A bill to provide for expansion of Sleeping Bear Dunes National Lakeshore.

Mr. President, imagine a world with cars that spew out no smog, no toxic emissions, and no greenhouse gases. The only thing that would come out of the tailpipe would be water pure enough to drink.

Imagine a world in which we don't import a drop of Mideast oil, because clean, domestic, renewable energy sources meet all of our needs.

Imagine a world in which we don't need to worry about a terrorist strike on our large nuclear power plants, or a storm causing a blackout over a large region, because we get all of our electricity from small distributed generators on farms and in buildings throughout the country.

Sound too good to be true? The technology to do this, using hydrogen energy and fuel cells, is out of the labs and being tested on our streets and in our buildings today. For those of us who have been working for many years to bring this vision into reality, that is very exciting. But we still need a major effort to bring the costs down and commercialize the technology.

And there is remarkable bipartisan agreement on the need for government action. A couple years ago we were fighting for scraps of funding. Now the President has proposed $1.7 billion over 5 years toward getting hydrogen fuel cell vehicles on the road. The Senate energy bill last year, before it died in conference, included tax incentives for stationary fuel cells, fuel cell vehicles, hydrogen vehicles, hydrogen fueling infrastructure, and hydrogen fuel.

But we are still too timid to bring about the fundamental shift to the hydrogen economy. The Department of Energy is working toward a go- no go decision by the car companies by 2015, and mass production of vehicles by 2020. But the car companies themselves have been talking about commercial vehicles by 2010.

We need a bolder, more comprehensive plan. That's why I am introducing the Hydrogen and Fuel Cell Energy Act of 2003. This bill addresses three critical requirements to bringing hydrogen energy and fuel cells into commerce, and start gaining their environmental and security benefits, as soon as technically feasible.

First we need a technological push. We need better fuel cell stack components to reduce costs and improve longevity. We need lighter, more efficient ways to store hydrogen on-board vehicles. In the long term, we need cheaper ways of converting renewable energy to hydrogen fuel.

This bill reauthorizes the Matsunaga Act, which established the Federal hydrogen energy research program. It updates the language and sets clearer priorities. It expands the authorization to cover fuel cell research and development as well, to reflect the technical and bureaucratic reality that research on fuel cells--the most efficient, flexible, and cleanest way to use hydrogen energy--has become inextricably linked to research on hydrogen energy. It supports work on domestic and international codes and standards, to work through a major regulatory barrier to working with combustible hydrogen and to making all the infrastructure pieces fit together. It includes a specific mandate to do public education on hydrogen and fuel cells and to do university training in critical skills needed in the industry. And it increases funding levels over the next few years to accelerate progress in pre-commercial technologies.

Second, and perhaps most important right now, we need a near-term demand pull. As long as the fuel cells and hydrogen appliances are made by hand, they will remain very expensive. But it's also expensive to build the factories to build them more cheaply. We need support to get industry over that initial cost hump.

The first step is large demonstration programs that serve a dual purpose: they provide a realistic test of how the laboratory technologies work in the real world, and they provide funding for pre- commercial prototypes of the technologies, including starting to build a hydrogen fueling infrastructure.

The Hydrogen and Fuel Cell Energy Act authorizes several new, large demonstration programs:

The main demostration program would provide over $1 billion over 7 years for demonstrations of the full range of fuel cell applications and associated hydrogen infrastructure. These demonstrations would include fleets of fuel cell passenger vehicles, fuel cell buses and farm vehicles, stationary fuel cells in houses and commercial buildings, and portable fuel cells such as auxiliary power units in trucks.

A second, closely related program, would provide hydrogen fueling infrastructure over major transportation corridors and entire regions, and then demonstrate hydrogen-powered vehicles that are not tethered to a single pump. Early demonstrations, at least, would likely use vehicles that burn hydrogen; these are similar to gas-electric hybrids that you can buy today, but run on hydrogen rather than gasoline. These vehicles provide most of the benefits of fuel cell vehicles at a fraction of the current cost. They are not as good as fuel cell vehicles in the long term, they are less efficient, less flexible, and produce a little pollution, but would move us a long way toward the goal and would provide a good large-scale test of a hydrogen fueling system.

A third program would demonstrate hydrogen and fuel cell technologies in foreign countries. Hydrogen energy could have an early application in places where a competing fossil fuel infrastructure is not already well-developed. And assisting this application is in our national interest in order to promote global development without causing global warming and other harmful environmental effects, and to increase the global market for American hydrogen and fuel cell technologies.

