[Congressional Record Volume 140, Number 36 (Friday, March 25, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
STATEMENTS OF INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. HEFLIN:
S. 1983. A bill to provide that the provisions of chapters 83 and 84
of title 5, United States Code, relating to reemployed annuitants shall
not apply with respect to postal retirees who are reemployed, on a
temporary basis, to serve as rural letter carriers or rural postmaster;
to the Committee on Governmental Affairs.
postal service rural areas act of 1994
Mr. HEFLIN. Mr. President, I am today introducing companion
legislation to H.R. 3246 in order to help the U.S. Postal Service meet
its temporary personnel needs in rural areas. Congressman Thomas Sawyer
has introduced the House version of the bill.
I want to mention at the outset that this measure will have no effect
whatsoever on the Federal budget. It will cost taxpayers nothing, since
the Postal Service's operational costs are borne by the agency, coming
from the revenue generated from its sales and services.
The Postal Service has identified the need for this legislation to
allow the hiring of individuals on a temporary basis. This is
particularly true for rural parts of the country. In these areas, the
Postal Service often has difficulty attracting temporary letter
carriers and postmasters to fill vacancies. Since there are far fewer
postal workers in rural areas, it is harder to hire trained temporary
employees. When career postal employees are ill, on vacation, on
detail, or are out for some other reasons, there often aren't any
trained employees familiar with procedures and routes to take their
place temporarily.
As a result, the Postal Service must often turn to an untrained pool
of workers to fill in for the postmaster or letter carrier. A better
alternative--and the one sought by this bill--would be to hire, on a
temporary basis, a retired postmaster or other former postal employee
who may be living in the community. This person would not need to be
trained, because he or she would already be familiar with postal
regulations and procedures.
It is obviously in our best interest to see that the Postal Service
attracts applicants for temporary assignments from a skilled labor
pool. We can assist the agency by making temporary employment
attractive to retired postal employees, who are likely to have free
time and may be willing to work part time.
Currently, however, provisions of title 5, United States Code
relating to reemployed Federal annuitants virtually prevent postal
retirees from accepting temporary reemployment with the Postal Service.
Sections 8331 and 8401 stipulate that reemployed Postal Workers forfeit
an amount equal to their annuity if they become reemployed by the
agency. Basically, once one is retired from the Postal Service, it does
not pay to go back.
This measure provides an exemption from the offset provisions
contained in title 5 for retired postal employees who are rehired by
the Postal Service on a temporary basis. Under our bill, postal
annuitants could be reemployed by the Service for 90 days in a calendar
year without having their retirement offset. The measure also provides
for a 180-day life-time limit on eligibility for the exemption. The
time limit is important for one reason: it is not our intention to have
postal retirees take away opportunities from individuals seeking career
appointments with the Postal Service. This bill is aimed only at
allowing the Postal Service's rural offices to fill a temporary need
for skilled employees. If does not require the Postal Service to hire
retirees; it only gives the agency the flexibility to do so if the need
is identified.
Citizens in rural communities have a particularly close relationship
with those who provide mail service. They probably know their local
postmaster and letter carriers by name. When these postal employees
retire, they usually remain in the community, and could offer a
valuable service in the form of temporary mail service.
Since the Postal Service is constantly facing increased operational
expenses, passage of this bill would be the fiscally prudent course to
take. I urge my colleagues to support this measure and welcome their
cosponsorship.
______
By Mr. BREAUX:
S. 1986. A bill to amend the Internal Revenue Code of 1986 to provide
tax incentives to encourage the preservation of low-income housing; to
the Committee on Finance.
Low-Income Housing Preservation Act
Mr. BREAUX. Mr. President, I am introducing a bill that
charts a promising new way to enlist the private sector's help in
preserving and improving the country's stock of affordable housing. I
urge my colleagues to join me in cosponsoring this bill, entitled the
``Low-Income Housing Preservation Act.''
All of us are aware from our trips home that there is a serious
shortage of affordable housing in the country. All one has to do is
look at the number of homeless in most of our larger cities to know
this, but the statistics tell the story as well. A 1992 Harvard study
estimated that there were 4.1 million units of HUD or privately owned,
publicly assisted units, while there are 13.8 million households
eligible to receive HUD-funded housing assistance if the assistance
were available. In light of the severe budget restraints, the funds for
such expanded assistance are not available.
Much of the housing that is currently occupied by low-income tenants
is not public housing, but privately owned apartment houses that are
assisted directly or indirectly by HUD. If these disappear because the
private owners are no longer able to maintain the projects, the supply
of affordable housing will be further reduced. Yet many of these
projects have been severely depressed by the 1986 changes to the tax
laws. As a result, the current owners have no way to raise additional
capital to rehabilitate the structures, as becomes inevitably necessary
with time. Additionally, current owners cannot sell the projects to new
owners who may be able to expend the private capital needed. Because
the project's market values are so depressed, the current owners cannot
receive enough in cash upon sale to pay the capital gains taxes they
would owe. As a result these aging projects are locked into a long,
slow downward spiral.
The President recognized the pressing nature of the problem last year
when, in his economic recovery plan, he called for additional funding
to ``repair and restore the Nation's stock of assisted rental housing,
most of which is 20 to 30 years old. Many units are in deteriorated
buildings. Many operators of buildings are also financially troubled.''
I believe that the bill I am introducing provides a solution to the
problem that is both effective and realistic. It is identical to the
approach that has already been proposed in the House of Representatives
by Congressman Jefferson, H.R. 3322.
In the first place, the bill targets the projects which are most at
risk. These are projects assisted by HUD under the old section
221(d)(3) below market rate interest rate program or section 236
programs, or projects insured under the section 221(d)(3) market rate
or section 221(d)(4) programs, and assisted under section 8. In all
cases, the projects must be at least 10 years old, and at least a
majority of the units in the projects must be occupied by the tenants
whose income was no more than 80 percent of the area median income when
they first became tenants.
Accordingly to HUD, there are almost 1 million units in the
affordable housing projects that meet the bill's criteria. These
projects are located in every State in the country.
The bill offers special tax benefits to new investors who agree to
buy these affordable housing projects, invest the necessary capital to
fix them up, and maintain them for low-income tenants. It will be the
responsibility of HUD in each case to determine how much new capital
must be invested in the project as part of the sale, but in no event
may it be less than 10 percent of adjusted basis of the residential
rental property. In exchange, the bill proposes to reduce the
depreciation schedule for these projects from 27\1/2\ to 15 years. It
also provides that any investor in the project may claim annually up to
$50,000 of losses from such projects without regard to the passive loss
rules.
Mr. President, it is clearly in the public interest to help ensure
the continued existence of these housing units. The tenants will
benefit as the existing owners are replaced by new owners with new
capital, and a new willingness to preserve and improve the projects.
The local community will benefit from the jobs generated by the work to
rehabilitate the units, and by the general improvement of the
neighborhood that goes along with refurbished buildings. The taxpayer
benefits because the number of projects that go into bankruptcy and end
up in HUD's portfolio will be reduced, and because HUD will find it
easier to dispose of projects already in its portfolio. Over the longer
run, the taxpayers will save the cost of having to replace the existing
projects that are lost from lack of financial support.
I hope my colleagues will support me in this effort as we move ahead
to consider and refine the bill's details in the weeks ahead.
______
By Mrs. BOXER:
S. 1987. A bill to ensure fair and effective enforcement of
immigration and labor laws in the United States, to promote
naturalization among eligible aliens, and for other purposes; to the
Committee on the Judiciary.
immigration enforcement reform act of 1994
Mrs. BOXER. Mr. President, I am pleased to introduce the
Immigration Enforcement Reform Act of 1994.
Over the last year, our country has been faced with an illegal
immigration crisis. The breakdown in enforcement at our borders and in
the enforcement of our labor laws have placed a burden on the resources
of States like California and has led to a lack of confidence in our
immigration system.
We must respond to the real need to regain control over our
immigration system, but as we do so, we must avoid extreme measures on
both sides.
This legislation represents a balanced approach to immigration reform
which I have consistently advocated. My balanced approach is based on
the principle that our immigration laws are good but our enforcement
has been ineffective.
My bill offers practical solutions to failings in the current system
by ensuring strong and fair enforcement of our border and our labor
laws, and by promoting naturalization and civic participation among
eligible immigrants to weave them into the fabric of America.
Mr. President, let me briefly review the other important parts of a
balanced approach to immigration reform before I specifically outline
the bill I am offering today.
All of my colleagues would agree that border enforcement is a
critical dimension of any reform plan. It is estimated that 3 million
people illegally cross the United States-Mexico border each year. Of
this number, 200,000 to 300,000 become permanent inhabitants. By some
estimates California is home to approximately 1.3 million illegal
immigrants, or more than half of all undocumented immigrants living in
America.
We must stop people from entering illegally, before they burden local
resources, and before they present problems for labor law enforcement.
Last July, I offered a plan to improve border enforcement in a cost
effective manner by using the National Guard to assist the Border
Patrol in a civilian capacity. This plan was successfully included as
part of the Defense Appropriations bill.
In addition to stopping those who cross the border without documents,
we have got to crack down on the rampant use of forged documents. Last
August, I traveled to the southwest border and joined Attorney General
Reno and my colleague from California, Senator Feinstein, for a
briefing by local officials on border problems. We were shown thousands
and thousands of forged documents that smugglers use to get people into
the country.
I have worked to ensure that smugglers and document forgers know that
stiff penalties await them. My amendment to increase the civil and
criminal penalties for forgery of immigration documents was
successfully included in the Senate crime bill.
While we act now to stop illegal immigration, we must address the
fact that years of inadequate enforcement has already allowed millions
of people to enter the country illegally, placing a burden on the
resources of State and local governments.
Last week, I successfully included language in the Budget Resolution
Act that establishes the principle of Federal responsibility to
reimburse State and local costs. It is the sole responsibility of the
Federal government to set and enforce immigration policy, and the
Federal Government must reimburse States for the cost of their failure
to enforce that policy.
But when we go to the Federal Government for reimbursements, our
request must be based on solid figures. That is why I have asked the
General Accounting Office to analyze recent cost and benefit estimates
and assess the net fiscal impact of illegal immigrants in State like
California.
In addition to these measures that I have secured--stronger border
enforcement, increased penalties for document forgery, and steps
towards Federal reimbursement for costs to State and local
governments--I am a cosponsor of bills by Senators Kennedy and Graham
that address asylum reform and the high cost of incarcerating criminal
aliens. But these critical reform measures are only part of a balanced
approach.
Today, I offer legislation that addresses three additional areas that
are essential to repairing our system: labor law enforcement, oversight
of the border patrol, and integration of legal immigrants into American
society through citizenship.
Mr. President, illegal immigrants themselves are often those most
hurt by the breakdown of our system. The primary reason that people
cross our border illegally is to find work, and most do--at substandard
wages and in dangerous conditions.
Our current efforts to prevent the hiring and exploitation of
undocumented workers have been inadequate and ineffective. In 1986,
sanctions against employers who knowingly hired illegal immigrants were
passed as part of the Immigration Reform and Control Act. However,
illegal immigration continues at high rate. After an initial drop
following the implementation of employer sanctions, Border Patrol
apprehension rates have resurged, climbing back up to 1.16 million a
year. Employer sanctions have failed to reduce the job magnet and the
flow of illegal immigrants into our country continues.
Our second line of attack against the job magnet--enforcement of
labor law standards by the Labor Department has also failed to curb
exploitation.
Despite continued problems with illegal immigration and labor
exploitation, the staff at the Department of Labor dedicated to
investigating labor law violations has plummeted over the last decade
from 1,100 employees in 1980, down to 817 in 1993.
The regional office in San Francisco, which has the job of covering
violations throughout California--the destination for over half of the
illegal immigrants in the United States--is only equipped with 89
investigators. Subsequently, as of July 1993, they faced a backlog of
over 1,300 cases in the California area. It is amazing that there are
only 16 employees struggling with the task of investigating labor law
violations in the large five county Los Angeles area.
If we do not address the job magnet and the system of cruel
exploitation that fuels illegal immigration our borders and airports
will never be secure. Document forgers and smugglers will continue to
undermine our system, and people will continue to come to the United
States illegally, straining local resources.
But we need to find innovative, cost effective approaches to confront
this problem instead of focusing all our resources into efforts that
have not shown strong results.
My bill builds on a successful and cost effective program underway in
California. California's TIPP, or the Targeted Industries Partnership
Program, has brought together officials from a variety of Federal,
State, and local agencies--from wage and hour, health and safety, and
even the IRS--to share information and jointly locate and crack down on
labor law violators. With the help of this program, the California
State Labor Commissioner alone assessed over $4 million in penalties.
By creating a labor exploitation task force at the Department of
Labor, my legislation will reduce the incentive to hire and exploit
illegal immigrants. This small but focused task force will be charged
with developing a long range, active strategy, for cutting back on the
hiring of illegal immigrants. They will oversee the implementation of
labor law strike forces at the local level to crack down on employers
who flout our labor laws and exploit desperate people.
The task force will target industries with labor law violations
related to illegal immigration, including but not limited to wage and
hour violations and violations of occupational health and safety
standards. It will pool the resources of various Federal and State
agencies to provide labor law strike forces in regions with high rates
of exploitation of undocumented workers, and it would allow the
Secretary of Labor to increase fines for labor law violations to direct
these funds toward expanded enforcement.
We have to serve notice to unethical employers. These strike forces
will send a clear and strong message about the costs of exploiting
illegal immigrants, and undermining the wages of the most vulnerable
American workers.
The second component of my legislation creates a Citizen Promotion
Bureau at the Department of Justice to help immigrants who want to
become full participants in American society.
At present, lengthy delays and poor service prevent even the most
determined and resourceful people from making it through the
naturalization process. Eligible legal immigrants who are seeking to
become a full part of the American dream deserve to be a high priority
and to receive their fair share of resources, particularly in light of
the substantial fees they often pay for services.
Management difficulties, and conflicting enforcement and advocacy
roles of the Immigration and Naturalization Service [INS] undermine its
ability to provide adequate service to eligible legal immigrants and
residents seeking full participation in American society.
We owe it to those who patiently follow the rules to reform our
naturalization system. And reform must include better management of the
fees collected for naturalization services. Though the fees collected
annually should cover all of INS program costs, the agency's inadequate
accounting systems have prevented it from accurately adjusting the fee
structure. The inspector general at the Department of Justice recently
estimated that at least $170 million in additional fees are not
collected annually because INS does not fully exercise its authority
for establishing fees. With accurate accounting and cost reviews, INS
could significantly increase collections, and significantly improve
service.
California has much at stake in improving the naturalization process
and insuring that enough revenue is raised to cover program costs. My
State currently has 5.2 million legal residents who are not citizens,
and 1 out of 6 cannot now vote. A great number of these Californians
were granted amnesty under the Immigration Reform and Control Act.
However, many have been unable to obtain citizenship education and
English classes, or they are waiting for the INS to process backlogged
legalization applications.
The presence of so many individuals who cannot fully participate in
our political system undermines the democratic nature of our society,
and sends a negative message to those who try to follow the rules for
legally entering the United States.
By moving the services and procedures related to the process of
naturalization into a division of the Department of Justice separate
from immigration enforcement, we can insure that citizenship becomes a
priority and not a step child in our immigration system.
The third part of the legislation that I am introducing today would
create the position of Immigration Enforcement Complaint Commissioner
at the Justice Department.
To stem the flow of illegal immigrants across the border, we must
continue to increase the number of border patrol agents who patrol that
border. Over the last decade, the number of agents has doubled, and it
will continue to rise.
Just as it is imperative that we enforce our borders to preserve our
legal immigration system, I believe we must work to insure the
integrity of one of the largest police forces in the United States--the
Border Patrol--by instituting a consistent and credible system for
investigating allegations of misconduct and civil rights abuses.
While the vast majority of employees of the INS are living up to
their human rights training, there is a clear need for mechanisms to
discipline those who do not.
Currently, four different offices within the Department of Justice--
the Office of the Inspector General, the Office of Professional
Responsibility, the Civil Rights Division, and the Office of Internal
Audit at the INS--share roles in processing complaints. This
overlapping jurisdiction and diffusion of responsibility hinders the
investigation of complaints.
Richard Hankinson, the inspector general at the Department of Justice
who is charged with investigating misconduct, stated in recent
testimony before a House Government Operations Subcommittee that he was
unable to provide concrete information on employee discipline. He
admitted that the Department could not obtain ``useful data at this
point on how the INS disciplines its employees in response to our
investigations or those of others.'' The only conclusion he was able to
reach, based on anecdotal evidence was that ``there is a persistent
belief among those of our staff with experience in the area that INS's
treatment of misconduct is spotty. Whether action is taken, and the
severity of the punishment, if any, seems to be uneven and sometimes
happenstance.''
This troubling testimony was echoed in a recent report on the INS
undertaken by Representative Condit's Government Operations
Subcommittee. The subcommittee report concluded that ``serious
questions have been raised about the sufficiency of investigations into
allegations of misconduct by INS personnel--in particular, Border
Patrol personnel who are often accused of abusive behavior. When
misconduct or inadequate performance is identified and documented, INS
discipline is `spotty.' Witnesses testified that INS personnel lack a
basic sense of civility and courtesy in dealing with the public.''
In one tragic example, Patrol supervisors failed to take proper
action in response to repeated complaints against an agent, who was
then later arrested on rape charges of two different women he had
stopped while on patrol. Last year, the agent was sentenced to 24 years
in prison. In another costly example, despite the fact that a U.S.
district court awarded over $500,000 in damages to a 12-year-old boy
who was shot in the back by a San Diego Border Patrol agent while the
boy was standing in Tijuana, authorities never prosecuted or
disciplined the agent.
An enhanced complaint review process is necessary to protect U.S.
citizens as well as the undocumented. Over half of the victims who make
complaints about treatment by the INS were legally in the country and
U.S. citizens accounted for 17.7 percent of those reporting abuse.
Cases such as the mistaken deportation to Mexico of a twenty-year-old
United States citizen who was fixing the roof of his parents' home, and
the questioning of the mayor of the city of Pomona by INS agents,
demonstrate the need for reform and enhanced review.
To be fair, the Patrol has not been equipped with a complaint review
process that can live up to its task of overseeing one of the largest
police forces in the United States. My bill helps the INS do its job,
by streamlining jurisdiction to insure that serious complaints are not
lost in a haphazard process.
My bill creates a Commissioner at the Department of Justice but
outside of the Immigration and Naturalization Service who is charged
with responsibility for abuse prevention and complaint review.
By creating a commissioner identified as the center of responsibility
for monitoring and keeping track of complaints, we can improve
investigation and review, and develop a strategy for better screening
and training.
As some of my colleagues in the Senate, as well as many of my former
colleagues in the House, have focused on the illegal immigration
problem over the past year, I have often heard their assertions that
they value immigrants and seek only to preserve our proud tradition of
legal immigration.
We all extol the virtues and contributions of immigrants, and many of
us have witnessed them directly in our families and our communities. I
myself am a first generation immigrant on my mother's side.
Today, I have outlined a plan and introduced legislation that
provides a balanced and fair approach to regain control of our system,
to reduce illegal immigration and to preserve our Nation's proud
heritage of legal immigration. Now I urge my colleagues to move forward
with a balanced approach to immigration reform. I challenge them to
move forward in a way that is based on the principle of strong but fair
law enforcement, and that is true to the promise of the American dream.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1987
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Immigration Enforcement
Reform Act of 1994''.
TITLE I--LABOR EXPLOITATION TASK FORCE
SEC. 101. ESTABLISHMENT.
(a) In General.--The Secretary of Labor shall establish
within the Employment Standards Administration a task force
to be known as the Labor Exploitation Task Force (hereafter
in this title referred to as the ``Task Force'').
(b) Composition.--The Task Force shall be composed of
members who are appointed by the Secretary of Labor.
SEC. 102. DUTIES.
(a) Mandatory.--The Task Force shall--
(1) assist the Secretary of Labor in the enforcement of the
Fair Labor Standards Act of 1938, the Occupational Health and
Safety Act, and any other Federal laws related to labor;
(2) identify industries that have a history of violating
laws with respect to labor, work place safety and health, or
illegal immigration;
(3) in coordination with other Federal agencies and State
and local agencies, develop an interagency strategy to
monitor, investigate, and inspect industries for violations
of laws with respect to labor, work place safety and health,
or illegal immigration, including, to the extent practicable,
the conduct of joint inspections of industries by Federal
agencies and State and local enforcement agencies);
(4) advise a State or local enforcement agency on the
implementation of any strategic activity described in
paragraph (3) at the local level;
(5) develop and define basic principles of conduct that
enforcement personnel are to follow during an inspection or
investigation described in paragraph (3) or during other
contact with the public;
(6) develop a system that centralizes Federal, State, and
local data bases with respect to industries that have
violated the labor, work place safety and health, or illegal
immigration laws enforced by each participating enforcement
agency; and
(7) disseminate information to State and local agencies on
the successful outcomes of the investigative, inspection, and
preventive activities described in paragraph (3).
(b) Discretionary.--The Task Force may seek advice from, or
coordinate efforts to encourage cooperation among, Federal
agencies concerned with the prevention of illegal immigration
and the hiring and exploitation of undocumented immigrants.
SEC. 103. CIVIL PENALTIES.
(a) Increase in Fines.--For the purposes described in
subsection (b), the Secretary of Labor may increase fines
prescribed by Federal law with respect to labor law
violations.
(b) Use of Amount of Fines.--The Secretary of Labor shall
use the excess amount collected from a fine increased under
subsection (a) for additional labor enforcement personnel,
equipment, or the provision of incentives to encourage State
and local enforcement agencies to cooperate in the activities
described in section 102(a)(3).
SEC. 104. PROHIBITION ON RETALIATION.
An employer may not retaliate against an employee
(including the termination of such employee) for
participation or cooperation in any investigative,
inspection, or preventive activity carried out under this
title.
SEC. 105. DEFINITION.
For purposes of this title, the term ``State and local
enforcement agencies'' means a State or local governmental
entity that is responsible for the enforcement of laws
related to labor.
TITLE II--CITIZENSHIP PROMOTION
SEC. 201. CITIZENSHIP PROMOTION BUREAU WITHIN THE DEPARTMENT
OF JUSTICE.
(a) Establishment.--There is established within the
Department of Justice a Citizenship Promotion Bureau.
(b) Director.--The Bureau shall be headed by a Director of
Citizenship Promotion, who shall be a naturalized citizen of
the United States and who shall be appointed by the
President, by and with the advice and consent of the Senate.
(c) Purpose.--The Bureau shall be responsible for the
implementation of a comprehensive program of encouraging and
assisting immigrants to become naturalized citizens as soon
as they become eligible to do so.
(d) Cooperative Agreements.--The Director is authorized to
enter into cooperative agreements with Federal, State, and
local governmental agencies and with private entities to
carry out the purpose of the Bureau.
(e) Transfer of Functions, Personnel, and Assets.--The
Attorney General shall transfer to the Bureau established all
functions, personnel, and assets which the Immigration and
Naturalization Service exercised, employed, or held before
the date of the enactment of this Act in carrying out its
responsibilities relating to citizenship and naturalization.
SEC. 202. NATIONAL CITIZENSHIP ADVISORY BOARD.
(a) Establishment.--The Director is authorized to establish
a national citizenship advisory board for the purpose of
providing advice and recommendations to the Director on
matters relating to the granting of citizenship status to
aliens lawfully admitted for permanent residence in the
United States.
(b) Applicability of Federal Advisory Committee Act.--The
advisory board shall be subject to the provisions of the
Federal Advisory Committee Act (5 U.S.C. Appendix 2).
SEC. 203. NATURALIZATION FEE ACCOUNT.
(a) Establishment.--(1) There is established in the
Treasury of the United States a Naturalization Fee Account,
which shall consist of the fees described in subsection (b).
(2) Funds in the Account shall be available to carry out
the activities of the Bureau.
(b) Transfer of Fees.--Fees collected by the Bureau in
connection with the performance of naturalization services
shall be deposited in the account established under
subsection (a).
(c) Fee Levels.--(1) The Director shall review and
reevaluate the amount of each fee charged for the performance
of naturalization services.
(2) The Director shall assure that the total amount of fees
collected would cover the full cost of efficiently providing
such services, including the costs of administering the
Bureau and performing related outreach activities.
(3) The Director shall, by regulation, prescribe the amount
of each fee to cover the costs described in paragraph (2).
(d) Annual Report.--Not later than one year after the date
of enactment of this Act, and every year thereafter, the
Attorney General and the Director shall jointly submit a
report to Congress which--
(1) assesses the financial condition of the Naturalization
Fee Account; and
(2) describes the activities of the Bureau.
SEC. 204. REDESIGNATION OF IMMIGRATION AND NATURALIZATION
SERVICE.
(a) Redesignation.--Effective on the date of enactment of
this Act, the Immigration and Naturalization Service shall be
referred to as the Immigration Service.
(b) Conforming Amendments.--(1) Section 101(a)(34) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(34) is
amended by striking ``and Naturalization''.
(2) Section 4 of the Act entitled ``An Act to establish the
Department of Commerce and Labor'', approved February 14,
1903 (8 U.S.C. 1551) is amended by striking ``and
Naturalization''.
(3) Section 7 of the Act entitled ``An Act in amendment to
the various acts related to immigration and the importation
of aliens under contract or agreement to perform labor,
approved March 3, 1891 (8 U.S.C. 1552) is amended by striking
``and Naturalization''.
SEC. 205. REFERENCES.
Reference in any other Federal law, Executive order, rule,
regulation, or delegation of authority, or any document of or
relating to--
(1) the Attorney General or the Commissioner with regard to
functions transferred under section 201, shall be deemed to
refer to the Director;
(2) the Service with regard to functions transferred under
section 201, shall be deemed to refer to the Bureau; and
(3) the Immigration and Naturalization Service shall be
deemed to refer to the Immigration Service.
TITLE III--IMMIGRATION ENFORCEMENT PRACTICES
SEC. 301. IMMIGRATION ENFORCEMENT COMPLAINTS.
(a) Establishment of Office.--There shall be established in
the Department of Justice the Office of Immigration
Enforcement Complaints.
(b) Commissioner.--There shall be at the head of the Office
an Immigration Enforcement Complaint Commissioner, who shall
be appointed by the President, by and with the advice and
consent of the Senate. The Commissioner shall be directly
responsible to the Attorney General for carrying out his
duties.
(c) Duties.--The Commissioner shall--
(1) have power to investigate any complaint of an unlawful
immigration enforcement practice;
(2) make recommendations on specific policy and
disciplinary actions to the Attorney General with respect to
employees of the Department;
(3) make recommendations to the Attorney General for the
reform of procedures applicable to the investigation of
complaints of unlawful immigration enforcement practices and
for disciplinary action against Department employees who
engaged in such action; and
(4) make recommendations to the Attorney General with
respect to bringing prosecutions against employees of the
Department who committed criminal offenses in the course of
an unlawful immigration enforcement practice.
