checking with our colleagues on the possibility of setting a judicial nomination. As soon as we find out whether that is acceptable, we will ask consent.

Mr. President, we have heard lots of reasons why this bill is not a good bill, why we don't want to go to this bill, why we shouldn't be moving a highway bill. I have talked about some of those reasons, but let me share with you some information that indicates how the people of America think.

The Zogby International Survey Group did a broad-based survey of American voters. Nearly 70 percent of the voters contacted, in February 2003, said they believe America is facing a transportation capacity crisis, that our Nation's roads, airports, and mass transit systems are struggling to handle a growing population and economy.

Fifty-six percent overall and 79 percent of young women with children said traffic congestion is depriving them of more time with their families or for leisure activities today than just 5 years ago.

I don't think these answers should surprise any of us.

Since 1982, the U.S. population has grown by almost 19 percent, the number of registered motor vehicles has increased by 36 percent, and the vehicle miles traveled has ballooned by 72 percent. And--surprise-- over the past 20 years we have added less than 5 percent to road capacity, and even less than that to public transit.

What are the conditions of roads in local communities?

Forty-eight percent of those surveyed by Zogby said they were either fair or poor. When you move to Hispanic Americans, 75 percent said their communities have either fair or poor road conditions.

This is a problem in communities. This is a problem particularly for citizens who are maybe at a disadvantage in their community.

This survey's results come from a poll of over 1,000 voters nationwide, with a margin of error of plus or minus 3.2 percent.

I think some of the other findings are pretty important.

Eighty percent of the people polled think the Nation's highways and public transit networks are extremely important or very important to the U.S. economy. That is why we are here. Eighty percent of our constituents think highways and transportation networks are important. That is what this bill is all about. That is why we want to get everybody together to move this bill.

I urge my colleagues, if you have problems with particular portions of the bill, offer amendments. That is how this body functions. We would like to have good-faith amendments that seek to make changes which are necessary so we can move forward in a reasonable manner.

I think the people of America, particularly the 80 percent who say it is important, deserve to see us vote on issues that are of importance to them.

Eight in 10 of the people surveyed agree that an investment in highways, bridges, and public transit should be considered an important element in homeland security and national defense.

Ninety percent believe it is important that their representatives in Congress fight to ensure sufficient Federal

funding for transportation improvement projects in their local areas. I think some States must be lower than that because I think in my State it is higher than 90 percent. So some may have only 80 percent who think it is important.

Two-thirds of Americans say roads and public transit play a vitally important role in their life.

These are scientific surveys that merely confirm what I and many of my colleagues already know: If you go back to your home State and have a meeting about highway and transportation funding, you better get a big hall. I have had people come out to fill any hall that I have scheduled a meeting in to talk about it because they want to know more. They know it is important. I think this is vitally important.

I know there are some who may take a different view. Some people claim building more roads just causes more traffic. They even say you can't build your way out of traffic congestion. They are the zero sum game people, the ones who say there will just be more congestion.

Well, congestion is getting worse at a frightening pace in America. I believe the primary reason is a lack of adequate highway and public transportation capacity, not only in our major urban and suburban areas but in rural areas as well. As I have said several times, that is why we are killing people in Missouri. We don't have adequate highway transportation, particularly in rural areas.

Even as we spend more wasted time sitting in gridlocked traffic, many well-intentioned Americans, spurred on by the rhetoric of some of the extreme advocacy groups who want us all to ride bicycles--and I love to ride bicycles, but those won't get me to work and back, particularly when we have icy roads, as we do here, or when we have to take more people with us--are convinced that adding road capacity only causes more traffic congestion, more air pollution, more waste of precious fuels.

I think the answer to that is very clear: Research data from the U.S. Environmental Protection Agency, U.S. Department of Transportation, and the Texas Transportation Institute and common sense, if you and I just sit back and think about it, proves just about the opposite. The real problem is our lack of resolve to provide meaningful solutions to traffic congestion through new capital and operational investments. The failure to do so actually results in tons of unnecessary air pollution and billions of gallons of wasted motor fuel.

The Zogby poll found that 70 percent of America is facing a transportation capacity crisis, and all of these people realize we need, as a nation, the investment in transportation.

Talk about a drag on the economy, according to the Texas Transportation Urban Mobility Report, absent substantial new investments in highway and public transportation capacity, transportation operations across the Nation, the economic cost of traffic congestion in the Nation, lost productivity, wasted motor fuel will grow from about $67.5 billion in 2000 to almost $100 billion by 2009. That is one of the reasons we seek to have the investment. Yes, $255 billion is a large amount. It is not all going to highways. It comes from highway user taxes, but it goes to mass transit; it goes to congestion mitigation; it goes to scenic easements, to other things that improve the environment in which we live.

If we don't make these investments, the Texas Transportation Institute forecasts that over this period the average road speed in America's 675 largest urban communities will fall from about 42.3 miles per hour to 40.3 miles per hour. If you believe, as I do, that time is money, that reduction will continue to grow what is really a hidden tax levied on American consumers as transportation labor productivity decreases and costs increase.

Another one of the problems we have with congestion is pollution. The good news, according to the U.S. Environmental Protection Agency data, is that motor vehicle emissions have declined dramatically since the 1970s, thanks in part to the developments in new automotive and motor fuels technology. Emissions of carbon monoxide are down 45 percent since 1970, volatile organic compound emissions are down 60 percent, particulate matter emissions are down 47 percent, nitrogen oxide emissions are down 5 percent, and lead emissions have been eliminated.

The bad stuff is being reduced. We are getting the bad stuff out. This remarkable environmental achievement, which is responsible for most of the air quality improvement in the United States over the past three decades, was accomplished at the same time the number of licensed motor vehicles in the United States grew 87 percent and total vehicle miles traveled soared by 125 percent. Unfortunately, traffic congestion is retarding clean air progress just as it is retarding American productivity and economic growth.

Unanimous Consent Agreement--Executive Calendar

Mr. President, as in executive session, I ask unanimous consent that at 3:55 today, the Senate proceed to executive session to consider the following nomination on today's Executive Calendar: Calendar No. 457, the nomination of Mark Filip to be U.S. District Judge for the Northern District of Illinois.

I further ask unanimous consent that following 5 minutes for debate equally divided between the chairman and ranking member or their designees, the Senate proceed to a vote on the confirmation of the nomination; further, that following the vote, the President be immediately notified of the Senate's action and the Senate then return to legislative session.

Reserving the right to object, there is some question on this side about the amendment being an amendment to the commerce title, and at this point we are not prepared to give consent to that. We want to work with the Senator who has been working in good faith, but I have been asked, since this is a matter that relates to a different section of the bill, to hold off. We can work through this if we can go with the original consent.

Mr. President, on this side I am not authorized to enter into that type of UC. I assure the Senator and my colleagues on the other side we will work with them. There is a concern about moving into the commerce title. We will work with him if we can move forward on the consent for the judge vote; then we will work on this, if we can get consent for that.

I believe at this point it is necessary to revise the unanimous consent. First, I say to my friend from North Dakota that the title he wants to amend has not been offered. That is a problem on which we are going to have to work. We have only offered the EPW portion.

I asked unanimous consent that there be 5 minutes equally divided between the chairman and the ranking member and, thereafter, there be a vote on the nomination of Mark R. Filip, of Illinois, to be U.S. District Judge for the Northern District of Illinois.

I renew my request. Following the 5 minutes, I ask unanimous consent that the Senate proceed to a vote on the confirmation and, following the vote, the President be immediately notified of the Senate's action and the Senate return to legislative session.

Mr. President, I rise today to introduce legislation to amend the Graton Rancheria Restoration Act to give the State of California and the local communities of Sonoma, Napa, and Marin counties the opportunity for input and review of the tribe's plan for a major casino in the Bay Area.

I am offering this legislation because the Boards of Supervisors of the local communities impacted by this planned casino have asked me to amend the Graton Rancheria Restoration Act. The Boards of Supervisors of Sonoma, Marin, and Napa counties have each unanimously passed resolutions seeking a change in Federal law to restore the Secretary of Interior's discretion in approving land into trust and allowing the State and local government to have a voice in the process.

Prior to today's introduction I have met with the Presidents of the Sonoma and Marin Boards of Supervisors, the Graton tribe, and Senators Campbell and Inouye the Chairman and Ranking Member of the Indian Affairs Committee.

This week I had a very spirited and frank conversation with Graton Tribal Chairman Greg Sarris and representatives from the casino investors. During the meeting Chairman Sarris committed to work with the local Boards of Supervisors and he committed to look at alternative sites for the casino. Chairman Sarris also said the Tribe and the casino investors would conduct an environmental review based on the criteria laid out in the National Environmental Policy Act, NEPA, before a site is selected. These are positive signs and I have told both the Boards of Supervisors and the Tribe that I would like to see them continue to work together.

This legislation guarantees that the local and State officials have a voice in the process. Without this change to the Graton Rancheria Restoration Act they do not have that voice.

In 2000, Congress passed the Graton Rancheria Restoration Act to restore Federal recognition to the 355 members of the Federated Indians of the Graton Rancheria.

The Graton Tribe's original Rancheria was in the northern Sonoma County town of Graton on land purchased by the Bureau of Indian Affairs, BIA, in 1920 for the ``village home'' of otherwise homeless Miwok and Pomo Indians. The Rancheria was terminated in 1958 when the BIA approved a plan to distribute the assets to resident Indians and remove the Rancheria from Federal trust.

The original version of the Graton restoration bill, H.R. 946, sponsored by Congresswoman Lynn Woolsey in the 106th Congress, passed the House of Representatives with a gaming restriction, to which the Tribe agreed.

In testimony before the House Resources Committee in May 2000, and in other public comments, Graton Chairman Greg Sarris stated that the Tribe had no intention of conducting gaming.

In fact, before the House Resources Committee, Chairman Sarris stated, ``Many may think our motives for restoration have been influenced by the opportunity gaming affords some other recognized tribes. Because our local political constituency, both democratic and republican has opposed any sort of development for environmental reasons, we agreed with these local political forces to not develop a gaming complex. So, as proof, we voted as a tribe to include a non- gaming clause in our bill, stipulating that we will not be a gaming tribe.''

