Las Cienegas Enhancement and Saguaro National Park Boundary Adjustment Act

Mr. President, traumatic brain injury is the signature injury of the Iraq war. The widespread use of Improvised Explosive Devices, IEDs, has taken a terrible toll. Even those who have walked off the battlefield without visible scars often find they have suffered the internal trauma of a traumatic brain injury.

Today, I am introducing legislation, along with Senators Warner, Murray, Graham, Obama, Webb, and Cantwell, to create a Traumatic Brain Injury Program, operated jointly by the Department of Defense and the Department of Veterans Affairs, to ensure that those servicemembers who suffer a brain injury receive all the services they need. The legislation establishes a standard of care for each individual found to have suffered a brain injury, improves the coordination of care, strengthen the rights of brain injury patients, and expands brain injury research in the Departments of Defense and Veterans Affairs.

This legislation will reduce the number of our wounded soldiers who fall through the cracks and are left to fend for themselves as they struggle to recover from a traumatic brain injury. I am pleased to have the support of Veterans for America for this legislative effort.

We have made tremendous progress in battlefield medical care. During Vietnam, one in three servicemembers who were injured died. In Iraq and Afghanistan, 1 in 16 who are injured die. But with the changes in warfare and in medical technology, more of our servicemembers are coming home with serious brain injuries from Iraq and Afghanistan than from any other recent conflicts we've known.

For some of these wounded warriors, the greatest battle comes at home when they seek care. Many of these returning troops need long-term treatment and rehabilitation long after their discharge from active duty, as they fight to overcome the severe disabilities that a traumatic brain injury can cause.

For others, there is a different story. Some servicemembers don't even realize they suffered a traumatic brain injury until long after their discharge, because we don't do a very good job of identifying and treating those who may have suffered a brain injury.

Fortunately, many of those who suffer a brain injury are able to recover fairly quickly. But for some, the experience is life-altering, even life-shattering. We must not fail them in their time of need.

Consider the case of Sgt. Eric Edmundson. Eric left my home state of Illinois to serve in Iraq. In October 2005, he suffered a severe head concussion when a roadside bomb exploded near him. He was cared for at Walter Reed Hospital, then was transferred to a VA facility where he and his family felt he was not receiving the kind of treatment that would allow him to continue to make progress in rehabilitation.

He would have been stuck there if the family had not found a creative way to obtain the care he needed. The family found a way to ensure that Eric could receive treatment and rehabilitation at one of the premiere rehabilitation hospitals in the nation: the Rehabilitation Institute of Chicago. He is making great progress there and hopes to walk out of the hospital some day soon.

We need to use private hospitals more. In fact, we should use them whenever they are the best option for our returning soldiers who are wounded. In the case of traumatic brain injury, they often have the special expertise needed, because the leading facilities in this field deal with brain injuries day in and day out as a result of construction accidents and car crashes.

Now consider the case of Sgt. Garrett Anderson of Champaign, Illinois. Garrett went to Iraq with the Illinois National Guard. After 4 months there, an IED exploded next to his armored Humvee in Baghdad. The blast tore off his right arm below the elbow, shattered his jaw, severed part of his tongue, damaged his hearing, and punctured his body with shrapnel.

He spent 7 months at Walter Reed, where he received excellent care in Ward 57, the famous amputee ward. However, the outpatient care that followed has been filled with paperwork and red tape. It was months before the VA recognized that Garrett had suffered a traumatic brain injury. He has not received the kind of treatment for brain injury that could make a significant difference in the trajectory of his rehabilitation.

We need to change the way we handle patients with traumatic brain injury, so that they receive the care they need at the time they need it.

The legislation I am introducing takes a comprehensive approach to dealing with the traumatic brain injuries that plague our troops and veterans.

First, this legislation would establish a Traumatic Brain Injury Program, run by DOD and the VA, to provide treatment and rehabilitation to servicemembers and veterans who have suffered a service-connected traumatic brain injury.