(d) Compensation.--The Commissioner is entitled to receive
compensation at a rate not to exceed the maximum rate payable
for a position above GS-15 of the General Schedule, under
section 5332 of title 5, United States Code.
(e) Regional Offices.--The Commissioner, in accordance with
regulations of the Attorney General, shall establish such
regional offices as may be necessary to carry out his duties.
(f) Early Warning Program.--The Commissioner shall develop
a system of procedures, that may be referred to as the
``early warning program'', that is designed--
(1) to identify Border Patrol officers who have been the
subject of an excessive number of legitimate complaints of
unlawful immigration enforcement practices;
(2) to provide assistance to such officers in avoiding such
difficulty in the future, including the provision of training
in communication techniques, conflict resolution, and stress
management; and
(3) to recommend discipline where appropriate.
(g) Protection Against Retaliation.--It shall be unlawful
for the Department, or any officer thereof, to discriminate
against any employee or applicant for employment because the
individual has opposed any practice made an unlawful
immigration enforcement practice by this section or because
the individual has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this section.
(h) Records.--The Commissioner shall collect and maintain
records on all complaints of unlawful immigration enforcement
practices filed with the Department.
(i) Annual Report.--Beginning one year after the date of
enactment of this Act, and every year thereafter, the
Commissioner shall submit a report to Congress setting forth
a statistical summary of the complaints of unlawful
immigration enforcement practices filed with the Department
during the preceding 12-month period.
(j) Authorization of Appropriations.--There are authorized
to be appropriated to the Commissioner such sums as may be
necessary to carry out this section.
(k) Definitions.--For purposes of this section--
(1) the term ``Commissioner'' means the Immigration
Enforcement Complaint Commissioner appointed under subsection
(a);
(2) the term ``Department'' means the Department of
Justice; and
(3) the term ``unlawful immigration enforcement practice''
means the excessive use of force, or demonstrated difficulty
in dealing appropriately with members of the public, in the
course of carrying out immigration enforcement
activities.
______
By Mr. METZENBAUM (for himself and Mr. Bryan):
S. 1989. A bill to prohibit the transfer and novation of an insurance
policy without the prior informed written consent of the policyholder,
and for other purposes; to the Committee on Commerce, Science, and
Transportation.
the insurance policy transfer act
Mr. METZENBAUM. Mr. President, on behalf of myself and Senator
Bryan, I rise to offer a bill that will put fairness back into the
insurance company-policyholder relationship. The Insurance Policy
Transfer Act prevent policyholders from being victimized when their
insurance company transfers their insurance policies to another
insurer--without the policyholders' informed consent.
The policy transfers treat policyholders like commodities, trading
them like baseball cards.
This is outrageous. Transfers change the policyholders contract
without the consent of the policyholder. In most businesses this would
be impossible, illegal, but not in the insurance industry. The
insurance industry feels it has the impunity to break contracts with
policyholders, when it suits insurance companies.
Let me illustrate how this would work if the banks could transfer
depositors: A consumer deposits $100,000 with triple ``A'' bank. Triple
``A'' bank promises to pay the money back. Triple A then transfers the
$100,000, and the obligation to pay the consumer, to the PDQ bank.
Triple A doesn't tell the consumer about the transfer or obtain his or
her permission. Triple A has hundreds of branches, billions in assets,
and plenty of capital. But PDQ is a one branch operation; and it's in
financial trouble. PDQ fails.
The consumer, who has never heard of the PDQ bank, now asks Triple A
for her money. Triple A replies, ``We aren't your bank. We owe you
nothing. Your account was transferred to PDQ. Unfortunately, PDQ
failed.''
I know this sounds unbelievable in the banking industry, but, believe
me, this is how it works in the insurance industry. Insurance companies
trade policyholders like baseball cards, like commodities. Like so many
widgets. Policyholders aren't widgets. They are people. People with a
contract. A contract that involves their lives and their families'
lives.
It's absolutely disgraceful that the insurance industry can treat
policyholders like objects, swapping, and trading them without even
asking their permission.
No other industry does this. Only an industry as powerful and
arrogant as the insurance industry could stoop to such one-sided
practices.
State regulators permit them to do it. According to a survey by my
Antitrust Subcommittee, most State laws don't require that insurers
obtain the informed consent of policyholders before a transfer.
The insurance industry's unchecked power to transfer policies causes
enormous trauma and financial loss.
My Antitrust Subcommittee has documented how tens of thousands of
policyholders in the past decade suffered because they were transferred
by their insurance company:
Transferred without their consent:
Transferred because their original insurer decided the were no longer
profitable;
Transferred to distant and little known companies;
Transferred to financially weaker insurers, insurers in such poor
financial shape that they couldn't attract policyholders, but had to
buy them wholesale, without their consent.
Transferred to insurers operated by unscrupulous executives looking
only for the millions of dollars in assets that are transferred with
policies; assets that represent years of policyholders' premiums.
Too often these assets are dissipated or disappear soon after the
transfer, leaving the policies without any assets to back them.
Guarantee Security Life Insurance of Florida is an example of a
transfer in which the assets disappeared. In the 4 years before it
failed, Guarantee Security acquired 30,000 policies from other
insurers. During that time Guarantee Security was in financial trouble
and needed cash. It got cash by acquiring 30,000 policies and those
policies' $250 million in accumulated premiums--money which should have
been saved to eventually pay policyholders.
Unfortunately, when Guarantee Security failed, the money was gone.
There wasn't enough left to pay policyholders.
No one ever asked policyholders if they wanted to be transferred to
Guarantee Security.
Under our legislation, they would have to be given the opportunity,
not only to reject the transfer, but to learn about Guarantee
Security's poor financial condition.
Guarantee Security is by no means an isolated example. Consider the
transfer of 3,000 annuities of the Security Benefit Life Insurance Co.
of Kansas.
Security Benefit secretly concluded that the rate of interest it had
promised the policyholders on the annuities was higher than it wanted
to pay. Security Benefit figured that transferring the annuities to
another insurer could get it out from under its contractual obligation.
Believe it or not, and you can believe it. Security Benefit never
notified the policyholders that they were going to be transferred.
Policyholders were never given the opportunity to accept or reject the
transfer.
The annuities were transferred to the Life Assurance Co. of
Pennsylvania. Security Benefit was rated at the top in financial
health, while Life Assurance of Pennsylvania was unrated. Worse, Life
Assurance of Pennsylvania was in financial trouble. My subcommittee
documented that Security Benefit knew that it was in trouble. The
subcommittee obtained a handwritten memo by Security Benefit's chief
executive officer. He wrote that he was afraid that Life Assurance of
Pennsylvania, ``Might go under.'' It went under.
When policyholders learned of the failure, they wanted Security
Benefit to stand behind its annuity contract. Security Benefit told
them that it owed them nothing, that it has washed its hands of them
when it transferred their annuity of Life Assurance of Pennsylvania.
Security Benefit made its own policyholders into legal orphans,
transferring them to a bankrupt insurer, to a company they had not
chosen. Disgraceful.
The policyholders eventually got paid, but only after 4 years of
uncertainty and anxiety. And only when the State insurance guaranty
funds, which are overwhelmingly financed by taxpayers, picked up three-
quarters of the cost. The original insurer, Security Benefit, enjoying
record profits, foisted its obligation off on the taxpayers, getting
off easy.
This legislation places the obligation where it belongs, on the
healthy companies that originally sold the policies, not on the
taxpayers.
Don't assume that transfers are isolated occurrences. The reality is
far from that. Based on an informal survey, the staff of the Antitrust
Subcommittee estimates that tens of billions, very likely, hundreds of
billions of dollars of policies have been transferred. These policies
involve hundreds of thousands of policyholders. Many of whom have been
transferred to risky companies. In most cases, the policyholders were
not asked if they wanted to be transferred.
Mrs. Morton Langsfeld of Pennsylvania is an example. Mrs. Langsfeld
wasn't asked when her policy was transferred. As a result of that
transfer, she had to wait years following her husband's death to get
the policy's benefit.
Mrs. Langsfeld's original insurance company, Charter Security Life of
New Jersey, transferred her policy to a Colorado insurer, Capitol Life.
Capitol Life then transferred her to an Indiana insurer, Mutual
Security. Mrs. Langsfeld's consent to the transfers was never obtained.
Mrs. Langsfeld's original insurer was top rated, A plus. Mutual
Security Life was rated C plus, near the bottom, junk.
Mutual Security went bankrupt.
Unfortunately, under existing law, there is little a policyholder can
do when his or her policy is transferred without their consent. In most
cases even when it's possible to sue, it's impractical. Many lawyers
are reluctant to take a case against a well-funded insurance company
that has the best lawyers in town. Lawyers that will take a
policyholder's case, usually require thousands of dollars in legal fees
in advance. Few policyholders have that kind of money to gamble on a
lawsuit.
Even if policyholders win, there is little chance they can force the
insurer to pay their huge legal bills.
It is no wonder few transfers are successfully challenged.
Our legislation would correct this unfairness. If they win,
policyholders could be awarded their legal fees.
Unfortunately the present situation is getting worse because the
frequency of transfers has accelerated, according to State regulators
who testified before my Antitrust Subcommittee.
Transfers are especially common with individual disability policies.
The reason appears to be that many companies entered the disability
insurance business in the late 1970's and early 1980's and mispriced
the product. Now these insurers want out from under their obligations.
That is just not acceptable. Without passage of this legislation,
insurance companies will continue transferring disability policyholders
to weaker companies, without the consent of the policyholders.
Crown Life policyholders are an example of unfair disability
transfers. Crown Life washed its hands of its obligations to 35,000
disability policyholders last year by transferring them to Lone Star
Life of Texas. Crown Life had an A plus rating, A.M. Best's second
highest. Lone Star had a B minus rating, A.M. Best's eighth. That's
below investment grade.
Crown Life should be ashamed. Its transfer to a financially weak
insurer was unconscionable.
It doesn't take a rocket scientist to understand that policyholders
would have been better off with Crown Life. Crown Life has $8 billion
in assets; Lone Star has $320 million.
Imagine how worried, how frightened, you would be, especially if you
were disabled--confined to bed, home, or wheelchair--and forcibly
transferred to a below-investment-grade insurer.
Crown Life knew perfectly well what it was doing. Before the
transfer, Crown hired an actuarial firm to look at the transfer and
Lone Star. The actuary's report showed that Lone Star's already poor
financial condition would worsen if it took on Crown Life's policies.
It revealed that Lone Star planned to mask Lone Star's poor condition
by engaging in some financial sleight-of-hand, known as surplus relief
reinsurance.
Now listen to this. Crown Life kept the policyholders in the dark. It
didn't provide the actuaries report to policyholders. Shame.
Marginalizing policyholders and keeping them in the dark should be
prohibited. Under the Insurance Policy Transfer Act it would.
No transfer would take place if the policyholder wanted to stay with
his or her original insurer. If a policyholder fails to respond to
three requests asking for consent to the transfer, the policy could be
transferred, but if and only if, the transfer is to a consistently top-
rated or better-rated insurer.
Since consent is meaningless unless it is informed, policyholders
would have to be given the information necessary to make a transfer
decision. The act requires that each policyholder be given an
independent actuary's opinion that the transfer is fair and in the best
interest of policyholders. The report underlying the actuary's opinion
would be available for free to any policyholder who asks.
We need this bill. According to the Antitrust Subcommittee survey,
only one State, South Dakota, currently requires anything like an
actuary's fairness opinion.
The national association of insurance commissioners [NAIC] recently
concluded that policyholders need better legal protection against
abusive transfer. Unfortunately, the NAIC's proposal fails to provide
policyholders the protections needed. For example, the NAIC's proposal
does not require that policyholders be given an expert's opinion and
underlying report.
The NAIC proposal permits involuntary transfers to less financially
healthy companies. That is totally unacceptable. The NAIC considers the
payment of a premium to an assuming company, a consent to a transfer.
That's crazy. Policyholders pay premiums because they want insurance
coverage, not because they want a transfer. Unfortunately, the
insurance industry has them over a barrel. If they fail to pay the
premium in order to protest a transfer they likely will lose their
insurance coverage.
We need better protection than the NAIC proposes, and we need it more
quickly. There is no assurance that the NAIC's proposal will ever be
enacted.
My subcommittee held a hearing in 1990 that revealed how long it
takes the States to adopt NAIC proposals. You roll the dice as to
whether a NAIC proposal will be enacted in most States. Let me give you
an example. In 1985, the NAIC proposed giving insurance commissioner
authority over insurers in hazardous financial condition--clearly,
important authority. Five years later, not a single State had enacted
the proposal. Not a single State after 5 years. Even today only about
half the States have adopted it.
Policyholders can't wait years to see whether the NAIC improves its
faulty bill and then additional years to see if their State enacts it.
Mr. President, insurance policyholders are being traded between
insurance companies like commodities. They're being swapped like
baseball cards.
After decades of paying premiums to their insurance company,
policyholders are being disowned. Their insurance company says it owes
them nothing, and that after years of paying premiums their insurer has
transferred them to another insurer, because they were no longer
profitable. Outrageous. I know of no industry, other than the insurance
industry, that can get away with treating customers in such a shoddy
manner.
Mr. President, this bill aims to correct this imbalance, to put
fairness back in the policyholder-insurer relationship. This bill
doesn't prevent transfers. Many transfers are good for both
policyholder and company. This bill does block transfers that are not
in the best interest of policyholders.
I am pleased that Senator Bryan, the distinguished chairman of the
Consumer Subcommittee of the Commerce Committee, has joined as an
original cosponsor. Indeed, I hope that all of my distinguished
colleagues will join me in cosponsoring this bill.
I am certain that with Senator Bryan as an original cosponsor, we
will move forward quickly, and that both Houses will pass this
legislation into law this year.
With the sponsorship of Senator Bryan, I believe we will reverse the
Commerce Committee's reputation as a burial ground for insurance
consumer protection.
My subcommittee has already held hearings. The need for this
legislation has been amply demonstrated. We need not repeat the hearing
process.
Mr. President, the whole Senate has already spoken on this
legislation. Last week the Senate adopted a sense-of-the-Senate
resolution that acknowledged both the need for this legislation and the
policy underlying it.
I now feel confident that with Senator Bryan's leadership and the
Senate's action last week, this legislation will move forward promptly,
to immediate floor action, if possible.
Mr. President, I ask unanimous consent that a section-by-section
analysis be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Section-by-Section Analysis on the Insurance Policy Transfer Act
Section 1. Short Title. This Act may be cited as the
``Insurance Policy Transfer Act''.
Section 2. Purpose. The purpose of this Act is to prohibit
the transfer and novation of insurance policies without first
obtaining the informed written consent of the policyholder.
Section 3. Definitions. For the purpose of this Act, the
term ``contract of insurance'' includes all property,
casualty, life, health, accident, surety, title, and annuity
policies authorized to be written under State law. The term
``transfer agreement'' means a contract that transfers
insurance obligations or risks of existing contracts of
insurance from one insurance company (the transferring
insurer) to another (the assuming insurer). Such a transfer
results in a novation of the transferred contracts of
insurance. The assuming insurer becomes directly liable to
the policyholder of the transferring insurer.
Section 4. Notice. Except as provided in section 6, no
insurer shall transfer contracts of insurance unless such
insurer has first provided each policyholder with proper
notice of the transfer as prescribed by this Act. Among other
things, such notice shall provide the policyholder with (1)
financial data on the transferring insurer and the assuming
insurer including balance sheets and ratings by nationally
recognized insurance company rating organizations; (2) a
statement setting forth the financial condition of the
transferring insurer and the assuming insurer under the
proposed transfer agreement and the effect the transfer will
have on the financial condition of each such insurer; (3) an
opinion by a disinterested third-party expert, such as an
actuary, finding that the transfer is fair and in the best
interests of the policyholder; (4) a statement by the chief
insurance regulatory official of the State of domicile of the
transferring and accepting insurers that the proposed
transfer is fair, reasonable, and in the best interests of
the policyholder and that the notice given to the affected
policyholder was fair adequate and not misleading; and (5) a
statement describing the effect of the transfer, if any, on
state insurance guaranty fund coverage.
Section 5. Consent Requirement. No insurer shall enter into
a transfer agreement or transfer a contract of insurance
without the written consent of the policyholder or a
beneficiary of the policyholder.
The written consent of a policyholder may be implied where:
(1) the transferring and assuming insurer are top-rated by
the same 3 nationally recognized insurance rating agencies
for each of the 3 years preceding the transfer, or the
accepting insurer is rated better than the transferring
insurer during such period; and (2) the policyholder or
beneficiary of the contract of insurance is provided with
proper notice as prescribed by this Act and such policyholder
has not responded to the notice with an objection to the
transfer.
Section 6. Transfers Not Subject to the Act. This Act shall
not apply to: (1) a transfer in which the transferring
insurer continues to remain directly liable for its insurance
obligations under the contracts of insurance; (2) the
substitution of one insurer for another upon the expiration
of insurance coverage pursuant to statutory or contractual
requirements; (3) cases where the transfer of contracts of
insurance are made pursuant to a merger or a consolidation
that is regulated by State law; and (4) insurers that are
subject to a judicial order of liquidation or rehabilitation.
Section 7. Regulations. The Secretary of Commerce shall
promulgate such regulations as may be necessary to carry out
this Act.
Section 8. Cause of Action. The policyholder or the
Attorney General may bring an action against an insurer for
violations of this Act in the appropriate United States
district court. The appropriate district court shall have
jurisdiction to grant such relief, including injunctive
relief and attorney fees, as is necessary or appropriate to
redress the violation.
______
By Mr. JEFFORDS (for himself and Mr. Hatch):
S. 1990. A bill to expand the role of public schools to provide
community services; to the Committee on Labor and Human Resources.
the 21st century community learning centers act
Mr. JEFFORDS. Mr. President, today I am introducing a bill on
behalf of myself and Mr. Hatch entitled the ``21st Century Community
Learning Centers Act.'' This legislation provides grants to schools to
expand education services beyond the regular school hours and to reach
beyond the traditional school-age population. I had intended to
introduce this bill last week by conference work on the Goals 2000 bill
and the debate over increasing education funding in the budget kept me
from doing it sooner.
The legislation is simple--it provides grants to schools to open up
their buildings for before- and after-school activities for children
and for services for adults, from literacy classes for children and for
services for adults, from literacy classes to extended library hours to
senior citizens programs. While simple at its core, this bill will have
far-reaching effects.
This legislation attempts to replicate on a broader scale the work
being done in communities across the country. In my own State of
Vermont, H.O. Wheeler school in Burlington is the prototype for
activities envisioned by the 21st century community learning centers.
This school has made room for the Vermont Visiting Nurses Association
to teach parenting classes to young mothers and fathers, it has opened
up its gym to community meetings and adult classes, and it has extended
library hours for the neighborhood residents.
These efforts are designed to address the varying needs of the area.
Now more than ever, our communities are on the front line of the
changes that are occurring throughout our Nation and throughout the
world. Employers are demanding highly skilled and technologically
literate workers requiring many adults to return to school or find
retraining programs. Two-parent working families today are more often
the rule than the exception. Many families need before- and after-
school programs and day care services. In many of our communities, both
adult education programs and day care services are expensive or
nonexistent.
That situation must change--and it can. Schools, particularly in
rural and low-income areas, are a valuable resource to the community
and are often the only places available to provide activities designed
to meet the needs of area residents.
We must expand upon and take advantage of those facilities. The
interconnection between education and economic growth is real. For our
nation to become economically competitive, our education system must
provide services for students of all ages. While many will agree that
school cannot be isolated from the home and the community, the reality
is that too often schools are perceived as remote, bureaucratic
institutions. Some communities, however, are changing that perception
and working collaboratively with parents, local businesses and colleges
to restructure the traditional role of the school within the community.
It is this new vision of the school that this bill encourages. By
providing grants to local schools, we make it possible for schools to
become the center for a network of agencies and institutions committed
to meeting the needs of the community and expanding learning
opportunities for all of its members. The concept of community schools
provides our children not only with essential support systems but also
brings the community to the school--which develops commitment to, and a
sense of ownership for, our schools.
To meet the needs of the 21st century we need to reevaluate and
revamp the way in which we provide education services. This simple
concept--which doesn't cost much money--is an important first step. I
hope my colleagues will support this effort.
______
By Mr. McCain:
S. 1991. A bill to provide for the safety of journeyman boxers, and
for other purposes; to the Committee on Commerce, Science, and
Transportation.
the professional boxing safety act of 1994
Mr. McCAIN. Mr. President, I rise today to introduce the
Professional Boxing Safety Act of 1994. This legislation would create a
vital set of strengthened safety measures for all professional boxing
events that are held in the United States. The Professional Boxing
Safety Act is aimed primarily at the club fights that occur in dozens
of States in small arenas on Friday nights across America.
The provisions of my legislation are as follows. First, each State
will be required to issue an identification card to all professional
boxers residing in their State. Foreign boxers who come to the United
States to box, and boxers in the United States who reside in a State
without a boxing commission, must register in any State of their choice
which has a commission.
An identification card will help State officials verify not only the
identity, but the professional and medical history of each boxer
seeking to box in the State. Verifying this information enables State
boxing commissioners to ensure that no injured or debilitated boxers
will be exploited by participating in a show in their State.
Second, all States which hold professional boxing matches must have a
State regulatory authority to oversee the fight, or arrange to have
commissioners from a neighboring State sanction the event. This is a
critical, although very basic, requirement. It is dangerous and
indefensible for any jurisdiction to allow professional boxing matches
to occur without providing a minimum level of responsible oversight.
Responsible oversight means making sure that physicians are present
at the fight, supportive medical services are available, and the
matches are conducted according to the safely guidelines established by
the professional boxing industry. Let me also point out that safety
overseeing all boxing shows need not be a new financial burden on
States that don't currently have a boxing commission. Status can simply
require promoters to contract with neighboring State commissioners to
oversee the show.
Third, State boxing commissioners will be required to review the
background of boxers participating in shows in their State, an ensure
that no boxers fight while under suspension in another jurisdiction.
This will prevent boxers from going from State to State to box while
they are injured, after having failed a drug test, or after their
declining skills have rendered them incapable of competing safely. If
all States respect the suspensions of boxers, promoters, and managers
ordered by their fellow State commissions, the unsafe and unethical
practices which plague the professional boxing industry will be
eliminated to a substantial degree.
Finally, my legislation will require all State commissioners to
promptly report the results of each boxing show held in their State,
and any suspensions they order, to the boxing registries that are
certified by the Association of State Boxing Commissioners and the
Florida State Athletic Department. This provision is intended to
improve and expand the information network that already exists between
State commissions and professional boxing registries. It is extremely
important that each State have access to credible data on the
backgrounds of all boxers and promoters who participate in boxing shows
across the country.
Providing boxing registries with the results of all boxing matches,
including information on any injuries or suspensions, will enable State
commissioners to quickly determine which boxers should or should not be
getting into the ring. This requirement is intended to both protect the
health and welfare of the men whose physical skills and courage sustain
the boxing industry, and to prevent fraudulent bouts from taking place.
The requirement for the State of Florida's commission to also be
notified of boxing show results and suspensions will assist their
officials in the extremely valuable work they have generously performed
in this regard for several years. At no cost to other State commissions
or other interested parties, Florida's boxing officials send out a
continuously updated list of all boxers and promoters who have been
suspended across the country due to injury, violation of State laws, or
improper conduct. All State commissions should review this list weekly,
and take action to properly oversee the boxing events held in their
State.
The enforcement provisions in this legislation will authorize the
U.S. attorney in each State to fine or prosecute promoters or managers
who knowingly and willfully violate these reasonable and easily
followed standards. If a promoter or manager is so callous and uncaring
as to arrange for an injured or debilitated boxer to get into the ring,
they should be held accountable for their indefensible behavior.
Furthermore, the U.S. attorney can seek an injunction in Federal
court to block unsanctioned and unsafe boxing events from taking place.
These events continue to occur in several States in the United States,
and they are nothing more than an unconscionable exploitation of men
who may know of no other way to support themselves and their families
than getting into the ring for $50 a round. Anyone who loves the sport
of boxing, or who cares even the slightest bit about the welfare of
boxers themselves, will agree that each boxing show should be carried
out under the auspices of commissioners at the State level.
My objective is to ensure that a basic but absolutely essential
series of safety precautions for professional boxers are implemented
nationwide, and adhered to by all State boxing officials.
This is the very least we should do to try and protect the health and
welfare of professional boxers--most of whom are from impoverished
backgrounds--and improve the integrity of the sport.
While the reforms that I am proposing are extremely important and
will be very helpful to State commissioners who are concerned about
boxers, I can't really claim that they are truly innovative. I have
followed the sound counsel of the very best men and women that the
professional boxing industry and State agencies have to offer. I have
sought the advice of boxing officials from Nevada, Florida, California,
Missouri, Arizona, New York, and many other States, as well from
leaders of the Association of Boxing Commissioners. I have actively
participated in several hearings on problems in the professional boxing
industry held in the past year by the Senate's Governmental Affairs
Committee and the Consumer Subcommittee. This bill represents the views
and recommendations of the people who know boxing the best, and who
care about boxers the most.
In pursuing my overriding objective of protecting the health and
welfare of journeymen or club boxers, I have strived to avoid placing
any significant new costs or regulations on State commissions, and I
believe that we have successfully met this goal. No new, taxpayer-
subsidized Federal commission or corporation would be created by my
legislation; there are no costly new medical standards imposed upon the
States; and there is no Federal intrusion into the business side of
boxing.
If implemented, the safety measures contained in this legislation
will help protect men who are often unprotected, and ensure that they
are not physically or financially exploited by individuals whose profit
motives have outweighed their consciences. Unfortunately, the history
of the boxing industry in the United States is replete with situations
wherein boxers who had no business being in the ring were exploited for
the financial gain of others. This practice must stop.
Furthermore, this legislation will finally put the Congress clearly
on record, stating that we will no longer stand by idly as the health
and welfare of a group of unknown but courageous athletes is
jeopardized.
Mr. President, I strongly believe that we simply cannot tolerate the
dangerous status quo of bootleg boxing shows and fraudulent matches
because things have always been done that way, or because the Congress
has never found a practical and acceptable method to assist the State
commissions that regulate the sport.
I support the primacy of the States to regulate the boxing industry,
but I also want to make sure that every State provides at least a
minimum amount of responsible oversight for each boxing event held in
their jurisdiction. The Professional Boxing Safety Act will do just
that, and help protect the health and welfare of a group of men who now
have few advocates willing to look out for their interests.
______
By Mr. ROTH:
S. 1992. A bill to amend chapter 5 of title 5, United States Code, to
provide for results based regulations, and for other purposes; to the
Committee on Governmental Affairs.
results-based regulations act of 1994
Mr. ROTH. Mr. President, I have long been concerned that our
Federal regulatory process is not sufficiently flexible in how it deals
with regulated entities. In a worthwhile effort to protect our health,
safety, and well-being, Government agencies too often take a one-size-
fits-all approach. They provide insufficient opportunity for a
business, or State or local government, to find equally effective but
less costly alternatives to the mandated procedures.