Furthermore, in an article in the Marin Independent Journal on September 21, 2000, Chairman Sarris said, ``All we want is to be formally recognized as Indians and have the same rights that other Indians do for education and health care. We are not interested in gambling.'' I ask unanimous consent to print a copy of this article in the Record.

Senator Boxer sponsored legislation identical to Congresswoman Woolsey's in the Senate, but the gaming restriction was stricken when the bill was ultimately passed as part of the Omnibus Indian Advancement Act of 2000.

The day the legislation passed on December 11, 2000, Senator Boxer stated on the Senate Floor that dropping the gaming restriction was necessary because of opposition to the no-gaming clause by the Senate Committee on Indian Affairs and the Clinton Administration and because, according to Senator Boxer, ``Senator Inouye asserts that the no-gaming clause is unnecessary because the Graton Rancheria have no intention of conducting gaming.''

So what has changed one might ask?

Well, even though the Gratons voluntarily and repeatedly took a no- gaming pledge while their restoration bill was under consideration by Congress, on April 23, 2003, the Tribe and its partner, Stations Casinos of Las Vegas, announced plans to purchase approximately 2,000 acres of land in Southern Sonoma County near Sears Point for the development of a casino.

This site is located on environmentally sensative open space and San Francisco--North Bay tidelands which have been the subject of a decades-long conservation effort by environmentalists and local residents.

This site is roughly 30 miles from San Francisco--along the gateway to Sonoma that leads thousands of travelers into the beautiful wine country each day.

The Tribe's casino proposal has outraged local elected officials and residents who had sympathized with the Tribe's plight and supported their restoration on the condition that they not seek to develop a casino. The Sonoma and Marin County Boards of Supervisors have each passed unanimous resolutions objecting to the Graton casino proposal. In fact, even the Board of Supervisors of neighboring Napa has also passed a resolution against the casino proposal. I ask unanimous consent to print these resolutions and letters from the counties in the Record.

Let me just read one part of the Resolution from Marin County which will give you an idea of the opposition to the Graton tribe's proposed casino:

RESOLVED, that the Board of Supervisors of the County of Marin calls on its elected members of the United States Senate, Dianne Feinstein and Barbara Boxer, and its elected member of the House of Representatives, Lynn Woolsey, to assist the residents of Marin and the entire North Bay to preserve their environment by introducing legislation that would amend the Graton Rancheria Restoration Act and/ or the Indian Gaming Regulatory Act to stop the unregulated creation of tribal lands and to subject development of tribal lands in the Marin and Sonoma Counties at a minimum to the regulatory and approval processes applicable to newly acquired tribal lands by the Indian Gaming Regulatory Act.

While the counties acknowledge that the Graton have a right to be recognized, they object to the site selected by the tribe and they especially object to language in the Restoration Act

that precludes the local community, the Governor, or the Secretary of the Interior from providing input on the suitability of this location for land taken into trust for gaming purposes.

There is a problematic section of the Restoration Act that states, ``Upon application by the Tribe, the Secretary shall accept into trust for the benefit of the Tribe any real property located in Marin or Sonoma County . . .'' According to the Department of the Interior, this language removes any discretion by the Secretary as well as any tribal obligations for consultation with the surrounding community or environmental review, as required by the normal process under the Indian Gaming Regulatory Act for newly acquired land taken into trust for gaming purposes.

According to the Department of the Interior, the tribe must only conduct a hazardous materials review and show title to the land for land to be taken into trust. This could be completed in 9 months--and it is an inadequate review in my opinion.

Since the local communities are seeking a remedy which would restore the Secretary's discretion in approving its land trust application and allow local government to provide input in the process, I am introducing this legislation today that will change the ``shall take land into trust'' to ``may take land into trust.'' This legislation will also require the two-part test that is standard under the Indian Gaming Regulatory Act of 1988 to apply so that the State and local communities have input in the process.

There is precedent for this change. In 1994, legislation was passed restoring the United Auburn Tribe with the same directive to the Secretary of the Interior, requiring that land ``shall'' be taken into trust for the Tribe. One of the restoration act's sponsors, Congressman John Doolittle sponsored an amendment to change ``shall'' to ``may'' after it had been passed, thereby affording the Secretary of Interior discretion in accepting particular parcels of land into trust and local government officials an opportunity to weigh in on the Tribe's proposed site.

The result of that change was that the Auburn Tribe and Placer County officials successfully cooperated in not only identifying a mutually agreeable site, but they signed a Memorandum of Understanding to mitigate potential impacts from the proposed Thunder Valley Casino. And earlier this month, the tribe opened its casino.

Today California is home to 109 federally recognized tribes. 61 tribes have gaming compacts with the State and there are 54 tribal casinos. With more than 50 tribes seeking Federal recognition and approximately 23 recognized tribes seeking gaming compacts from the Governor, revenues from California's tribal gaming industry are expected to surpass Nevada's by the end of the decade.

The dramatic growth in tribal gaming in California has the potential to yield much needed benefits for tribal members in terms of healthcare, education and general welfare, as Congress and California voters intended. However, the question is not whether gaming should be permitted, but rather how and where. Those questions were asked and answered in the Indian Gaming Regulatory Act of 1988, IGRA. But without the modest change made by this legislation, the Graton tribe will be allowed to develop an off-reservation casino outside the requirements established in IGRA, the first time such an exception has ever been made for a California tribe. Allowing this to happen would set a dangerous precedent not only for California, but every State where tribal gaming is permitted.

The changes we are seeking today are extremely modest. We are not reversing any restoration of the tribe. We are not infringing on Native American sovereignty. We are not even blocking the casino proposal. We are only seeking to give the State and the local communities a voice in the process. They were promised the tribe would not open a casino. That promise was broken, so the least we can do is ensure a normal review will take place.

I hope my colleagues will support this legislation and I look forward to working with the Chairman and Ranking Member of the Indian Affairs Committee to pass this legislation quickly.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to introduce the Notification of Risk to Personal Data Act of 2003. This legislation will require that individuals are notified when their most sensitive personal information is stolen from a corporate or government database.

Specifically, the bill would require government or private entities to notify individuals if a data breach has compromised their Social Security number, driver's license number, credit card number, debit card number, or financial account numbers.

In most cases, if authorities know that someone is a victim of a crime, the victim is notified. But that isn't the case if an individual's most sensitive personal information is stolen from an electronic database.

Unfortunately, data breaches are becoming all too common. Consider the following incidents which have compromised the records of hundreds of thousands of Americans.

On April 5, 2002, a hacker broke into the electronic records of Steven P. Teale Data Center, the payroll facility for California State employees. The hacker compromises files containing the first initials, middle initials, and last names, Social Security numbers, and payroll deduction information of approximately 265,000 people. Despite the breathtaking potential harm of the crime, the breach was not publicly acknowledged and State employees were not made aware of their vulnerability to identify theft until May 24, 2002--17 days later.

On December 14, 2002, TriWest Health Care Alliance, a company that provides health care coverage for military personnel and their families, was burglarized at its Phoenix, AZ offices. Thieves broke into a management suite and stole laptop computers and computer hard drives containing the names, addressed, telephone numbers, birth dates and Social Security numbers of 562,000 military service members, dependents and retirees, as well as medical claims records for people on active duty in the Persian Gulf.

In February 2003, a hacker gained access to 10 million Visa, MasterCard, American Express Card and Discovery Card numbers from the databases of a credit processor, DPI Merchant services of Omaha, NE. Company officials maintained that the intruder did not obtain any personal information for these card numbers such as the account holder's name, address, telephone number or Social Security number. However, at least one bank canceled and replaced 8,800 cards when it found out about the security breach.

And in March of this year, a University of Texas student was charged with hacking into the university's computer system and stealing 55,000 Social Security numbers.

These are just some examples of the types of breaches that are occurring today. Except for California, which as a notification law going into effect in July, no State of Federal law requires companies or agencies to tell individuals of the misappropriation of their personal data.

I strongly believe Americans should be notified if a hacker gets access to their most personal data. This is both a matter of principle and a practical measure to curb identity theft.

Let me take a moment to describe the proposed legislation.

The Notification of Risk to Personal Data Act will set a national standard for notification of consumers when a data breach occurs.

Specifically, the legislation requires a business or government entity to notify an individual when there is a reasonable basis to conclude that a hacker or other criminal has obtained unencrypted personal data maintained by the entity.

Personal data is defined by the bill as an individual's Social Security number, State identification number, driver's license number, financial account number, or credit card number.

The legislation's notification scheme minimizes the burdens on companies or agencies that must report a data breach.

In general, notice would have to be provided to each person whose data was compromised in writing or through e-mail. But there are important exceptions.

First, companies that have developed their own reasonable notification policies are given a safe harbor under the

bill and are exempted from its notification requirements.

Second, encrypted data is exempted.

Third, where it is too expensive or impractical, e.g., contact address information is incomplete, to notify every individual who is harmed, the bill allows entities to send out an alternative form of notice called ``substitute notice.'' Substitute notice includes posting notice on a website or notifying major media.

Substitute notice would be triggered if any of the following factors exist: 1. the agency or person demonstrates that the cost of providing direct notice would exceed $250,000; 2. the affected class of subject persons to be notified exceeds 500,000; or 3. the agency or person does not have sufficient contact information to notify people whose information is at risk.

The bill has a tough, but fair enforcement regime. Entities that fail to comply with the bill will be subject to fines by the Federal Trade Commission of $5,000 per violation or up to $25,000 per day while the violation persists. State Attorneys General can also file suit to enforce the statute.

Additionally, the bill would allow California's new law to remain in effect, but preempt conflicting State laws. It is my understanding that legislators in a number of States are developing bills modeled after the California law. Reportedly, some of these bills have requirements that are inconsistent with the California legislation. It is not fair to put companies in a situation that forces them to comply with database notification laws of 50 different States.

I strongly believe individuals have a right to be notified when their most sensitive information is compromised--because it is truly their information. Ask the ordinary person on the street if he or she would like to know if a criminal had illegally gained access to their personal information from a database--the answer will be a resounding yes.

Enabling consumers to be notified in a timely manner of security breaches involving their personal data will help combat the growth scourge of identity theft. According to the Identity Theft Resources Center, a typical identity theft victim takes six to 12 months to discover that a fraud has been perpetuated against them.