The last program would focus on emerging technologies for production of hydrogen from renewable resources. Two approaches show particular promise for clean, efficient production of hydrogen at this time. Biorefineries make hydrogen and other products from biomass. And in ``electrofarming'' the hydrogen is produced and used on the same farm. The hydrogen might be made by growing and reforming biomass, from wind energy, or from farm waste; it could be used in farm vehicles and equipment and for heat and electricity in farm buildings.

All these demonstration programs would be conducted using competitive merit review of funding proposals from a wide variety of companies and organizations, and they would require cost-sharing from awardees.

Third, we need to show there will be a market for commercial hydrogen and fuel cell technologies in the long term. The Federal Government can do this by buying early commercial products and by providing incentives to others to do so, in recognition of their public benefits.

The bill includes Federal purchase requirements for both zero emission vehicles and stationary fuel cells. The vehicle requirements are similar to Federal fleet requirements for purchase of alternative fuel vehicles. They would require zero emission vehicles, most likely hydrogen fuel cell vehicles, to make up an increasing percentage of Federal fleet vehicle purchases up to 75 percent. Alternative fuel vehicles with very low emissions, such as hydrogen hybrid vehicles, would get partial credit. For stationary fuel cells, the bill

would require modifying energy efficiency regulations for Federal buildings to presume use of fuel cells to power new Federal buildings and to encourage their use in older buildings.

The bill also provides a broad array of tax incentives for stationary and portable fuel cells, hydrogen and fuel cell vehicles, hydrogen fueling infrastructure, and hydrogen fuel. These incentives are similar to those that have been proposed in the CLEAR Act on alternative fuel vehicles, in previous bills on stationary fuel cells, and in last year's energy bill. However, this bill makes some important changes. It makes all the tax credits tradable so that government agencies and non- profit organizations can use them as well as consumers and private companies. It increases the credit for hydrogen fueling infrastructure to recognize the cost of making the hydrogen on-site, not just pumping it. It adds an additional incentive for hydrogen from renewable resources to encourage a transition to a sustainable hydrogen system. And most importantly, it extends the tax credits so the industry will know the incentives will be there when they are needed--when real commercial products are available.

Finally, the bill ensures effective coordination and oversight of the expanded Federal hydrogen and fuel cell energy activities, with a new interagency task force to coordinate activities, a revamped technical advisory panel, and periodic outside review by the National Academies.

These measures will require a significant Federal investment in our energy future. But with these measures we can use hydrogen and fuel cell technologies to turn into reality a vision of cars that don't pollute, of power that won't go out, and of feeling less dependent on an area of the world where we are fighting the second war in recent years. It is time to take these steps now.

Mr. President, in the early 1990s, a large number of U.S. companies began a process of switching their defined benefit pension plans to cash balance plans. Many of the employees whose pension plans were to be altered drastically weren't told and didn't notice that they were essentially going to be working for years without earning any more benefits. Their not knowing was viewed as a key benefit by management. And the retirees were furious.

As Keith Williams with Watson Wyatt Worldwide and Amy Viener with William Mercer, two firms that put together these plans in 1998 said at an Actuaries conference:

Mr. Williams: I've been involved in cash balance plans five

or six years down the road and what I have found is that

while employees understand it, it is not until they are

actually ready to retire that they understand how little they

are actually getting.

Ms. Viener: Right, but they're happy while they're

employed.

One of the most abusive practices in cash balance conversions is known as ``wear away.'' Older workers see nothing added to their pensions as the value of the pensions is frozen, often for many years, until it reaches the lower value of the new pension plan. At the same time younger workers are getting their pensions increased. In my view, this is clearly age discrimination and bad pension policy. In 1999, I introduced a bill to make it illegal for corporations wear away the benefits of older workers during conversions to cash balance plans. I offered my bill as an amendment. Forty-eight Senators, including 3 Republicans, voted to waive the budget point of order so we could consider this amendment. We did not have enough votes then, but I believe the tide is turning.

After that vote, more and more stories came out about how many workers were losing their pensions. In September of 1999, the Secretary of the Treasury put a moratorium on conversions from defined benefit plans to cash balance plans. That moratorium has been in effect now for over three years. In April of 2000, I offered a sense-of-the-Senate resolution to stop this practice, and it passed the Senate unanimously.