The legislation I am introducing today, the Results Based Regulations
Act of 1994, is an effort to address this problem. It would require
Federal agencies, where practicable, to state what outcomes and results
a proposed regulation is to achieve. It would then provide waiver
authority for the agencies, to exempt from all or part of the
regulation an applicant who convinces the agency that there is a less
costly way for the applicant to achieve the results intended.
I believe this is an entirely reasonable, and in fact common-sense
requirement. Agencies would have great discretion in how to develop
such a waiver process. They could do so in ways that do not subject
themselves to a flood of waiver applications from every business or
State and local government in the country. They might require that
parties with common interests get together and develop one waiver
request. And of course, the agency itself would then have to be
satisfied that the proposed alternative would indeed achieve the same
results as the regulation itself.
On the other hand, the regulated entities would have an on-going
opportunity--even after a regulation is finalized and implemented--to
find a less onerous way to achieve the purpose of the regulation. This
would help make the regulatory process more flexible and reasonable,
while still accomplishing the intended results.
The value of this approach was recognized in the recently published
addendum to the Vice President's National Performance Review report--
entitled, ``Improving Regulatory Systems.'' This report stated that,
``Performance standards are generally preferable to prescriptive or
design standards because they give the regulated industry the
flexibility to determine the best technology to meet established
standards.''
I urge my colleagues to support this effort to reinvent the
regulatory process. I ask unanimous consent that a copy of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1992
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Results Based Regulations
Act of 1994''.
SEC. 2. RESULTS BASED REGULATIONS.
(a) In General.--Chapter 5 of title 5, United States Code,
is amended by inserting after section 559 the following new
section:
``Sec. 560. Results based regulations
``(a) For purposes of this section the term `regulation'
means any rule for which the agency publishes a general
notice of proposed rulemaking under section 553(b) or any
other law.
``(b) To the greatest extent practicable, each agency shall
include in the general notice of proposed rulemaking relating
to a regulation--
``(1) a statement of--
``(A) the overall outcomes and results to be achieved by
the regulation;
``(B) methods to quantify such outcomes and results;
``(C) possible alternative methods to achieve such outcomes
and results; and
``(D) a process for waiving in whole or part such
regulation if an alternative is subsequently proposed under
which the agency determines the waiver applicant, and others
covered by such waiver, would have no less of an impact on
the achievement of those outcomes and results than would
occur without such waiver; and
``(2) a solicitation for comments by persons affected by
the regulation on the methods and processes described under
paragraph (1) (B), (C), and (D).
``(c) An agency action taken under this section shall not
be subject to review by a court of the United States.''.
``(b) Technical and Conforming Amendment.--The table of
sections for chapter 5 of title 5, United States Code, is
amended by inserting after the item relating to section 559
the following new item:
``560. Results based regulations.''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall take effect 60 days
after the date of the enactment of this Act.
______
By Mr. MURKOWSKI (for himself and Mr. Stevens):
S. 1993. A bill to remove the restrictions on the export of Alaskan
North Slope oil, and for other purposes; to the Committee on Banking,
Housing, and Urban Affairs.
Alaskan oil legislation
Mr. MURKOWSKI. Mr. President, I introduce legislation on
behalf of myself and Senator Stevens that is critical to the economy of
Alaska and the energy security of the United States. This legislation
would lift the 21-year-old prohibition on the export of Alaskan oil
thereby allowing the State's most important and vital industry to sell
its products in the global marketplace.
To ensure that lifting of the export ban does not harm the U.S.
merchant marine, our legislation requires oil exported from Alaska to
be transported on U.S. built vessels manned by American merchant
seamen.
Mr. President, the export ban is contrary to the free trade,
nondiscrimination, and open market principles that have guided this
administration in the successful NAFTA and GATT negotiations. It
represents the worst type of protectionism that costs workers jobs in
Alaska and California, damages our Nation's energy security, and
contributes to our international trade deficit.
The export ban is an unjustifiable and unprecedented discrimination
against the State of Alaska and the citizens of my State. It costs the
State hundreds of millions of dollars a year in lost royalties and
hinders the ability of the State to provide social services and
infrastructure that would enable the State to diversify its economy.
This artificial constraint on the development of Alaska's economy is
fundamentally unfair, and in this Senator's view, impinges on the
sovereignty of my State in a way that no other State has to endure.
Mr. President, I know of no other laws that Congress has adopted that
prevent the export of a particular product simply because the product
is manufactured or mined in a particular State. Would it be fair to bar
the export of timber or paper products from forests in Tennessee and
Washington, but allow the export of such products if they came from
forests in Kentucky or Oregon? Of course not. But that is exactly the
type of discrimination that Alaskans are somehow expected to accept.
Why should Alaskans be expected to accept this type of
discrimination? We are not talking about mineral resources located on
Federal lands. We are not talking about special Federal subsidies
provided to developers in Alaska. We are simply talking about resource
development within the State of Alaska and how the developers of that
resource and the State can maximize their return from these
investments.
In 1973, when the ban was imposed, many people believed that it would
enhance our Nation's energy security. Twenty-one years later, it is
clear to nearly every economist who has studied this issue, that the
export ban, rather than enhancing energy security, will ultimately make
America more dependent on foreign oil.
Today, most of the 1.8 million barrels of oil that is shipped from
Alaska is delivered by tanker to the closest domestic markets on the
west coast, primarily California. The remainder is generally shipped to
Panama, off-loaded into a pipeline and then reloaded onto a tanker and
transported to the gulf coast.
The 1.3 million barrels of oil shipped into California each day glut
the California market and drive the price of oil there far below the
world price. For example, in December, when the world price slipped
below $15 barrel, the wellhead price of California oil was $8.75.
These glut-induced prices have devastated the California oil and gas
industry and exacerbated the prolonged recession in California. Wells
have been permanently shut in. Exploration and development activities
have crawled to a near halt, and employment has been devastated.
Mr. President, the single most effective way of reversing this trend
and encouraging the renewed exploration and development of oil
production in California is to lift the ban on the export of Alaskan
crude oil. When a representative of the General Accounting Office
testified before Congress on this issue in 1990, she estimated that if
the ban was lifted, wellhead prices for Alaskan and California oil
would rise by $1 to $2 a barrel.
These price estimates are consistent with recent analyses performed
by the Alaska Department of Revenue. Our revenue department estimates
that lifting the ban would raise wellhead prices by $1.10 a barrel for
Alaskan and California oil. If that happened, Federal Government tax
revenues would increase by $280 million and revenues to the State of
Alaska would rise by $185 million.
More importantly, removing the ban would stimulate employment and
exploration activities both in California and in Alaska. By one
estimate, California employment could increase anywhere from 5,500 to
15,000 jobs. By contrast, if the export ban is retained, one study
suggests that development of as much as 10 billion barrels in Alaska
and California will be significantly inhibited over the next several
decades. At current prices, it would cost the U.S. economy $200 billion
to replace that domestic production with foreign oil imports.
Mr. President, I know that there is concern in the domestic maritime
community that if the ban is lifted, the American-flag merchant marine
will suffer severe employment declines because all of the oil currently
shipped from Alaska to the lower 48 is shipped on American flag
tankers. I am sympathetic to this concern and recognize the importance
of maintaining a strong American-flag merchant marine. It is for that
reason that this legislation requires exported Alaskan oil to be
transported on American flag tankers.
Under current economic projections, oil production declines in Alaska
suggest that most, if not all, of the oil shipped into gulf coast ports
will disappear in the next year or two. That will cause a significant
decline in U.S. maritime employment and will put many U.S.-flag ships
into mothballs. However, if Alaska is permitted to export its oil, and
if U.S.-flag ships were used in the export trade at least 240 seafaring
jobs could be saved.
Moreover, since the price that Alaskan crude can command in the world
market is higher than it commands in the glutted U.S. market, there
will be a greater incentive for the oil industry to invest in Alaska to
enhance production from current wells. Keeping these oil fields
producing means greater energy security for America and continued
employment security for the American flag merchant marine.
Mr. President, this ban makes no economic sense. It hurts the
citizens of Alaska; it severely damages the California oil and gas
industry, and if left in place, it ensures the steady decline in the
production of Alaskan crude and the demise of hundreds of jobs in
Alaska, in California and in the U.S. merchant marine. I hope that this
is the year that this ban will finally be lifted.
Mr. STEVENS. Mr. President. I am pleased to join my colleague
from Alaska today in introducing legislation to lift the ban on the
export of Alaska North Slope crude oil while increasing American jobs.
This legislation will increase jobs because it will increase production
of oil in Alaska, and therefore increase transportation of oil on U.S.
tankers manned by U.S. crews.
When Congress approved the construction of the Trans-Alaska Pipeline
System in 1973 there was a provision included in the act that severely
restricted exportation of crude oil transported through TAPS. In 1979
an amendment to the Export Administration Act expressly prohibited
export of TAPS crude oil, but at the same time, eased restrictions on
export of oil produced in other states. Section 7 of the Export
Administration Act discriminates against Alaska by making it the only
State that is forbidden to export its crude oil.
The export ban on Alaska North Slope crude oil directly impacts the
value of oil production in Alaska. Each day about 1.6 million barrels
of Alaska crude are transported to domestic markets of the lower 48. 85
percent of that is landed on the west coast, mostly in California, and
15 percent on the U.S. gulf coast. The export ban drastically reduces
the market value of the crude oil on the U.S. west coast. Since the
majority of the Alaska crude is marketed to the west coast it
significantly depresses the value of California production as well.
The excessive supplies of crude oil on the west coast have caused an
artificial crude surplus on the west coast. This causes the value of
oil in Alaska and California to be depressed.
The depressed price for Alaska crude discounts the wellhead value of
the crude by as much as $3 per barrel. A $1 decrease per barrel adds up
to a total loss of about $130 million a year for the State of Alaska in
royalty revenues.
Furthermore, when crude oil prices are depressed, there is little
incentive for exploring and producing oil in Alaska and California.
Prudhoe Bay production is declining at a rate of 10 percent a year.
California production is also on the decline. The oil export ban is one
of the major reasons for this decline in production. A small dollar
difference in the price of oil makes a huge difference when you
calculate the economics of producing oil--especially in Alaska.
The North Slope of Alaska contains as much as 100 billion barrels of
oil. But only 16 billion barrels qualify as proven reserves. Estimates
show that the oil export ban could restrain the development of as much
as 10 billion barrels in Alaska and California.
It would cost our economy $200 billion to replace Alaska and
California's production with foreign oil imports. And it would mean the
loss of thousands of jobs. The export ban costs the Federal Government
and the State of Alaska billions in lost royalties, taxes and other
revenues.
The legislative history of the Export Administration Act shows that
Congress specifically intended to discriminate solely against Alaska in
the export of domestically produced crude oil for the benefit of other
States. Among all of the States, only Alaska and its Trans-Alaska
Pipeline crude oil are subject to a per se ban.
The port preference clause of the Constitution prohibits actions of
Congress which prefer the ports of one or more States to those of
another or which direct or divert commerce from the ports of a State to
the ports of one or more other States. Maryland in particular wanted
the port preference clause because they were concerned their ships
involved in commerce would be forced to stop in Norfolk, VA before
going overseas.
More than 200 years later, the Arctic Slope crude oil export ban does
exactly what the drafters of the Constitution sought to prevent.
Section 7 of the Export Administration Act effectively forces Alaska
crude oil to be landed in a few ports on the U.S. west coast and gulf
coast for the sole benefit of those States. Meanwhile, those States
sell some of their oil production to other countries.
The Supreme Court has held that the 10th amendment limits the power
of Congress by prohibiting action which commandeers the legislative
processes of the States by directly compelling them to enact and
enforce a Federal regulatory program. This includes actions by Congress
to attach State treasuries or otherwise make a State government an
unwilling instrument or financier of congressional policy. The Artic
Slope crude oil export ban violates the 10 amendment because it
requires Alaska to provide a subsidy to other States in the form of
lost royalties due to depressed lower crude oil prices in pursuit of a
congressional objective.
I want to repeat that this legislation increases jobs for Americans.
It will help the oil industry by allowing for a market driven price of
oil on the west coast, rather than an artificial glut and low price due
to the prohibition on exporting it. The increased sale price of oil in
California and Alaska will increase production and therefore increase
jobs to produce and transport the oil.
Most of the oil will continue to be transported to California because
the economics will demand it. But we should allow the export of the oil
that creates a crude oil glut.
The provision in the Export Administration Act clearly discriminates
against Alaska. The total export ban on Arctic Slope crude oil is
unprecedented in other oil producing states. While other states are
subject to limited restrictions on exporting oil, only Alaska is
subject to a total ban on exporting its oil. This bill will finally
lift this discriminatory and unconstitutional prohibition on the export
of our crude oil.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1993
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. EXPORT ADMINISTRATION ACT AMENDMENT.
Section 7(d) of the Export Administration Act of 1979 (50
U.S.C. App. 2406(d)) is repealed.
SEC. 2. TRANSPORT REQUIREMENT.
The export of domestically produced crude oil shall be
transported in vessels documented under the laws of the
United States which are eligible to engage in the coastwise
trade if such crude oil is transported by pipeline over
right-of-way granted pursuant to section 203 of the Trans-
Alaska Pipeline Authorization Act (43 U.S.C. 1652).
SEC. 3. OTHER PROVISIONS OF LAW.
The export of domestically produced crude oil transported
by pipeline over right-of-way granted pursuant to section 203
of the Trans-Alaska Pipeline Authorization Act (43 U.S.C.
1652) shall not be subject to the restrictions contained in
section 28(u) of the Mineral Leasing Act (30 U.S.C. 185(u)),
section 103 of the Energy Policy and Conservation Act (42
U.S.C. 6212), section 28 of the Outer Continental Shelf Lands
Act (43 U.S.C. 1354), or section 7430(e) of title 10, United
States Code, or any regulations issued under any such
provision of law.
______
By Mr. SMITH (for himself, Mr. Gregg, Mr. Faircloth, and Mr.
Kempthorne):
S. 1994. A bill to amend the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 to make comprehensive
improvements in provisions relating to liability, State implementation,
remedy selection, and funding, and for other purposes; to the Committee
on Finance.
comprehensive superfund improvement act of 1994
Mr. SMITH. Mr. President, today, I am introducing the
Comprehensive Superfund Improvement Act of 1994. In 1980, Congress
passed the Comprehensive Environmental Response, Compensation, and
Liability Act [CERCLA], commonly known as Superfund, to force the
cleanup of our Nation's worst hazardous waste sites.
In theory, Superfund was supposed to resolve environmental hazards
quickly and economically by making polluters pay. But in practice, the
program has fallen well short of its promise to the American people.
There are now more than 1,275 sites on the national priorities list
with little cleanup progress to show after 13 years.
Since Superfund is due to be authorized in 1994, Congress now has an
opportunity to correct this flawed program. That is why I am
introducing a plan to put the Superfund program back on track. This
legislation is dramatic, comprehensive reform that will be good for the
environment and good for the economy.
I have spend the past year researching and seeking input from groups
like the New Hampshire Superfund Task Force, initiated by my colleague,
Congressman Bill Zeliff, who has introduced companion legislation in
the House of Representatives. I have also talked to State government
officials, individual town managers, and local businesses. In addition
to local input, I have met with various national groups, including
representatives from the insurance industry, the business roundtable,
and the NAACP. This really is a grassroots answer to a grassroots
problem.
The Senate Environment Committee, of which I am a member, is
scheduled to consider Superfund reauthorization during the next several
months. The administration unveiled its plan last month, and although
it is a step in the right direction, I do not believe it goes far
enough in the areas of liability and remedy selection.
However, one thing is certain--EPA Administrator Carol Browner, the
business community, the insurance industry, cleanup contractors, State
and local governments, and individual citizens all agree--Superfund
needs to be fixed.
why we need this legislation
First, hazardous waste sites are not being cleaned up in a timely
manner. Litigation and delay have become the standard operating
procedure for the Superfund program. After 13 years and approximately
$18 billion spent on the Superfund program, only 12 percent or about
150 sites on the Superfund priority list have been cleaned up. Only 4
percent have actually been delisted. The average time it takes to clean
up a site is a staggering 10 to 15 years, costing $25 to $30 million
per site.
Second, lawyers are benefiting more than the environment and our
communities. Enormous amounts of time and money are being wasted on
lawsuits and administrative bureaucracy, instead of being spent on
actual cleanup of hazardous waste. In fact, on average, nearly 50
percent of the costs at a site are devoted to these so-called
transaction costs.
Third, Superfund's liability scheme fuels litigation. Under the
doctrine of strict, retroactive, joint and several liability, a single
party can be held liable for 100 percent of the cleanup cost even if
hundreds of parties contributed waste to the site, and even if the
single party contributed only 5 percent of the waste. Numerous towns
and small businesses have been caught in the Superfund liability net
for actions that were legal at the time they occurred.
Elements of the Comprehensive Superfund Improvement Act of 1994:
First, liability: This legislation would eliminate retroactive
liability prior to CERCLA's enactment on December 11, 1980. It would
also replace joint and several liability with a new proportional
allocation plan. To apply a law retroactively is simply unfair, un-
American, and violates the spirit of the Constitution. In addition, to
address the unfairness of joint and several liability, I propose a new,
binding allocation system. Under my plan, parties would only be forced
to pay for what they contributed to a site. This new ``fair share''
allocation process will reduce the amount of lawsuits between parties,
saving a significant amount of time and money.
Second, State delegation: Current law does not allow for States to
manage the Superfund program. Decisions are made by the EPA with little
input from the States and affected communities. Many States believe
they can do the job more effectively and efficiently than the Federal
Government can. I agree. States that are capable and qualified to
administer the Superfund program should be given this authority if so
desired.
Third, remedy selection: Currently, risk assessment and cleanups are
based on unrealistic, worst-case risk scenarios that ultimately lead to
overly expensive remedies. We need to address the issue of ``How clean
is clean?'' Often times, striving to clean that last ounce of pollution
has little environmental benefit but increases cost significantly. We
must begin to prioritize and direct our limited resources toward areas
that pose the greatest risk. We also need to ask ourselves, ``If an
industrial site is going to remain an industrial site, does it make
sense to clean it up to playground standards?'' Current law does not
allow these issues to be considered.
My plan will use more realistic risk assessments and allow for land
use and cost to be considered when selecting a remedy. I propose a
rational, streamlined approach to the cleanup process that includes: An
immediate response action for any immediate public health threat, a
post immediate response action site scoring, and long-term remediation
if necessary at which time the site would undergo a thorough evaluation
and risk assessment to determine how to best clean up the remaining
contamination.
Local citizens are also brought into the process through community
advisory councils, which are established in this legislation. Their
purpose is to provide input into the decision-making process such as
intended use of the land. Cleanup options are then identified, taking
into account local feedback and cost.
In conclusion, I believe these major changes that I have outlined
stem from input at the grassroots level and represent a broad cross-
section of interested parties. This is a fair, commonsense approach to
addressing the ineffectiveness of the current Superfund program.
I urge my colleagues to cosponsor this legislation and I ask
unanimous consent that the text of the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1994
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Comprehensive Superfund
Improvement Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--LIABILITY
Sec. 101. Release of evidence.
Sec. 102. Elimination of retroactive liability.
Sec. 103. Limitation on liability of certain owners and operators.
Sec. 104. Contribution protection.
Sec. 105. Contiguous properties.
Sec. 106. Lender and fiduciary liability.
Sec. 107. Definitions.
Sec. 108. Assignment of shares of liability for costs of response
actions at national priority list sites.
Sec. 109. Enforcement of response actions through joint and several
liability.
Sec. 110. Establishment of binding allocation of responsibility
process.
Sec. 111. Site redevelopment.
Sec. 112. Liability of response action contractors.
TITLE II--STATE IMPLEMENTATION
Sec. 201. State authority.
Sec. 202. Transfer of authorities.
Sec. 203. EPA oversight costs.
TITLE III--REMEDY SELECTION
Sec. 301. Immediate risk reduction measures.
Sec. 302. Site scoring.
Sec. 303. Long-term response plan.
Sec. 304. Long-term response selection.
Sec. 305. Periodic review.
Sec. 306. Delisting of facilities and sites.
TITLE IV--FUNDING
Sec. 401. 5-year extension of Hazardous Substance Superfund.
Sec. 402. Increase in environmental income tax.
Sec. 403. Environmental fees and assessments on insurance companies.
Sec. 404. Retroactive Liability Fund.
TITLE I--LIABILITY
SEC. 101. RELEASE OF EVIDENCE.
(a) Timely Access to Information Furnished Under Section
104(e).--Section 104(e)(7)(A) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9604(e)(7)(A)) is amended by inserting after
``shall be available to the public'' the following: ``not
later than 14 days after the records, reports, or information
is obtained''.
(b) Requirement To Provide PRPs Evidence of Liability.--(1)
Subsection (a) of section 106 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9607(a)) is amended by adding at the end the
following: ``In any case in which the President issues an
order to a person under this subsection, the President shall
provide information concerning the evidence that indicates
that each element of liability contained in subparagraph (A),
(B), (C), or (D) of section 107(a)(1) is present.''.
(2) Section 122(e)(1) of such Act is amended by inserting
after subparagraph (C) the following:
``(D) For each potentially responsible party, the evidence
that indicates that each element of liability contained in
subparagraph (A), (B), (C), or (D) of section 107(a)(1) is
present.''.
SEC. 102. ELIMINATION OF RETROACTIVE LIABILITY.
Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607(a))
is amended by adding at the end the following new subsection:
``(n) Retroactive Liability Cut-Off Date; Cost
Reimbursement Provisions.--
``(1) In general.--Subject to the provisions in this
subsection, a person is liable under this section only for
actions occurring after December 11, 1980. The provisions of
this subsection shall not apply to actions occurring before
December 11, 1980, which were contrary to a law at the time
of the actions. Reimbursement or payment from the Retroactive
Liability Fund (established by section 9512 of the Internal
Revenue Code of 1986) shall be made pursuant to section 508.
``(2) Pre-1981 Sites.--With respect to sites or facilities
with respect to which all actions for which liability arising
under this Act occurred before December 11, 1980, the
following rules apply:
``(A) Construction completed.--For such sites or facilities
where the construction of the response action has been
completed by January 1, 1994, no reimbursement may be made
from the Retroactivity Liability Fund to the potentially
responsible parties concerned for costs incurred for such
construction. If a potentially responsible party is
conducting operation and maintenance related to the response
action at the site or facility as of January 1, 1994, the
President shall assume the future costs of such operation and
maintenance and shall reimburse the party for such costs
incurred.
``(B) Construction ongoing.--For such sites or facilities
where the construction of the response action has not been
completed by January 1, 1994, reimbursement may be made to
the potentially responsible parties concerned for costs
incurred for such construction, but only after the
construction is completed. After construction is complete,
the President shall assume future costs for any operation and
maintenance related to the response action.
``(C) Discovery after January 1, 1994.--For such sites or
facilities that are discovered after January 1, 1994, the
President shall use amounts from the Retroactive Liability
Fund to pay for all costs of the response action. Such costs
shall not include attorney's fees or other costs associated
with litigation related to the response action.
``(3) Straddle Sites.--With respect to sites or facilities
with respect to which actions for which liability arising
under this Act occurred both before and after December 11,
1980, the following rules apply:
``(A) Construction completed.--For such sites or facilities
where the construction of the response action has been
completed by January 1, 1994, no reimbursement may be made
from the Retroactive Liability Fund to the potentially
responsible parties concerned for costs incurred for such
construction. If a potentially responsible party is
conducting operation and maintenance related to the response
action at the site or facility as of January 1, 1994, the
potentially responsible party may, within 90 days after the
date of enactment of the Comprehensive Superfund Improvement
Act, petition the President for an allocation (in accordance
with title V) of the operation and maintenance costs. The
allocation shall determine which portion of the operation and
maintenance costs are attributable to actions occurring
before December 11, 1980, and which are attributable to
actions occurring after such date, and shall provide for the
reimbursement of the potentially responsible party, from the
Retroactive Liability Fund, of those costs attributable to
actions occurring before December 11, 1980.
``(B) Construction ongoing.--For such sites or facilities
where the construction of the response action has not been
completed by January 1, 1994, the potentially responsible
parties concerned shall complete construction and conduct any
required operation and maintenance. A potentially responsible
party may, within 90 days after construction of the response
action is complete, petition the President for an allocation
(in accordance with title V) of both the construction and
operation and maintenance costs. The allocation shall
determine which portion of the construction and operation and
maintenance costs are attributable to actions occurring
before December 11, 1980, and which are attributable to
actions occurring after such date, and shall provide for the
reimbursement of the potentially responsible party, from the
Retroactive Liability Fund, of those costs attributable to
actions occurring before December 11, 1980.
``(C) Discovery after January 1, 1994.--For such sites or
facilities that are discovered after January 1, 1994, the
President shall use amounts from the Retroactive Liability
Fund to pay for costs of the response action, including
construction and operation and maintenance, attributable to
actions occurring before December 11, 1980.
``(4) Definitions.--In this subsection:
``(A) The term `actions' includes ownership or operation of
a facility at which hazardous substances were disposed of,
disposal of hazardous substances, arrangement with a
transporter for transport for disposal or treatment of a
hazardous substance, and any other activities described in
subsection (a).
``(B) The term `person' has the meaning provided in section
101(21) but does not include the United States Government.
SEC. 103. LIMITATION ON LIABILITY OF CERTAIN OWNERS AND
OPERATORS.
(a) Exemption for Grantees of Certain Easements.--
Subsection (a) of section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9607(a)) is amended--
(1) in paragraph (4), by striking out ``shall be liable
for--'' and inserting in lieu thereof ``shall be liable,
except as provided in paragraph (4), for the costs and
damages set forth in paragraph (2).'';
(2) by inserting before subparagraph (A) the following:
``(2) The costs and damages for which persons described in
paragraph (1) shall be liable are--'';
(3) by aligning the margins of subparagraphs (A), (B), (C),
and (D) so as to be cut in two ems;
(4) by inserting ``(1)'' before ``Notwithstanding any other
provision or rule of law,'';
(5) by redesignating paragraphs (1), (2), (3), and (4) as
subparagraphs (A), (B), (C), and (D), respectively;
(6) by inserting ``(3)'' before the text beginning with
``The amounts recoverable in an action under this section''
(and aligning such text as a paragraph below paragraphs (1)
and (2) (as redesignated)) and in that text--
(A) by inserting ``of paragraph (2)'' after ``subparagraphs
(A) through (D)'';
(B) by striking out ``(i)'' and inserting in lieu thereof
``(A)''; and
(C) by striking out ``(ii)'' and inserting in lieu thereof
``(B)''; and
(7) by adding at the end the following new paragraph:
``(4) In the case of a person who is a qualified
organization under section 170(h)(3) of the Internal Revenue
Code of 1986 and who is the grantee of a conservation
easement with respect to real property on which a facility is
located, the person shall not be considered an owner or
operator of the facility under subparagraph (A) or (B) of
paragraph (1) unless the person, by any act or omission,
causes or contributes to the release or threatened release of
a hazardous substance that causes the incurrence of response
costs. For purposes of this paragraph, the term
``conservation easement'' means a restriction on the use of
land for purposes of protecting in perpetuity a conservation
purpose listed in section 170(h)(4) of the Internal Revenue
Code of 1986.