Second, this bill would establish a standard of care for the participants in the TBI Program. Specifically, each individual in the program shall be provided ``the highest quality of care possible based on the medical judgment of qualified medical professionals in facilities that most appropriately meet the specific needs of the individual. ``And they shall be rehabilitated to the fullest extent possible using the most up-to-date medical technology, medical rehabilitation practices, and medical expertise available.''

That's the standard of care we should provide to these injured troops who gave so much of themselves for us. They should receive the best we have to give.

Third, the measure would direct the Defense Department to develop and administer a standardized cognitive pre-test, which would be administered to all military personnel prior to deployment and again upon return from deployment to determine if they have suffered a brain injury.

It also would require DOD and the VA to refer any servicemember or veteran for TBI screening if it is found, in the course of later treatment or contacts, that the servicemember or veteran may have suffered a service-connected brain injury.

Anyone found to have suffered a traumatic brain injury would be enrolled in the TBI program and receive the care they need.

One of the things the families of TBI patients complain most about is the confusion that surrounds their efforts to ensure that their loved one received all needed care. The fourth thing this measure would do is to direct DOD and the VA to assign each patient a lead case manager to ease the stress on the patient and family, facilitate navigation through the DOD and VA systems, ensure proper care, present options for care outside of DOD and the VA, and ensure consistent guidance. Additionally, DOD and the VA would assign to each patient a lead primary care physician to coordinate and oversee the care provided to the patient, including all treatment, rehabilitation, and medications.

Another complaint of families and TBI patients is that they are sometimes blocked from receiving the care they need due to their status as either a veteran or an active duty member. DOD and the VA have different health benefit options. In some cases, servicemembers have found that, because they accepted a discharge, they lost access to benefits that would help them.

Our bill addresses this problem by establishing, for these TBI patients, a temporary overlap of benefits. The participants in the TBI Program will be allowed, for 2 years, to receive any of the benefits available to veterans and to active duty members, regardless of their active duty status. This will help ensure they receive the best care and rehabilitation available, wherever it may be.

Our bill would spell out some other rights that are important for the rehabilitation of TBI patients. First, DOD and the VA would be required to provide a referral to a medical professional outside of DOD and the VA when requested by a TBI patient. This will allow patients to determine whether there is better care in the private sector that is not being provided to that patient. They would also have a right to an appeals process to challenge any failure to provide the standard of care required in the TBI Program.

In some cases, undiagnosed traumatic brain injuries may contribute to behavior resulting in other than honorable discharges. Upon the request of a servicemember who served since 2001 and was discharged under other than honorable conditions, the DOD would be directed to review the discharge to determine whether a brain injury might be the root cause of the actions that precipitated the adverse discharge, with fair reconsideration of the discharge if such evidence is found.

Similarly, the VA would be required to make available, upon request, an appeals process to update the disability rating of a veteran who is found to have suffered a traumatic brain injury.

Finally, this measure authorizes additional funding for research related to traumatic brain injury both in DOD and in the VA, to improve screening, diagnosis, treatment, and rehabilitation for traumatic brain injury.

This is a comprehensive effort to improve the treatment of our Nation's wounded servicemembers who have suffered a traumatic brain injury. I can't imagine the anguish that must be associated with such an injury, but I can imagine the kind of medical system I would like to have in place if it were my son or daughter struggling to recover from such an injury. This legislation reflects that vision.

I thank my cosponsors, Senators Warner, Murray, Graham, Obama, Webb, and Cantwell, and I urge all of my colleagues to support this measure.

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

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on September 27, 2007, at 9:30 a.m., in open session to consider the following nominations: Admiral Gary Roughead, USN for reappointment to the grade of Admiral and to be Chief of Naval Operations; General William E. Ward, USA for reappointment to the grade of General and to be Commander, United States Africa command; General Kevin P. Chilton, USAF for reappointment to the grade of General and to be Commander, United States Strategic Command; and Lieutenant General James N. Mattis, USMC to be General and to be Commander, United States Joint Forces Command and Supreme Allied Commander for Transformation.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to hold a hearing during the session of the Senate on Thursday, September 27, 2007, at 10:30 a.m., in room 253 of the Russell Senate Office Building.