But last December, the Treasury decided to end that moratorium. The Department proposed a regulation that will allow hundreds of companies, many employing thousands of workers each to go forward with conversions that will allow for the wear-away of the current benefits of people across the country. This plan is breathtaking in its audacity. In a time when people have lost their life savings to market downturns and corporate duplicity, they are looking at changing the rules so that employers can once again bolster their bottom line by shifting funds from the pensions they promised their workers. I will not stand by and let it happen.

There are over 800 age discrimination complaints currently pending before the EEOC based on cash balance conversions. How many more will there be if we again start allowing companies to make these abusive conversions?

I want to make it very clear: I am not opposed to all cash balance plans. Some cash balance plans can be very good. What I oppose is the unilateral decision of a company being able to change their plans and stop contributing to older employees' pensions while benefits are given to newer employees.

That is what this issue is all about. It is fairness. It is equity. I know discussion of pension law can become very convoluted. But in essence, what some of these companies have been doing to these workers is nothing less than sheer thievery. They are able to save millions, in some cases hundreds of millions of dollars, by converting their plans, robbing workers who have been loyal and hard working, robbing them of their rightful claims on future benefits, It is not right. It is not fair.

There is one thing that has distinguished the American workplace from others around the world. We have valued loyalty. At least we used to. That is one of the reasons pension plans exist--the longer you work somewhere, the more you earn in your pension program. Obviously, the longer you work someplace, the better you do your job, the more you learn about it, the more productive you are. We should value that loyalty.

If companies are able to wear away the benefits of the longest serving workers, what kind of a signal does that send to the workers? It tells workers they are fools if they are loyal because if you put in 20 to 25 years, the boss can just change the rules of the game, and break their promise. It tells younger workers that it would be crazy to work for a company for a long time, that it's best to hedge your bets and move on as soon as it is convenient.

This destroys the kind of work ethic we have come to value and that we know built this country. But some of these cash balance conversions counter all of that. Her is an analogy. Imagine I hire someone for five years with a promise of a $50,000 bonus at the end of five years of service. At the end of three years, however, I renege on the $50,000 bonus. But the employee has three years invested. Had they known that the deal was going to be off, perhaps they would not have gone to work for me. They could have gone to work someplace else for a total higher compensation package. Is that the way we want to treat workers in this country, where the employer has all the cards and employees have none, and employers can make whatever deal they want, but can change the rules at any time?

That is why I am introducing this legislation. It is simple. It says that you have to give older, longer serving employees a choice, at retirement, when their pension plan is converted to a cash balance plan to get the benefits earned in the old plan instead. It also says that employers must start counting the new cash balance benefits where the old defined benefit plan left off, instead of starting the cash balance

plan at a lower level than an employee had already earned.

In the March 3, 2002 issue of Fortune magazine, Janice Revell said of the possible impending flood of cash balances conversions: ``Brace yourself for a very un-fairy-tale ending to this tory. Millions of American workers are sure to see a large slice of their retirement income go up in smoke. It may not happen right away, but the groundwork is being laid right now.''

I urge my colleagues in the Senate to join me in cosponsoring this measure, so that we can stop the flood before it starts.

Mr. President, I am pleased to join with my friend and colleague, Chairwoman of the Senate Committee on Small Business and Entrepreneurship, Olympia Snowe, in reintroducing the ``Independent Office of Advocacy Act'', which our Committee and the full Senate endorsed unanimously last Congress. This legislation will help ensure the Small Business Administration's, SBA, Office of Advocacy has the necessary autonomy to remain an independent voice for America's small businesses. I would like to thank Senator Snowe and her staff for working with me and my staff to make the necessary changes to this legislation to garner bipartisan support.

The independent Office of Advocacy Act rewrites the law that created the Small Business Administration's Office of Advocacy to allow for increased autonomy. It reaffirms the Office's statutory and financial independence by creating a separate funding account for the Office from the General Fund of the Treasury instead of being allocated through the SBA's annual appropriation.

At its heart, this legislation will allow the Office of Advocacy to better represent small business interests before Congress, Federal agencies, and the Federal Government without fear of reprisal for disagreeing with the position of any current Administration.