(b) Safe Harbor for Innocent Landowner Defense.--(1)
Section 101(35) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) is amended by redesignating subparagraphs (C) and (D)
as subparagraphs (D) and (E), respectively and inserting
after subparagraph (B), the following:
``(C)(i) A defendant who has acquired real property shall
have established a rebuttable presumption that he has made
all appropriate inquiry within the meaning of subparagraph
(B) if he establishes that, immediately prior to or at the
time of acquisition, he obtained an environmental assessment
of the real property which meets the requirements of this
subparagraph.
``(ii) For purposes of this subparagraph, the term
`environmental professional' means an individual, or an
entity managed or controlled by such individual who, through
academic training, occupational experience and reputation
(such as engineers, environmental consultants and attorneys),
can objectively conduct one or more aspects of an
environmental assessment. For purposes of this subparagraph,
the term `environmental assessment' means an investigation of
the real property, conducted by environmental professionals,
to determine or discover the likelihood of the presence or
substantial reason to suspect the presence of a release or
threatened release of hazardous substances on the real
property and which consists of a review of each of the
following sources of information concerning the previous
ownership and uses of the real property:
``(I) Recorded chain of title documents regarding the real
property, including all deeds, easements, leases,
restrictions, and covenants for a period of 50 years.
``(II) Aerial photographs which may reflect prior uses of
the real property and which are reasonably accessible through
State or local government agencies.
``(III) Determination of the existence of recorded
environmental cleanup liens against the real property which
have arisen pursuant to Federal, State, and local statutes.
``(IV) Reasonably obtainable Federal, State, and local
government records of sites or facilities where there has
been a release of hazardous substances and which are likely
to cause or contribute to a release or threatened release of
hazardous substances on the real property, including
investigation reports for such sites or facilities;
reasonably obtainable Federal, State, and local government
environmental records of activities likely to cause or
contribute to a release or a threatened release of hazardous
substances on the real property, including landfill and other
disposal location records, underground storage tank records,
hazardous waste handler and generator records and spill
reporting records; and such other reasonably obtainable
Federal, State, and local government environmental records
which report incidents or activities which are likely to
cause or contribute to a release or threatened release of
hazardous substances on the real property. A record is
considered to be reasonably obtainable for purposes of this
subclause if a copy or reasonable facsimile of the record is
obtainable from the government agency by request.
``(V) A visual site inspection of the real property and all
facilities and improvements on the real property, and a
visual inspection of immediately adjacent properties from the
real property, including an investigation of any chemical
use, storage, treatment and disposal practices on the
property.
``(iii) No presumption shall arise under clause (i) unless
the defendant has maintained a compilation of the information
reviewed in the course of the environmental assessment.
``(iv) Notwithstanding any other provision of this
paragraph, if the environmental assessment discloses the
presence or likely presence of a release or threatened
release of hazardous substances on the real property to be
acquired, no presumption shall arise under clause (i) with
respect to such release or threatened release unless the
defendant has taken reasonable steps, in accordance with
current technology available, existing regulations, and
generally acceptable engineering practices, as may be
necessary to confirm the absence of such release or
threatened release.''.
(2) Subparagraph (C) of section 101(35) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as added by paragraph (1), shall take
effect on the date of the enactment of this Act.
SEC. 104. CONTRIBUTION PROTECTION.
Section 113(f)(2) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9613(f)(2)) is amended in the first sentence by inserting
``or cost recovery'' after ``contribution''.
SEC. 105. CONTIGUOUS PROPERTIES.
Section 107(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607(a)),
as amended by section 103(a), is further amended by adding at
the end the following new paragraph:
``(5) A person who owns or operates real property that is
contiguous to or otherwise situated with respect to real
property on which there has been a release of a hazardous
substance and that is or may be contaminated by such release
shall not be considered an owner or operator of a facility
under paragraph (1)(A) solely by reason of such
contamination. The President may issue assurances of no
enforcement action under this Act to any such person and may
grant any such person protection against cost recovery and
contribution actions pursuant to section 113(f)(2).''.
SEC. 106. LENDER AND FIDUCIARY LIABILITY.
(a) Rulemaking Authority for Security Interest Exemption.--
Section 115 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (15 U.S.C. 9615) is
amended--
(1) by redesignating the text of the section as subsection
(a); and
(2) by adding at the end the following:
``(b)(1) Pursuant to the authority conferred by this
section, the President shall issue, within 30 days after the
date of enactment of the Comprehensive Superfund Improvement
Act, regulations to define the terms of this Act as they
apply to lenders and other financial services providers.
These regulations shall clarify the definition of the term
`owner or operator' contained in section 101(20)(A) by--
``(A) defining the terms `indicia of ownership', `security
interest', `primarily to protect a security interest', and
`participation in management'; and
``(B) specifying the types of activities that may be
undertaken without voiding the exemption to liability
provided by section 101(20)(A).
``(2) The following clarifications shall be included among
the provisions in the regulations issued under paragraph (1):
``(A) The term `participation in management' does not
include--
``(i) the mere capacity to influence, or ability to
influence, or the unexercised right to control facility
operations; or
``(ii) any act of the security interest holder to require
another person or itself, to comply with applicable laws or
to respond lawfully to disposal of any hazardous substance.
``(B) A security interest holder will not be deemed to be
participating in management of a facility unless the security
interest holder--
``(i) has undertaken responsibility for the facility's
hazardous substance handling or disposal practices; or
``(ii) has undertaken overall management of the facility
encompassing day-to-day decisionmaking over either
environmental compliance or over the operational, as opposed
to financial and administrative, aspects of the facility.
``(C) Legal or equitable title acquired by a security
interest holder through foreclosure or its equivalents will
be deemed to be held primarily to protect a security interest
provided that the holder undertakes to sell, re-lease, or
otherwise divest the property in a reasonably expeditious
manner on commercially reasonable terms.''.
(b) Protection for Fiduciaries From Individual Liability.--
(1) Section 101(20) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601(20)) is amended by adding at the end the following new
subparagraph:
``(E)(i) The term `owner or operator' does not include a
fiduciary who holds legal title to, is the mortgagee or
secured party with respect to, controls, or manages, directly
or indirectly, any facility or vessel for purposes of
administering an estate or trust of which such facility or
vessel is a part.
``(ii) For purposes of clause (i), the term `fiduciary'
means a person who is acting in any of the following
representative capacities, but only to the extent such person
is acting in such representative capacity:
``(I) An executor or administrator of an estate, including
a voluntary executor or a voluntary administrator.
``(II) A guardian.
``(III) A conservator.
``(IV) A trustee under a will under which the trustee takes
title to, or otherwise controls or manages, property for the
purpose of protecting or conserving such property under the
ordinary rules applied in State courts.
``(V) A court-appointed receiver.
``(VI) A trustee appointed in proceedings under Federal
bankruptcy laws.
``(VII) An assignee or a trustee acting under an assignment
made for the benefit of creditors.
``(VIII) A trustee, or any successor thereto, pursuant to
an indenture agreement, trust agreement, lease, or similar
financing agreement, for debt securities, certificates of
interest of participation in any such debt securities, or
other forms of indebtedness as to which it is not, in its
capacity as trustee, the lender.''.
(2) Section 107 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9607), as amended by sections 102 and 103, is further amended
by adding at the end the following new subsection:
``(m) Fiduciary Liability.--(1) Except as provided in
paragraph (3), a fiduciary (as defined in section 101(20))
shall not be liable in its individual capacity under this
section.
``(2) Nothing in this paragraph may be construed as
preventing claims under this Act against--
``(A) the assets of the estate or trust administered by a
fiduciary; or
``(B) non-employee agents or independent contractors
retained by a fiduciary.
``(3) Nothing in this paragraph may be construed as
preventing claims under this Act against a fiduciary in its
individual capacity whose negligent acts or intentional
misconduct caused a release or threatened release of
hazardous substances at a facility or vessel. A fiduciary
shall not be attributed with the negligence or intentional
misconduct of non-employee agents or independent contractors
if the fiduciary has conducted itself without negligence or
intentional misconduct with regard to its relationship with
such agents or contractors.''.
SEC. 107. DEFINITIONS.
Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601), is
amended by adding at the end the following:
``(39) The term `potentially responsible party' means any
person identified as potentially liable under section 107,
potentially responsible to perform any response action under
sections 104 or 106, or potentially liable for contribution
under section 113.
``(40) The term `de micromis party' means a potentially
responsible party who is a generator or transporter who
contributed less than 100 pounds or 100 liters of material
containing hazardous substances at a facility, or such
greater or lesser amount as the Administrator may determine
by regulation.
``(41) The term `de minimis party' means a liable party
whose assigned share of liability is determined to be 1.0
percent or less in a final binding allocation of
responsibility decision under title V.
``(42) The term `liable party' means any potentially
responsible party determined by an allocation panel or a
court to be liable under section 107, responsible to perform
any action under sections 104 or 106, or liable for
contribution under section 113.
``(43) The term `assigned share' means the percentage of
liability assigned, in accordance with the factors set forth
in section 503(g)(2), to a liable party by an allocation
panel in a binding allocation of responsibility or by a court
of law.
``(44) The term `orphan party' means a liable party at a
site who is defunct, unknown, insolvent, or whose assigned
share has been subject to discharge or limitation in
bankruptcy, or who is otherwise financially unable to pay all
or part of its assigned share.
``(45) The term `creditor party' means the Administrator, a
State, or any person who is determined to be a liable party
with respect to a National Priority List site and who incurs
or has incurred costs with respect to the site that are not
inconsistent with the National Contingency Plan.
``(46) The term `debtor party' means the Hazardous
Substance Superfund and any person who is determined to be a
liable party with respect to a National Priority List site.
``(47) The term `binding allocation of responsibility'
means a final binding determination by an allocation panel
pursuant to title V.
``(48) The term `orphan share' means the total of the
assigned shares of all orphan parties at a site, including
all shares eligible for reimbursement or payment pursuant to
section 107(n).
``(49) The term `guardian of the fund' or `guardian' means
the person appointed by the Administrator to represent the
Environmental Protection Agency in a binding allocation of
responsibility proceeding.
``(50) The term `National Priority List site' means any
site or facility that the Administrator has listed on, or
proposed for listing on, the list established pursuant to
section 105(a)(8)(B).''.
SEC. 108. ASSIGNMENT OF SHARES OF LIABILITY FOR COSTS OF
RESPONSE ACTIONS AT NATIONAL PRIORITY LIST
SITES.
Section 107(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607(a)),
is amended by inserting before the phrase ``The amounts
recoverable'' the following: ``With respect to any National
Priority List site, each liable party who accepts the results
of the allocation of responsibility process under title V or
who successfully appeals the results of such process shall be
liable only for its assigned share of the costs incurred
pursuant to subparagraphs (A), (B), and (D) of this section.
The orphan share of a National Priority List site shall be
paid out of the Hazardous Substance Superfund or the
Retroactive Liability Fund, or any combination thereof, as
determined by final binding allocation of liability.''.
SEC. 109. ENFORCEMENT OF RESPONSE ACTIONS THROUGH JOINT AND
SEVERAL LIABILITY.
Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607) is
amended by adding at the end the following:
``(n) Joint and Several Liability of Parties Who Fail To
Perform Response Actions.--In any case in which no liable
party or potentially responsible party agrees to perform a
response action at a National Priority List site, or a liable
party or potentially responsible party agrees to perform a
response action but the party fails to perform such response
action, as determined by the Administrator or the State in
which the site is located, the following provisions apply:
``(1) The party is considered to have not resolved its
liability to the United States, notwithstanding the party's
acceptance of the results of the binding allocation of
responsibility process under title V or the party's
successful appeal of the results of such process.
``(2) The party is subject to civil action under section
106, subparagraphs (A), (B), and (D) of subsection (a) of
this section, and section 113 for the response action and all
costs of the response action with respect to the National
Priority List site.
``(o) Payment of Certain Response Costs by Fund.--A
potentially responsible party who performs and pays for a
response action at a National Priority List site shall be
reimbursed by the Hazardous Substance Superfund.
``(p) Authority To Collect Response Costs From Others.--A
liable party who performs and pays for a response action at a
National Priority List site is a creditor party under section
508 with respect to the site and may recover its response
costs in accordance with that section.''.
SEC. 110. ESTABLISHMENT OF BINDING ALLOCATION OF
RESPONSIBILITY PROCESS.
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) is amended by
adding at the end the following new title:
``TITLE V--BINDING ALLOCATION OF RESPONSIBILITY
``Sec. 501. General rules governing binding allocations of
responsibility.
``Sec. 502. Qualifications and powers of administrative law judges and
allocation panels.
``Sec. 503. Specific rules and procedures.
``Sec. 504. Duty to answer information requests and requests for
production of documents.
``Sec. 505. Civil and criminal penalties.
``Sec. 506. Document repository; confidentiality; no waiver.
``Sec. 507. Final agency action and judicial review.
``Sec. 508. Collection, enforcement, and implementation.
``Sec. 509. Transition provisions.
``Sec. 510. Voluntary settlements.
``Sec. 511. New binding allocations of responsibility.
``SEC. 501. GENERAL RULES GOVERNING BINDING ALLOCATIONS OF
RESPONSIBILITY.
``(a) Allocation Panels.--The Administrator shall appoint
panels of administrative law judges to perform expedited
administrative proceedings, to be known as `binding
allocations of responsibility', for purposes of determining
the liability of potentially responsible parties at National
Priority List sites. Each such panel shall be composed of
three administrative law judges appointed by the
Administrator under section 3105 of title 5, United States
Code, and shall be known as an `allocation panel'.
``(b) Rules of Decision.--The decisions of allocation
panels under this title shall be rendered based on the
provisions of this Act and the court decisions interpreting
such provisions.
``(c) Relationship to Natural Resources Damage.--Binding
allocations of responsibility shall not address or affect the
liability of any person with respect to damage to natural
resources under section 107(a)(1)(C).
``SEC. 502. QUALIFICATIONS AND POWERS OF ALLOCATION PANELS.
``(a) Qualifications.--An administrative law judge may not
be appointed to an allocation panel under section 501 unless
the judge completes at least 40 hours of education and
training, as specified by the Administrator, in the following
subject areas:
``(1) The operation of this Act and the regulations
promulgating this Act.
``(2) The science of soil and groundwater contamination and
the technology for treating such contamination.
``(b) General Powers.--An allocation panel shall have the
power and authority to perform all functions necessary to
administer and perform the binding allocations of
responsibility, including the power to--
``(1) issue information requests and requests for
production of documents to any person;
``(2) require the Administrator and the State concerned to
provide all information relevant to a binding allocation of
responsibility, including the production of copies of all
documents and information obtained pursuant to section 104(e)
or pursuant to similar State law;
``(3) rule upon motions, requests, and offers of proof,
dispose of procedural requests, and issue all necessary
orders;
``(4) administer oaths and affirmations and take
affidavits;
``(5) examine witnesses and receive documentary or other
evidence;
``(6) grant and manage such discovery by the parties as the
allocation panel deems appropriate and consistent with the
expedited nature of the binding allocation of responsibility
process;
``(7) admit or exclude evidence;
``(8) hear and decide questions of fact and law;
``(9) require the parties, including the State and the
guardian of the Fund, to attend conferences for the
settlement or simplification of the issues or the expedition
of the proceedings;
``(10) require, at any time, that potentially responsible
parties wishing to present similar legal or factual arguments
use a common spokesman or consolidated briefing for the
presentation of such facts and legal positions;
``(11) obtain or employ such support services as are
necessary to conduct the binding allocation of
responsibility, including secretarial and clerical services,
investigative services, and computer information and database
management services;
``(12) establish a document repository where all documents
associated with the binding allocation of responsibility
shall be maintained and made available to all parties to the
binding allocation of responsibility in accordance with
section 506; and
``(13) do all other acts and take all measures necessary
for the maintenance of order and for the efficient, fair, and
impartial adjudication of issues arising in the binding
allocation of responsibility.
``(c) Subpoena Power.--Allocation panels shall have the
power of subpoena to collect information necessary or
appropriate for conducting the binding allocation of
responsibility or for otherwise implementing this section.
This authority shall include the power to compel the
attendance and testimony of witnesses and the production of
reports, papers, documents, answers to questions, and other
information that the allocation panel deems necessary.
Witnesses shall be paid the same fees and mileage that are
paid witnesses in the courts of the United States. In the
event of contumacy or failure or refusal of any person to
obey any such subpoena, any district court of the United
States in which venue is proper shall have jurisdiction to
order any such person to comply with such subpoena.
``(d) Informal Rules of Evidence.--In conducting the
binding allocation of responsibility, an allocation panel
shall not be bound by the Federal Rules of Evidence, but
shall instead use such informal rules of evidence and
evidentiary procedures, such as those set forth at sections
22.22 and 22.23 of title 40 of the Code of Federal
Regulations, as will promote the expeditious completion of
the proceeding.
``(e) Nationwide Service of Process.--Any document required
to be served on a party under this title may be served in any
district where the person is found, resides, transacts
business, or has appointed an agent for service of process.
Any such document is deemed to be served on a party if it is
mailed to the counsel of record for the party or to the
address designated by the party if the party is not
represented by counsel.
``SEC. 503. SPECIFIC RULES AND PROCEDURES.
``(a) Initiation of Allocation Process.--
``(1) In general.--A binding allocation of responsibility
with respect to a National Priority List site shall be
initiated by filing a petition with the Office of the
Administrative Law Judges of the Environmental Protection
Agency. Such a petition may be filed by the Administrator or
the State where the National Priority List site is located.
``(2) When initiated.--The Administrator or a State shall
file a petition to initiate a binding allocation of
responsibility at a National Priority List site not later
than 30 days after initiating the remedial investigation
study (or its equivalent) for the site. In any case where the
petition is filed more than 30 days after initiation of the
remedial investigation study (or its equivalent), all
governmental response costs incurred or contracted for prior
to the filing of the petition shall be allocated entirely to
the orphan share.
``(3) Contents of petition.--The petition to initiate the
binding allocation of responsibility proceeding shall
identify the petitioner and shall include all relevant
information reasonably available concerning--
``(A) the identity, location, history, current status, and
environmental condition of the National Priority List site;
``(B) the identity and address of each person believed by
the petitioner to be a liable party and the basis for such
belief;
``(C) any proposed questions and document requests that the
petitioner believes should be included in the allocation
panel's first information request and document request; and
``(D) a list of any legal or technical issues that the
petitioner believes may be raised in the binding allocation
of responsibility.
``(4) Service.--A copy of the petition shall be served by
mail, publication, or otherwise on the Administrator, the
State where the site is located, and each potentially
responsible party identified in the petition. Within 20 days
after the filing of the petition, the Hearing Clerk of the
Office of Administrative Law Judges shall cause a notice of
the filing of the petition, together with a brief description
of the site and a list of all potentially responsible parties
identified in the petition, to be published in the Federal
Register. The petitioner shall cause a similar notice,
description, and list to be published in a newspaper of
general circulation within the State where the site is
located.
``(5) Prior investigation and search.--The Administrator or
the State, as the case may be, shall, prior to filing a
petition, conduct a thorough investigation and search, under
section 104(e) or any other relevant Federal or State
statutory or regulatory authority, for all potentially
responsible parties. All information, answers, and documents
discovered in such investigation or search and relevant to
any aspect of the binding allocation of responsibility shall,
simultaneously with the filing of the petition, be filed in
the document repository for the binding allocation of
responsibility. If the allocation panel determines that the
Administrator or the State failed to conduct a diligent
search for potentially responsible parties in accordance with
this paragraph, and if another party performs additional
investigations and successfully identifies additional
potentially responsible parties, then the allocation panel
shall credit all of the reasonable costs of such additional
search against the assigned share, if any, of the party that
performed such additional investigation or search.
``(6) Appointment of guardian for the hazardous substance
superfund and the retroactive liability fund.--Any petition
filed by the Administrator shall include the name and address
of the person appointed to serve as the guardian for the
Hazardous Substance Superfund and the Retroactive Liability
Fund for that binding allocation of responsibility. In any
case where a petition is initiated by a State, the
Administrator shall notify the Hearing Clerk of the Office of
the Administrative Law Judges within 10 days after the
petition is filed of the name and address of the person
designated by the Administrator as the guardian for the
Hazardous Substance Superfund and the Retroactive Liability
Fund. If the Environmental Protection Agency is also a
potentially responsible party or a liable party with respect
to the National Priority List site concerned, then the agency
may participate in the binding allocation of responsibility
with regard to such liability, but the person designated as
the guardian shall not represent the agency with regard to
the agency's status as a potentially responsible party or
liable party.
``(b) Identification of Potentially Responsible Parties.--
``(1) Initial statement.--(A) Not later than 30 days after
receipt of a copy of a petition or after publication in the
Federal Register of a notice of the filing of an initial
petition (whichever is earlier) under subsection (a)(4), the
guardian, the State and any potentially responsible party may
file an initial statement setting forth--
``(i) any defenses to liability;
``(ii) any equitable considerations pertaining to any
party's potential liability;
``(iii) any additional facts and issues relevant to the
binding allocation of responsibility;
``(iv) any proposed questions or document requests that the
person filing the statement believes should be included in
the first information request issued by the allocation panel;
and
``(v) the name and address of any additional person or
persons that the person filing the statement believes may be
a liable party at the National Priority List site and all
reasonably available information as to the relationship
between each proposed additional party and the site.
``(B) Any initial statement shall be filed with the Hearing
Clerk and served on all parties named in the petition and
named in such initial statement.
``(2) Information requests and requests for production of
documents.--(A) Not later than 30 days after the filing of
the petition, the allocation panel shall mail initial
information requests and requests for production of documents
to the guardian, the State, all potentially responsible
parties identified in the petition, and all additional
parties identified in the initial statements. Responses to
such requests shall be made in accordance with this paragraph
and section 504.
``(B) Within 45 days after a person receives any
information request or request for production of documents,
such person shall file a response with the Hearing Clerk. For
good cause shown, the allocation panel may grant a single 45-
day extension for the filing of any such response. Each party
shall have a continuing obligation to supplement its response
upon the receipt of additional relevant information.
``(3) Additional nominations of potentially responsible
parties.--The parties may identify and nominate additional
potentially responsible parties until the expiration of the
120-day period beginning on the date of filing of the
petition. Any nominations received by the Hearing Clerk after
that period may be disregarded by the allocation panel. Each
nomination shall include all reasonably available information
supporting the assertion that the nominee is a liable party
and shall be made at the earliest possible time. Any party
making an additional nomination shall serve notice of such
nomination on the nominated party and file a copy of such
notice with the Hearing Clerk. The nominated party may file
its initial response not later than 30 days after receipt of
the notice. The allocation panel may issue information
requests and requests for the production of documents to any
nominated party at any time.
``(4) Initial list of all potentially responsible
parties.--Within six months after the filing of the petition,
the allocation panel shall cause to be published in the
Federal Register and a newspaper of general circulation in
the State where the site is located a list identifying all
parties that the allocation panel preliminarily deems to be
potentially responsible parties with respect to the site. The
allocation panel also shall attempt to mail a copy of the
list to all parties to the binding allocation of
responsibility. The allocation panel shall reject the
nomination of any person as a liable party or potentially
responsible party if it finds that the nomination alleges no
connection between the nominated person and the site. The
allocation panel may also identify, on its own motion or the
motion of a potentially responsible party, additional
potentially responsible parties at any time before issuance
of the final binding allocation of responsibility.
``(c) De micromis Parties.--(1) Not later than six months
after the filing of the petition, the allocation panel shall
issue a list identifying all potentially responsible parties
that the allocation panel determines contributed only 100
pounds or 100 liters of material containing hazardous
substances at the facility (or such greater or lesser amount
as the Administrator may determine by regulation), to be
known as `de micromis parties'. The allocation panel shall
base the determination on an evaluation of all evidence
received at the time of the issuance of the list with respect
to the amount of hazardous substances contributed by
potentially responsible parties.
``(2) The allocation panel shall notify each de micromis
party of its inclusion on the list issued under paragraph (1)
not later than 20 days after issuing the list.
``(3) Any person included on the list of de micromis
parties is exempt from liability to the United States and
shall have no other liability (including liability for
contribution), under Federal or State law, to any person for
response actions or for any past, present, or future costs
incurred at the site, provided that the person takes no other
actions after being included on the list that would give rise
to a separate basis for liability under this Act.
``(d) Identification of Liable Parties and Determination of
Assigned Shares.--
``(1) First allocation advocacy paper.--Unless the
allocation panel determines that it would unduly delay the
process, the guardian, the State, and any potentially
responsible party may file an allocation advocacy paper with
the Hearing Clerk not later than 30 days after the
publication of the initial list of potentially responsible
parties in the Federal Register. Any such allocation advocacy
paper, which shall be served on the guardian, the State, and
each potentially responsible party, shall be a concise
statement, together with citations to relevant supporting
evidence and law, of the party's position with regard to--
``(A) the legal and factual criteria that should be used in
determining whether a potentially responsible party at the
site is a liable party; and
``(B) how the allocation factors set forth in subsection
(g)(2) should be applied to determine the assigned share of
each liable party.
``(2) First allocation report.--Within 90 days after the
publication of the initial list of potentially responsible
parties in the Federal Register, the allocation panel shall
issue its first allocation report tentatively specifying the
criteria to be used in identifying the liable parties,
tentatively specifying how the allocation factors will be
applied to the case to determine assigned shares, and setting
forth the process and schedule that will be used to allow
parties the opportunity to present written evidence and
argument regarding how such criteria and factors apply to the
case. The first allocation report shall be served on the
guardian, on the State, and on each potentially responsible
party.
``(3) Second allocation advocacy paper.--The guardian, the
State, and each potentially responsible party may file an
allocation advocacy paper with the Hearing Clerk not later
than 60 days after receipt of the first allocation report.
The allocation advocacy paper, which shall be served on the
guardian, the State, and each potentially responsible party,
shall be the primary opportunity for the guardian, the State,
and each potentially responsible party to present evidence
and argument regarding how the liability criteria and the
allocation factors should be applied to such party and, if
desired by the person filing the paper, how those criteria
and factors should be applied to other potentially
responsible parties at the site.
``(4) Hearing.--Any potentially responsible party may
request a hearing on the determination that such party is a
liable party and on the determination of its assigned share.
The allocation panel may hold such a hearing if the
allocation panel determines that it would expedite or
materially assist in the resolution of disputed factual or
legal issues. The allocation panel shall have broad
discretion in managing the conduct of any such hearing,
including limiting the time available to each party and
requiring that parties with generally similar interests be
represented by a single spokesperson or common counsel. The
allocation panel may allow or prohibit the cross-examination
of witnesses.