The hearing will focus on modernization and efforts to address the needs of the air traffic system and to improve the movement of aircraft and passengers. Subcommittee members will be provided the opportunity to review problems encountered by travelers during the summer 2007 travel season and to consider steps that can be taken to improve the air traffic system.

Mr. President, I ask unanimous consent that the Committee on Commerce Science, and Transportation be authorized to hold a business meeting during the session of the Senate on Thursday, September 27, 2007, at 2:30 p.m., in room 253 of the Russell Senate Office Building.

During the Executive Session, Committee members will markup the following agenda items: S. 1578, Ballast Water Management Act of 2007; S. 1889, Railroad Safety Enhancement Act of 2007; S. 1453, Internet Tax Freedom Act (ITFA) Extension Act of 2007; S. 1965, Protecting Children in the 21st Century Act; S.J. Res. 17, a joint resolution directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean; S. Con. Res. 39, a concurrent resolution supporting the goals and ideals of a world day of remembrance for road crash victims; Nominations for Promotion in the United States Coast Guard (PN 878, PN 946, PN 947, and

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to hold a hearing during the session of the Senate on Thursday, September 27, 2007, at 9:30 a.m. in room SD-366 of the Dirksen Senate Office Building.

The purpose of the hearing is to receive testimony on hard rock mining on Federal lands.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, September 27, 2007, at 10 a.m., in room SD-215 of the Dirksen Senate Office Building, to hear testimony on the ``Border Insecurity, Take Three: Open and Unmonitored''.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, September 27, 2007, at 2:30 p.m. to hold a hearing on the Convention on the Law of the Sea.

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Thursday, September 27, 2007, at 9 a.m. in room 628 of the Dirksen Senate Office Building to conduct a business meeting to consider pending business, to be followed immediately by an oversight hearing on the prevalence of violence against Indian women.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate in order to conduct a markup on Thursday, September 27, 2007, at 10 a.m. in the Dirksen Senate Office Building room 226.

Agenda:

I. Bills: S. 1267, Free Flow of Information Act of 2007, (Lugar, Dodd, Graham), S. 2035, Free Flow of Information Act of 2007, (Specter, Schumer).

S.J. Res. 13, Joint resolution granting consent to the International Emergency Management Assistance Memorandum of Understanding, (Leahy, Snowe, Kennedy, Whitehouse), S. 980, Online Pharmacy Consumer Protection Act of 2007, (Feinstein, Sessions, Biden).

II. Resolutions: S. Con. Res. 45, commending the Ed Block Courage Award Foundation for its work in aiding children and families affected by child abuse, and designating November 2007 as National Courage Month, (Cardin, Cornyn).

S. Res. 258, recognizing the historical and educational significance of the Atlantic Freedom Tour of the Freedom Schooner Amistad, and expressing the sense of the Senate that preserving the legacy of the Amistad story is important in promoting multicultural dialogue, education, and cooperation, (Dodd).

III. Nominations: James Russell Dedrick to be United States Attorney for the Eastern District of Tennessee.

Mr. President, I ask unanimous consent for the Committee on Veterans' Affairs to be authorized to meet during the session of the Senate on Thursday, September 27, 2007, in order to conduct a hearing on the Nomination of Paul J. Hutter to be General Counsel, Department of Veterans Affairs. The committee will meet in room 562 of the Dirksen Senate Office Building, at 9:30 a.m.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights, be authorized conduct a hearing entitled ``An Examination of the Google- DoubleClick Merger and the Online Advertising Industry: What are the Risks for Competition and Privacy?'' on Thursday, September 27, 2007, at 2 p.m. in the Dirksen Senate Office Building room 226.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs' Subcommittee on Federal Financial Management, Government Information, Federal Services and International Security be authorized to meet on Thursday, September 27, 2007, at 3:30 p.m. in order to conduct a hearing entitled ``Cost Effective Airlift in the 21st Century''.