For those of my colleagues without an intimate knowledge of the critical role the Office of Advocacy and its Chief Counsel play in protecting and promoting America's small businesses, I will briefly elaborate its important functions and achievements. From studying the role of small business in the U.S. economy, to promoting small business exports, to advocating for the best interests of small business in a myriad of areas, to lightening the regulatory burden of small businesses through the Regulatory Flexibility Act, RFA, and the Small Business Regulatory Enforcement Fairness Act, SBREFA, the Office of Advocacy has a wide scope of authority and responsibility.

The U.S. Congress created the Office of Advocacy, headed by a Chief Counsel to be appointed by the President from the private sector and confirmed by the Senate, in June of 1976. The rationale was to give small businesses a louder voice in the councils of government.

Each year, the Office of Advocacy advises Congress and the executive branch regarding policy issues affecting small businesses, brings together

small business people with members of Congress, congressional staff and executive branch officials to resolve issues affecting small business, publishes numerous studies and reports, compiles vast amounts of data and successfully lightens the regulatory burden on America's small businesses. In the area of contracting, the Office of Advocacy developed PRO-Net, a database of small businesses used by Federal contracting officers to find small business interests interested in selling to the Federal Government.

The U.S. Congress, the Administration, and, of course, small businesses have all benefited from the work of the Office of Advocacy. In October 2001, an Advocacy research study titled, The Impact of Regulatory Costs on Small Business, established that small businesses with less than 20 employees spend nearly $7,000 each year, per employee just to comply with Federal regulations and mandates. By working with Federal agencies to implement the Regulatory Flexibility Act, the Office of Advocacy in 2002 saved small businesses over $21 billion in foregone regulatory costs that can now be used to create jobs, buy equipment and expand access to health care for millions of Americans.

Small businesses remain the backbone of the U.S. economy. According to a study conducted by the Small business Administration Office of Economic Research and released in January 2003, small businesses account for approximately 99 percent of all employers, account for 51 percent of private-sector output, represent 52 percent of GDP and, in 2002, provided two-thirds of all net new jobs.

Small businesses have also taken the lead in moving people from welfare to work and an increasing number of women and minorities are turning to small business ownership as a means to gain economic self- sufficiency. Put simply, small businesses represent what is best in the United States economy, providing innovation, competition and entrepreneurship.

Their interests are vast, their activities divergent, and the difficulties they face to stay in business are numerous. To provide the necessary support to help them, SBA's Office of Advocacy needs our support.

The responsibility and authority given the Office of Advocacy and the Chief Counsel are crucial to their ability to be an effective independent voice in the Federal Government for small businesses. This bill has been endorsed by the U.S. Chamber of Commerce, the Small Business Legislative Council and the National Federation of Independent Businesses. Small businesses are asking us to do everything we can to protect and strengthen this essential office. I believe this legislation accomplishes that important goal.

I have always been a strong supporter of the Office of Advocacy and I am pleased to join with Chairwoman Snowe in introducing this legislation, which will ensure that the Office of Advocacy remains an independent and effective voice representing America's small businesses.

Mr. President, with most of the country's attention focused on the war in Iraq, important issues at home are falling through the cracks. Today I rise to talk about one of the needs of working moms and dads and their children--child care. We have a shortage of childcare in this country, and it is a problem for our families, a problem for our businesses, and a problem for our economy. The Census Bureau estimates that there are approximately 24 million school age children with parents who are in the workforce or pursuing education, and the numbers are growing. There has been a 43 percent increase in dual-earner families and single parent families over the last half a century. As parents leave the home for work and education, the need for quality child care in America continues to increase.

As the Ranking Democrat of the Committee on Small Business and Entrepreneurship, I think we can foster the establishment and expansion of existing child care businesses through the Small Business Administration, SBA. Today with Senators Harkin, Landrieu, Pryor, Lieberman, Daschle, Bingaman, and Johnson. I am introducing the Child Care Lending Pilot Act of 2003, a bill to create a three-year pilot that allows small, non-profit child care providers to access financing through SBA's 504 loans.

There is a real need to help finance the purchase of buildings, to expand existing facilities and improve the conditions of established centers to meet the demand for child care. It is appropriate to provide financing through the 504 program because it was created to spur economic development and rebuild communities, and child care is critical to businesses and their employees. Financing through 504 could spur the establishment and growth of child care businesses because the program requires the borrower to put down only between 10 and 20 percent of the loan, making the investment more affordable. Another advantage of 504 loans is that they have terms of up to 20 years, with fixed interest rates, allowing small businesses to keep their monthly payments low and predictable.