As Linda Foley, Executive Director of the Identity Theft Resources center puts it: ``Identity theft is a crime of opportunity and time is essential at every junction. Every minute that passes after the breach until detection and notification increases the damage done to the consumer victim, the commercial entities, and law enforcement's ability to track and catch the criminals. It takes less than a minute to fill out a credit application and to start an action that could permanently affect the victim's life. Multiply that times hundreds of minutes, hundreds of opportunities to use or sell the information stolen and you just begin to understand the enormity of the problem that the lack of notification can cause.''

If individuals are informed of the theft of their Social Security numbers or other sensitive information, they can take immediate preventative action.

They can place a fraud alert on their credit report to prevent crooks from obtaining credit cards in their name; they can monitor their credit reports to see if unauthorized activity has occurred; they can cancel any affected financial or consumer or utility accounts; they can change their phone numbers if necessary.

I look forward to working with my colleagues to pass this vitally needed legislation. This bill will give ordinary Americans more control and confidence about the safety of their personal information. Americans will have the security of knowing that should a breach occur, they will be notified and be able to take protective action.

I ask unanimous consent that the text of the bill be printed in the Record.

I rise to introduce with Senator Wyden a bill to reduce the risk of catastrophic fire in our country's magnificent national forests.

No one who watched last week as Arizona's community of Summerhaven on Mount Lemmon burned can doubt the importance of this issue. My heart goes out to the residents of Summerhaven, and to the others who will be displaced by the fires yet to come this summer.

Americans know that there is something wrong with our national forests. For too long we have suppressed fires, gradually letting brush and small trees multiply until many of our forests are now choked by a dense thicket.

Today, there are 57 million acres of Federal lands at the highest risk of catastrophic forest fires. If we do not take action now, these forests could go up in smoke. This bill we are introducing today is balancing, and it will reduce the risk of catastrophic fire in our country's magnificent national forests.

This legislation would speed up the environmental review process-- without sacrificing the most important environmental protections. It also would protect the communities which face the highest risk and safeguard old growth stands and large trees. And it would include sensible provisions on judicial review that will help projects go forward quickly without compromising our independent judiciary. These are provisions that makes sense, and I hope that my colleagues will support the bill.

We have crafted our bill around three fundamental principles:

We should focus limited Federal resources on protecting communities and on the forest lands truly most at risk;

We should speed up the environmental review process, but without sacrificing the most important environmental protections; and

We should protect old growth stands and large trees.

Let me show how the bill achieves these three goals.

First, the bill prioritizes our efforts. Many people believe that we should protect communities first. The bill does so. Seventy percent of the funding is directed to the wildland-urban interface near communities.

Of course, conditions vary by State. The bill allows Governors to adjust the percentage of work that is to be done within the wildland-- urban interface for their State, up to a maximum of 75 percent, or down to a minimum of 50 percent.

By way of contrast, H.R. 1904, which passed the House, includes no focus on protecting communities. All the money can be spent far from communities under H.R. 1904, even if the Governor of a State wishes otherwise.

Senator Wyden and I believe that in addition to protecting communities, there are some forest lands that should be thinned to ensure that catastrophic fires do not devastate the forest and eliminate habitat for the species that have there.

In the last century, Americans have rigorously suppressed fires, stamping them out whenever they start. In certain forests like ponderosa pine, these fires would naturally have cleared out the brush and small trees every 10 or 20 years or so.

In the absence of these fires, brush has grown into ``doghair thickets'' with dangerous levels of fuel loadings. When fires burn now in these forests, they will be so hot that they won't just clear out the brush but will kill the large trees and often scorch the soil.

These are the forests where we need to focus our efforts. We thus target thinning projects to forests that are both Fire Regime I and Condition Class 3. Fire Regime I forests are those that used to have low-intensity, brush-clearing fires; and Condition Class 3 forests are the most altered from their natural condition. The combination of Fire Regime I and Condition Class 3 are the highest priority lands for treatment.

We also direct projects to municipal watersheds and diseased or windblown forests that are in Condition Class 3. If we don't protect the municipal watersheds, catastrophic fires could strip off the tree cover that prevents soils from eroding into creeks and lakes. Municipalities' water quality could suffer.

In contrast to our bill, H.R. 1904 fails to prioritize brush-clearing projects for the areas that need it the most. Instead, H.R. 1904 provides expedited processes for lands that are only moderately altered by fire suppression--Condition Class 2 lands in addition to Condition Class 3.

In many of the forests where H.R. 1904 would direct brush-clearing work, there naturally would have been severe fires that burned all the trees in the stand. After a thinning project, fires in these forests will still behave the same way, scorching and killing most of the trees. Thus, much of the thinning called for in H.R. 1904 would have little effect on the fire behavior or forest health.

Senator Wyden and I have worked very hard to develop a bill that speeds up the review process so important work can get done without sacrificing environmental protections.

Almost everyone agrees that we need to work quickly to protect the areas immediately around communities. There is little controversy or debate over these projects.

The Forest Service has proposed an analytical short-cut for these projects, which requires very little environmental analysis and no formal pubic comment process or administrative appeal.

There is some uncertainty, however, over the Forest Service's proposed approach. People can claim that laws Congress has previously passed will require some of these projects to be held up by more environmental analysis or administrative appeals.

Our bill eliminates this uncertainty. When the Forest Service works in the immediate vicinity of a community, the bill would make absolutely clear that there need to be no environmental analysis or administrative appeals. The only exception is where there might be extraordinary circumstances, such as a major threat to endangered species. We also prohibit the Forest Service from conducting clearcuts around communities, requiring them to focus on clearing out the brush.

By way of comparison, the House-passed bill does not provide any assistance to thinning projects in the immediate vicinity of communities, even though everyone agrees on the need for these projects.

Senator Wyden and I have also sped up the process for projects outside the immediate vicinity of communities. These projects are more controversial, so we want to make sure that the public has some opportunity for input.

In the past, the Forest Service and the Department of the Interior have been able to conduct the majority of brush-clearing mechanical treatment following a National Environmental Policy Act process known as environmental assessments. Our bill simplified these environmental assessments in several ways.

The bill provides one round of public comment--the administrative appeal process--rather than two.

The bill shortens the time frame for administrative appeals from 90 to 60 days.

Finally, the appeal deciding offer can make necessary changes rather than having to send the project back to the original decisionmaker for further time-consuming review.

Together, these changes will likely speed up the process by a few months or more. We do all this without eliminating public comment or gutting core parts of the environmental analysis.

In contrast, the House-passed bill would eliminate the requirement that the Forest Service consider alternatives to the proposed project as part of its environmental analysis. In other

words, the Forest Service doesn't have to study other, less damaging ways of undertaking the project--it can just do the project the way it wants.

Many people think that public debate over alternatives is the core of the National Environmental Policy Act. Our bill does not eliminate this important environmental protection.

Another important part of our bill is its protection of magnificent old growth stands. The remaining groves of these trees provide a connection to nature untrammeled by human activity, a connection that many of us cherish.

Our bill would require full protection of these old growth stands. In addition, outside old growth stands, the bill focuses on small-diameter trees and protects large trees that promote fire-resistant stands and species diversity.

By way of contrast, H.R. 1904 provides no protection for these magnificent resources.

Let me now talk about judicial review. No one wants court cases to go on too long. In addition, people should not be able to tie up projects by gaming the system and picking and choosing the friendliest courts to hear their lawsuits.

Our bill addresses these problems. The bill encourages courts, to the maximum extent practicable, to resolve lawsuits over brush-clearing projects quickly. These are important projects for the safety of our communities and our forests, and it is appropriate to give them some priority.

In addition, we require that potential litigants file suit in the same judicial district where a fuels reduction project takes place, No one can game the system by looking for a friendly judge somewhere else.

Finally, we limit temporary injunctions that are typically issued at the outset of a case to 60 days. They can be renewed if necessary--but the challengers to a projects must submit updates explaining why the injunctions should be extended. This provision prevents projects from being held up any longer than is strictly necessary.

These changes will expedite the process--but they still respect our court system's essential autonomy. As a member of the Judiciary Committee, I spend much of my time trying to make sure our court system is as fair as possible.

Americans count on a judiciary independent of the executive branch to preserve their liberties and to right any wrongs that their government commits. I think it is very important that we do not interfere with the independence of our judiciary.

The House-passed bill would require the courts to give weight to certain findings by the Forest Service and the Department of the Interior. Even if projects had been found to violate the environmental laws, courts would be told to give weight to the agencies' findings and allow many of the projects to go ahead anyway.

This is a dangerous provision for a bill to include, and I cannot support it. I believe our bill includes more sensible provisions on judicial review that will help projects go forward quickly without compromising the independence of our judiciary.

Our bill includes several provisions to address forest health problems on private and State lands.

We authorize $50 million annually in emergency grants to States and localities where lives are at risk. The last few years have seen vast insect epidemics killing millions of trees in Southern California, Arizona, and elsewhere.

In places like Lake Arrowhead, Big Bear and Idyllwild in Southern California, communities are surrounded by dead and dying trees that are perfect kindling for a catastrophic fire. There is a real threat to people's lives that we must address.

There is now no good funding source for clearing evacuation routes and clearing around schools and other emergency shelters that are on State and private lands. The emergency grants in the bill would authorize funds for these essential purposes.

The bill also includes two measures to encourage homeowners to clear brush around their houses and install non-flammable roofs. A study of Southern California fires by Forest Service researcher Jack Cohen has shown that these measures could reduce a blaze's threat to homes by as much as 85 to 95 percent.

Our bill would encourage these home-saving practices in two ways:

The bill would prioritize grants to those communities that encourage brush-clearing and use of non-flammable roofs or develop comprehensive fire plans.

The bill would record the Sense of Congress that insurers should offer lower premiums to homeowners who take steps to protect their homes.

Our bill would also include grants to encourage the use of woody material, or biomass, for energy production. Biomass-to-energy plants serve multiple beneficial purposes: one, they are a clean and renewable source of energy; and two, they make brush-clearing projects more cost- effective, so we can protect more with the finite Federal dollars available.

Finally, our bill would also include contracting provisions to benefit rural communities. The Forest Service and the Department of the Interior would be required to use ``best value contracting'' for brush- clearing projects under the Act.