Mr. President, I ask unanimous consent that the Subcommittee on National Parks of the Committee on Energy and Natural Resources be authorized to hold a hearing during the session of the Senate on Thursday, September 27, 2007, at 2:30 p.m. in room SD-366 of the Dirksen Senate Office Building.

The purpose of the hearing is to receive testimony on the following bills: S. 128, to amend the Cache La Poudre River Corridor Act to designate a new management entity, make certain technical and conforming amendments, enhance private property protections, and for other purposes; S. 148, to establish the Paterson Great Falls National Park in the State of New Jersey, and for other purposes; S. 189, to decrease the matching funds requirement and authorize additional appropriations for Keweenaw National Historical Park in the State of Michigan; S. 697, to establish the Steel Industry National Historic Site in the State of Pennsylvania; S. 867, to adjust the boundary of Lowell National Historical Park, and for other purposes; S. 1039, a bill to extend the authorization for the Coastal Heritage Trail in the State of New Jersey; S. 1341, to provide for the exchange of certain Bureau of Land Management land in Pima County, Arizona, and for other purposes; S. 1476, to authorize the Secretary of the Interior to conduct a special resources study of the Tule Lake Segregation Center in Modoc County, California, to determine the suitability and feasibility of establishing a unit of the National Park System; S. 1709 and H.R. 1239, to amend the National Underground Railroad Network to Freedom Act of 1998 to provide additional staff and oversight of funds to carry out the Act, and for other purposes; S. 1808, to authorize the exchange of certain land in Denali National Park in the State of Alaska; S. 1969, to authorize the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of designating Estate Grange and other sites related to Alexander Hamilton's life on the island of St. Croix in the

U.S. Virgin Islands as a unit of the National Park System, and for other purposes.

Mr. President, I rise today to introduce legislation to help millions of Americans overcome a deadly addiction: the addiction to tobacco. The Medicare, Medicaid and MCH Smoking Cessation Promotion Act of 2008 will help make smoking cessation therapy available to recipients of Medicare, Medicaid, and the Maternal and Child Health, MCH, Program.

More than 45 million adults in the United States smoke cigarettes. Approximately 90 percent started smoking before the age of 14. Despite the fact that we have known for decades that cigarette smoking are the leading preventable cause of death, 1,600 adults become regular smokers each day, including 4,000 kids. Depending on your race/ethnicity, socioeconomic status, even where you live, the likelihood that you are a smoker varies greatly. African-Americans are twice as likely as the general population to smoke. Communities in the South are more likely to be smoker-friendly than other communities in the U.S. While 22.5 percent of the general adult population in the U.S. are current smokers, the percentage is about 50 percent higher among Medicaid recipients. Thirty-six percent of adults covered by Medicaid smoke.

We have a moral argument and an economic argument to end the addiction to nicotine. Morally, how do we ignore the deaths of 438,000 smokers or 8.6 million Americans living with serious smoking-related illnesses? Smoking causes virtually all cases of lung cancer and contributes to primary heart disease, peripheral vascular disease, chronic obstructive pulmonary disease, COPD, and other deadly health ailments. It is too often a bleak future for smokers and their families. An American Legacy Foundation report reminds us that second- hand smoke in children of smokers leads to asthma and chronic ear infections in children but also that 43,000 children are orphaned every year because of tobacco-related deaths.

We are not only paying a heavy health toll, but an economic price as well. According to the Campaign for Tobacco Free Kids, health care expenditures caused by smoking is approaching $100 billion. Our federal government pays $17.6 billion in smoking-caused Medicaid payments and $27.4 billion in smoking-caused Medicare expenditures.

Ironically, we do not hear that much about how many smokers America-- 70 percent--want to quit. Unfortunately, they face long odds--in 2000, only about 5 percent of smokers were successful in quitting long-term. Overcoming an addiction to tobacco is arguably one of the single most important lifestyle changes that can improve and extend lives. However, most smokers who want to quit don't appreciate how hard it really is to break an addition to nicotine.