As anyone with children knows, quality childcare comes at a very high cost to a family, and it is especially burdensome to low-income families. The Children's Defense Fund has estimated that child care for a 4-year-old in a child care center averages $4,000 to $6,000 per year in cities and states around the Nation. In all but one state, the average annual cost of child care in urban area child care centers is more than the average annual cost of public college tuition.

These high costs make access to child care all but non-existent for low-income families. While some states have made efforts to provide grants and loans to assist childcare businesses, more must be done to increase the supply of childcare and improve the quality of programs for low-income families. According to the Child Care Bureau, state and federal funds are so insufficient that only one out of 10 children in low-income working families who are eligible for assistance under federal law receives it.

For parts of the country, when affordable child care is available, it is provided through non-profit child care businesses. I formed a task force in my home state of Massachusetts to study the state of child care, and of the many important findings, we discovered that more than 60 percent of the child care providers are non-profit and that there is a real need to help them finance the purchase of buildings or expand their existing space. Child care in general is not a high-earning industry, and the owners don't have spare money lying around. Asking centers to charge less or cut back on employees is not the way to make child care more affordable for families and does not serve the children well. An adequate staff is needed to make sure children receive proper supervision and support. Furthermore, if centers are asked to lower their operating costs in order to lower costs to families, the safety and quality of the child care provided would be in jeopardy.

I urge my colleagues to join us in supporting this legislation so non-profit childcare providers can access funds to start new centers or expand and improve upon existing centers. As we have done in Massachusetts, Senators could bring together 504 lenders, childcare providers not for-profit and non-profit--and the state department of child welfare to facilitate the increase of childcare providers in their states.

As common sense tells us, and the child advocates if we listen, there is no magic bullet to addressing the shortage of safe and affordable child care in this country--it takes coordinated and complementary efforts to make a real difference. This is as much a child welfare issue as a workforce issue, and it makes sense to leverage one of SBA's effective resources to try and contribute to making a positive difference. I argue--we argue--that allowing non-profit child care centers to receive SBA loans can increase the availability of child care in the United States. Non-profit child care centers provide the same quality of care as the for-profit centers, and non-profit centers often serve our nation's neediest communities. I hope that my colleagues will recognize the vital role that early education plays in the development of fine minds and productive citizens and realize that in this great nation, child care should be available to all families in all income brackets.

I ask unanimous consent that several letters of support be printed in the Record. These letters demonstrate that this is a good investment and good for our country.

Mr. President, I rise to introduce the ``Independent Office of Advocacy Act of 2003.'' The SBA's Office of Advocacy is, unfortunately, one of our government's best kept secrets, and in many cases, the best hope for small businesses faced with over burdensome Federal regulations. The Office of Advocacy serves two critical roles: 1. it represents small business' interests before the Federal government in regulatory matters--taking advantage of its statutorily granted independence to argue against regulatory actions that impose too great a burden on small businesses to our economy and the forces that have an effect on them.

This bill is designed to build on the success achieved by the Office of Advocacy over the past 26 years and to strengthen that foundation by making the Office of Advocacy a stronger, more effective advocate for all small businesses throughout the United States. This bill was approved unanimously by the Senate during the 106th and 107th Congresses. However, regrettably, the House failed to act in both cases.

The Office of Advocacy, headed by the Chief Counsel for Advocacy, is a unique office with the Federal government. It is part of the SBA, and the Chief Counsel for Advocacy is nominated by the President and confirmed by the Senate. At the same time, the Office is also intended to be the independent voice for small business within the Federal Government. It is supposed to develop proposals for changing government policies to help small businesses, and it is supposed to represent the views and interests of small businesses before other Federal agencies in rulemaking activities. These roles can sometimes come into conflict.

The ``Independent Office of Advocacy Act of 2003'' resolves such conflicts in favor of the small businesses that rely on the Chief Counsel and the Office of Advocacy to be a fully independent advocate within the Executive Branch acting on their behalf. The bill would establish a clear mandate that the Office of Advocacy must fight on behalf of small businesses, regardless of the position taken on critical issues by the President and his or her Administration.