This contracting approach requires the agencies to consider other factors besides the price of the bid in awarding contractors. Bidders would be rewarded for such factors as their commitment to hire local workers, and their past record of environmental stewardship.

I would like to close by saying that this is truly a bipartisan issue. All of us, Democrat and Republican, have an interest in clearing out dangerous accumulations of brush in our national forests. All of us have an interest as well in protecting the magnificent old growth stands and species habitat that Americans cherish, and in upholding our environmental laws.

I look forward to working with my colleagues on both sides of the aisle to pass a bill as soon as possible.

Yesterday, we had several occasions where we were trying to stay on the bill, and we kept saying: All right, one more person, one more person, one more person.

As manager of the bill, I am going to do everything I can parliamentarily to stay on the bill and not get into other subjects.

At 2:30.

To do everything to accommodate the Senator from Florida, what I would like to do is stay on the bill until later on this afternoon, and at that time I am sure we are going to come to a point where, because of other things that are happening, there are not going to be Senators who want to speak on the bill, and then we could go to this so the Senator would have the time he requested.

I have no objection if he changes his 3:30 to 5 o'clock. There are some things happening that affect every Senator in here tonight having to do with the National Prayer Breakfast, and I would like to accommodate them as well.

The majority leader will have to get in on this, but I would say even earlier than that. We are going to have amendments. In fact, we have some amendments that will be ready today. We need to get to those and get this bill moving.

Mr. President, I yield to the Senator from Nevada.

Yes. I have a letter I read yesterday. It is dated February 2, 2004. I have not heard anything either way about whether or not they are supporting this legislation. But they outlined a set of principles yesterday to which our bill complies. I think the minority leader covered the three criteria that were used that would keep them from opposing the bill, and I believe they have been met. We talked about it yesterday. One is to not increase gas taxes. Second, it would not have any kind of bonding arrangement. Third, that it would not get in the general fund.

The third one is where there is some debate. I trust the Senate Finance Committee. I talked to both sides, Democrats and Republicans, and they came up with something I think meets the criteria. I am satisfied it does.

Mr. President, if the Senator will yield, let me make an observation. We talked about this bill for several hours. Almost everyone who came down was objecting to what their State would get from this formula. When you compare this, starting with the same basic structure of a formula as we did in TEA-21--and remember, in TEA-21, we had the minimum guarantee.

What that did was take arbitrary political percentages and apply them in order to get votes. We have done far more. This takes into consideration the streamlining provisions about which we haven't even talked. We spent months on this in the committee, as our committee members know.

Safety and freight areas have not really been addressed before. This is something of which we can be proud. I have to say, when we put together the charts of all 50 States, there isn't one State that is not treated fairly, doesn't have an increase and doesn't have some kind of logic balancing the donee-donor, balancing the fast-growing States and the low-population States.

All these points are considered, and I think it is a very good bill. I agree with all on the committee.

Mr. President, yesterday we started through this bill. It is a rather lengthy bill. It covers a lot of provisions that haven't even been discussed, and I think a lot of Members are not really aware of some parts of this bill.

As the chairman of the committee, I thought it an obligation to go through this section by section, and I did go through sections 1104 through 1204, where we talked about how this was put together, how the formulas were put together. I also spent about an hour talking about the environmental improvements that are made in this bill.

I confess there are many things in this bill that I would rather have done in a different way, and I am sure Senator Reid and Senator Jeffords would say the same thing. In fact, they have said the same thing. Since we will have to get through this today at some point, I would like to go ahead and start with section 1205 and finish what we started yesterday. I hope any Members who are interested in making comments or offering amendments will come and do so, because I will be doing this in order to get through the bill.

Section 1205 is one in which I was particularly interested. Senator Reid yesterday talked about Daniel Patrick Moynihan and the contributions he made over the years. I felt compelled to stand up and remind him that Daniel Patrick Moynihan was a Tulsa boy. He was from Tulsa, OK, and was one of my very favorite people.

I think it is very appropriate that section 1205 is the designation of the Daniel Patrick Moynihan Interstate Highway as a part of the bill. Interstate Highway 86 in the State of New York is specifically designated as the Daniel Patrick Moynihan Interstate Highway in memory of our late colleague.

There are several others who have said good things about him. In fact, in the years I have been in the Senate, Senator Moynihan is the only Senator

about whom I have never heard one negative thing.

Section 1301 is the Federal share section. It continues the statutory provisions that lay out what the Federal share for the highway project will be for different States based on the amount of Federal land within their State. The Federal share provisions of current law use a sliding scale. This scale permits States with large portions of Federal land to match Federal funds with fewer State dollars. That is only reasonable because they are not collecting taxes off of these lands and they should not have to pay the same match.

Due to the decreased taxing ability of the States with a higher percentage of Federal lands, these States are given access to a higher Federal contribution for highway projects within their State. The bill before us today modifies this provision slightly to simplify the calculation used to determine the Federal share rates that apply to each individual State.

I might add that in this bill there are certain things my colleagues will see consistently throughout. One is simplification. One is to put it in language that we can all understand, that the public can understand, that our people back home can understand, and so that the departments of transportation in the various States will have a clear understanding as well, and they will take all of these complicated interpretations.

Another thing my colleagues will find all the way through is a streamlining effort to try to get more roads for the dollar. I think we have successfully done that, reaching a lot of compromises. So this is what my colleagues will see as we go through the bill section by section.

Section 1302 is the transfer of highway and transit funds. There is a technical fix that was requested by the Federal Highway Administration that clarifies that title 23 funds, that is the highway dollars, can be transferred to the transit administration from State to State or from State to another Federal agency as long as the project to be funded is eligible under title 23. I think that is a very reasonable approach.

An example of when this authority could be used is a State that has a congestion problem at or near a border crossing. They may determine that the problem is caused in part by inadequate parking facilities for the Customs Service to conduct truck inspections. To solve their larger congestion problem, it makes sense to provide money to the Customs Service to build parking lot facilities for truck inspections. This has been done administratively in the past, but section 1302 provides very clear guidance so they do not have to sit around and guess what in fact is going to come up.

Section 1303, the Transportation Infrastructure Finance and Innovation Act, which is referred to as TIFIA, was established for the first time in TEA-21 to provide Federal credit assistance to major transportation investments. The TIFIA program has proven to be an innovative and successful addition to the conventional grant and reimbursement highway program.

After watching the TIFIA program succeed as a funding device for a few large projects during TEA-21 and after receiving input from stakeholders and recommendations from the administration, the committee bill has made a few changes to the TIFIA program to expand its scope and increase its usability.

The amount of the Federal credit assistance cannot exceed 33 percent of a total project cost. TIFIA offers three different types of financial assistance to the large projects: One, direct loans; two, loan guarantees; and, three, standby lines of credit. The bill also lowers the threshold cost for eligible projects from the TEA-21 level of $100 million down to $50 million to make it available to more people and more projects, making TIFIA accessible to a greater number of large highway projects.

Projects are also eligible for TIFIA assistance when costs are anticipated to equal or exceed 20 percent of Federal highway funds apportioned to that particular State. With the increased emphasis this bill places on freight mobility, the definition of eligible freight- related projects is expanded.

I think the Senator was out of the Chamber when I said I eventually wanted to get through this section by section, but I can do this at any time. As soon as the Senator has anything ready, certainly I am interested in taking that up.

Reclaiming my time, I think he had stated he was not prepared to do that right now, but perhaps one will be coming along in a short while.

I have no objection to that. I think it is a good idea, and we will so inform Senator Bond.

I suggest the absence of a quorum.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, we have been trying to get through the explanation of this bill section by section. We have done so now all the way up to section 1304. It seems most people were concerned yesterday about the formula. Now we are addressing another problem. But we have not gotten into the full explanation of the bill. We have gone from section 1104 through section 1303.

I am going to go ahead and proceed. If anyone either has an amendment or wants to be heard on the bill, of course, I will give them that opportunity.

Section 1304 is in regard to the facilitation of international registration plans and international fuel tax agreements.

In response to issues surrounding commerce from Mexico, S. 1072 gives the Secretary of Transportation discretion to provide financial assistance to States participating in the International Registration Plan and the International Fuel Tax Agreement. These States incur certain administrative costs resulting from their service as a home jurisdiction for motor carriers from Mexico.

The International Fuel Tax Agreement and the International Regional Plan are agreements among various U.S. States and Canadian Provinces that facilitate the efficient collection and distribution of fuel taxes and apportioned registration fees among each member jurisdiction.

Under both programs, each motor carrier designates its home State or Province as the jurisdiction responsible for collecting fuel use taxes and fees. Since the implementation of NAFTA, the Mexican Government imposes and collects fuel taxes and registration fees differently from the United States and Canada. The National Governors Association is currently evaluating Mexico and its participation in the IFTA and IRP programs. In the interim, Mexican motor carriers may use individual U.S. States or Canadian Provinces as their home jurisdiction. So we are talking about something that is in the interim until the problem is resolved but is necessary.

Section 1305 is in regard to the National Commission on Future Revenue Sources to Support the Highway Trust Fund and finance the needs of the surface transportation system.

As many of you know, I am personally not one to support expansions of bureaucracy or the creation of innumerable review boards, committees, and commissions. However, this bill creates, and I have found good reason to support, a new temporary--temporary--national commission on future revenue sources to support the highway trust fund and finance the needs of the surface transportation system.

Funding the highway program has already become increasingly more challenging. Even as we debate the funding of this bill, we are confronted with the task of finding innovative and efficient funding methods to capture user fees lost to the fuel tax evasion and a host of other issues that the Finance Committee has done a great job in addressing.

However, one issue that has not been addressed, but must be before the next reauthorization cycle, is Federal incentives for the purchase of hybrid and other fuel-efficient vehicles. Fuel efficiency is a goal I support, but I do not believe it should come at the expense of the highway trust fund. So we have these exemptions, which has the result of reducing the revenues that would otherwise come in, even though the goal or the policy we are trying to establish is, perhaps, an inevitable policy.

We run the risk of making economic and environmental advances at the cost of jeopardizing our primary funding source for the highway trust fund--gas taxes. In recent years, the highway trust fund has seen a decrease in revenues. Constant changes in the automotive industry and the economy as a whole impact user fee revenues. We must continue to identify new and reliable revenue sources to sustain the program.