``(5) Rule of decision.--Any party may present written
evidence or argument on whether it, or any other potentially
responsible party, is a liable party and on the appropriate
assigned share for itself or any other potentially
responsible party. A potentially responsible party shall be
deemed a liable party if the allocation panel determines that
the preponderance of the evidence supports the conclusion
that such party is liable.
``(6) Second allocation report.--Following the submission
of advocacy papers and at the conclusion of any hearings, the
allocation panel shall issue a second allocation report
identifying all liable parties at the site and specifying the
assigned share of each liable party. If the second allocation
report changes or expands the list of potentially responsible
parties or the criteria or factors set forth in the first
allocation report, then the second report shall so specify
and provide a brief explanation of any such change. The
second allocation report shall be served on the guardian, the
State, all potentially responsible parties, and all liable
parties.
``(e) Determination of Orphan Share.--
``(1) Orphan share advocacy paper.--Unless the allocation
panel determines that it would unduly delay the process, the
guardian, the State, and each liable party may file an orphan
share advocacy paper with the Hearing Clerk not later than
the 30-day period beginning on the date of issuance of the
second allocation report. The orphan share advocacy paper
shall be the primary opportunity for the guardian, the State,
and each liable party to present written evidence and
argument as to which liable parties are orphan parties whose
assigned share should, in whole or in part, be assigned to
the orphan share.
``(2) Orphan share report.--Following the expiration of the
30-day period referred to in paragraph (1), the allocation
panel shall issue an orphan share allocation report
identifying the orphan share. The orphan share report shall
be served on the guardian, the State, all potentially
responsible parties, and all liable parties.
``(f) Determination of Nonliable Parties.--(1) At any time
during the period beginning six months after the filing of
the petition and ending 18 months after the filing of the
petition, the allocation panel shall issue a list identifying
all potentially responsible parties that the allocation panel
determines did not contribute any amount of hazardous
substances to the National Priority List site. The allocation
panel shall base the determination on an evaluation of all
evidence received at the time of the issuance of the list
with respect to the amount of hazardous substances
contributed by potentially responsible parties.
``(2) The allocation panel shall notify each nonliable
party of its inclusion on the list issued under paragraph (1)
not later than 20 days after issuing the list.
``(3) Nonliable parties shall have no other liability,
under Federal or State law, to any person for response
actions or for any past, present, or future costs incurred at
the site, provided that they take no other actions after
making such settlement payment that would give risk to a
separate basis for their liability under this Act.
``(g) Final Binding Allocation of Responsibility
Decision.--
``(1) Decision.--(A) Not later than the deadline set forth
in subparagraph (B), the allocation panel shall issue a final
binding allocation of responsibility decision (in this
subsection referred to as the `final BAR decision') based on
the allocation factors listed in paragraph (2). The panel
shall include the Government's costs of carrying out the
allocation as part of the response costs to be included in
the final BAR decision. The decision shall include a list of
all potentially responsible parties, a list of all liable
parties and the assigned share for each (including all de
minimis parties as determined under paragraph (3)), a list of
all orphan parties and the portion of the assigned share of
each orphan party that is assigned to the orphan share, and
the total orphan share assigned to the Fund and to the
Retroactive Liability Fund. Where an orphan party is able to
pay only a portion of its assigned share, the allocation
panel shall allocate to the orphan share the portion of the
assigned share that the party is unable to pay and require
the party to pay the remainder. The final BAR decision shall
provide a concise explanation of the basis for the decision.
The decision may consist, in whole or in part, of a
compilation of the first allocation report, the second
allocation report, and the orphan share report.
``(B) The final BAR decision shall be issued not later than
18 months after the date of publication under section
503(a)(4) of notice that a petition for a binding allocation
of responsibility has been filed, except that, in a case of
exceptional complexity, the final decision shall be issued
not later than 24 months after such date.
``(2) Allocation factors.--An allocation panel shall
determine the assigned share of each liable party based on
the following factors:
``(A) The degree to which the liable party's contribution
to a discharge, release, or disposal of a hazardous substance
can be distinguished.
``(B) The amount of hazardous substances contributed by the
liable party at the site concerned, compared to the total
amount of hazardous substances at that site.
``(C) The degree of toxicity of the hazardous substance
contributed by the liable party.
``(D) The degree of involvement by the liable party in the
generation, transportation, treatment, storage, or disposal
of the hazardous substance.
``(E) The degree of care exercised by the liable party with
respect to the hazardous substance concerned, taking into
account the characteristics of such hazardous substance.
``(F) The degree of cooperation by the liable party with
Federal, State, or local officials to prevent any harm to the
public health or the environment.
``(G) The weight of the evidence as to the liability and
the appropriate share of the liable party.
``(H) The ability to pay of the liable party.
``(I) Any other equitable factors deemed appropriate.
``(3) De minimis settlements.--(A) As part of the final BAR
decision, or at any time before the issuance of the final BAR
decision, the allocation panel shall issue a list identifying
all potentially responsible parties that the allocation panel
determines contributed only 1.0 percent or less of the total
quantity of hazardous substances present at the National
Priority List site, to be known as `de minimis parties'.
``(B) Not later than 60 days after issuance of the final
BAR decision or the issuance of the list of de minimis
parties under subparagraph (A), whichever is earlier, the
Administrator shall make a firm written offer of settlement
to all de minimis parties. The amount of the settlement offer
for a de minimis party shall be based on the Environmental
Protection Agency's estimate of the total cleanup cost at the
site multiplied by the de minimis party's allocated share as
determined by the allocation panel and increased by a
reasonable premium (expressed as a percentage) to reflect the
benefit of an early and complete resolution of liability,
including consideration of whether the remedy at the site
will entail multiple phases or operable units. All settlement
offers by the Administrator to de minimis parties at the same
site shall be based on the same estimate of cleanup costs and
the same premium percentage. The settlement offer under this
subparagraph is not subject to judicial review.
``(C) A de minimis party may accept or decline a settlement
offer, but any acceptance of the offer must be made within 60
days after receipt of the offer. A de minimis party that
accepts the offer may resolve its liability to the United
States by paying the amount of the offer to the Hazardous
Substance Superfund. Such settlement may not be reopened
after payment is made, except on grounds of fraud.
``(D) De minimis parties that accept the settlement offer
and pay the amount of the offer shall have no other
liability, under Federal or State law, to any person for
response actions or for any past, present, or future costs
incurred at the site, provided that they take no other
actions after making such settlement payment that would give
risk to a separate basis for their liability under this Act.
``(E) All proceeds from de minimis settlements under this
paragraph that represent the allocated shares of de minimis
parties at a site shall be paid by the Administrator directly
to the person performing the response action at the site. All
proceeds from de minimis settlements under this paragraph
that represent premiums paid by de minimis parties at the
site shall be earmarked in the Hazardous Substance Superfund
to be used specifically for costs of response action at the
site. Any amounts of such settlements remaining in the Fund
after completion of the response action shall be available in
the Superfund for general use.
``(4) Service and publication.--The binding allocation of
responsibility decision shall be served on the guardian, the
State, and all liable parties. The Hearing Clerk shall cause
a notice of the binding allocation of responsibility decision
to be published in the Federal Register and in a newspaper of
general publication in the State where the site is located.
``(5) Binding effect.--The binding allocation of
responsibility decision shall be binding as to all past,
present, or future liability (i) for response costs incurred
under section 107(a)(1)(A), (B), or (D), and (ii) for
contribution under section 113. The binding allocation of
responsibility decision shall be binding on all persons,
including, without limitation, the United States, any
affected State or local governmental agency or Indian Tribe,
any alleged or nominated potentially responsible party
(regardless of whether such party participates in the binding
allocation of responsibility), and the public.
``(6) Effect on other proceedings.--A determination that a
person is a liable party under a binding allocation of
responsibility proceeding is applicable only with respect to
liability being assigned in the proceeding and not with
respect to liability being determined in any other criminal,
civil, or administrative proceeding.
``SEC. 504. DUTY TO ANSWER INFORMATION REQUESTS AND REQUESTS
FOR PRODUCTION OF DOCUMENTS.
``(a) Duty to Answer.--Each person who receives any
information request or request for production of documents
from the allocation panel during a binding allocation of
responsibility must provide full and timely responses to the
request.
``(b) Certification of Documents.--Answers to information
requests and requests for production of documents shall
include a certification by a responsible representative who
meets the criteria established in section 270.11(a) of title
40 of the Code of Federal Regulations that the answers--
``(1) are true and correct to the best of their knowledge;
``(2) are based on a diligent good faith search of records
in the possession or control of the person to whom the
request was directed;
``(3) are based on a reasonable inquiry of the current and
former officers, directors, employees, and agents of the
person to whom the request was directed;
``(4) accurately reflect information obtained in the course
of conducting such search and such inquiry;
``(5) that the person executing the certification
understands that there is a duty to supplement any such
answers if, during the binding allocation of responsibility,
any significant additional, new, or different information
becomes known or available to the answerer; and
``(6) that the person executing the certification
understands that there are significant penalties for
submitting false information, including the possibility of
fine and imprisonment for knowing violations.
``(c) Sanction.--In addition to any other penalty or
sanction, any person who fails to answer an information
request or request for production of documents, and who is
determined to be a liable party, shall be assigned an
assigned share of up to 500 percent of whatever its assigned
share would otherwise have been, or up to 50 percent of the
total liability at the site, whichever is greater. If this
results in a binding allocation of responsibility that
allocates more than 100 percent of the total liability, then
the excess shall be deposited into the Hazardous Substance
Superfund.
``SEC. 505. CIVIL AND CRIMINAL PENALTIES.
``(a) Civil Penalties.--Any person who fails to submit a
complete and timely answer to an allocation panel's
information request or request for production of documents or
other discovery request, or who submits a response that lacks
the certification required under section 504(b), or who makes
any false or misleading material statement or representation
in any submission to the allocation panel during the binding
allocation of responsibility process, including statements or
representations in connection with the nomination of another
potentially responsible party, shall be subject to civil
penalties of up to $10,000 per day of violation. The
violation shall be deemed a continuing one until such time as
the request is answered or the necessary certification is
submitted or the false or misleading statement or
representation is corrected. Such penalties may be assessed
by the President in accordance with section 109 or by any
other party in a citizen suit brought under section 310. A
prevailing plaintiff in such a citizen suit shall be awarded
its attorneys fees and up to 50 percent of the penalty
imposed by the court.
``(b) Criminal Penalties.--Any person who knowingly makes
any false material statement or representation in the
response to an allocation panel's information request or
request for the production of documents or other discovery
request, or in any other submission to the allocation panel
during the binding allocation of responsibility, including
statements or representations in connection with the
nomination of another potentially responsible party, may be
fined under title 18, United States Code, imprisoned for not
more than 2 years, or both.
``SEC. 506. DOCUMENT REPOSITORY; CONFIDENTIALITY; NO WAIVER.
``(a) Document Repository.--The allocation panel shall
establish and maintain a document repository where copies of
all petitions, initial statements, advocacy papers, reports,
answers to information requests and requests for production
of documents by the allocation panel, answers to Federal or
State information requests or requests for the production of
documents issued prior to the filing of the petition,
produced documents, and all other similar material shall be
maintained and organized. The documents and information in
the document repository shall be available only to the
parties to the binding allocation of responsibility for
review and copying at their own expense, subject only to the
confidentiality provisions of subsection (b). All responses
to any information request or request for production of
documents by the allocation panel shall be filed with the
clerk for the document repository and need not be served on
other potentially responsible parties, the State, or the
guardian.
``(b) Confidentiality.--(1) All pleadings, documents, and
materials submitted to the allocation panel or placed in the
document repository, together with the record of any
depositions or testimony adduced during the binding
allocation of responsibility, shall be confidential and shall
not be subject to release under section 552 of title 5,
United States Code (the Freedom of Information Act). The
Hearing Clerk and each party to the binding allocation of
responsibility proceeding shall maintain such pleadings,
documents, and materials, together with the record of any
depositions or testimony adduced during the binding
allocation of responsibility, as confidential. Such material
shall not be discoverable or admissible in any other Federal,
State or local judicial, administrative, or legislative
proceeding of any kind whatsoever, except--
``(A) to the extent necessary to collect or otherwise
enforce in court the assigned share of a liable party as
determined by the binding allocation of responsibility;
``(B) in a proceeding for judicial review of the binding
allocation of responsibility;
``(C) in any new binding allocation of responsibility
proceeding concerning the same site; and
``(D) in any binding allocation of responsibility involving
a different site where the allocation panel determines that
the sites are related and that specified documents from the
first binding allocation of responsibility could materially
assist the second binding allocation of responsibility.
``(2) Notwithstanding paragraph (1)(D), if the original of
any document or material submitted to the allocation panel or
placed in the document repository during the binding
allocation of responsibility was, while in the possession of
the party which provided it, otherwise discoverable or
admissible, then such original document, if subsequently
sought from such party, shall remain discoverable or
admissible. If a fact covered in any deposition or testimony
adduced during the binding allocation of responsibility was,
in the knowledge of the witness or deponent, otherwise
discoverable or admissible, then such testimony, if
subsequently sought from such other party, shall remain
discoverable or admissible.
``(c) No Waiver of Privilege.--The submission of documents
or information pursuant to the binding allocation of
responsibility proceeding shall not be deemed to be a waiver
of any privilege, applicable to the original document or
fact, under any Federal or State law, regulation, or rule of
discovery or evidence .
``(d) Discovery.--In any case where a party to a binding
allocation of responsibility receives any request for any
pleading, document, or material, or for the record of any
depositions or testimony adduced in a binding allocation of
responsibility, such party shall promptly notify the person
who originally submitted such item and shall provide such
submitting person the opportunity to assert and defend the
confidentiality of such item. No party to the binding
allocation of responsibility shall release or provide a copy
of any pleading, document, or material, or the record of any
depositions or testimony adduced therein, to any person not a
party to such binding allocation of responsibility, except in
compliance with an order from a court.
``(e) Civil Penalty for Violation of Confidentiality
Requirements.--Any person who fails to maintain the
confidentiality of any pleadings, documents, or materials, or
the record of any deposition or testimony adduced during the
binding allocation of responsibility, or who releases any
such information in violation of this section, shall be
subject to a civil penalty of up to $25,000 per violation.
Such a penalty may be assessed by the President in accordance
with section 109 or by any other party in a citizen suit
brought under section 310. A prevailing plaintiff in such a
citizen suit shall be awarded its attorneys fees and up to 50
percent of the penalty imposed by the court.
``SEC. 507. FINAL AGENCY ACTION AND JUDICIAL REVIEW.
``(a) Final Agency Action.--The binding allocation of
responsibility decision of the allocation panel shall
constitute final agency action pursuant to section 706 of
title 5, United States Code, subject only to review by the
Administrator in situations of fraud or gross misconduct.
``(b) Judicial Review.--
``(1) In general.--No Federal or State court shall have
jurisdiction to review, modify, or enjoin any aspect of any
binding allocation of responsibility proceeding except as
expressly set forth in this subsection. No aspect of any
action, decision, ruling, or determination by an allocation
panel in any binding allocation of responsibility proceeding
shall be subject to administrative or judicial review in any
Federal or State court until after the final binding
allocation of responsibility decision (in this subsection
referred to as the `final BAR decision') is issued by the
allocation panel. Thereafter the Administrator, the guardian,
the State, or any person determined by the allocation panel
to be a liable party may obtain judicial review of a final
BAR decision by filing a petition for review with the United
States Court of Appeals for the Circuit in which the facility
is located or for the District of Columbia.
``(2) Petition.--Any such petition for review must be filed
within 60 days after the date of the final BAR decision by
the allocation panel. The petition shall set forth either the
specific assigned share of liability that the petitioner
believes should have been assigned to it (or, in the case of
a petition filed by the guardian, the assigned share that the
guardian believes should have been assigned to the orphan
share) in the binding allocation of responsibility, or
stating specifically that the petitioner believes it should
not have been found to have any liability at all.
``(3) Review.--Judicial review of the final BAR decision
shall be conducted on the administrative record, which shall
include all materials relating to the issues raised on appeal
by the petitioner that are contained in the document
repository described in section 506(a). The court shall set
aside the binding allocation of responsibility only if it is
found to be arbitrary, capricious, an abuse of discretion, or
contrary to constitutional right, power, privilege, or
immunity.
``(4) Payment during pendency of review.--During the
pendency of a petition for review under this section, the
petitioner shall pay any demand notices rendered for its
assigned share in accordance with the binding allocation of
responsibility decision, subject to later refund if the
petitioner prevails in the litigation.
``(5) Conduct of response action during pendency of
review.--During the pendency of a petition for review under
this section, response action with respect to the site may
occur, but only as provided in section 121(b)(7).
``(6) Liability of successful petitioner.--If the
petitioner is a liable party and the court adopts the
assigned share proposed by the petitioner, then the
difference between that share and the share originally
assigned to the petitioner shall be added to the orphan
share. If the petitioner is the guardian and the court adopts
the orphan share proposed by the petitioner, then the matter
shall be remanded to the allocation panel for the issuance,
as soon as possible, of a revised binding allocation of
responsibility decision in accordance with the decision of
the court.
``(7) Liability of unsuccessful petitioner.--(A) In the
case of a petitioner who is a liable party petitioning for a
change in the petitioner's assigned share, and the court does
not adopt the assigned share proposed by the petitioner, the
following provisions apply:
``(i) The petitioner shall reimburse all other parties that
participated in the appeal for the actual attorneys' fees and
costs that they incurred in defending the binding allocation
of responsibility decision.
``(ii) The petitioner may participate in the settlement
based on its assigned share if the petitioner notifies the
court of such intention within 10 days after the court's
decision on the petition.
``(iii) If the petitioner does not give notice as described
in clause (ii), the petitioner is considered to have not
resolved its liability to the United States and is subject to
civil action under section 106, 107(a), and 113 for the
following response costs with respect to the National
Priority List site concerned:
``(I) The assigned share of the petitioner, as determined
in the final BAR decision, plus
``(II) the orphan share for that site.
``(iv) A petitioner covered by clause (ii) is subject to
claims for contribution from, and may make claims for
contribution against, other unsuccessful petitioners with
respect to the National Priority List site concerned.
``(B) In the case of a petitioner who is a liable party
petitioning for a determination that the petitioner is not
liable with respect to the site concerned (for reasons such
as the fact that the petitioner is a successor to, or a
parent or subsidiary of, a company which the petitioner
believes should be assigned liability instead), and the court
denies the petition, the petitioner is liable for its
assigned share as determined in the final BAR decision.
``SEC. 508. COLLECTION, ENFORCEMENT, AND IMPLEMENTATION.
``(a) Collection.--
``(1) Amount recoverable.--After a final binding allocation
of responsibility decision is made with respect to a National
Priority List site, any creditor party may, in accordance
with paragraph (2), recover from any debtor party the
following:
``(A) With respect to a debtor party who is a liable party,
that party's assigned share, as determined under the binding
allocation of responsibility.
``(B) With respect to a debtor party which is the Hazardous
Substance Superfund or the Retroactive Liability Fund, the
orphan share, as determined under the binding allocation of
responsibility.
``(C) With respect to a debtor party who is either a liable
party or the Hazardous Substance Superfund or the Retroactive
Liability Fund, any attorneys' fees incurred by the creditor
party in a judicial action seeking to recover costs from the
debtor party.
``(2) Procedures for recovery.--Recovery by a creditor
party from a debtor party shall be carried out in accordance
with the following provisions:
``(A) The creditor party shall file a certified copy of the
final decision of the binding allocation of responsibility in
the United States District Court for the district in which
the site is located.
``(B) The creditor party shall file a verified statement
with the same court specifying the actions taken and the
costs incurred by the creditor party, and stating that such
actions and costs are not inconsistent with the National
Contingency Plan.
``(C) The creditor party shall serve a demand notice to
each debtor party against whom enforcement is sought and
shall deliver a copy of each such notice to the Administrator
and the State in which the site is located. The demand notice
shall specify the total amount of costs covered by the
notice, state a demand amount (consisting of the debtor
party's assigned share or, with regard to the Fund, the
orphan share), and demand that the debtor party pay such
demand amount within 30 days after receipt of the notice. Any
demand notice served by a creditor party shall provide that a
debtor party may pay the demand amount over a period of time
in installment payments. A copy of the demand notice shall be
filed with the United States District Court for the district
in which the site is located.
``(D) With respect to any response actions or expenditures
of a continuing nature, verified statements and demand
notices shall be filed with the court and delivered to the
debtor parties and the guardian quarterly.
``(E) Where several liable parties, or a liable party and
the Administrator or the State, each take actions or incur
costs not inconsistent with the National Contingency Plan,
different demand notices may be issued concurrently.
``(b) Penalties and Damages.--Except in the case of a
challenge to collection duly filed in accordance with
subsection (c), if a liable party, including any Federal,
State, or local governmental agency, fails to pay the sum
specified in a demand notice within 30 days after receipt of
the notice (or, in the case of a debtor party paying by
installments, within 30 days after an installment payment is
due), such party shall be liable for the interest thereon,
civil penalties of up to $10,000 per day, and damages of up
to an amount equal to 3 times the sum specified in the demand
notice. In the case of the orphan share, if the Hazardous
Substance Superfund or the Retroactive Liability Fund fails
to pay the sum specified in a demand notice within 30 days
after receipt of the notice, the Fund or the Retroactive
Liability Fund shall be liable for interest thereon and
damages of up to the amount equal to 2 times the sum
specified in the demand notice.
``(c) Challenges to Enforcement.--There shall be no
administrative or judicial review of any aspect of a demand
notice filed and delivered pursuant to subsection (a) except
in accordance with this subsection. Within 30 days after
receipt of a demand notice, a liable party or, in the case of
the orphan share, the guardian may file a petition with the
allocation panel that issued the binding allocation of
responsibility decision contending that the costs reflected
in the demand notice were incurred for actions inconsistent
with the National Contingency Plan. If such a petition is
filed, the allocation panel shall conduct an expedited review
of the matter. The review shall be limited solely to the
issue of the alleged inconsistency of the response actions
and costs with the National Contingency Plan. The person
challenging the demand notice shall have the burden of proof
that such actions and the claimed costs are inconsistent with
the National Contingency Plan. The allocation panel's
decision shall not be subject to judicial review. Payment
need not be made, and no interest shall accrue, pending the
allocation panel's decision.
``(d) Subsequent Additions to Orphan Share.--If good faith
collection and enforcement efforts, whether by the Federal or
State government or by any other creditor party, against a
liable party results in a judicial or administrative
determination that such liable party is an orphan party, then
such liable party's share will be added to the orphan share
amount and will be recoverable from the Hazardous Substance
Superfund.
``(e) Contribution Protection.--Liable parties that pay
their assigned share and comply with the binding allocation
of responsibility decision shall have no other liability,
under Federal or State law, to any person for costs incurred
at the site, and shall be granted covenants not to sue by the
Federal Government and the State government concerned, except
that the binding allocation of responsibility decision shall
not affect any contract for insurance or indemnification.
``SEC. 509. TRANSITION PROVISIONS.
``(a) In General.--Except as provided in subsection (b), no
person may initiate any administrative or judicial action
under section 106, subparagraph (A), (B), or (D) of section
107(a)(1), or section 113, or under any other Federal or
State law or regulation, for the recovery of response costs,
contribution, or performance of response actions regarding
any National Priority List site until 90 days after a final
binding allocation of responsibility is issued.
``(b) Exceptions.--Subsection (a) is subject to only the
following exceptions:
``(1) Administrative orders for emergency removal
actions.--The President may issue an order under section 106,
prior to the issuance of a final binding allocation of
responsibility, if the order is limited to those actions
required to implement immediate risk reduction measures
pending the issuance of the final binding allocation of
responsibility decision.
``(2) Continuation of pending response actions.--In any
case where, as of the date of enactment of this title, the
Administrator or a State has already issued a binding
contract for the performance of a remedial investigation/
feasibility study or has issued an administrative order or
executed a consent decree for the performance of any response
action, the binding allocation of responsibility process
shall not affect the timing or manner of implementation of
such response actions.
``(c) Stay of Existing Actions.--
``(1) Stay of pending enforcement actions.--In any case
where, as of the date of enactment of this title, the
Administrator or the State has already initiated any
administrative or judicial enforcement action regarding the
liability of any party under section 106, subparagraph (A),
(B), or (D) of section 107(a)(1), or section 113, or under
any other Federal or State law or regulation for the response
costs, contribution, or performance of response actions, such
action shall be automatically stayed until 90 days after a
binding allocation of responsibility is issued, any judicial
review of such allocation is completed, and a final
administrative or judicial allocation decision is rendered.
``(2) Stay of pending private party litigation.--In any
case where, as of the date of enactment of this title, any
private person has initiated any administrative or judicial
action regarding the liability of any party at a National
Priority List site under section 106, subparagraph (A), (B),
or (D) of section 107(a)(1), or section 113, or under any
other Federal or State law or regulation for the response
costs, contribution, or performance of response actions, such
action shall be automatically stayed until 90 days after a
binding allocation of responsibility is issued, any judicial
review of such allocation is completed, and a final
administrative or judicial allocation decision is rendered.
``(d) Credit for Actions and Costs in Pending Matters.--In
the case of any response action performed or cost incurred in
any activity carried out pursuant to subsection (b), the
liability for such response action shall be governed by, and
the costs of implementing any such response action or other
activity carried out pursuant to subsection (b), shall be
included in, the subsequently issued binding allocation of
responsibility for such National Priority List site. In
conducting the binding allocation of responsibility, the
allocation panel shall, to the extent reasonably possible,
give credit for any prior costs incurred or response actions
performed at the National Priority List site.
``(e) Limitations on Existing Actions.--(1) The time period
described in paragraph (2) shall not be counted in
determining the statute of limitations applicable to any
administrative or judicial action under section 106,
subparagraph (A), (B), or (D) of section 107(a)(1), or
section 113, or under any other Federal or State law or
regulation, for the recovery of costs, for contribution, or
for the investigation, cleanup, or remediation of any
National Priority List site.
``(2) The time period referred to in paragraph (1) is the
period beginning on the date that any person first files a
petition for the initiation of a binding allocation of
responsibility for that site and ending on the date that a
binding allocation of responsibility is issued.
``SEC. 510. VOLUNTARY SETTLEMENTS.
``Prior to the issuance of a binding allocation of
responsibility decision, any group of potentially responsible
parties may submit a private allocation for the National
Priority List site (to be known as a `voluntary binding
allocation of responsibility') to the allocation panel. If
such voluntary binding allocation of responsibility meets the
following criteria, the allocation panel shall promptly adopt
it as the binding allocation of responsibility:
``(1) The voluntary binding allocation of responsibility
shall be a binding allocation of 100 percent of past,
present, and future recoverable response costs at the site.
``(2) The voluntary binding allocation of responsibility
shall not allocate any costs or requirements--
``(A) to the orphan share, unless the guardian agrees, in
writing, to such allocation; or
``(B) to any person who is not a signatory to the voluntary
binding allocation of responsibility.