The Office of Advocacy, under the direction of the Chief Counsel, as envisioned by the ``Independent Office of Advocacy Act of 2003'', would be a wide-ranging advocate, free to take positions contrary to the Administration's policies and to advocate change in government programs and attitudes as they affect small businesses. During its consideration of the bill in 1999, the Committee on Small Business adopted unanimously an amendment to require the Chief Counsel to be appointed ``from civilian life.'' This qualification is intended to emphasize that the person nominated to serve in this important role should have a strong small business background.

In 1976, Congress established the Office of Advocacy in the SBA to be the eyes, ears and voice for small business within the Federal government. Since then, the Office of Advocacy has become the ``independent'' voice for small business. Unfortunately, in certain cases, the Office has not been as independent as necessary to do the job for small business.

For example, funding for the Office of Advocacy currently comes from the Salaries and Expense Account of the SBA's budget. Staffing is allocated by the SBA Administrator to the Office of Advocacy from the overall staff allocation for the Agency. In 1990, there were 70 full- time employees working on behalf of small businesses in the Office of Advocacy. The current allocation of staff is 49, and fewer are actually on-board as the result of the long-standing hiring freeze at the SBA. The independence of the Office is diminished when the Office of Advocacy staff is reduced to allow for increased staffing for new programs and additional initiatives in other areas of SBA, at the discretion of the Administrator.

To address this problem, the ``Independent Office of Advocacy Act of 2003'' builds a firewall to prevent political intrusion into the management of day-to-day operations of the Office of Advocacy similar to the one that protects Inspectors General. The bill would require the Federal budget to include a separate account for the Office of Advocacy drawn directly from General Fund of the Treasury. No longer would its funds come from the general operating account of the SBA. This will free the Chief Counsel for Advocacy from having to seek approval from the SBA Administrator to hire staff for the Office of Advocacy.

Additionally, the bill provides that any funds appropriated will remain available without fiscal year limitation until expended. This will give the Chief Counsel the flexibility to use these funds as necessary instead of being forced to spend them, perhaps prematurely, because of the coming end of a fiscal year.

The bill would leave unchanged current law that allows the Chief Counsel to hire individuals critical to the mission of the Office of advocacy without going through the normal competitive procedures directed by Federal law and the Office of Personnel Management, OPM. This long-standing special hiring authority, which is limited only to employees within the Office of Advocacy, is beneficial because it allows the Chief Counsel to hire quickly those persons who can best assist the Office in responding to changing issues and problems confronting small businesses.

As the New Chair of the Senate Committee on Small Business and Entrepreneurship, I have heard repeatedly about the importance of the Office of Advocacy and the vital role it plays for small enterprises and the self employed across the nation. With these comments in mind, I am committed to ensuring the complete independence of the Office of Advocacy in all matters, at all times, for the continued benefit of all small businesses. However, so long as any administration controls the budget allocated to the Office of Advocacy, the independence of the Office may be in jeopardy. We must correct this situation, and the sooner we do it, the better it will be for the small business community.

In addition to resolving the critical funding issues, the ``Independent Office of Advocacy Act of 2003'' would direct the Chief Counsel to submit an annual report on Federal agency compliance with the Regulatory Flexibility Act, RFA, to the President, the Senate Committee on Small Business and Entrepreneurship, House Committee on Small Business, the Senate Committee on Governmental Affairs, the House Committee on Government Reform, and the Senate and House Committees on the Judiciary.

The RFA is a very important weapon in the war against the over- regulation of small businesses. It requires agencies to analyze their regulations to determine their impact on small businesses before they are proposed and to explore alternatives to reduce the regulatory burden. In August, 2002, President Bush issued Executive Order 13272, which requires Federal agencies to establish plans detailing how they will handle their obligations under the Regulatory Flexibility Act and directs the Office of Advocacy to work with the agencies in developing these plans. In addition, the Executive Order directs the agencies to respond to comments from the Office of Advocacy regarding the agencies' analyses. Thus, there is even more reason today to have the Chief Counsel report to the President and Congress on how Federal agencies are complying with the Regulatory Flexibility Act than there was when this bill was introduced in previous Congresses.

The ``Independent Office of Advocacy Act of 2003'' is a sound bill. It is the product of a great deal of thoughtful, objective review and consideration by me; the former Chairman of the Committee on Small Business and Entrepreneurship, Senator Bond; staff of the Committee; representatives of the small business community; former Chief Counsels for Advocacy and many others. In short, this bill has been thoroughly vetted in my Committee and has been approved unanimously by the Senate in 1999 and 2001. It is time we see this bill enacted into law, and I urge my colleagues to support this important legislation for America's small businesses and entrepreneurs. I look forward to moving this bill through the Senate again, and hope that the third time will lead to the President's desk.