This is why it is essential that we make this decision and the courage that it takes as easy as possible. States are already stepping up to the plate when it comes to smoking cessation. Last year in my home State of Illinois, a record-breaking 36 cities and counties enacted smoke-free laws, more than any other State in the Nation. More and more Illinoisans and Americans nationwide are realizing that life without smoking is possible. And the support for cessation does not end there. In fact, in 2003, 37 States had some form of coverage under Medicaid for at least one evidence-based treatment for smoking addiction. States like New Jersey and Oregon now have some of the lowest smoking-related Medicaid costs.

Studies have shown that reducing adult smoking through tobacco use treatment pays immediate dividends, both in terms of health improvements and cost savings. Shortly after quitting smoking, blood circulation improves, carbon monoxide levels in the blood decrease, the risk of heart attack decreases, lung function and breathing are improved, and coughing decreases.

Pregnant women who quit smoking before their second trimester decrease the chances that they will give birth to a low-birth-weight baby. Over the long term, quitting will reduce a person's risk of heart disease and stroke, improve symptoms of COPD, reduce the risk of developing smoking-caused cancer, and extend life expectancy.

We are fortunate to have identified clinically proven, effective strategies to help smokers quit. Advancements in treating tobacco use and nicotine addiction using pharmacotherapy and counseling have helped millions kick the habit. An updated clinical practice guideline released in May of 2008 by the U.S. Public Health Service urges health care insurers and purchasers to include counseling and FDA-approved pharmacologic treatments as a covered benefit. The Guideline also emphasizes the role that counseling, especially in conjunction with medication, increases the odds of success in quitting. As we urge healthcare insurers and purchasers to offer this important benefit, so too should our government sponsored health programs keep pace.

I am proud to be joined by my colleagues Senators Kennedy and Lautenberg to introduce the Medicare, Medicaid and MCH Smoking Cessation Promotion Act of 2008 and require government-sponsored health programs to cover this important benefit. The Medicare, Medicaid, and MCH Smoking Cessation Promotion Act of 2008 makes it easier for people to have access to smoking cessation treatment therapies. It does three meaningful things.

First, this bill adds a smoking cessation counseling benefit and coverage of FDA-approved tobacco cessation drugs to Medicare. By 2020, 17 percent of the U.S. population will be 65 years of age or older. It is estimated that Medicare will pay $800 billion to treat tobacco related diseases over the next 20 years.

Second, this bill provides coverage for counseling, prescription and non-prescription smoking cessation drugs in the Medicaid program. The bill eliminates the provision in current federal law that allows States to exclude FDA-approved smoking cessation therapies from coverage under Medicaid. Despite the fact that the States have received payments from their successful Federal lawsuit against the tobacco industry, less than half the States provide coverage for smoking cessation in their Medicaid program. Even if Medicaid covered cessation products and services exclusively to pregnant women, we would see significant cost savings and health improvements. Children whose mothers smoke during pregnancy are almost twice as likely to develop asthma as those whose mothers did not. Over 7 years, reducing smoking prevalence by just one percentage point among pregnant women would prevent 57,200 low birth weight births and save $572 million in direct medical costs.

Third, this bill ensures that the Maternal and Child Health Program recognizes that medications used to promote smoking cessation and the inclusion of anti-tobacco messages in health promotion are considered part of quality maternal and child health services.

As Congress begins to examine more closely the impact of tobacco on our country--considering regulation by the FDA or raising taxes to pay for public health priorities--we must make sure we assist those fighting this deadly addiction. I hope my colleagues will join me in cosponsoring this legislation and taking a stand for the public health of our Nation.