Most recently, we have seen the increase in the cost of fuel and the spiking that has been going on. That has a direct effect on the amount of revenues that are generated from fuel taxes.

In response to these changing and growing challenges, the new commission created in this bill is established to conduct a comprehensive study of the alternatives available to replace or supplement the existing fuel tax as the principal source of supporting the highway trust fund. We may find that this is going to still remain the principal source, but we do not know because we have never had any central place where we were trying to put together something this creative to replace it.

Specific factors which the commission will examine include, one, the effects of each major tax that goes into the highway trust fund; two, the ability to increase taxes if there are future revenue shortfalls; and, three, potential new sources of revenue to support highway, transit, and other surface transportation programs.

In regard to the scope of the study, the commission is charged with suggesting new or alternative revenue sources to fund the needs of the surface transportation system over the next 30 years or the next 40 years--the next long period of time. It is something we should have done before. This bill might have been easier if we had addressed this in TEA-21.

Now we have, in section 1306, the State infrastructure banks. TEA-21 established a State infrastructure bank pilot program that authorized participation among the States of Missouri, Rhode Island, California, and Florida. This bill reauthorizes the program to allow all States to enter into cooperative agreements with the Secretary of Transportation to set up infrastructure-revolving funds eligible for capitalization with Federal transportation dollars.

The SIB program gives States the capacity to increase the efficiency of their transportation investment and to significantly leverage Federal resources by attracting non-Federal public and private investment.

The program provides greater flexibility to the States by allowing other types of project assistance in addition to the traditional reimbursement grant. States utilizing SIBs are able to provide various forms of nongrant assistance to eligible projects, including at or below market rate subordinate

loans, interest rate buydowns on third party loans, and guarantees and other forms of credit enhancements. Any debt that the SIB issues or guarantees must be of investment grade caliber. The SIB program represents one more innovative financing option. We believe, after having done this with three or four States, that it is something that should be expanded to other States. This is a very positive thing.

Section 1401 is the Highway Safety Improvement Program.

Along with the new equity bonus program, the bill's new core Safety program is one of the crowning pillars of this legislation. It is both devastating and deplorable that motor vehicle crashes are the leading cause of death among American's between the age of 1 and 34-years-old. In 2002 alone, nearly 43,000 people died on our Nation's highways. Although the fatality rate has decreased when compared to the growing number of vehicle miles traveled, the total number of fatal crashes has gradually increased over the life of TEA-21. Through a reorganization of existing safety programs and a significantly increased Federal investment, S. 1072, appropriately referred to as SAFETEA, strives to combat one of the greatest threats faced on our roads today. Not only is the loss of life to unsafe roads and conditions tragic, but vehicle crashes have a huge economic effect manifested in medical costs, property damage, insurance, and the effects of congestion.

In response to the need for safer roads and road conditions, this bill gives heightened attention to improving traffic safety by creating a new core Highway Safety Improvement Program. Under TEA-21 States were required to set-aside 10 percent of their funds apportioned under the Surface Transportation Program for safety projects to eliminate hazardous locations and improve safety at highway-railway crossings. The new Highway Safety Improvement Program preserves the ability of States to continue funding these important projects, while giving the States even greater flexibility to identify and address other traffic safety issues such as work zone safety, traffic enforcement activities, lane and shoulder widening, use of safety warning devices, safety- conscious planning, and improved traffic data collection.

This is just one more effort to recognize that the States are all different. The same shoe does not fit all. We are giving them an expanded role to determine the best way to handle the problems in Vermont as opposed to Oklahoma or any other State.

Recognizing the various and changing safety needs in each State, the bill provides significant flexibility to the States in order to determine how the Federal safety dollars can best be spent to address the areas of greatest need. These are not always the same in each State.

Section 1402 is Operation Lifesaver. Among the existing safety programs that this bill reauthorizes is Operation Lifesaver. This program has proven effective as a national education and awareness campaign dedicated to reducing fatalities and injuries at highway- railway crossings. Operation Lifesaver has utilized various means to educate both drivers and pedestrians about making safe decisions at railroad crossings and has encouraged better engineering to improve safety at rail crossings. Due to the valuable service this program renders and the cost-benefit effectiveness it has sustained, this bill increases funding for the program from $500,000 per year to $600,000 per year and moves the source of funding for Operation Lifesaver from the Surface Transportation Program, STP, to the new Highway Safety Improvement Program.

Section 1403 is license suspension. Another area of concern in regards to highway safety is the intoxicated driver and especial repeat offenders. Current law imposes penalties on States that have not enacted statutes punishing repeat intoxicated drivers with a hard one- year driver's license suspension. However, as the States have reviewed data and adapted their sentencing structures for repeat offenders in this area, they have found that habitual drunk drivers whose license has already been suspended frequently choose to drive without a license, minimizing the effectiveness of the current State of the law. In the interest of public safety, some States have actually accepted the consequences of the Federal sanction and foregoing available Federal funding in order to impose more effective sentencing of these repeat offenders. This bill recognizes the reality of repeat drunk drivers driving on roads with a suspended license and the wisdom of more effective alternative sentencing schemes. Thus, the bill updates the ``repeat offender'' sanction in title 23 of the code to allow States to incorporate ignition interlock or similar devices when sentencing repeat intoxicated drivers.

At this point we have come through all the way to section 1404. I would like to see if the minority leader of the committee, who has been so great to work with, the ranking minority member, Senator Jeffords from Vermont, has any comments to make about these sections.

First, I agree with the ranking member of the committee. We have come a long way. We are ready shortly and will be prepared to deal with some amendments. In the meantime, let's wade through this thing a little bit more.

Section 1404. Bus axle weight exemption. SAFETEA holds over-the-road buses and intrastate public transit buses to the same standards that inner-city transit buses must meet with regard to axle weight, air quality, and requirements under the Americans with Disabilities Act. Specifically, the bill exempts any over-the-road buses or intrastate public transit bus from the maximum gross weight limitations imposed by the State.

Section 1405 is the Safe Routes to School Act. This was a provision that handled a number of compromises. It is one we are all concerned about. It has a continuing emphasis on safety. The bill introduces a new program that directly deals with safe routes to school, a safety improvement program established in SAFETEA. Projects eligible under the Safe Routes to School Program are already eligible under the larger Highway Safety Improvement Program.

However, Safe Routes to School provides a dedicated and protected funding source for pedestrian and bicycle safety projects near schools. The program is limited to projects and activities that will impose safety within 2 miles of primary and secondary schools. It sets aside $70 million per year for infrastructure and behavioral activities, such as sidewalk improvements, traffic-calming measures, speed reduction,

bicycle facilities, pedestrian crossings, traffic signal improvements, public awareness campaigns, and traffic education and enforcement.

I think that is significant. We have noticed, between the time we have been dealing with ISTEA and TEA-21, there have been increased fatalities in our young kids. We expanded this program during the course of our committee consideration. I think it was a good compromise to make on the purchase of equipment.

When conducting projects under the Federal program's authorization under this bill, some States will occasionally find the equipment necessary to complete the project may be cheaper to purchase than it would be to rent for the duration of the project. In such cases, this bill instructs them to conduct a cost-benefit analysis for the purchase of expensive equipment above specified levels in order to evaluate the savings associated with purchasing the equipment compared to renting the equipment for the duration of the project.

Everything we are doing here is trying to get the very most out of the dollars we are spending in terms of safety and equipment and road construction and the other things we are dealing with in S. 1072.

Section 1407 is work zone safety. Over a thousand deaths occurred in work zones during 2002 due to traffic crashes alone. There has been a lot of awareness in the public about this fact and States are trying to deal with it. We felt it appropriate to have some language in this bill. Although work zones represent a critical component of infrastructure development, they also pose a unique safety challenge for those on the road, and to road workers in particular.

S. 1072 attempts to minimize the injuries and fatalities in work zones by imposing insurance requirements, requiring the use of ITS technologies and safety budgeting in construction and contracting. The Secretary of Transportation is directed to encourage States to choose contractors that carry general liability insurance of at least $15 million. Transportation projects costing more than $15 million are encouraged to include continuously monitored work zone intelligent transportation systems, or ITS systems.

Section 1408. Worker injury prevention and free flow of vehicular traffic. In addition to the provision relating to the safety of workers in work zones just mentioned, SAFETEA also directs the Secretary to promulgate regulations requiring road workers to wear high-visibility clothing, with the goal of decreasing worker injury and maintaining a free flow of traffic.

In section 1501, regarding the integration of natural resource concerns into State and metropolitan transportation planning, my counterpart, the ranking minority member, was very interested in a lot of the parts of the bill that deal with natural resource concerns and State and metropolitan transportation planning. If the Senator from Vermont would like to go over some of these sections, starting with section 1501, it might be appropriate since he had a lot to do with these particular areas.

(Mr. SUNUNU assumed the Chair.)

Mr. President, I am pleased to join Senators Akaka, Leahy, Durbin and Dayton today in introducing the Federal Employees Protection of Disclosures Act. Our bill strengthens the law protecting employees who blow the whistle on fraud, waste, and abuse in Federal programs.

Whistleblowers play a crucial role in ensuring that Congress and the public are aware of serious cases of waste,

fraud, and mismanagement in government. Whistleblowing is never more important than when our national security is at stake. Since the terrorist attacks of September 11, 2001, courageous individuals have stepped forward to blow the whistle on significant lapses in our efforts to protect the United States against potential future attacks. Most notably, FBI Agent Coleen Rowley alerted Congress to serious institutional problems at the FBI and their impact on the agency's ability to effectively investigate and prevent terrorism.

In another example, two Border Patrol agents from my State of Michigan, Mark Hall and Bob Lindemann, risked their careers when they blew the whistle on Border Patrol and INS policies that were compromising security on the Northern Border. Their disclosure led to my holding a hearing at the Permanent Subcommittee on Investigations in November 2001, that exposed serious deficiencies in the way Border Patrol and INS were dealing with aliens who were arrested while trying to enter the country illegally. Since the hearing, some of the most troublesome policies have been changed, improving the security situation and validating the two agents' concerns. Despite the fact that their concerns proved to be dead on, shortly after they blew the whistle, disciplinary action was proposed against the two agents. Fortunately in this case, whistleblower protections worked. The Office of Special Counsel conducted an investigation and the decision to discipline the agents was reversed. However, that disciplinary action was proposed in the first place is a troubling reminder of how important it is for us to both strengthen protections for whistleblowers and empower the Office of Special Counsel to discipline managers who seek to muzzle employees.