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

Mr. President, I rise today to introduce the Sunshine in Litigation Act of 2003, a measure to address the abuse of secrecy orders issued by federal courts. All too often, courts sign off on secret settlements that shield important public health and safety information from the public view from mothers and fathers and children whose lives are potentially at stake, and from public officials we have asked to protect our health and safety.

The problem is a simple one and has been recurring for decades. An individual brings a cause of action against a manufacturer for an injury or fatality resulting from a product defect. The plaintiff, often reticent to continue the litigation process because of grief or lack of resources, settles the lawsuit quickly. In exchange, the defendant insists that the plaintiff agree to the inclusion of a confidentiality clause. This mechanism prevents either party from disclosing information revealed during the process of litigation. Both of the parties to the lawsuit believe that they have ``won'': the plaintiff won a satisfactory financial settlement, and the defendant won the right to conceal ``smoking gun'' documents.

But not everybody wins. Future victims of injuries or fatalities resulting from the same product defect lose, because they or their families must ``re-invent the wheel'' as they litigate virtually the same case. Even worse, the American public loses with this outcome, because they remain unaware of the critical public health and safety information which could prevent harm and save lives.

Currently, judges have broad discretion in granting protective orders when ``good cause'' is shown. But these protective orders are being misused. Tobacco companies, automobile manufacturers and pharmaceutical companies have settled with victims and used the legal system to hide information which, if it became public, could protect the American public but endanger their business or reputation. We can all agree that the only appropriate use for such orders is to protect trade secrets and other truly confidential company information and our legislation makes sure it is protected. But protective orders are certainly not supposed to be used to hide public safety information from the public, especially when such information is neither trade secret nor proprietary.

There are no records kept of the number of confidentiality orders accepted by state or federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Let me share some examples that illustrate the dangerous and often deadly consequences

that result from protective orders: Although an internal memo suggests that General Motors, ``GM'', was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving these fuel tanks. When victims sued, GM disclosed documents only under protective orders and settled these cases only on the condition that these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued.

Sixteen month-old Michael Bancroft was buckled into a Kolcraft booster-style safety seat in his mother's car when the car was involved in an accident. Due to a defect in product design, however, the seat did not protect him from a broken neck and paralysis. Kolcraft and the Bancrofts settled for $4.25 million and signed a confidentiality agreement that concealed the product's defect. Because this information remained a secret, countless parents continued to feel a false sense of safety when securing their children in Kolcraft safety seats.

From 1992-2000, tread separation of certain Bridgestone and Firestone tires caused a great number of car accidents, many involving serious injuries or fatalities. Bridgestone/Firestone quietly settled dozens of lawsuits resulting from faulty tire crashes, most of which included secrecy agreements. It was only in 1999, when a Houston public television broke the story, that the company admitted the defect and recalled 6.5 million tires.

Some States have been proactive in dealing with this problem. Florida, for example, has in place a Sunshine in Litigation law that severely limits the ability of parties to conceal information that effects public health and safety. Michigan has a rule that requires that secret settlements be unsealed two years after they are approved. And just last year, the judges of the United States District Court for the District of South Carolina unanimously agreed not to accept any secret settlements at all.

While these steps indicate movement in the right direction, we still have a long way to go. It is time to initiate a federal solution for this problem. The Sunshine in Litigation Act is a modest proposal that would require Federal judges to perform a simple balancing test to ensure that the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety. Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies.

And don't just take it from me. During his confirmation hearings before the Judiciary Committee in January 2001, Attorney General John Ashcroft voiced his support for this legislation, saying, ``I think unnecessarily hiding or otherwise concealing from the public those [public health and safety hazards] would be against the interests of the people . . . I think there's great danger in not providing public information.''

This legislation does not prohibit secrecy agreements across the board. It does not place an undue burden on judges or our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public and from regulators. This is an entirely reasonable balancing test. It is time to eliminate the dark dangers of court secrecy and bring matters of public health and safety into the light, where they belong.

Mr. President, today, Senator Thomas and I would like to introduce the Health Care Access and Rural Equity, (H-CARE), Act of 2003.