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

Mr. President, I rise today to introduce, on behalf of myself and Senators Sessions, Murkowski, and Landrieu, a bill that establishes the foundation for a sustainable nuclear fuel cycle for the U.S. A sustainable nuclear fuel cycle is the key to nuclear energy reaching its full potential to provide the large scale base load electrical generating capacity our country needs, while reducing greenhouse gas emissions. Today, nuclear energy provides nearly 20 percent of our electricity generation capacity and does so more reliably, and with a lower cost per kilowatt hour than coal, with essentially no greenhouse gas emissions. In the decades to come, we will need nuclear energy to play an even greater role, not only in electrical generation, but also in the transportation and industrial sectors, if we are to achieve the reductions in greenhouse gas emissions needed to address the challenge of global climate change. The Strengthening Management of Advanced Recycling Technologies Act, or SMART Act, represents the first important step in building the bridge to that future.

The SMART Act promotes the establishment of privately owned and operated used nuclear fuel storage and recycling facilities. These facilities will help resolve the current deadlock in spent nuclear fuel management while providing a means to extract additional energy from used nuclear fuel. I believe that a commercially viable used fuel recycling strategy, combined with a responsible waste disposition strategy, will enable the expansion of nuclear energy necessary to meet all our goals for the future of nuclear energy. The SMART Act advances this vision through incentives--rather than mandates--for both industry and local communities.

The SMART Act establishes a competitive 50-50 cost share program between the Department of Energy and private industry to finance engineering and design work and the development of license applications for up to 2 spent fuel recycling facilities. The SMART Act restricts facility designs to commercial scale facilities that do not separate pure plutonium. The recycling technology must also reduce the burden on geologic repositories used for ultimate disposal of waste and promote extraction of additional energy from used fuel stocks. Beyond these restrictions, the choice of recycling technology is left up to industry.

The resulting reference licenses for recycling facilities may then be used by industry to construct domestic used nuclear fuel recycling capacity. To assist industry in securing the necessary financing for these facilities, the SMART Act authorizes DOE to offer long term contracts for spent fuel recycling services. All construction and financing costs, however, would be born by industry.

Although ultimate geologic disposition of waste will always be needed, interim storage of used nuclear fuel is a

necessary component of the nuclear fuel cycle infrastructure. To encourage development of interim storage facilities the SMART Act establishes an economic incentive program for communities and states that wish to host a facility within their jurisdiction. All interim storage facilities would be privately owned and operated and licensed by the Nuclear Regulatory Commission. The SMART Act incentives are designed to encourage the development of two large scale facilities with enough capacity to accommodate our annual domestic used nuclear fuel generation.

As with the used fuel recycling facilities, the SMART act authorizes the Department of Energy to enter into long term contracts with storage facility operators. In addition, the SMART Act allows the Department of Energy to enter into agreements with utilities for the settlement of all future claims against the department for failure to take title to spent nuclear fuel by 1998.

Currently, the Nuclear Waste Fund established by the Nuclear Waste Policy Act of 1982 has a balance of approximately $20 billion and is growing by nearly $1.8 billion annually from fees paid by the utilities and interest on the fund. Unfortunately, this fund is currently ``on budget'' and amounts to little more than an IOU to the U.S. ratepayers. The SMART Act will allow access to a small portion of this fund so that it can begin working to resolve the nuclear waste issue as it was intended.

The SMART Act establishes a revolving fund from $1 billion of the current waste fund as well as the annual interest on the fund. The remaining 95 percent of the current waste fund, as well as all future fees, would be placed in a legacy fund for the purposes of constructing a geologic repository. Expenditures from the revolving fund for the provisions of the act could be made without further appropriations but would be subject to limitations in appropriations acts. In this way the revolving fund could be put to use without being subject to the uncertainty of the annual appropriations process while still retaining the authority of Congress to oversee the fund.

The resolution of the used nuclear fuel issue has been deadlocked for decades. Fortunately time has been on our side since nuclear energy produces so little waste. For example the nuclear waste generated by a family of four during their entire lives is only a couple of pounds. Some have even said that we do not need to begin recycling used nuclear fuel for 30 or 40 years. I do not believe we can wait that long before we resolve the used nuclear fuel issue, however. We must begin taking steps today that will place us on the path to a secure and sustainable nuclear energy industry in the future. We must demonstrate to industry and financial institutions the Government's commitment to resolving the used nuclear fuel issue. The SMART bill will place us on that path to the future.