Agent Rowley, Mark Hall and Bob Lindemann are simply the latest in a long line of Federal employees who have taken great personal risks in blowing the whistle on government waste, fraud, and mismanagement. Congress has long recognized the obligation we have to protect a Federal employee when he or she discloses evidence of wrongdoing in a federal program. If an employee reasonably believes that a fraud or mismanagement is occurring, and that employee has the courage and the sense of responsibility to make that fraud or mismanagement known, it is our duty to protect the employee from any reprisal. We want federal employees to identify problems so we can fix them, and if they fear reprisal for doing so, then we are not only failing to protect the whistleblower, but we are also failing to protect the taxpayer.

I sponsored the Whistleblower Protection Act in 1989 which strengthened and clarified whistleblower rights, as well as the bill passed by Congress to strengthen the law further in 1994. Unfortunately, however, repeated holdings by the United States Court of Appeals for the Federal Circuit have corrupted the intent of Congress, with the result that additional clarifying language is sorely needed. The case of LaChance versus White represents perhaps the most notable example of the Federal Circuit's misinterpretation of the whistleblower law.

In LaChance, decided on May 14, 1999, the court imposed an unfounded and virtually unattainable standard on Federal employee whistleblowers in proving their cases. In that case, John E. White was an education specialist for the Air Force who spoke out against a new educational system that purported to mandate quality standards for schools contracting with the Air Force bases. White criticized the new system as counterproductive because it was too burdensome and seriously reduced the education opportunities available on base. After making these criticisms, local agency officials reassigned White, relieving him of his duties and allegedly isolating him. However, after an independent management review supported White's concerns, the Air Force canceled the program White had criticized. White appealed the reassignment in 1992 and the case has been in litigation ever since.

The administrative judge initially dismissed White's case, finding that his disclosures were not protected by the Whistleblower Protection Act. The MSPB, however, reversed the administrative judge's decision and remanded the case back to the administrative judge, holding that since White disclosed information he reasonably believed evidenced gross mismanagement, this disclosure was protected under the Act. On remand, the administrative judge found that the Air Force had violated the Whistleblower Protection Act and ordered the Air Force to return White to his prior status; the MSPB affirmed the decision of the administrative judge. OPM petitioned the Federal Circuit for a review of the board's decision. The Federal Circuit subsequently reversed the MSPB's decision, holding that there was not adequate evidence to support a violation under the Whistleblower Protection Act. The Federal Circuit held that the evidence that White was a specialist on the subject at issue and aware of the alleged improper activities and that his belief was shared by other employees was not sufficient to meet the ``reasonable belief'' test in the law. The court held that ``the board must look for evidence that it was reasonable to believe that the disclosures revealed misbehavior'' by the Air Force. The court went on to say: ``In this case, review of the Air Force's policy and implementation via the QES standards might well show them to be entirely appropriate, even if not the best option. Indeed, this review would start out with a presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations. . . . And this presumption stands unless there is ``irrefragable proof to the contrary'.''

It was appropriate for the Federal Circuit to remand the case to the MSPB to have it reconsider whether it was reasonable for White to believe that what the Air Force did in this case involved gross mismanagement. However, the Federal Circuit went on to impose a clearly erroneous and excessive standard for him to demonstrate his ``reasonable belief''--requiring him to provide ``irrefragable'' proof that the Air Force had engaged in gross mismanagement.

Irrefragable means ``undeniable, incontestable, incontrovertible, incapable of being overthrown.'' How can a Federal employee meet a standard of ``irrefragable'' in proving gross mismanagement? It is a virtually impossible standard of proof to meet. Moreover, there is nothing in the law or legislative history that even suggests such a standard applies to the Whistleblower Protection Act. The intent of the law is not for a Federal employee to act as an investigator and compile ``irrefragable'' proof that the Federal Government, in fact, committed fraud, waste or abuse. Rather, under the clear language of the statute, the employee needs only to have ``a reasonable belief'' that there is fraud, waste or abuse occurring in order to make a protected disclosure.

LaChance is only one example of the Federal Circuit misinterpreting the law. Our bill corrects LaChance and as well as several other Federal Circuit holdings. In addition, the bill strengthens the Office of Special Counsel and creates additional protections for federal employees who are retaliated against for blowing the whistle.

One of the most important issues addressed in the bill is to clarify again that the law is intended to protect a broad range of whistleblower disclosures. The legislative history supporting the 1994 Whistleblower Protection Act amendments emphasized: ``[I]t also is not possible to further clarify the clear language in section 2302(b)(8) that protection for ``any'' whistleblowing disclosure truly means ``any.'' A protected disclosure may be made as part of an employee's job duties, may concern policy or individual misconduct, and may be oral or written and to any audience inside or outside the agency, without restriction to time, place, motive or content.''

Despite this clear Congressional intent that was clearly articulated in 1994, the Federal Circuit has acted to push a number of whistleblower disclosures outside the protections of the whistleblower law. For example, in Horton versus the Department of the Navy, the Federal Circuit ruled that a whistleblower's disclosures to co-workers, or to the wrong-doer, or to a supervisor were not protected by the WPA. In Willis versus the Department of Agriculture, the court ruled that a whistleblower's disclosures to officials in

the agency chain of command or those made in the course of normal job duties were not protected. In Huffman versus Office of Personnel Management, the Federal Circuit reaffirmed Horton and Willis. And in Meuwissen versus Department of Interior, the Federal Circuit held that a whistleblower's disclosures of previously known information do not qualify as ``disclosures'' under the WPA. All of these rulings violate clear Congressional intent to afford broad protection to whistleblower disclosures.

In order to make it clear that any lawful disclosure that an employee or job applicant reasonably believes is evidence of waste, fraud, abuse, or gross mismanagement is covered by the WPA, the bill codifies previous statements of Congressional intent. Using the 1994 legislative history, it amends the whistleblower statute to cover any disclosure of information without restriction to time, place, form, motive or context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties that the employee or applicant reasonably believes is credible evidence of any violation of any law, rule, or regulation, or other misconduct specified in the whistleblower law. I want to emphasize here that, other than the explicitly listed exceptions identified in the statute, we intend for there to be no exceptions, inferred or otherwise, as to what is a protected disclosure. And the prohibition on inferred exceptions is intended to apply to all protected speech categories in section 2302(b)(8) of the law. The intent here, again, is to make it clear that when the WPA speaks of protecting disclosures by federal employees ``any'' means ``any.''

The bill also addresses the clearly erroneous standard established by the Federal Circuit's LaChance decision I mentioned earlier. Rather than needing ``irrefragable proof'' to overcome the presumption that a public officer performed his or her duties correctly, fairly, in good faith, and in accordance with the law and regulations, the bill makes it clear that the whistleblower can rebut this presumption with ``substantial evidence.'' This burden of proof is a far more reasonable and appropriate standard for whistleblowing cases.

In the 1994 WPA amendments, Congress attempted to expand relief for whistleblowers by replacing ``compensatory'' damages with all direct or indirect ``consequential'' damages. Again, despite clear Congressional intent, the Federal Circuit has narrowed the scope of relief available to whistleblowers who have been hurt by adverse personnel actions. Our legislation would clarify the law to provide whistleblowers with relief for ``compensatory or consequential damages.''

The Federal Circuit's repeated misinterpretations of the whistleblower law are unacceptable and demand Congressional action. In response to the court's inexplicable and inappropriate rulings, our bill would suspend for five years the Federal Circuit's exclusive jurisdiction over whistleblower appeals. It would instead allow a whistleblower to file a petition to review a final order or final decision of the MSPB in the Federal Circuit or in any other United States appellate court of competent jurisdiction as defined under 5 U.S.C. 7703(b)(2). In most cases, using another court would mean going to the federal circuit where the contested personnel action took place. This five year period would allow Congress to evaluate whether other appellate courts would issue whistleblower decisions which are consistent with the Federal Circuit's interpretation of WPA protections and guide Congressional efforts to clarify the law if necessary.

In addition to addressing jurisdictional issues and troublesome Federal Circuit precedents, our bill would also make important additions to the list of protected disclosures. First, it would subject certain disclosures of classified information to whistleblower protections. However, in order for a disclosure of classified information to be protected, the employee would have to possess a reasonable belief that the disclosure was direct and specific evidence of a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health or safety, or a false statement to Congress on an issue of material fact. A whistleblower must also limit the disclosure to a member of Congress or staff of the executive or legislative branch holding the appropriate security clearance and authorized to receive the information disclosed. Federal agencies covered by the WPA would be required to establish a process to provide confidential advice to employees on how to lawfully make a protected disclosure of classified information to Congress.

Current law permits Federal employees to file a case at the MSPB when they feel that a manager has taken a personnel action against them in retaliation for blowing the whistle. The legislation would add three new personnel actions to the list of adverse actions that cannot be taken against whistleblowers for engaging in protected activity. These actions would include enforcement of any nondisclosure policy, form or agreement against a whistleblower for making a protected disclosure; the suspension, revocation, or other determination relating to a whistleblower's security clearance; and an investigation of an employee or applicant for employment if taken due to their participation in whistleblowing activity.

It is important to note that, if it is demonstrated that a security clearance was suspended or revoked in retaliation for whistleblowing, the legislation limits the relief that the MSPB and reviewing court can order. The bill specifies that the MSPB or reviewing court may issue declaratory and other appropriate relief but may not direct a security clearance to be restored. Appropriate relief may include back pay, an order to reassign the employee, attorney fees, or any other relief the Board or court is authorized to provide for other prohibited personnel practices. In addition, if the Board finds an action on a security clearance to have been illegal, it may bar the agency from directly or indirectly taking any other personnel action based on that illegal security clearance action. Our legislation would also require the agency to review and provide a report to Congress detailing the circumstances of the agency's security clearance decision, and authorizes expedited MSPB review of whistleblower cases where a security clearance was revoked or suspended. The latter is important because a person whose clearance has been suspended or revoked and whose job responsibilities require clearance may be unable to work while their case is being considered.