``(3) Signatories to the voluntary binding allocation of
responsibility shall be entitled to contribution protection
as specified in section 508(e). Such signatories shall be
prohibited from pursuing any cost recovery action or
contribution against any non-signatory, but may seek
additional recovery against non-signatories based on a
contract for insurance or indemnification.
``(4) Signatories to the voluntary binding allocation of
responsibility shall be entitled to enforce it in the same
manner as any binding allocation of responsibility final
decision by the allocation panel.
``SEC. 511. NEW BINDING ALLOCATIONS OF RESPONSIBILITY.
``A binding allocation of responsibility shall constitute a
permanent determination of the assigned share of each liable
party and of the orphan share and, except for additions to
the orphan share pursuant to section 508(d) and judicially
mandated changes pursuant to section 507(b), the binding
allocation of responsibility shall not be subject to any
change or revision for at least 5 years after the date of the
binding allocation of responsibility final decision.
Thereafter a new binding allocation of responsibility process
shall be available only if the party requesting it
demonstrates that, due to new information not reasonably
available during first binding allocation of responsibility,
a 35 percent or greater increase in total waste-in volume has
been discovered. If such a request for a new binding
allocation of responsibility is granted, the same rules and
procedures described for initial binding allocations of
responsibility apply to the new or revised binding allocation
of responsibility. New binding allocations of responsibility
shall only apply to funds actually expended after the
effective date of the new binding allocation of
responsibility decision, with no credits for funds already
expended. Subsequent new binding allocations of
responsibility requests are prohibited until 5 years after
the date of issuance of the prior new binding allocation of
responsibility.''.
SEC. 111. SITE REDEVELOPMENT.
Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607) is
amended by adding the following at the end thereof:
``(n) Site Redevelopment.--
``(1) Exemption.--No person who is a qualified redeveloper
shall be liable under this title for costs or damages with
respect to the release of any hazardous substance or the
threat of any such release from any facility solely by reason
of an agreement by such person to redevelop such facility
after a response action has been completed (as determined by
the President) at such facility.
``(2) Qualified redeveloper.--For purposes of this
subsection, the term `qualified redeveloper' means a person
who is not otherwise liable under section 107 and did not
cause or contribute to the release or threat of release which
necessitated the response action referred to in paragraph
(1).''.
SEC. 112. LIABILITY OF RESPONSE ACTION CONTRACTORS.
(a) Extension of Negligence Standard.--Subsection (a) of
section 119 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 is amended--
(1) in paragraph (1) by striking out ``title or under any
other Federal law'' and inserting in lieu thereof ``title,
under any other Federal law, or under the law of any State or
political subdivision of a State''; and
(2) by adding at the end of paragraph (2) the following:
``Such conduct shall be evaluated based on the generally
accepted standards and practices in effect at the time and
place that the conduct occurred.''.
(b) Extension of Indemnification Authority.--Section 119(c)
of such Act is amended by adding at the end of paragraph (1)
the following: ``Any such agreement may apply to claims for
negligence arising under Federal, State, or common law.''.
(c) Extension of Coverage.--Section 119(e) of such Act is
amended in the text appearing after subparagraph (D)--
(1) by striking out ``List, or any removal under this
Act,'' and inserting in lieu thereof ``List, any removal
under this Act, or any response action under this Act at a
facility using an alternative or innovative technology,'';
and
(2) by inserting before the period the following: ``, or to
undertake appropriate natural resource restoration actions
necessary to protect and restore any natural resources
damaged by such release or threatened release of a hazardous
substance or pollutant or contaminant''.
(d) Indemnification for Threatened Releases.--Section
119(c)(5) of such Act is amended in subparagraph (A) by
inserting ``or threatened release'' after ``release'' both
places it appears.
(e) Clarification of Liability.--Section 101 of such Act,
as amended by section 106, is further amended by adding at
the end of paragraph (20) the following:
``(F) The term `owner or operator' does not include any
person carrying out a written contract or agreement with any
Federal agency, any State (or any political subdivision of a
State), or any responsible party to provide any response
action or any form of services or equipment ancillary to such
response action. Any such person shall not be considered to
have caused or contributed to any release or threatened
release of, or to have arranged for disposal or treatment of,
or arranged with a transporter for transport for disposal or
treatment of, or transported, hazardous substances or
pollutants or contaminants. This subparagraph shall not apply
to any person potentially responsible under section 106 or
107 other than those persons associated solely with the
provision of response action or any form of ancillary
services or equipment.''.
(f) Federal Statute of Repose.--Section 119 of such Act is
further amended by adding at the end the following new
subsection:
``(g) Limitation on Actions Against Response Action
Contractors.--No action to recover for any injury to
property, real or personal, or for bodily injury or wrongful
death, or any other expenses or costs arising out of the
performance of services under a response action contract, nor
any action for contribution or indemnity for damages
sustained as a result of such injury, shall be brought
against any response action contractor more than 6 years
after the completion of work at any site under such contract.
The limitation prescribed in this subsection shall not affect
any right of indemnification that such response action
contractor may have under this section or may acquire by
written agreement with any party.''.
TITLE II--STATE IMPLEMENTATION
SEC. 201. STATE AUTHORITY.
(a) State Authorization.--Title I of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9600 et seq.) is amended by adding after
section 126 the following new section:
``Sec. 127. State authority
``(a) State Program Authorization.--
``(1) In general.--At any time after the promulgation of
regulations required by paragraph (2), a State may apply to
the Administrator to carry out, under its own legal
authorities, response actions and enforcement activities at
all facilities listed or proposed for listing on the National
Priorities List, or certain categories of facilities listed
or proposed for listing on the National Priorities List,
within the State. If the Administrator determines that the
State meets the criteria for eligibility, the Administrator,
pursuant to a contract or agreement entered into between the
Administrator and the State, shall authorize the State to
assume the responsibilities established under this Act at all
such facilities or categories of facilities. Except as
otherwise provided in this Act, such responsibilities
include, but are not limited to, responding to a release or
threatened release of a hazardous substance or pollutant or
contaminant; selecting response actions; expending the Fund
and the Retroactive Liability Fund in amounts authorized by
the Administrator to finance response activities; and taking
enforcement actions, including cost recovery actions to
recover Fund and the Retroactive Liability Fund expenditures
made by the State. In an application for authorization, a
State shall acknowledge its responsibility to address all
response actions at the facilities for which it seeks
authorization.
``(2) Promulgation of regulations.--Not later than 1 year
after the date of the enactment of the Comprehensive
Superfund Improvement Act, the Administrator shall issue
regulations to determine a State's eligibility for
authorization and to establish a process and criteria for
withdrawal of such an authorization. A State shall be
considered eligible for authorization if the Administrator
determines that the State possesses the legal authority,
technical capability, and resources necessary to conduct
response actions and enforcement activities in a manner that
is substantially consistent with this Act and the National
Contingency Plan at the facilities listed or proposed for
listing on the National Priorities List for which it seeks
authorization.
``(b) Authorized Use of Funds.--At facilities listed on the
National Priorities List for which a State is authorized
under subsection (a), and at facilities listed on the
National Priorities List which are referred to a State under
subsection (b), the State shall be eligible for response
action financing from the Fund and the Retroactive Liability
Fund. The Administrator shall ensure that all allocations of
the Fund and the Retroactive Liability Fund to the States for
the purpose of undertaking site-specific response actions are
based primarily on the relative risks to human health and the
environment posed by the facilities eligible for funding. The
amount of Fund and Retroactive Liability Fund financing for a
State-selected response action at a facility listed on the
National Priorities List shall--
``(1) take into account the number and financial viability
of parties identified as potentially liable for response
costs at such facility, and
``(2) be limited to the amount necessary to achieve a level
of response that is not more stringent than that required
under this Act.
A State also may obtain Fund financing to develop and enhance
its capacity to undertake response actions and enforcement
activities. The Administrator, in consultation with the
States, shall establish, within 1 year after the date of
enactment of the Comprehensive Superfund Improvement Act,
specific criteria for allocating expenditures from the Fund
and the Retroactive Liability Fund among States for the
purposes of undertaking response actions and enforcement
activities at referred and State-authorized facilities, and
building State capacities to undertake such response actions
and enforcement activities.
``(c) State Cost Share.--Notwithstanding section
104(c)(3)(C) of this Act, a State shall pay or assure payment
of 10 percent of the costs of all response actions (including
response actions at facilities operated by the State or a
political subdivision of the State) for which the State
receives funds from the Fund under this section. A State the
receives funds from the Retroactive Liability Fund under this
section shall not be subject to any cost share requirements
for the receipt of those funds.
``(d) Terms and Conditions; Cost Recovery.--A contract or
agreement for a State authorization or referral under this
section is subject to such terms and conditions as the
Administrator prescribes. The terms and conditions shall
include requirements for periodic auditing and reporting of
State expenditures from the Fund and the Retroactive
Liability Fund. The contract or agreement may cover a
specific facility, a category of facilities, or all
facilities listed or proposed to be listed on the National
Priorities List in the State. The contract or agreement shall
require the State to seek cost recovery, as contemplated by
this Act, of all expenditures from the Fund. Ten percent of
the moneys recovered by the State may be retained by the
State for use in its hazardous substance response program,
and the remainder shall be returned to the Fund. Before
making further allocations from the Fund to any State, the
Administrator shall take into consideration the effectiveness
of the State's enforcement program and cost recovery efforts.
``(e) Enforcement of Agreements.--If the Administrator
enters into a contract or agreement with a State pursuant to
this section, and the State fails to comply with any terms
and conditions of the contract or agreement, the
Administrator, after providing 60 days notice, may withdraw
the State authorization or referral, or seek in the
appropriate Federal district court to enforce the contract or
agreement to recover any funds advanced or any costs incurred
because of the breach of the contract or agreement by the
State.
``(f) More Stringent State Standards.--Under either an
authorization or referral, a State may select a response
action that achieves a level of cleanup that is more
stringent than required under section 121 of this Act if the
State agrees to pay for the incremental increase in response
cost attributable to achieving the more stringent cleanup
level. Neither the Fund, the Retroactive Liability Fund, nor
any party liable for response costs shall incur costs in
excess of those necessary to achieve a level of cleanup
required under section 121 of this Act.
``(g) Opportunity for Public Comment.--The Administrator
shall make available, for public review and comment,
applications for authorization under subsection (a) and
applications for referral under subsection (b). The
Administrator shall not approve or withdraw authorization or
referral from a State unless the Administrator notifies the
State, and makes public, in writing, the reasons for such
approval or withdrawal.
``(h) Periodic Review of Authorized State Programs and
Referrals.--The Administrator shall conduct a periodic review
of authorized State programs and referrals to determine,
among other things, whether--
``(1) the response actions were selected and conducted in a
manner that was substantially consistent with this Act, the
National Contingency Plan, and the contract or agreement
between the Administrator and the State;
``(2) the State response costs financed by Fund and
Retroactive Liability Fund expenditures were incurred in the
manner agreed to by the State, in accordance with the
contract or agreement between the Administrator and the
State; and
``(3) the State's cost recovery efforts and other
enforcement efforts were conducted in accordance with the
contract or agreement between the Administrator and the
State.
Within 1 year after the date of enactment of the
Comprehensive Superfund Improvement Act, the Administrator,
in consultation with the States, shall develop specific
criteria for periodic reviews of authorized State programs
and referrals. The Administrator shall establish a mechanism
to make the periodic State reviews available to the
public.''.
(b) Transition and Conforming Amendments.--
(1) Sections 104(c)(5), 104(c)(7), 104(d)(1), and 104(d)(2)
of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 are each amended by inserting after
the heading in each paragraph the following--``This paragraph
applies only to response actions for which a Record of
Decision or other decision document is signed before the date
of enactment of the Comprehensive Superfund Improvement
Act.''.
(2) Section 114(a) of such Act is amended by striking
``Nothing'' and inserting--``Except as otherwise provided in
this Act, nothing'';
(3) Paragraph (1) of section 121(f) of such Act is amended
to read as follows: ``(1) The President may repeal, no
earlier than one year after the promulgation of final
regulations under sections 127(a)(3) and 127(b)(3), the
regulations issued under this paragraph prior to the date of
enactment of the Comprehensive Superfund Improvement Act.'';
(4) Paragraphs (2) and (3) of section 121(f) of such Act
are each amended in the second sentence of subparagraph (A)
by striking ``does not attain a legally applicable or
relevant and appropriate standard, requirement, criteria, or
limitation, under the authority of subsection(d)(4)'' and
inserting in lieu thereof ``is not relevant and appropriate
under subsection(d),''.
(5) Section 302(d) of such Act is amended by striking
``Nothing'' and inserting--``Except as otherwise provided in
this Act, nothing''.
SEC. 202. TRANSFER OF AUTHORITIES.
Section 120(g) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9620(g))
is amended by inserting after ``the Environmental Protection
Agency,'' the following: ``and except as provided in section
127,''.
SEC. 203. EPA OVERSIGHT COSTS.
(a) Oversight Cost Accounting and Appeal Procedure.--
Section 104(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9604(a))
is amended by adding at the end the following new paragraph:
``(5) Oversight cost accounting and appeal procedure.--(A)
The President shall maintain detailed and timely records of
the costs incurred under, or in connection with, any
oversight contract or arrangement referred to in paragraph
(1). The President shall submit such records to the
responsible party that has agreed to reimburse the Fund for
such costs with each demand or bill for such costs.
``(B) The President shall establish an administrative
procedure under which a party that conducts any response
action may contest the amount of costs incurred by the
President in overseeing the conduct of that response action.
The procedure shall be carried out separately from the
conduct of the response action at the facility concerned.''.
(b) Limitation on Oversight Costs.--Any costs of oversight
incurred by the President that exceed 50 percent of the
response costs incurred by the responsible party or parties
at the facility concerned shall be paid by the Fund, unless
the responsible party or parties have previously agreed to
pay a larger sum under a court decree or the response action
is being conducted under an order issued under section 106 of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980.
TITLE III--REMEDY SELECTION
SEC. 301. IMMEDIATE RISK REDUCTION MEASURES.
(a) Immediate Risk Reduction Measures.--Section 104(a) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 is amended--
(1) by redesignating paragraphs (1), (2), (3), and (4) as
paragraphs (2), (3), (4), and (5), respectively;
(2) in paragraph (5) (as redesignated), by striking out
``paragraph (3)'' and inserting in lieu thereof ``paragraph
(4)''; and
(2) by inserting after ``(a)'' the following new paragraph
(1): ``(1) Immediate risk reduction measures.--
``(A) Authority to act.--Whenever any hazardous substance,
pollutant, or contaminant is released or there is a
substantial threat of such a release into the environment,
and such release may present an imminent and substantial
danger to the public health, the President, or the State in
the case of a facility for which a State has responsibility
under section 127, is authorized to act to minimize and
prevent to the extent possible the endangerment to the public
health.
``(B) Types of measures allowed.--The actions that the
President or a State may take under this paragraph
(hereinafter in this section referred to as `immediate risk
reduction measures') may include, but are not limited to, the
following:
``(i) The removal of waste from barrels, tanks, or lagoons.
``(ii) The provision of alternative water supplies or
point-of-use treatment.
``(iii) The prevention of discharges to surface waters or
ground waters.
``(iv) The installation of fencing.
``(v) The institution of other institutional controls.
``(C) Measures prohibited.--The authority provided by this
paragraph does not include authority for the President or a
State to institute long-term remediation measures.
``(D) Timing.--The President or a State shall commence
immediate risk reduction measures under this paragraph--
``(i) in the case of a facility that is not listed on the
National Priorities List, as soon as practicable after the
President or the State becomes aware of an endangerment to
the public health; and
``(ii) in the case of a facility that is listed on the
National Priorities List, not later than 60 days after the
facility is so listed.
``(E) Cost effectiveness.--Any immediate risk reduction
measure carried out under this paragraph shall be conducted
in the most cost-effective manner practicable.
``(F) Funding.--The Fund may be used to pay for immediate
risk reduction measures taken under this paragraph. The
President may (in accordance with title V) recover the costs
of such measures from any person determined to be liable for
such costs but, in the case of measures costing less than
$1,000,000, the President may choose not to recover such
costs.
``(G) Judicial review.--The decision of the President or a
State to act under this subsection is subject to review as
provided in chapter 7 of title 5, United States Code, except
that a reviewing court may set aside an action only if it is
found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. Review may be had only
in the United States district court for the district in which
the facility or site is located.''.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act.
SEC. 302. SITE SCORING.
Section 105(c)(1) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9605(c)(1)) is amended--
(1) by inserting ``(A)'' after ``Revision.--''; and
(2) by adding at the end the following new subparagraph
``(B)(i) After the date of enactment of the Comprehensive
Superfund Improvement Act, the hazard ranking system shall be
applied to a site or facility only after the site or facility
has undergone immediate risk reduction measures pursuant to
section 104(a)(1). In applying such ranking system,
conditions existing at the site or facility before the
immediate risk reduction measures were taken shall not be
taken into account.
``(ii) Clause (i) shall apply to all sites and facilities
to be newly listed on the National Priorities List after such
date of enactment and to any sites already so listed as of
such date of enactment but for which a remedial investigation
and feasibility study has not been conducted as of such date.
``(iii) As soon as practicable after such date of
enactment, the President shall revise the hazard ranking
system regulations to reflect the requirements this
subparagraph. ''.
SEC. 303. LONG-TERM RESPONSE PLAN.
(a) In General.--Section 104(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended by section 301, is further amended by adding
at the end the following new paragraph:
``(6) Long-term response plan.--
``(A) In general.--Before carrying out or allowing another
person to carry out a response action at a facility under
this subsection, the President, or the State in the case of a
facility for which a State has responsibility under section
127, shall prepare a long-term response plan (hereinafter in
this section referred to as an `LTRP' or `plan') for such
facility. The President or State may allow a potentially
responsible party to prepare such a plan and to carry out the
elements of the plan listed in clauses (i), (ii), and (iv) of
subparagraph (B).
``(B) Elements of ltrp.--The LTRP shall address the
following elements:
``(i) Site characterization.--The site characterization
element of the plan shall determine the type, nature, and
extent of contamination at the facility, including the
location of the sources of the release or threatened release.
The site characterization component shall be completed within
12 months after a facility is listed on the National
Priorities List.
``(ii) Risk assessment.--The risk assessment element of the
plan shall be carried out in accordance with paragraph (7).
The risk assessment component shall be performed
simultaneously with the site characterization component and
shall be completed within 12 months after a facility is
listed on the National Priorities List.
``(iii) Community advisory councils.--The plan shall take
into account any recommendations made by the community
advisory council for the facility created under section
117(f). The council shall provide its recommendations with
respect to the facility within 12 months after a facility is
listed on the National Priorities List.
``(iv) Response option identification.--The response option
identification element of the plan shall be carried out in
accordance with paragraph (8) during the 3-month period
beginning on the date on which the elements listed in clauses
(i) through (iii) are completed.
``(C) Applicability.--(i) A long-term response plan shall
be required for the following:
``(I) A facility to be newly listed on the National
Priorities List after the date of enactment of the
Comprehensive Superfund Improvement Act.
``(II) A facility or site listed on the National Priorities
List as of such date of enactment but for which a remedial
investigation and feasibility study has not been conducted as
of such date.
``(III) A facility or site listed on the National
Priorities List as of such date of enactment, for which a
remedial investigation and feasibility study has been
conducted as of such date, but for which a contract has not
been executed for remedial design and remedial action as of
such date, if the potentially responsible parties and the
State in which the facility or site is located agree, within
30 days after such date, to subject themselves to the
requirements of an LTRP.
``(ii) A long-term response plan shall not be required for
any facility or site with respect to which a contract has
been executed for remedial design and remedial action as of
such date of enactment. ''.
(b) Risk Assessments.--(1) Section 104(a) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9604(a)), as amended by
section 301 and this section, is further amended by adding at
the end the following new paragraph:
``(7) Risk assessments.--
``(A) In general.--In carrying out a remedial investigation
with respect to a facility, the President or other person
carrying out the investigation shall assess the risk to human
health and the environment presented by the release or threat
of release of a hazardous substance, pollutant, or
contaminant. The risk assessment component of the remedial
investigation shall be carried out in compliance with
regulations promulgated by the President. The President shall
ensure that the regulations do not conflict with regional or
State guidance on risk assessments. At a minimum, the
regulations shall--
``(i) require risk assessments to use exposure factors that
accurately describe site or facility conditions; and
``(ii) require that values used to describe quantities of a
substance consumed by people accurately reflect average
conditions.
``(B) Current risk versus future risk.--In carrying out the
risk assessment component of the remedial investigation, the
President or other person carrying out the assessment shall
separately evaluate (i) the current risks, and (ii) the
likely future risks, to human health and the environment,
based on current and likely future land use of the site. If
the President determines that one or more such risks exist
and warrant remedial action, the President shall specify in
the record of decision which risks support the decision for
remedial action, which risks are current risks, and which
risks are likely future risks.
``(C) Best estimates versus worst case.--In carrying out
the risk assessment component of the remedial investigation,
the President or other person carrying out the assessment
shall rely to the maximum extent practicable on actual data
rather than on assumptions. The President or other person
shall provide the most plausible estimate of any risk to
human health and the environment. The President or other
person also shall describe any assumptions or uncertainties
that pertain to such estimate, including the likelihood of
human exposure actually occurring. Whenever the President or
other person considers it feasible, the President shall
provide a quantitative estimate of the uncertainty associated
with the most plausible estimate of the risk.''.
(1) Performance of risk assessments by prps.--Section
104(a)(1) of such Act is amended in the second sentence--
(A) by striking out ``may'' and inserting in lieu thereof
``shall''; and
(B) by inserting after ``remedial investigation'' the
following: ``(including the risk assessment component of the
remedial investigation)''.
(c) Community Advisory Councils.--Section 117 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607) is amended by adding
at the end the following:
``(f) Community Advisory Councils.--
``(1) Creation.--The Administrator shall create a Community
Advisory Council for each facility listed on the National
Priorities List. Such Council shall be comprised of not more
than 20 persons appointed by the Governor of the State in
which the facility is located from among persons in the
community in which the facility is located. Each such council
shall represent a wide variety of local interests.
``(2) Purpose.--The Community Advisory Councils shall
provide information to potentially responsible parties, the
Administrator, and the State with regard to the future use of
the facility and affected off-site areas and resources. The
councils shall provide a public forum for citizens to voice
concerns regarding the response action to be taken and the
future use of the site.
``(3) Recommendations.--The President and the State shall
taken into consideration any recommendations made by a
Community Advisory Council in making decisions regarding any
response action under this title at the facility for which
such council was established.
``(4) Technical and administrative support for community
advisory councils.--The Administrator's regional offices
shall provide administrative and technical services for
Community Advisory Councils, including technical assistance
in understanding this title and the regulations under this
title.''.
(d) Response Option Identification.--Section 104(a) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9604(a)), as amended by
section 301 and this section, is further amended by adding at
the end the following new paragraph:
``(8) Response option identification.--(A) The response
option identification element of a long-term remediation plan
shall consist of the development of the range of possible
response actions for a facility and the conduct of a cost-
benefit analysis on each of the following categories of
possible response actions:
``(i) Containment (both permanent and temporary).
``(ii) Remediation.
``(iii) Monitoring.
``(iv) Delisting.
``(v) Institutional controls.
``(B) The President, the State, or the other person
carrying out the identification shall take into account
advice from the Community Advisory Council created for the
facility concerned.
``(C) During the 30-day period occurring after completion
of the response option identification, the Community Advisory
Council, potentially responsible parties, and any other
interested parties may submit comments to the President or
the State on preferred options.''.
(2) Cost-benefit regulations.-- Section 105 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9605) is amended by adding
at the end the following new subsection:
``(h) Cost-Benefit Regulations.--(1) The President shall
promulgate and include in the national contingency plan
guidelines for conducting cost/benefit analyses of response
actions conducted pursuant to this Act. The guidelines shall
include a standard methodology for evaluating benefits and
costs over the lifetime of a remedial action.
``(2) In developing the standard methodology under
paragraph (1), the President shall seek and take into account
suggestions from States and political subdivisions of States
for which costs and benefits to include in a cost-benefit
analysis, and which methods to use in evaluating the costs
and benefits. The costs may include costs related to public
welfare.
``(3) In developing the methodology for measuring the costs
of a remedial action, the President, at a minimum, shall take
into account the following costs:
``(A) Costs associated with the remedial action, including
the following:
``(i) Direct capital costs.
``(ii) Operation and maintenance costs.
``(iii) Preconstruction costs, including permitting,
siting, and regulatory compliance costs.
``(iv) Capital acquisition, amortization, and debt service
costs.
``(v) Consulting costs.
``(vi) Costs and potential liabilities of future
environmental remediation if the remedial action does not
provide for a permanent remedy.
``(vii) Land acquisition costs.
``(viii) Costs of insurance.
``(B) Avoided or additional costs of cleaning up the
contamination using an alternative treatment technology.
``(4) In developing the methodology for measuring the
benefits of a remedial action, the President shall, at a
minimum, take into account the costs of benefits associated
with the remedial action, including the following:
``(A) Increased property values.
``(B) Reduced public health risks.
``(C) Reduced ecological risks.
``(D) Improved environmental quality in the community.''.
SEC. 304. LONG-TERM RESPONSE SELECTION.
(a) Long-term Response Selection.--Section 121(a) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9621(a)) is amended to read
as follows:
``(a) Response Selection.--
``(1) Section 104.--After completion of the long-term
response plan for a facility under section 104, the
President, or the State in the case of a facility for which a
State has responsibility under section 127, shall select that
response or combination of responses (from among the options
identified in the plan) that best achieves an acceptable
level of residual risk reduction at the facility or site
(referred to as the `cleanup goal'), in accordance with the
general rules stated in subsection (b).
``(2) Section 106.--With respect to actions determined to
be necessary by the President to be secured under section
106, the President shall select appropriate remedial actions
that are in accordance with this section and, to the extent
practicable, the national contingency plan, and which provide
for cost-effective response.''.
(b) General Rules for Response Selection.--Section 121(b)
of such Act is amended to read as follows:
``(b) General Rules.--
``(1) Selection process.--In selecting a response action
under this section, the President (or State, as the case may
be) shall review the long-term response plan for the facility
or site and consider any recommendations submitted to it from
the Community Advisory Council, the potentially responsible
parties, and the general public.
``(2) Factors to be considered.--In selecting a response
action, the President shall take into account the following:
``(A) Site-specific factors, including the current and
likely future uses of the land and the ground water
(including any designated uses or institutional controls),
the potential for human exposure to contamination, the actual
risk to human health, and the degree and type of
contamination.
``(B) The economic impact of the action on the potentially
responsible parties. In the case of a potentially responsible
party which is a municipality or other subdivision of a State
(including municipalities that are owners or operators of
landfills), the President shall take into account the funding
priorities of the community.
``(C) The costs and benefits of the response options, as
determined by cost-benefit analysis under section 104(a)(8).