This proposal is the result of a tripartisan and Bicameral effort. We are proud to be joined by 24 Members who also support the bill, including--Senators Harkin, Grassley, Roberts, Daschle, Dorgan, Smith, Johnson, Lincoln, Domenici, Rockefeller, Burns, Bingaman, Jeffords, Cochran, Levin, Talent, Edwards, Bond, Pryor, Dayton, Snowe, Cantwell and Murray. I would also like to thank our House companions, led by Representatives Moran (R-KS), and Pomeroy.

Working together, I believe we are taking important steps toward improving access to health care in our rural communities.

In addition, I would like to thank the National Rural Health Association, the Federation of American Hospitals, the American Hospital Association, Premier Hospital Alliance and the Coalition representing Sole Community Hospitals for their support of this effort.

As my colleagues may know, rural health care providers are often forced to operate with significantly less resources that larger, urban facilities. In my State of North Dakota, rural hospitals often receive only half the reimbursement of their urban counterparts--for treating the same patient. For example, a rural facility in North Dakota receives approximately $4,200 for treating pneumona, while a hospital in New York City can receive more than $8,500.

This funding disparity is simply unfair and has placed many rural providers on shaky ground. Continued funding shortfalls have resulted in rural providers having much tighter inpatient cost margins than their urban counterparts--today, the average rural hospital operates with a slim 3.9 percent cost margin compared to 11.3 percent for urban providers). This situation has resulted in more than 43 percent of rural hospitals operating in the red.

When you look at overall cost margins, the situation is even more bleak--rural providers are working with an average negative 2.9 percent Medicare margin, compared to 6.3 percent for urban hospitals). Our rural facilities cannot continue to provide high quality services if they lose nearly 3 percent on every Medicare patient they serve.

To address these problems, the bill we are introducing today would take many important steps to improve the rural health care system.

First, it would provide a much-needed low-volume adjustment payment. Today, it is nearly impossible for rural hospitals to take advantage of economies of scale realized by facilities located in larger communities. This situation has resulted in the majority of small facilities losing money. To address this problem, our bill would provide a new, extra payment to hospitals serving less than 2,000 patients per year. This provision would provide up to 25 percent in additional funding to help rural providers cover inpatient hospital services.

Second, H-CARE would close the gap in payments hospitals receive for serving low-income patients. It would do this by allowing rural hospitals to receive the same level of special ``Disproportionate Share--or DISH Payments'' currently available to urban providers.

Third, our legislation would take steps to permanently equalize the ``base payment amount,'' which has been 1.6 times higher for urban facilities. The recent Omnibus bill temporarily fixed this problem--but only until the end of FY03. Our bill finishes the job.

Fourth, this legislation would help hospitals better meet labor costs by making some needed improvements to the Medicare ``wage index'' calculation. Across the Nation, rural hospitals have reported that the wage index does not accurately account for labor costs in their area. Our bill takes steps to address this problem.

Fifth, our bill would ensure that rural hospitals continue to be paid fairly for outpatient services. It does this by extending a provision in current law that protects these hospitals against losses under the current Medicare payment system. It also includes measures to protect rural hospitals' access to lab services.

I am happy to say that this set of proposals would go a long way toward placing rural facilities on much sounder financial footing. Let me provide some examples.

Today, the average small hospital located in the Midwest receives $3,926 as an average payment for inpatient services. If all the changes laid out in our bill are enacted, this will improve payments to smaller rural hospitals by about 25 percent.

If you look at a more specific service--such as treating pneumonia-- this same hospital would see payments increase from about $4,326 to $5,405. These increases are clearly big improvements, which will bring reimbursements for rural hospitals more in line with their costs.

Before I close, I'd also like to mention that this bill would establish a new grant program to help rural hospitals repair crumbling buildings. Under this program, rural providers

could apply for up to $5m in loan assistance. It is my hope these resources will help strengthen the infrastructure of our Nation's rural hospitals.

Finally, our bill includes a set of provisions that will make small-- but important--changes to the Critical Access Hospital, CAH, program. These include measures to ensure CAHs have 24-hour emergency on-call providers and to ensure they can afford to provide quality ambulance care.

In total, the changes laid out in our bill will bring more than $72 million in new resources to my State of North Dakota over the next ten years. The bill will provide similar benefits to other rural States.

Thank you again to my Senate and House colleagues, as well as the organizations who worked with us, for your cooperation in developing this important health care proposal. It is my hope that this legislation will help to strengthen and sustain our Nation's rural health care system.