Our bill would also add two prohibited personnel practices to the whistleblower law. First, it would codify the ``anti-gag'' provision that has been in force since 1988, by virtue of its inclusion in appropriations bills. Second, it would prohibit a manager from initiating an investigation of an employee or applicant for employment because they engaged in a protected activity, including whistleblowing.

Another issue addressed in the bill involves certain employees who are excluded from the WPA. Among these are employees who hold ``confidential policy-making positions.'' In 1994, Congress amended the WPA to keep agencies from designating employees confidential policymakers after the employees filed whistleblower complaints. The WPA also allows the President to exclude from WPA jurisdiction any agency whose principal function is the conduct of foreign intelligence or counterintelligence activities. Our legislation maintains this authority but makes it clear that a decision to exclude an agency from WPA protections must also be made prior to a personnel action being taken against a whistleblower from that agency. This provision is necessary to ensure that agencies cannot argue that employees are exempt from whistleblower protections after an employee files a claim that they were retaliated against.

Another key section of the bill would strengthen the Office of Special Counsel. OSC is the independent federal agency responsible for investigating and prosecuting federal employee complaints of whistleblower retaliation. Current law, however, limits OSC's ability to effectively enforce and defend whistleblower laws. For example, the law provides the OSC with no authority to request the Merit Systems Protection Board to reconsider one of its decisions or to seek appellate review of an MSPB decision. Even when

another party petitions for a review of a MSPB decision, OSC is typically denied the right to participate in the proceedings.

Our bill would provide explicit authority for the Office of Special Counsel to appear in any civil action brought in connection with the whistleblower law. In addition, it would authorize OSC to obtain circuit court review of any MSPB order in a whistleblowing case if the OSC determines the Board erred and the case would have a substantial impact on the enforcement of the whistleblower statute. In a letter to me addressing these provisions, Special Counsel Elaine Kaplan said, ``I believe that these changes are necessary, not only to ensure OSC's effectiveness, but to address continuing concerns about the whittling away of the WPA's protections by narrow judicial interpretations of the law.'' I ask unanimous consent that the OSC letter be printed in the Record.

OSC currently has the authority to pursue disciplinary action against managers who retaliate against whistleblowers. However, Federal Circuit decisions, like LaChance, have undermined the agency's ability to successfully pursue such cases. The Special Counsel has said that ``change is necessary in order to ensure that the burden of proof in these cases is not so onerous as to make it virtually impossible to secure disciplinary action against retaliators.'' In addition to it being difficult to win, if the OSC loses a disciplinary case, it has to pay the legal fees of those against whom OSC initiates disciplinary action. In its letter, OSC said that ``the specter of having to pay large attorney fee awards . . . is a significant obstacle to our ability to use this important authority to hold managers accountable.'' Our bill addresses these problems by establishing a reasonable burden of proof for disciplinary actions and requiring the employing agency, not the OSC, to reimburse the prevailing party for attorney fees in a disciplinary proceeding.

Finally, the bill addresses a new issue that has arisen in connection

with the recent enactment of the Homeland Security Act or HSA. To evaluate the vulnerability to terrorist attack of certain critical infrastructure such as chemical plants, computer networks and other key facilities, the HSA asks private companies that own these facilities to submit unclassified information about them to the government. In doing so, the law also created some ambiguity on the question of whether federal employee whistleblowers would be protected by the WPA if they should disclose information that has been independently obtained by the whistleblower about such facilities but which may also have been disclosed to the government as under the critical infrastructure information program.

While I believe it was Congress' intent to extend whistleblower protections to federal employees who disclose such independently obtained information, the law's ambiguities are troublesome in the context of the tendency of the Federal Circuit to narrowly construe the scope of protections afforded by the WPA. Our bill would thus clarify that whistleblower protections do extend to federal employees who disclose independently obtained information that may also have been disclosed to the government as part of the critical infrastructure information program.

We need to encourage federal employees to blow the whistle on waste, fraud and abuse in federal government agencies and programs. These people take great risks and often face enormous obstacles in doing what they believe is right. The Congress and the country owe a particular debt of gratitude to those whistleblowers who put their careers on the line to protect national security. Since September 11, 2001, we have seen a number of examples of how crucial people like Coleen Rowley, Mark Hall and Bob Lindemann are to keeping our country safe. I request unanimous consent to print a letter from Agent Rowley in the Record. In the letter she says that when she blew the whistle, she was lucky enough to garner the support of many of her colleagues and members of Congress. However, her letter warns that for every Coleen Rowley, ``there are many more who do not benefit from the relative safety of public notoriety.'' It is to protect those responsible, courageous many that we offer this legislation. We need more like them.

I ask unanimous consent to print in the Record a section- by-section explanation of the bill.

Mr. President, I ask unanimous consent that the text of the Keweenaw National Historical Park bill be printed in the Record.

Mr. President, I am pleased to join Senators Akaka, Grassley, Leahy, and Durbin today in introducing the Federal Employees Protection of Disclosures Act. Our bill strengthens the law protecting employees who blow the whistle on fraud, waste, and abuse in federal programs.

Whistleblowers play a crucial role in ensuring that Congress and the public are aware of serious cases of waste, fraud, and mismanagement in government. Whistleblowing is never more important than when our national security is at stake. Since the terrorist attacks of September 11, 2001, courageous individuals have stepped forward to blow the whistle on significant lapses in our efforts to protect the United States against potential future attacks. Most notably, FBI Agent Coleen Rowley alerted Congress to serious institutional problems at the FBI and their impact on the agency's ability to effectively investigate and prevent terrorism.

In another example, two Border Patrol agents from my State of Michigan, Mark Hall and Bob Lindemann, risked their careers when they blew the whistle on Border Patrol and INS policies that were compromising security on

the Northern Border. Their disclosure led to my holding a hearing at the Permanent Subcommittee on Investigations in November 2001, that exposed serious deficiencies in the way Border Patrol and INS were dealing with aliens who were arrested while trying to enter the country illegally. Since the hearing, some of the most troublesome policies have been changed, improving the security situation and validating the two agents' concerns. Despite the fact that their concerns proved to be dead on, shortly after they blew the whistle, disciplinary action was proposed against the two agents. Fortunately in this case, whistleblower protections worked. The Office of Special Counsel conducted an investigation and the decision to discipline the agents was reversed. However, that disciplinary an action was proposed in the first place is a troubling reminder of how important it is for us to both strengthen protections for whistleblowers and empower the Office of Special Counsel to discipline managers who seek to muzzle employees.

Agent Rowley, Mark Hall and Bob Lindermann are simply the latest in a long line of Federal employees who have taken great personal risks in blowing the whistle on government waste, fraud, and mismanagement. Congress has long recognized the obligation we have to protect a Federal employee when he or she discloses evidence of wrongdoing in a Federal program. If an employee reasonably believes that a fraud or mismanagement is occurring, and that employee has the courage and the sense of responsibility to make that fraud or mismanagement known, it is our duty to protect the employee from any reprisal. We want Federal employees to identify problems so we can fix them, and if they fear reprisal for doing so, then we are not only failing to protect the whistleblower, but we are also failing to protect the taxpayer.

I sponsored the Whistleblower Protection Act in 1989 which strengthened and clarified whistleblower rights, as well as the bill passed by Congress to strengthen the law further in 1994. Unfortunately, however, repeated holdings by the United States Court of Appeals for the Federal Circuit have corrupted the intent of Congress, with the result that additional clarifying language is sorely needed. The case of LaChance versus White represents perhaps the most notable example of the Federal Circuit's misinterpretation of the whistleblower law.

In LaChance, decided on May 14, 1999, the court imposed an unfounded and virtually unattainable standard on Federal employee whistleblowers in proving their cases. In that case, John E. White was an education specialist for the Air Force who spoke out against a new educational system that purported to mandate quality standards for schools contracting with the Air Force bases. White criticized the new system as counterproductive because it was too burdensome and seriously reduced the education opportunities available on base. After making these criticisms, local agency officials reassigned White, relieving him of his duties and allegedly isolating him. However, after an independent management review supported White's concerns, the Air Force canceled the program White had criticized. White appealed the reassignment in 1992 and the case has been in litigation ever since.

The administrative judge initially dismissed White's case, finding that his disclosures were not protected by the Whistleblower Protection Act. The MSPB, however, reversed the administrative judge's decision and remanded the case back to the administrative judge, holding that since White disclosed information he reasonably believed evidenced gross mismanagement, this disclosure was protected under the Act. On remand, the administrative judge found that the Air Force had violated the Whistleblower Protection Act and ordered the Air Force to return White to his prior status; the MSPB affirmed the decision of the administrative judge. OPM petitioned the Federal Circuit for a review of the board's decision. The Federal Circuit subsequently reversed the MSPB's decision, holding that there was not adequate evidence to support a violation under the Whistleblower Protection Act. The Federal Circuit held that the evidence that White was a specialist on the subject at issue and aware of the alleged improper activities and that his belief was shared by other employees was not sufficient to meet the ``reasonable belief'' test in the law. The court held that ``the board must look for evidence that it was reasonable to believe that the disclosures revealed misbehavior'' by the Air Force. The court went on to say: ``In this case, review of the Air Force's policy and implementation via the QES standards might well show them to be entirely appropriate, even if not the best option. Indeed, this review would start out with a presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations. * * * And this presumption stands unless there is `irrefragable proof to the contrary'.''

It was appropriate for the Federal Circuit to remand the case to the MSPB to have it reconsider whether it was reasonable for White to believe that what the Air Force did in this case involved gross mismanagement. However, the Federal Circuit went on to impose a clearly erroneous and excessive standard for him to demonstrate his ``reasonable belief''--requiring him to provide ``irrefragable'' proof that the Air Force had engaged in gross mismanagement.

Irrefragable means ``undeniable, incontestable, incontrovertible, incapable of being overthrown.'' How can a Federal employee meet a standard of ``irrefragable'' in proving gross mismanagement? It is virtually impossible standard of proof to meet. Moreover, there is nothing in the law or legislative history that even suggests such a standard applies to the Whistleblower Protection Act. The intent of the law is not for a federal employee to act as an investigator and compile ``irrefragable'' proof that the Federal Government, in fact, committed fraud, waste or abuse. Rather, under the clear language of the statute, the employee needs only to have ``a reasonable belief'' that there is fraud, waste or abuse occurring in order to make a protected disclosure.