``(3) Types of responses that may be selected.--The types
of response actions that the President (or State, as the case
may be) may select include the following:
``(A) Monitoring.
``(B) Containment or stabilization, if the President or
State finds that any of the following conditions exist with
respect to the facility concerned:
``(i) The risks to human health or the environment are low.
``(ii) The costs of other types of remediation, including
treatment, are extremely high.
``(iii) No proven technology exists for achieving a
permanent and significant decrease in the toxicity, mobility,
or volume of the hazardous substance, pollutant, or
contaminant concerned that is proportionate to the risk to
human health or the environment.
``(C) Institutional controls as part of a permanent remedy.
The President shall give preference to using such controls at
facilities with low future risk (as determined in the risk
assessment component of a Long-Term Response Plan). Such
controls include zoning ordinances and other ordinances that
restrict access to or use of property (including groundwater
management zones), physical barriers that restrict access to
property (such as fences), and such other controls as the
President (or State) considers appropriate.
``(4) Preference for certain type of action.--In selecting
a response action, the President (or State) shall, with
reference to the factors set forth in section 121(b)(2),
prefer response actions that significantly reduce the volume,
toxicity, or mobility of the hazardous substances,
pollutants, and contaminants, or that significantly reduce
actual or threatened exposure to such hazardous substances,
pollutants, or contaminants.
``(5) Limitation on standardized remedies.--The President
(or State) shall not select a response action that is a
standardized remedy in any case in which the use of an
alternative technology would be less expensive but as
protective of health and the environment as the standardized
remedy. For purposes of this paragraph, the term
`standardized remedy' means a remedy that is determined by
the President to be protective of human health and the
environment for a category of facilities.
``(6) Compliance boundaries.-- The President (or State), in
determining the boundaries within which a response action is
to be achieved, shall extend site or facility boundaries to
include areas subject to easements or other institutional
controls, such as zones of groundwater management.
``(7) Judicial review.--The selection of a response action
by the President or a State under this subsection is subject
to review as provided in chapter 7 of title 5, United States
Code, except that a reviewing court may set aside an action
only if it is found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. Review
may be had only in the United States district court for the
district in which the facility or site is located. In any
such review, the facts of the case are subject to a trial de
novo by the reviewing court. Any appeal of the selection of a
response action shall be filed within 60 days after the
selection is made.
``(8) Deadline for implementation to begin.--The
implementation of a response action selected pursuant to this
section shall begin no later than 60 days after the selection
has been made and--
``(A) an appeal of such selection has been filed and a
court has finally acted upon such appeal; or
``(B) the time for filing an appeal of such selection has
expired and no appeal has been filed.''.
(c) Repeal of ARARs Cleanup Standards.--Section 121(d) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9621(d)) is amended--
(1) by striking out paragraphs (2), (3), and (4); and
(2) by striking out ``(1)''.
(d) Applicability.--The amendments made by this section
shall apply with respect to any facility or site with respect
to which--
(1) no contract for remedial design and remedial action has
been executed as of the date of the enactment of this Act;
and
(2) the pertinent parties have not opted to subject
themselves to the long-term response plan and related
requirements within 30 days after such date of enactment (as
described in section 104(a)(6)(C)).
(e) Cross Reference Amendment.--Section 104(c)(4) of such
Act is amended to read as follows:
``(4) Selection of Response.--The President shall select
response actions to carry out this section in accordance with
section 121 of this Act.''.
SEC. 305. PERIODIC REVIEW.
Section 121(c) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9621(c))
is amended by striking out the first two sentences and
inserting in lieu thereof the following: ``The President, or
the State in the case of a facility for which a State has
responsibility under section 127, shall review each response
action selected under this section not less often than once
every 5 years after the initiation of the action to assure
that human health and the environment are being protected by
the action being implemented. If upon such review it is the
judgment of the President or State that additional actions
are appropriate at such site in accordance with section 104,
the President or State shall take or require such action,
including a supplemental long-term response plan under
section 104. In the case of a review carried out by the
President, if it is the judgment of the President that
additional actions are appropriate at such site in accordance
with section 106, the President or State shall take or
require such action.''.
SEC. 306. DELISTING OF FACILITIES AND SITES.
Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9605) is
amended by adding at the end the following new subsection:
``(h) Delisting of Facilities and Sites.--After a response
action selected for a site or facility achieves the cleanup
goal set for such facility under section 121(a), the
President shall delist the site or facility from the National
Priorities List. Such delisting may occur even if monitoring
or operation and maintenance are being conducted at the
facility.''.
TITLE IV--FUNDING
SEC. 401. 5-YEAR EXTENSION OF HAZARDOUS SUBSTANCE SUPERFUND.
(a) Extension of Taxes.--
(1) The following provisions of the Internal Revenue Code
of 1986 are each amended by striking ``January 1, 1996'' each
place it appears and inserting ``January 1, 2001'':
(A) Section 59A(e)(1) (relating to application of
environmental tax).
(B) Paragraphs (1) and (3) of section 4611(e) (relating to
application of Hazardous Substance Superfund financing rate).
(2) Paragraph (2) of section 4611(e) of such Code is
amended--
(A) by striking ``1993'' and inserting ``1998'',
(B) by striking ``1994'' each place it appears and
inserting ``1999'', and
(C) by striking ``1995'' each place it appears and
inserting ``2000''.
(b) Increase in Aggregate Tax Which May Be Collected.--
Paragraph (3) of section 4611(e) of such Code is amended by
striking ``$11,970,000,000'' each place it appears and
inserting ``$26,970,000,000'' and by striking ``December 31,
1995'' and inserting ``December 31, 2000''.
(c) Extension of Repayment Deadline for Superfund
Borrowing.--Subparagraph (B) of section 9507(d)(3) is amended
by striking ``December 31, 1995'' and inserting ``December
31, 2000''.
(d) Extension of Authorization of Appropriations to Trust
Fund.--Subsection (b) of section 517 of the Superfund Revenue
Act of 1986 (26 U.S.C. 9507 note) is amended by striking
``and'' at the end of paragraph (8), by striking the period
at the end of paragraph (9) and inserting ``, and'', and by
adding at the end thereof the following new paragraphs:
``(10) 1996, $250,000,000,
``(11) 1997, $250,000,000,
``(12) 1998, $250,000,000,
``(12) 1999, $250,000,000, and
``(13) 2000, $250,000,000,''.
SEC. 402. INCREASE IN ENVIRONMENTAL INCOME TAX.
(a) In General.--Subsection (a) of section 59A of the
Internal Revenue Code of 1986 (relating to environmental tax)
is amended by inserting ``(0.24 percent in the case of
taxable years beginning after December 31, 1994, and before
January 1, 2000)''.
(b) Increased Revenues Not Deposited in Superfund.--
Subsection (b) of section 9507 of such Code (relating to
Hazardous Substance Superfund) is amended by adding at the
end the following new sentence: ``Only 50 percent of the
taxes received in the Treasury under section 59A with respect
to taxable years beginning after December 31, 1994, and
before January 1, 2000, shall be taken into account under
paragraph (1).''
(c) Effective Date.--The amendment made by subsection (a)
shall apply to taxable years beginning after December 31,
1994.
SEC. 403. ENVIRONMENTAL FEES AND ASSESSMENTS ON INSURANCE
COMPANIES.
(a) In General.--The Internal Revenue Code of 1986 is
amended by inserting after section ____ the following new
section:
``Sec. . Environmental fees and assessments on insurance
companies''.
[reserved]
(b) Clerical Amendments.--The table of sections for chapter
____ of the Internal Revenue Code of 1986 is amended by
inserting after the item relating to section ____ the
following:
``Sec. . Environmental fees and assessments on insurance
companies''.
SEC. 404. RETROACTIVE LIABILITY FUND.
(a) In General.--Subchapter A of chapter 98 of the Internal
Revenue Code of 1986 (relating to trust fund code) is amended
by adding at the end thereof the following new section:
``SEC. 9512. RETROACTIVE LIABILITY FUND.
``(a) Creation of Trust Fund.--There is established in the
Treasury of the United States a trust fund to be known as the
`Retroactive Liability Fund', consisting of such amounts as
may be appropriated or credited to such Fund as provided in
this section or section 9602(b).
``(b) Transfers to Fund.--There are hereby appropriated to
the Retroactive Liability Fund--
``(1) amounts equivalent to 50 percent of the revenues
received in the Treasury from the tax imposed by section 59A
(relating to environmental tax) for taxable years beginning
after December 31, 1994, and before January 1, 2000; and
``(2) amounts received from fees and assessments imposed by
the amendments made by section 403 of this Act.
``(c) Expenditures From Fund.--Amounts in the Retroactive
Liability Fund shall be available, as provided in
appropriation Acts, only for purposes of making expenditures
to carry out section 107(n) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980.''.
(b) Clerical Amendment.--The table of sections for such
subchapter A is amended by adding at the end thereof the
following new item:
``Sec. 9512. Retroactive Liability Fund.''
______
By Mr. KENNEDY (for himself, Mrs. Kassebaum, Mr. Metzenbaum, Ms.
Mikulski, Mr. Wofford, Mr. Bingaman, and Mr. Pell):
S. 1995. A bill to amend the Public Health Service Act to reauthorize
migrant, community and homeless health center programs, and for other
purposes; to the Committee on Labor and Human Resources.
health centers reauthorization act of 1994
Mr. KENNEDY. Mr. President, today I am introducing the Health Centers
Reauthorization Act of 1994, with my colleagues Senators Kassebaum,
Metzenbaum, Mikulski, Wofford, Pell, and Bingaman. This legislation
continues the migrant, community, and homeless health center programs
for 1 year. The Labor Committee plans to undertake a full
reauthorization of these successful programs next year, following
action on health care reform this year. Since the current authorization
for these programs expires this year, an extension is needed.
Community and migrant health centers play a vital role in bringing
affordable and accessible community-based primary care to millions of
Americans in underserved areas. Since its beginning in 1975, the
community health center program has been the backbone of Federal
efforts to bring quality health care to needy persons and areas
throughout the country. In inner cities and isolated rural areas, these
health centers have served millions of uninsured and under-insured
people, including the elderly, women, and children at risk, and those
with other special needs. Nationwide, over 2,000 centers provide basic
health services to approximately 6.5 million individuals each year.
In addition to basic care, these centers provide many other services
tailored to the needs of the populations they serve, including health
education, public health screening, laboratory services, preventive
dental care, emergency care, pharmacy services, substance abuse
counseling, and certain social services. Many centers maintain extended
hours for working families, offer care at multiple sites, use mobile
clinics to reach rural patients, employ multilingual staff to reduce
barriers to care, and stay in touch with community needs by working
closely with local boards.
A key feature of the health center programs is the strong emphasis on
preventive care. For the high risk populations they serve, the centers
reduce the demand for costly emergency and in-patient hospital care by
emphasizing prevention, early intervention, and case management with
good followup. One of the many vital missions of the centers is to
reduce infant mortality and low birthweight, by reaching out and
helping pregnant women and their infants receive timely care.
In Massachusetts, community health centers have played a vital role
in providing these services. Over 800,000 persons receive primary and
preventive health care through the centers--care that would otherwise
be delayed or unavailable for many people without access to other
health care providers. In Western Massachusetts, health centers have
mobilized to address problems such as high teenage birth rates,
increasing rates of HIV infection, and the high incidence of drug abuse
and alcohol-related problems. In those areas hard hit by the recession,
the centers provide a realistic opportunity for uninsured
and struggling families to receive comprehensive care.
As we move forward with health reform, the role of these centers will
become an even more vital link in bringing health care to many under-
served populations, and will help turn the promise of universal health
coverage into the reality of accessible care. I look forward to working
with my colleagues to consider this extension bill in a timely manner,
and to recognize the important contributions that health centers make
to serving so many Americans.
Mr. President I ask unanimous consent that the full text of the bill
be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1995
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Health Centers
Reauthorization Act of 1994''.
SEC. 2. REAUTHORIZATION OF CERTAIN HEALTH CENTER PROGRAMS.
(a) Migrant Health Centers.--Section 329(h)(2)(A) of the
Public Health Service Act (42 U.S.C. 254b(h)(2)(A)) is
amended by striking ``1994'' and inserting ``1995''.
(b) Community Health Centers.--Section 330(g) of such Act
(42 U.S.C. 254c(g)) is amended--
(1) in paragraph (1)(A), by striking ``1994'' and inserting
``1995''; and
(2) in paragraph (2)(A), by striking ``1994'' and inserting
``1995''.
(c) Homeless Health Services.--Section 340(q)(1) of such
Act (42 U.S.C. 256(q)(1)) is amended by striking ``1994'' and
inserting ``1995''.
(d) Public Housing Health Services.--Section 340A(p)(1) of
such Act (42 U.S.C. 256a(p)(1)) is amended by striking ``and
1993'' and inserting ``through 1995''.
Mrs. KASSEBAUM. Mr. President, I am pleased to join my colleague
Senator Kennedy in introducing legislation to reauthorize the Community
and Migrant Health Centers Programs, the homeless Health Services
Program, and the Public Housing Health Services Program. These programs
play a vital role in making health care services more accessible and
affordable to the poor and to those residing in rural and urban areas
suffering from a shortage of health professionals.
The legislation we are introducing today provides for a 1-year
reauthorization of current program policy. I had hoped that my
colleagues and I on the Committee on Labor and Human Resources would
have had the opportunity to hold comprehensive hearings on these
programs and consider policy changes which might be necessary to
enhance their ability to meet the needs of special populations and of
those residing in medically undeserved areas. However, I believe a 1-
year reauthorization is appropriate, given the demands health care
reform will make on our committee schedule and the need to reassess the
role of these programs should Congress pass a comprehensive health care
reform plan this year.
______
By Mr. DURENBERGER:
S. 1996. A bill to amend title XVIII of the Social Security Act to
provide Medicare beneficiaries a choice among health plans, and for
other purposes; read the first time.
the medicare choice act of 1994
Mr. DURENBERGER. Mr. President, when President Clinton spoke to the
Joint Session of Congress about health care reform, he said that he was
introducing a group of reforms which would bring six essential elements
to the Nation's health care system: Security, simplicity, savings,
choice, quality and responsibility.
My views on where the President's plan meets those goals--and where
it falls short--are pretty well known. And in both the Senate and the
House, we are now engaged in a useful and productive debate over how
best to reach those goals.
I personally believe we are going to meet the President's goals, by
passing legislation this year. I believe we are going to meet those
goals by changing the market incentives, so that those markets do what
only markets can do: Increase efficiency, lower costs, and improve
quality. I believe that we will provide security, simplicity, savings,
choice, quality, and responsibility. And we will do it without creating
cumbersome bureaucracies, Federal or State Government regulatory
schemes or price controls.
Mr. President, between the House and the Senate we have about a dozen
health reform proposals. But not one of them brings these essential
elements of health care reforms to America's seniors and to people with
disabilities.
Mr. President, I am blessed with two living parents. My parents are
intelligent, educated people who are living a well-deserved retirement
in their eighties. Through their experience, I have seen that Medicare
part A, Medicare part B, MediGap, and other supplemental plans are
often confusing, bureaucratic, time consuming, frustrating, and costly.
I am also blessed with four sons. Through them, I have felt the
inequity that my generation is doing them. I know that I am piling on
them the obligation to pay for my health care and the health care of my
parents. They bear this burden at a time when they are struggling to
find jobs with good pay, struggling to pay for expensive education,
struggling to cover their own health care costs, and struggling with an
uncertain future as they start their own families.
I am blessed to come from a state with fantastic health care
providers, with progressive and responsible corporate citizens, with
innovative health plans and creative thinkers. Through them, I have
learned that the current Medicare system creates inequities and
inefficiencies in our system by dictating payments that may or may not
accurately reflect costs, and thereby force hidden cost shifts.
Through the country hospitals and country doctors of rural Minnesota,
I know that the Medicare system--and Congress' attempts to reduce the
deficit on the shoulders of Medicare--is undermining the quality and
availability of health care for rural seniors.
And through my work in the Senate, I have learned that the costs of
Medicare have soared and are projected to continue to grow at an
unsustainable pace. The result will be bankruptcy, a crushing tax
burden on future generations, or reduced access to quality medical
services.
Many of these problems are addressed in some of the health care
reform plans currently under consideration in the Congress. But out of
fear that some interest groups might react negatively, every health
care reform plan, including the ones of which I am a sponsor, have
failed to address the underlying problems and the integration of our
senior population and of Americans with disabilities into the 21st
century of health care.
I believe they deserve better. They certainly deserve the same
benefit as the rest of the population.
That is why I rise today to introduce the Medicare Choice Act: An
essential part of health reform that will allow seniors and people with
disabilities to fully share in the benefits that we will all receive
from the historic health reform legislation of 1994.
For the past year, I have worked closely with my colleague from New
Mexico, Senator Domenici, to develop this bill. We have approached
reform of the Medicare program from two different angles, which I
believe serve the program, the Congress and the people well. He, from a
budget perspective, realizes the strain of the program's spiralling
costs on our deficit. I, from a Medicare policy perspective, recognize
the need to increase efficiency in the Medicare program to secure its
future.
Later this spring, Senator Domenici will be introducing a health care
reform bill. The Medicare Choice Act will serve as the core of the
Medicare title in his bill. I will continue to work with Senator
Domenici toward this goal.
I believe this legislation provides the basic structure for
integrating Medicare beneficiaries into any health reform proposal.
This bill is based on studies conducted by Dr. Bryan Dowd at the
Institute for Health Services Research at the University of Minnesota's
School of Public Health. Dr. Dowd's work, and Alain Enthoven's before
him, introduced the principles of competitive bidding for the Medicare
program.
It is my intent to initiate discussion on this essential component of
health reform. I am certain that many groups will offer their input on
the specifics outlines in my proposal. Debate will be helpful toward
crafting a truly comprehensive health care reform bill.
Mr. President, I have served as chairman or ranking member of the
Finance Committee's Health Subcommittee for 10 years, and ranking
member on its Medicare and Long-term Care Subcommittee for 6. I have
been ranking Republican on the Labor and Human Resources Committee's
Subcommittee on Disability Policy for 6 years. I have learned a lot.
While serving on these committees, I recognized the need to
restructure the Medicare program to fulfill the promise of true health
care security. In the 99th Congress, I introduced the Medicare Voucher
Act of 1986 to allow Medicare beneficiaries the full range of health
care options available to the rest of the population. The concept was
the same in that bill as it is today in the Medicare Choice Act--to
allow providers to compete for senior and disabled patients who will
buy their medical care with a voucher.
During the following Congress, I introduced the Medicare Private
Health Plan Capitation Improvement Act of 1987. This bill sought to:
First, promote the provision of high-quality and cost-effective health
care to all Medicare beneficiaries; second, manage an individual's
lifetime expenditures; third, prohibit discrimination based on an
individual's health or disability status, the area where they live, or
the health plan they choose; fourth, increase an individual's choice of
health plans; and fifth, provide for equitable capitation payments to
health plans. The goals of this bill were identical to the goals of the
Medicare Choice Act of 1994.
I continue to believe that restructuring the market to encourage
competition and consumer choice is preferable to the alternative--more
regulation.
Mr. President, the Medicare Choice Act, which I introduce today, is,
in my view, an essential part of any health care reform discussion that
really wants to get serious about health care reform that benefits all
Americans.
We actually planted the seeds for this bill in 1982. That year we
created TEFRA risk contracts--these contracts allowed seniors to choose
more benefits, at a lower cost and with less paperwork, through Health
Maintenance Organizations [HMO's]. Unfortunately, we tied that program
too tightly to the flawed fee-for-service payment scheme of Medicare.
The result is that HMO's never had much enthusiasm for the project, and
now have reduced their participation in many areas of the country. The
promise that seniors would have a real choice in health care is
disappearing.
The Medicare Choice Act will deliver on that promise. There is every
reason to do it now, when we are actively engaged in the larger issues
of health care reform.
Let's look at the six essential elements of health care reform--and
how this bill will bring them to seniors.
First, security. Right now, there is little security in Medicare.
While the program currently pays the many bills for seniors, the future
is not certain. The Social Security and Medicare Board of Trustees
predicts virtual bankruptcy by 1999. Absent a significant increase in
taxes or the deficit, the current alternative is to further reduce
spending. This will inevitably lead to loss of benefits, rationing, and
second-class care for seniors and people with disabilities.
The Medicare Choice Act offers an alternative. While eligible persons
will still have the option of participating in the traditional fee-for-
service Medicare program, they will also have the choice of new
Medicare health plans. these plans will match, and in most cases
exceed, the benefits now available under Medicare. They will work to
keep costs down while improving benefits and quality. It is our best
hope for ending the cost spiral that threatens the future of Medicare.
It is our best hope for security.
Next, choice. Under this plan seniors will be able to choose from a
variety of plans tailored to their needs. Just as participants in the
Federal Employees' Health Benefits Program [FEHBP] or, in my State, the
Minnesota Employee Benefits Program are able to make a choice of plans
every year, seniors will be able to choose each year the plan that best
fits their needs. The plans will be presented in simple comparisons,
without any fine print or hidden exclusions. Seniors will have one-stop
shopping for health care, and their choices will be explained in plain
language. They will be able to see what the options cost, and how the
costs compare.
MediGap policies and supplemental policies will be included in the
comparisons. In short, seniors will have the same ability to choose
that we are planning for the rest of us in health care reform. In the
future, these same plans offer access to long-term care services as
well.
Next, simplicity. Under this act, people will be able to opt for
Medicare health plans that virtually eliminate paperwork, copays,
deductibles, and confusing presentations of MediGap and supplemental
options.
This bill also enhances the option for retirees to stay with their
employer's plan. I have often wondered why retirees should not receive
health care at age 65 just as they received it at age 64. What could be
simpler? One's 65th birthday need not be the introduction to the
Federal medical bureaucracy. Under this bill, one of the options
seniors can choose will be to continue in their former employer's
health plan, as long as it at least matches current Medicare benefits.
Under this provision, the only change at age 65 is the Federal
contribution toward the plan's premium.
Savings and quality are essential elements of health care reform, and
are intrinsically related. In health care reform, most of us are
looking for savings to come from reforming the market and letting
competition in the market place drive costs down while improving
quality. There is no reason why the senior and disabled population
should be left out of this benefit.
With people able to choose between plans based on services and costs,
the plans will strive, as any competitor does, to increase services
while lowering costs. This is our best hope for getting Medicare costs
under control without the reduction of quality, availability, and
services that will inevitably result from continuing efforts to squeeze
money out of Medicare.
What is uniquely better about the Medicare Choice Act is that seniors
and the disabled will not only see savings, they will get to keep
savings when the spend less.
Finally, we need a system that places responsibility where it
belongs. Under the bill, seniors will be responsible for making choices
based on their needs and the costs.
Health plans will be responsible for maintaining the health of their
members and using the best medicine efficiently in order to compete.
And the Federal Government will live up to its responsibility to
provide the financial security that was the original intent to
Medicare. No one will be surrepitously and irresponsibly shifting cost
from the Federal Government to individuals.
Mr. President, there are many details that we need to work out in
health care reform. I am excited by the progress I see that we are
making every day. I do not share the pessimism of some Members of
Congress, who believe that we cannot accomplish great things this year
in health reform.
We can do it, and we will. And when we do, I want to include older
Americans and Americans with disabilities in health care reform. The
Medicare Choice Act begins this process--which should be, I believe the
seventh essential element of health care reform.
______
By Mrs. FEINSTEIN (for herself, Mr. Moynihan, Mrs. Kassebaum,
Mrs. Boxer, Mr. McCain, Mr. Riegle, Mr. Graham, Mr. Stevens,
Mr. Bradley, Mr. Mack, Mr. Campbell, Mr. Bingaman, Mr.
DeConcini, Mr. Johnston, and Mr. Wellstone):
S. 1997. A bill to amend title 13, United States Code, to require
that the Secretary of Commerce produce and publish, at least every 2
years, current data relating to the incidence of poverty in the United
States; to the Committee on Governmental Affairs.
poverty data improvement act
Mrs. FEINSTEIN. Madam President, I join with Senators
Moynihan, Kassebaum, Boxer, McCain, Riegle, Graham, Stevens, Bradley,
Mack, Bingaman, Campbell, DeConcini, Johnston, and Wellstone to
introduce legislation that will reform the way in which the Federal
Government distributes funds for programs that serve low-income
communities.
This legislation, which was recently passed on the suspension
calendar by the House of Representatives--and is entitled the Poverty
Data Improvement Act of 1994--will substantially improve census
tracking of low-income people living in communities throughout the
Nation. This, in turn, will assure taxpayers that money from the
Federal Government, for those programs which have funding based on the
incidence of poverty, will be spent where there is the most need.
Each year, more than $20 billion is provided to State and local
governments based on data relating to income and poverty levels.
However, these funds are distributed using census figures which are
compiled just once each decade. Since there are constant shifts in
income levels from one census to another, Federal funding allocations
are made using data which is far from accurate, and which can be as
much as 14 years old. This has often prevented funds from reaching
those communities in the greatest need.
Among Federal programs which use income or poverty criteria in
allocation formulas are:
The Chapter 1 Education Program, which is the Federal government's
largest program to support the education of disadvantaged children.
The Community Development Block Grant Program [CDBG], which as mayor
of San Francisco, I found to be one of the most effective Federal
programs. It allows communities to undertake a wide range of economic
development and neighborhood revitalization efforts which can help
stimulate the local economy as well as improve the quality of life for
some of the more marginalized communities in our Nation's cities.
The Job Training Partnership Act, which provides comprehensive
training to youths and young adults in high-poverty areas.
The HOME Program, which allows local governments to implement housing
strategies designed to increase home ownership and affordable housing
opportunities for low-income people.
Also included are: Low Income Tax Credits, the Federal Housing
Finance Board Affordable Housing Program, the Federal Housing Finance
Board Community Investment Program, the Rural Housing Program, and
others.
The legislation, which we are introducing today, directs the
Secretary of Commerce to publish--for each State, county or borough,
local government unit--including Alaska Native villages, and school
district--data relating to the incidence of poverty, at least
biennially.
Tracking these more gradual shifts in the poor population will
provide for a more effective targeting of scarce Federal dollars. A
more frequent and accurate count will reduce the dramatic changes in
the reallocation of Federal funds, and will allow local units of
government to better plan their resources whether that funding goes up
or down.
This means that those communities which experience a decline, in
their poor populations, will not experience sudden and sharp cuts in
the Federal funds they relay upon. And, communities which experience an
increase in their poor populations will receive Federal funding, in a
more timely manner, so that they can serve the people as they need it
and when they need it.
I'd like to give you some examples of the difference this legislation
would have made had it been in effect for last year's chapter 1 funding
allocations. The 1992-93 total basic, plus concentration, chapter 1
grants to California were $541,365,000 because they were based on the
1980 census. Had the 1990 census been used, the estimated allocation
for California would have been $682,005,000. That is a difference of
$140,640,000 for just 1 year. This difference reflects the increase in
California's poor school age children during the 1980's.