Mr. President, as we celebrate Public Service Recognition Week and the dedication and professionalism of Federal employees, I rise today to introduce legislation to reassert protections for Federal employees and applicants for Federal employment against discrimination based on one's sexual orientation. The Clarification of Federal Employment Protection Act will spell out the protections that Federal employees currently have but have been denied by the Office of Special Counsel, OSC. I am pleased that Senators Lieberman, Collins, Levin, Leahy, Feingold, and Clinton are cosponsoring this important legislation and that Representative Henry Waxman, Chairman of the House Oversight and Government Reform Committee, is introducing a companion bill in the House.

When Congress passed the Civil Service Reform Act of 1978, it established a list of prohibited personnel practices, personnel actions that were clearly not in line with the Merit System Principles and were subject to prosecution by OSC. Examples include personnel actions, such as hiring, firing, and changes in pay, against employees based on a whistleblower disclosure, nepotism, or off-duty conduct.

The prohibition on personnel action based on off-duty conduct, found in section 2302(b)(10) of title 5, United States Code, has been interpreted for years to prohibit the taking of personnel actions against employees and applicants

for employment based on their sexual orientation. In 1980, Mr. Alan Campbell, Director of the Office of Personnel Management, OPM, at the time, wrote a memorandum to the heads of all executive branch agencies advising that, under 5 U.S.C. 2302(b)(10), employees and applicants were to be protected against inquiries into or actions based upon non job-related conduct, including religious or community affiliations, or sexual orientation. The position by OPM has been reaffirmed time and again, most recently by the current OPM Director, Linda Springer, in her responses to questions posed by the Homeland Security and Governmental Affairs Committee in relation to her nomination for the position. In fact, to this day, OPM's website contains a guide to Federal employee rights which states that section 2302(b)(10) has been interpreted by OPM to prohibit discrimination based upon sexual orientation.

OPM is not alone in this interpretation. The previous Special Counsel also interpreted 2302(b)(10) to protect against discrimination based on an individual's sexual orientation. For example, in 2003, OSC secured corrective and disciplinary action against a Federal supervisor who discriminated against Federal job applicant because he was gay in violation of section 2302(b)(10). In 2004, following the debate spurred by OSC over the interpretation of this provision, White House spokesman Trent Duffy said the president ``believes that no Federal employee should be subject to unlawful discrimination, and Federal agencies will fully enforce the law against discrimination, including discrimination based on sexual orientation.''

Upon the nomination of Scott Bloch to be the new Special Counsel, I asked the nominee about his interpretation of the laws protecting Federal employees and applicants against sexual orientation discrimination. When asked if he would support the interpretation of 2302(b)(10) by OPM and OSC, he said that he would not fail to enforce a claim of sexual orientation discrimination before OSC that shows through the evidence that the statute has been violated.

Nonetheless, after being in office for only a few months, Special Counsel Bloch conducted a review of the discrimination statute and claimed that section 2302(b)(10) only provides protection against discrimination based on conduct, including sexual conduct, but not one's sexual orientation. Instead, Mr. Bloch claims that for discrimination based on status, referring to sexual orientation, it would have to be listed under section 2302(b)(1), which protects employees from discrimination based on race, gender, religion, or marital status. This departure from the long-standing interpretation of (b)(10) by OSC and OPM is illogical. When a supervisor who dislikes gays or lesbians refuses to hire an applicant who the supervisor believes is gay or lesbian, it follows that the supervisor is basing the personnel action on disapproval of the applicant's presumed sexual conduct. In other words, in the context of sexual orientation discrimination, status implies conduct.

I believe that Congress must act to guarantee the protections it has provided to Federal employees and applicants for Federal employment. We cannot allow one administration official's opinion to undermine the merit system or the rights and protections Federal workers. The legislation I am introducing today would affirm that sexual orientation is protected by section 2302(b)(10) but also make it a clear protected status under section (b)(1). I ask unanimous consent that the text of the bill be printed in the Record.