LaChance is only one example of the Federal Circuit misinterpreting the law. Our bill corrects LaChance and as well as several other Federal Circuit holdings. In addition, the bill strengthens the Office of Special Counsel and creates additional protections for federal employees who are retaliated against for blowing the whistle.

One of the most important issues addressed in the bill is to clarify again that the law is intended to protect a broad range of whistleblower disclosures. The legislative history supporting the 1994 Whistleblower Protection Act amendments emphasized: ``[I]t also is not possible to further clarify the clear language in section 2302(b)(8) that protection for `any' whistleblowing disclosure truly means `any'. A protected disclosure may be made as part of an employee's job duties, may concern policy or individual misconduct, and may be oral or written and to any audience inside or outside the agency, without restriction to time, place, motive or content.''

Despite this clear Congressional intent that was clearly articulated in 1994, the Federal Circuit has acted to push a number of whistleblower disclosures outside the protections of the whistleblower law. For example, in Horton versus the Department of the Navy, the Federal Circuit ruled that a whistleblower's disclosures to co-workers, or to the wrong-doer, or to a court ruled that a whistleblower's disclosures to official in the agency chain of command or those made in the course of normal job duties were not protected. In Huffman versus Office of Personnel Management, the Federal Circuit reaffirmed Horton and Willis. And in Meuwissen versus Department of Interior, the Federal Circuit held that a whistleblower's disclosures of previously known information do not qualify as ``disclosures'' under the WPA. All of these rulings violate clear Congressional intent to afford broad protection to whistleblower disclosures.

In order to make it clear that any lawful disclosure that an employee or job applicant reasonably believes is evidence of waste, fraud, abuse, or gross mismanagement is covered by the WPA, the bill codifies previous statements of Congressional intent. Using the 1994 legislative history, it amends the whistleblower statute to

cover any disclosure of information without restriction to time, place, form, motive or context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties that the employee or applicant reasonably believes is credible evidence of any violation of any law, rule, or regulation, or other misconduct specified in the whistleblower law. I want to emphasize here that, other than the explicitly listed exceptions identified in the statute, we intend for there to be no exceptions, inferred or otherwise, as to what is a protected disclosure. And the prohibition on inferred exceptions is intended to apply to all protected speech categories in section 2302(b)(8) of the law. The intent here, again, is to make it clear that when the WPA speaks of protecting disclosures by Federal employees ``any'' means ``any.''

The bill also addresses the clearly erroneous standard established by the Federal Circuit's LaChance decision I mentioned earlier. Rather than needing ``irrefragable proof'' to overcome the presumption that a public officer performed his or her duties correctly, fairly, in good faith, and in accordance with the law and regulations, the bill makes it clear that the whistleblower can rebut this presumption with ``substantial evidence.'' This burden of proof is a far more reasonable and appropriate standard for whistleblowing cases.

The Federal Circuit's repeated misinterpretations of the whistleblower law are unacceptable and demand Congressional action. In response to the court's inexplicable and inappropriate rulings, our bill would suspend for five years the Federal Circuit's exclusive jurisdiction over whistleblower appeals. It would instead allow a whistleblower to file a petition to review a final order or final decision of the MSPB in the Federal Circuit or in any other United States appellate court of competent jurisdiction and defined under 5 U.S.C. 7703(b)(2). In most cases, using another court would mean going to the federal circuit where the contested personnel action took place. This five year period would allow Congress to evaluate whether other appellate courts would issue whistleblower decisions which are consistent with the Federal Circuit's interpretation of WPA protections and guide Congressional efforts to clarify the law if necessary.

In addition to addressing jurisdictional issues and troublesome Federal Circuit precedents, our bill would also make important additions to the list of protected disclosures. First, it would subject certain disclosures of classified information to whistleblower protections. However, in order for a disclosure of classified information to be protected, the employee would have to possess a reasonable belief that the disclosure was direct and specific evidence of a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, a substantial and specified danger to public health or safety, or a false statement to Congress on an issue of material fact. A whistleblower must also limit the disclosure to a member of Congress or staff of the executive or legislative branch holding the appropriate security clearance and authorized to receive the information disclosed. Federal agencies covered by the WPA would be required to establish a process to provide confidential advice to employees on how to lawfully make a protected disclosure of classified information to Congress.

Current law permits Federal employees to file a case at the MSPB when they feel that a manager has taken a personnel action against them in retaliation for blowing the whistle. The legislation would add three new personnel actions to the list of adverse actions that cannot be taken against whistleblowers for engaging in protected activity. These actions would include enforcement of any nondisclosure policy, form or agreement against a whistleblower for making a protected disclosure; the suspension, revocation, or other determination relating to a whistleblower's security clearance; and an investigation of an employee or applicant for employment if taken due to their participation in whistleblowing activity.

It is important to note that, if it is demonstrated that a security clearance was suspended or revoked in retaliation for whistleblowing, the legislation limits the relief that the MSPB and reviewing court can order. The bill specifies that the MSPB or reviewing court may issue declaratory and other appropriate relief but may not direct a security clearance to be restored. Appropriate relief may include back pay, an order to reassign the employee, attorney fees, or any other relief the Board or court is authorized to provide for other prohibited personnel practices. In addition, if the Board finds an action on a security clearance to have been illegal, it may bar the agency from directly or indirectly taking any other personnel action based on that illegal security clearance action. Our legislation would also require the agency to review and provide a report to Congress detailing the circumstances of the agency's security clearance decision, and authorizes expedited MSPB review of whistleblower cases where a security clearance was revoked or suspended. The latter is important because a person whose clearance has been suspended or revoked and whose job responsibilities require clearance may be unable to work while their case is being considered.

Our bill would also add two prohibited personnel practices of the whistleblower law. First, it would codify the ``anti-gag'' provision that has been in force since 1988, by virture of its inclusion in appropriations bills. Second, it would prohibit a manager from initiating an investigation of an employee or applicant for employment because they engage in a protected activity, including whistleblowing.

Another issue addressed in the bill involves certain employees who are excluded from the WPA. Among these are employees who hold ``confidential policy-making positions.'' In 1994, Congress amended the WPA to keep agencies from designating employees confidential policymakers after the employees filed whistleblower complaints. The WPA also allows the President to exclude from WPA jurisdiction any agency whose principal function is the conduct of foreign intelligence or counterintelligence activities. Our legislation maintains this authority but makes it clear that a decision to exclude an agency from WPA protections must also be made prior to a personnel action being taken against a whistleblower from that agency. This provision is necessary to ensure that agencies cannot argue that employees are exempt from whistleblower protections after an employee files a claim that they were retaliated against.

Another key section of the bill would strengthen the Office of Special Counsel. OSC is the independent federal agency responsible for investigating and prosecuting federal employee complaints of whistleblower retaliation. Current law, however, limits OSC's ability to effectively enforce and defend whistleblower laws. For example, the law provides the OSC with no authority to request the Merit Systems Protection Board to reconsider one of its decisions or to seek appellate review of an MSPB decision. Even when another party petitions for a review of a MSPB decision, OSC is typically denied the right to participate in the proceedings.

Our bill would provide explicit authority for the Office of Special Counsel to appear in any civil action brought in connection with the whistleblower law. In addition, it would authorize OSC to obtain circuit court review of any MSPB order in a whistleblowing case if the OSC determines the Board erred and the case would have a substantial impact on the enforcement of the whisltleblower statute. In a letter to me addressing these provisions, special Counsel Elaine Kaplan said, ``I believe that these changes are necessary, not only to ensure OSC's effectiveness, but to address continuing concerns about the whittling away of the WPA's protections by narrow judicial interpretations of the law.'' I ask unanimous consent that the OSC letter be printed in the Record.

OSC currently has the authority to pursue disciplinary action against managers who retaliate against whistleblowers. However, Federal Circuit decisions, like LaChance, have undermined the agency's ability to successfully pursue such cases. The Special Counsel has said that ``change is necessary in order to ensure that the burden of proof in these cases is not so onerous as to make it virtually impossible to secure disciplinary action against retaliators.'' In addition to it being difficult to win, if the OSC loses a disciplinary case, it has to pay the legal fees of those against whom OSC initiates disciplinary action. In its letter, OSC said that ``the specter of having to pay large attorney fee awards . . . is a significant obstacle to our ability to use this important authority to hold managers accountable.'' Our bill addresses these problems by establishing a reasonable burden of proof for disciplinary actions and requiring the employing agency, not the OSC, to reimburse the prevailing party for attorney fees in a disciplinary proceeding.

Finally, the bill addresses a new issue that has arisen in connection with the recent enactment of the Homeland Security Act or HSA. To evaluate the vulnerability to terrorist attack of certain critical infrastructure such as chemical plants, computer networks and other key facilities, the HSA asks private companies that own these facilities to submit unclassified information about them to the government. In doing so, the law also created some ambiguity on the question of whether Federal employee whistleblowers would be protected by the WPA if they should disclose information that has been independently obtained by the whistleblower about such facilities but which may also have been disclosed to the government under the critical infrastructure information program.

While I believe it was Congress's intent to extend whistleblower protections to Federal employees who disclose such independently obtained information, the law's ambiguities are troublesome in the context of the tendency of the Federal Circuit to narrowly construe the scope of protections afforded by the WPA. Our bill would thus clarify that whistleblower protections do extend to Federal employees who disclose independently obtained information that may also have been disclosed to the government as part of the

critical infrastructure information program

We need to encourage Federal employees to blow the whistle on waste, fraud and abuse in Federal Government agencies and programs. These people take great risks and often face enormous obstacles in doing what they believe is right. The Congress and the country owe a particular debt of gratitude to those whistleblowers who put their careers on the line to protect national security. Since September 11, 2001, we have seen a number of examples of how crucial people like Coleen Rowley, Mark Hall and Bob Lindermann are to keeping our country safe. I request unanimous consent that a letter from Agent Rowley be printed in the Record. In the letter she says that when she blew the whistle, she was lucky enough to garner the support of many of her colleagues and members of Congress. However, her letter warns that for every Coleen Rowley, ``there are many more who do not benefit from the relative safety of public notoriety.'' It is to protect those responsible, courageous many that we offer this legislation. We need more like them.

I ask unanimous consent to print in the Record a section-by-section explanation of the bill.