For Idaho, the actual allocation was $17,998,000 versus what would
have been $19,511,000 had the 1990 census been used. For Wyoming, the
actual allocation was $7,628,000, versus what would have been
$10,555,000. For Wisconsin, $87,403,000 actual, versus $105,416,000
with the 1990 census. For Oklahoma, $59,601,000 versus $75,325,000. And
for Texas the actual chapter 1 allocations were $388,007,000, whereas
if the 1990 census had been used, the amount would have been
$513,493,000--a difference of $125,486,000 for just 1 year.
It just makes no sense for the Federal Government to distribute
scarce Federal dollars, which are intended to help those most in need,
on demographic data which is as much as 14 years old.
And let me just say that this is not a matter of winners and losers.
This is a matter of accuracy and fairness involving the distribution of
Federal funds, and I think it will be very difficult for anyone to
argue against that.
Let me give you one more example. The recession did not hit many
parts of the country until after 1989. So the number of people that
fell below the poverty line, in those areas, was far fewer then, and
this is reflected in the 1990 census. However, this also means that the
Federal funding allocations, for those communities, are set for the
next 10 years, even though the incidence of poverty jumped sharply soon
after the census was taken.
So you see, the census becomes a snapshot, as it were, of regional
economic conditions as they exist at the time of the census. And this
in turn locks into place Federal funding allocations for the next 10
years.
This legislation will correct that.
At any given point in time, the economic circumstances of a given
region can change. When they do, the number of people that fall into,
or out of, poverty, also changes. Without intercensal poverty data,
communities with a high incidence of poverty will not receive the
Federal funds to which they are entitled. At the same time, other
communities will receive Federal dollars, for the next 10 years, even
if their poor population has declined.
Compared to the large amounts which are disbursed each year, the cost
of producing the data required by this legislation is small. The Bureau
of Census has estimated that the annual cost will be approximately
$400,000--a minuscule amount, indeed, when considering the large number
of people who will be denied assistance due to the flaw in the current
system.
This legislation will ensure a more frequent collection of income and
poverty data, and will expedite the flow of Federal funds to the
neediest populations in our Nation, at the time when those funds are
needed the most. It will also greatly improve the planning and
budgeting process for State and local governments at every level.
This is legislation whose time has come.
Madam President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1997
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Poverty Data Improvement Act
of 1994''.
SEC. 2. CONGRESSIONAL FINDINGS.
The Congress finds that--
(1) more than $20,000,000,000 is provided to State and
local governments each year, under various Federal programs,
based on data relating to income and poverty status;
(2) the infrequency with which such data are collected
diminishes their reliability and usefulness for public policy
purposes;
(3) the relative lack of intercensal data can prevent
Federal funds from reaching those populations that are in
greatest need, as reflected in the dramatic and often
unforeseen shifts in the way Federal funds are reallocated
following each decennial census;
(4) the more frequent collection of data relating to income
and poverty status would allow policymakers to target scarce
program funds more effectively and in a more timely fashion;
and
(5) the cost of producing the data needed to achieve the
ends described in paragraph (4) would be small compared to
the amounts that are distributed based on such data.
SEC. 3. REQUIREMENT.
(a) In General.--Subchapter IV of chapter 5 of title 13,
United States Code, is amended by inserting after section 181
the following:
``Sec. 181A. Data relating to poverty
``(a) The Secretary, to the extent feasible, shall produce
and publish for each State, county or borough, and local unit
of general purpose government, including Alaska native
village, for which data are compiled in the most recent
census of population taken under section 141(a), and for each
school district, data relating to the incidence of poverty.
Such data may be produced by means of sampling, estimation,
or any other method that the Secretary determines will
produce current, comprehensive, and reliable data.
``(b) Data under this section--
``(1) shall include--
``(A) for each school district, the number of children age
5 to 17, inclusive, in families below the poverty level; and
``(B) for each state and county referred to in subsection
(a), the number of individuals age 65 or over below the
poverty level, and
``(2) shall be published in 1996 and at least every second
year thereafter.
``(c)(1) If reliable data could not otherwise be produced,
the Secretary may, for purposes of subsection (b)(1)(A),
aggregate school districts, but only to the extent necessary
to achieve reliability.
``(2) Any data produced under this subsection shall be
appropriately identified and shall be accompanied by a
detailed explanation as to how and why aggregation was used
(including the measures taken to minimize any such
aggregation).
``(d) If the Secretary is unable to produce and publish the
data required under this section for any State, county, local
unit of general purpose government, or school district in any
year specified in subsection (b)(2), a report shall be
submitted by the Secretary to the President of the Senate and
the Speaker of the House of Representatives, not later than
90 days before the commencement of the following year,
enumerating each government or school district excluded and
giving the reasons for the exclusion.
``(e) In carrying out this section, the Secretary shall use
the same criteria relating to poverty as were used in
compiling the then most recent census of population taken
under section 141(a) (subject to such periodic adjustments as
may be necessary to compensate for inflation and other
similar factors).''.
(b) Conforming Amendment.--The table of sections for
chapter 5 of title 13, United States Code, is amended by
inserting after the item relating to section 181 the
following:
``181A. Data relating to poverty.''.
______
By Mr. MOYNIHAN:
S. 1998. A bill to provide for the acquisition of certain lands
formerly occupied by the Franklin D. Roosevelt family, and for other
purposes; to the Committee on Energy and Natural Resources.
Roosevelt Family Land Acquisition Act
Mr. MOYNIHAN. Mr. President, there cannot be many houses
designed by our Presidents. We have the opportunity to acquire one for
the National Park Service, and we should certainly do so. I refer to
Top Cottage, where Franklin Roosevelt intended to live at the end of
his Presidency. It was the site of many historic occasions, and is a
most significant part of the Hyde Park estate.
This bill authorizes the acquisition of Top Cottage. I urge my
colleagues to support this effort while the opportunity presents
itself. The president of the Franklin and Eleanor Roosevelt Institute
assures me that the Institute will help raise funds for this purpose.
Hyde Park is a wonderful tribute to President Roosevelt, but it is
incomplete without this parcel. This bill gets us closer to its
acquisition, and I hope we can act on it promptly.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1998
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ACQUISITION OF ROOSEVELT FAMILY LANDS.
(a) In General.--
(1) General Authority.--The Secretary of the Interior
(hereinafter referred to as the ``Secretary'') may acquire,
by purchase with donated or appropriated funds, donation, or
otherwise, lands and interests in land (including development
rights and easements) in the properties located at Hyde Park,
New York, that were owned by Franklin D. Roosevelt or his
family at the time of his death, as depicted on the map
entitled ``Roosevelt Family Estate'' and dated November 19,
1993.
(2) Limitations.--
(A) Residential property.--the Secretary may only acquire
those residential properties on the lands and interests in
land depicted on the map referred to in subsection (a) that
were owned or occupied by Franklin D. Roosevelt or his
family, including his parents, siblings, wife, and children.
(B) State lands.--Lands and interests in land depicted on
the map referred to in subsection (a) that owned by the State
of New York, or a political subdivision of the State, may
only be acquired by donation.
(3) Priority.--In acquiring lands and interests in land
pursuant to this section, the Secretary shall, to the extent
possible, give priority to acquiring the tract of lands
commonly known as the ``Open Park Hodhome Tract'', as
generally depicted on the map referred to in subsection (a).
(4) Costs.--The Secretary may pay the costs, including
title search and survey, associated with the acquisition of
lands and interests in land pursuant to this section.
(b) Administration.--Lands and interests in land acquired
by the Secretary pursuant to this section shall be added to,
and administered as part of, the Franklin Delano Roosevelt
National Historic Site or the Eleanor Roosevelt National
Historic Site, as appropriate.
(c) Authorization of Appropriations.--There are authorized
to be appropriated such sums as are necessary to carry out
this Act.
______
By Mr. MOYNIHAN (for himself and Mr. D'Amato):
S. 1999. A bill to establish the Lower East Side Tenement Museum
National Historic Site; to the Committee on Energy and Natural
Resources.
Lower East Side Tenement Museum National Historic Site Act of 1994
Mr. MOYNIHAN. Mr. President, I introduce a bill that will
authorize a small but most significant addition to the National Park
System. For 150 years the Lower East Side of New York City has been the
most vibrant, populous, and famous immigrant neighborhood in the
Nation. From the first waves of Irish and German immigrants to Italians
and Eastern European Jews to the Asian, Latin, and Caribbean immigrants
arriving today, the Lower East Side has provided millions their first
American home.
For many of them that home was a brick tenement; six or so stories,
no elevator, maybe no plumbing, maybe no windows, a business on the
ground floor, and millions of our forbearers upstairs. The Nation has
with great pride preserved log cabins, farm houses, and other symbols
of our agrarian roots. We have recently reopened Ellis Island to
commemorate and display the first stop for 12 million immigrants who
arrived in New York City. Until now we have not preserved a sample of
urban, working class life as part of the immigrant experience. For many
of those who disembarked on Ellis Island the next stop was a tenement
on the Lower East Side, such as the one at 97 Orchard Street. It is
here that the Lower East Side Tenement Museum will show us what that
next stop was like.
The tenement at 97 Orchard was built in the 1860's, during the first
phase of tenement construction. It provided housing for 20 families on
a plot of land planned for a single-family residence. Each floor had
four three-room apartments, each of which had two windows in one of the
rooms and none in the others. The privies were in the back, as was the
spigot that provided water for everyone. The public bathhouse was down
the street.
In 1900 this block was the most crowded per acre on earth. Conditions
improved after the passage of the New York Tenement House Act of 1901,
though the crowding remained. Two toilets were installed on each floor.
A skylight was installed over the stairway and interior windows were
cut in the walls to allow some light throughout each apartment. For the
first time the ground floor became commercial space. In 1918
electricity was installed. Further improvements were mandated in 1935,
but the owner chose to board the building up rather than follow the new
regulations. It remained boarded up for 60 years until the idea of a
museum took hold.
The Tenement Museum will keep at least one apartment in the
dilapidated condition in which it was found when reopened, to show
visitors the process of urban archeology. Others will be restored to
show how actual families lived at different periods in the building's
history. At a nearby site there will be interpretive programs to better
explain the larger experience of gaining a foothold on America in the
Lower East Side of New York. There are also plans for programmatic ties
with Ellis Island and its precursor, Castle Clinton. And the museum
plans to play an active role in the immigrant community around it,
further integrating the past and present immigrant experience on the
Lower East Side.
The Tenement Museum is to be affiliated with the National Park
Service. That is the purpose of this legislation. The Museum will be
able to enter into cooperative agreements with the Park Service for
technical assistance, and with the Statue of Liberty/Ellis Island and
Castle Clinton for interpretation and other operations. It will be a
productive partnership.
Mr. President, I believe the Tenement Museum provides an outstanding
opportunity to preserve and present an important stage of the immigrant
experience and the move for social change in our cities at the turn of
the century. I know of no better place than 97 Orchard Street to do so,
and no other place in the National Park system doing so already. I look
forward to the realization of this grand idea.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1999
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE
This Act may be cited as the ``Lower East Side Tenement
Museum National Historic Site Act of 1994''.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) The term ``Secretary'' means the Secretary of the
Interior.
(2) The term ``historic site'' means the Lower East Side
Tenement Museum designated as a national historic site by
section 4.
(3) The term ``Museum'' means the Lower East Side Tenement
Museum at 97 Orchard Street, New York City, in the State of
New York, and related facilities owned or operated by the
Museum.
SEC. 3. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) the Lower East Side Tenement Museum at 97 Orchard
Street is an outstanding survivor of the vast number of
humble buildings that housed immigrants to New York City
during the greatest wave of immigration in American history;
(2) the Museum is well suited to represent a profound
social movement involving great numbers of unexceptional but
courageous people;
(3) no single identifiable neighborhood in the United
States absorbed a comparable number of immigrants;
(4) the Lower East Side Tenement Museum is dedicated to
interpreting immigrant life on the Lower East Side and its
importance to United States history, within a neighborhood
long associated with the immigrant experience in America; and
(5) the National Park Service found the Lower East Side
Tenement Museum to be nationally significant, suitable, and
feasible for inclusion in the National Park System.
(b) Purposes.--The purposes of this Act are--
(1) to assure the preservation, maintenance, and
interpretation of this site and to interpret in the site and
in the surrounding neighborhood, the themes of early tenement
life, the house reform movement, and tenement architecture in
the United States;
(2) to ensure the continuation of the Museum at this site,
the preservation of which is necessary for the continued
interpretation of the nationally significant immigrant
phenomenon associated with the New York City's Lower East
Side, and its role in the history of immigration to the
United States; and
(3) to enhance the interpretation of the Castle Clinton
National Historic Monument and Ellis Island National Historic
Monument through cooperation with the Museum.
SEC. 4. ESTABLISHMENT OF HISTORIC SITE.
In order to further the purposes of this Act and the Act of
August 21, 1935 (16 U.S.C. 461-7), the Lower East Side
Tenement Museum at 97 Orchard Street, in the city of New
York, State of New York, is hereby designated as a national
historic site.
SEC. 5. ACQUISITION OR COOPERATIVE AGREEMENT.
(a) In General.--In furtherance of the purposes of this Act
and the Act of August 21, 1935 (16 U.S.C. 461-7), the
Secretary may either acquire the historic site with donated
or appropriated funds or enter into cooperative agreements
with the Lower East Side Tenement Museum designed to
effectuate the purposes of this Act.
(b) Technical and Financial Assistance.--Such agreements
may include provisions by which the Secretary will provide
technical assistance to mark, restore, interpret, operate,
and maintain the historic site and may also include
provisions by which the Secretary will provide financial
assistance to the Museum to acquire ownership of and to
maintain the historic site, or to mark, interpret, and
restore the historic site, including the making of
preservation-related capital improvements and repairs.
(c) Additional Provisions.--Such agreement may also contain
provisions that--
(1) the Secretary, acting through the National Park
Service, shall have the right of access at all reasonable
times to all public portions of the property covered by such
agreement for the purpose of conducting visitors through such
properties and interpreting them to the public; and
(2) no changes or alterations shall be made in such
properties except by mutual agreement between the Secretary
and the other parties to such agreements.
SEC. 6. LAND ACQUISITION.
The Secretary is authorized to acquire properties owned or
occupied or required by the Museum or to assist the Museum in
the acquisition of properties which it occupies or requires
through the use of appropriated funds or by donation or
purchase with donated funds.
SEC. 7. APPROPRIATIONS.
There are hereby authorized to be appropriated such sums as
may be necessary to carry out the purposes of this
Act.
______
By Mr. DODD (for himself and Mr. Kennedy):
S. 2000. A bill to authorize appropriations for fiscal years 1995
through 1998 to carry out the Head Start Act and the Community Services
Block Grant Act, and for other purposes; to the Committee on Labor and
Human Resources.
human services reauthorization act
Mr. DODD. Mr. President, I introduce on behalf of myself and
Senator Kennedy, the Human Services Reauthorization Act of 1994. This
bill is the vehicle we will use in the Labor Committee to reauthorize
an important collection of antipoverty programs over the next several
months. The Human Services Act consists of several social programs that
have deep roots in our Nation's history of helping disadvantaged
families make a better life for themselves. The most well known of
these programs are Head Start, the Low-Income Home Energy Assistance
Program, and the Community Services Block Grant.
The administration's proposals for reauthorizing each of these three
programs has already been introduced. The Head Start reauthorization
proposal which was introduced by Senator Kennedy is S. 1862. Just last
week I introduced the administration's proposal for Community Services
Block Grant--S. 1937--and LIHEAP--S. 1938. The President's suggestions
in these areas will be carefully considered and reviewed as we put
together our umbrella proposal for these and other programs contained
in the Human Services Act in committee next month.
Many of the programs in the Human Services Act can be traced back to
the war on poverty. Since then, they have undergone many structural and
administrative changes, but the central principles they embody endure
and are proof that antipoverty efforts have not all gone for naught.
These programs share a common orientation, in that they work within
the community to address the needs of individuals living there. They
share a common goal, that of helping people move toward self-
sufficiency. They see families' needs as a whole and seek to address
them comprehensively.
In hearings on the three major programs, people they have helped told
us over and over of how they needed a helping hand and found it in
their community--through a knock on the door from a Head Start outreach
worker, a supportive hand on the shoulder from a community action
worker when a child was ill, through a local agency offering energy
assistance with dignity to an elderly couples with nowhere else to
turn.
Mr. President, as we hear the ever-present drumbeat of welfare
reform, I would suggest to my colleagues that they look to some of
these programs for ideas about how to help families move toward self-
sufficiency. Their philosophy is one that promotes solutions to poverty
that are comprehensive, supportive, and based in the communities in
which families live. There is much to be said for this approach, and I
look forward to working with my colleagues to continue these important
programs.
Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2000
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the Human
Services Reauthorization Act of 1994''.
(b) Table of Contents.--The table of contents is as
follows:
Sec. 1. Short title, table of contents.
Title 1--Head Start Act
Sec. 101. Authorization of appropriations.
Title II--Community Services Block Grant Act
Sec. 201. Authorization of appropriations.
Title III--Demonstration Partnership Agreements Addressing the Needs of
the Poor
Sec. 301. Authorization of appropriations.
Title IV--Low-Income Home Energy Assistance Act of 1981
Sec. 401. Authorization of appropriations.
Title V--Coordinated Services for Children, Youth, and Families
Sec. 501. Authorization of appropriations.
TITLE I--HEAD START ACT
SEC. 101. AUTHORIZATION OF APPROPRIATIONS.
Section 639 of the Head Start Act (42 U.S.C. 9834) is
amended--
(1)in subsection (a)--
(A) by striking ``and $7,660,000,000'' and inserting
``$7,660,000,000''; and
(B) by inserting before the period the following: ``, and
such sums as may be necessary for each of the fiscal years
1995 through 1998'';
(2) in subsection (b), by striking ``1996'' and inserting
``1998''; and
(3) in subsection (c)(2), by striking ``1992, 1993, and
1994'' and inserting ``1992 through 1998''.
TITLE II--COMMUNITY SERVICES BLOCK GRANT ACT
SEC. 201. AUTHORIZATION OF APPROPRIATIONS.
(a) General Authorization.--Section 672(b) of the Community
Services Block Grant Act (42 U.S.C. 9901(b)) is amended--
(1) by striking ``and $500,000,000'' and inserting
``$500,000,000''; and
(2) by inserting before ``to carry out the provisions'' the
following: ``, and such sums as may be necessary for each of
the fiscal years 1995 through 1998''.
(b) Community Food and Nutrition Programs.--Section 681A(d)
of such Act (42 U.S.C. 9910a(d)) is amended--
(1) by striking ``and $25,000,000'' and inserting
``$25,000,000''; and
(2) by inserting before ``to carry out this section'' the
following: ``, and such sums as may be necessary for each of
the fiscal years 1995 through 1998''.
TITLE III--DEMONSTRATION PARTNERSHIP AGREEMENTS ADDRESSING THE NEEDS OF
THE POOR
SEC. 301. AUTHORIZATION OF APPROPRIATIONS.
Section 408(h) of the Human Services Reauthorization Act of
1986 (42 U.S.C. 9910b(h)) is amended--
(1) is paragraph (1), by striking ``1992, 1993, and 1994''
and inserting ``1992 through 1998''; and
(2) in paragraph (2), by striking ``1992 through 1994'' and
inserting ``1992 through 1998''.
TITLE IV--LOW-INCOME HOME ENERGY ASSISTANCE ACT OF 1981
SEC. 401. AUTHORIZATION OF APPROPRIATIONS.
Section 2602 of the Low-Income Home Energy Assistance Act
of 1981 (42 U.S.C. 8621) is amended--
(1) in subsection (b), by striking ``1993, 1994, and 1995''
and inserting ``1993 through 1998''; and
(2) in subsection (d), by striking ``1993, 1994, and 1995''
and inserting ``1993 through 1998''.
TITLE V--COORDINATED SERVICES FOR CHILDREN, YOUTH, AND FAMILIES
SEC. 501. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--Section 934 of the Augustus F. Hawkins
Human Services Reauthorization Act of 1990 (42 U.S.C. 12340)
is amended--
(1) in subsection (a)(1), by striking ``for fiscal years
1992, 1993, and 1994'' and inserting ``for each of the fiscal
years 1992 through 1998''; and
(2) in subsection (d), by striking ``1992 through 1994''
and inserting ``1992 through 1998''.
(b) National Clearinghouse.--Section 960 of such Act (42
U.S.C. 12355) is amended--
(1) is subsection (a), by striking ``1992 through 1994''
and inserting ``1992 through 1998''; and
(2) in subsection (b), by striking ``1992 through 1994''
and inserting ``1992 through 1998''.
______
By Mr. MOYNIHAN:
S. 2001. A bill to improve the administration of the Women's Rights
National Historical Park in the State of New York, and for other
purposes; to the Committee on Energy and Natural Resources.
women's rights national historical park expansion act
Mr. MOYNIHAN. Mr. President, I introduce legislation that will
add several important properties to the Women's Rights National
Historic Park in Seneca Falls, NY. In 1980 I introduced legislation to
commemorate an idea, that of equal rights for women. It is commemorated
in Seneca Falls because that is where in 1948 the Declaration of
Sentiments was signed, stating that ``all men and women are created
equal'' and that women should have equal political rights with men.
From this beginning sprang the 19th amendment and all the other
advances for women this century and last.
With the historic park authorized in 1980, we began the planning,
held a design competition, and paid for the construction. The park is
now in operation and a tremendous success. Visitorship increased 50
percent in fiscal year 1993 to 30,000. However, the park is not
complete. As can be expected when starting such a venture from zero,
not all the important properties could be acquired at the outset.
Several remain in private hands or under the control of the trust for
public land, and this bill authorizes their addition to the park.
These properties include the last remaining parcel of the original
Elizabeth Cady Stanton property, necessary so that the Stanton House
can be restored to its original condition, and the Young House in
Waterloo, important for safety, resource preservation, and preserving
the historic scene at the M'Clintock House. The other two are the
Baldwin property, which would provide a visitor contact facility,
restrooms, and boat docking facilities, and a maintenance facility now
being rented by the park.
These additions to the park will add tremendously to the enjoyment
and value of a visit. The National Park Service supports them, and in
fact this legislation is the top priority for the North Atlantic
region. We must pass it promptly, for time is not a luxury; the Nies
property is in the early stages of foreclosure. I urge my colleagues to
support this bill, and to come to the Women's Rights Park themselves.
It is a trip well worth making.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2001
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. INCLUSION OF ADDITIONAL PROPERTIES.
Section 1601(c) of the Public Law 96-607 (16 U.S.C. 410ll)
is amended--
(1) by striking ``initially'' in the second sentence;
(2) in paragraph (8), by striking ``and'' the last place it
appears;
(3) in paragraph (9) by striking the period and inserting a
semicolon; and
(4) by adding at the end the following new paragraphs:
``(10) not to exceed 1 acre, plus improvements, as
determined by the Secretary, in Seneca Falls for development
of a maintenance facility;
``(11) dwelling, 1 Seneca Street, Seneca Falls;
``(12) dwelling, 10 Seneca Street, Seneca Falls;
``(13) parcels adjacent to Wesleyan Chapel Block, including
Clinton Street, Fall Street, and Mynderse Street, Seneca
Falls; and
``(14) dwelling, 12 East Williams Street, Waterloo.''.
SEC. 2. MISCELLANEOUS AMENDMENTS.
Section 1601 of Public Law 96-607 (16 U.S.C. 410ll) is
amended--
(1) in subsection (g), by adding at the end the following
new sentence: ``Funds available to the Secretary for the
purposes of the park shall be available to establish and
administer within the park education and research facilities
and programs on the history of women's rights pursuant to
cooperative agreements with appropriate public or private
entities.'';
(2) in paragraph (5) of subsection (h), by striking ``ten
years'' and inserting ``25 years''; and
(3) in subsection (i)--
(A) by striking ``$700,000'' and inserting ``$1,500,000'';
and
(B) by striking ``$500,000'' and inserting and
``$15,000,000''.
______
By Mr. EXON:
S. 2002. A bill to authorize appropriations for the National Railroad
Passenger Corporation, and for other purposes; to the Committee on
Commerce, Science, and Transportation.
amtrak investment act of 1994
Mr. EXON. Mr. President, I am proud to introduce by request
the administration's Amtrak Reauthorization Act. As the chairman of the
Senate Surface Transportation Subcommittee and long time advocate for
the Amtrak system, this legislation represents an historic turning
point in the history of American passenger rail.
For the first time in 12 years, a President of the United States has
put forward a positive vision for Amtrak. This legislation calls for a
world class system and takes the first step towards that goal.
It is especially gratifying that a former staff member of the Senate
Surface Transportation Subcommittee has had such a noticeable influence
on the administration's agenda for Amtrak. Prior to entering public
service, Don Itzkoff, the Deputy Administrator of the Federal Rail
Administration warned the Nation in his book and columns that America's
passenger rail system was moving off the track. With Don's help, the
Clinton administration has put forward an Amtrak bill which will help
get America back on the track.
Of course, Mr. President, I have many of my own ideas about how to
improve Amtrak service and maximize the return on Federal passenger
rail investments. We must foster a customer friendly mode of operation,
maximize the value of Amtrak assets and real estate, take a creative
approach to generating advertising revenues and utilize information age
technologies to improve operational efficiencies. I will discuss those
ideas in much more detail when the subcommittee holds hearings soon
after the spring recess.
I look forward to working with my colleagues and the Clinton
administration to make Amtrak a world class railroad.
______
By Mr. AKAKA:
S. 2003. A bill for the relief of the heirs, successors, or assigns
of Sadae Tamabayashi; to the Committee on the Judiciary.
sadae tamabayashi private relief legislation
Mr. AKAKA. Mr. President, I introduce a bill for the relief of
the family of Sadae Tamabayashi.
In 1941, Mrs. Tamabayashi was the owner of Paradise Clothes Cleaning
Shop in Honolulu, HI. On the morning of December 7, she and her family
lost everything that they owned. The attack on Pearl Harbor not only
had a national repercussion, but it affected the lives of many
individuals as well, especially for those who lived in Hawaii at the
time. For Sadae Tamabayashi and her family, the bombing was devastating
to their livelihood.
On the morning of December 7, Paradise Clothes Cleaning Shop was
destroyed by fire which started as a result of the attack on Pearl
Harbor and the subsequent retaliatory shots by U.S. Armed Forces. The
entire building and its contents, which included the Tamabayashi's
family quarters, were destroyed.
The Tamabayashi family attempted to seek compensation through the War
Damage Corporation Claims Service Office in 1942. Their efforts were to
no avail. Their claim for reparations was denied by the Corporation
because Mrs. Tamabayashi was a Japanese national. However, the United
States prohibited Mrs. Tamabayashi from becoming a citizen under the
Immigration Act of 1924, which sought to exclude persons of Japanese
descent. It was not until 1952, 7 years after the end of the World War
II, that the 1924 Immigration Act was repealed, and Asians were finally
given equal status in this country.
The family of Sadae Tamabayashi seeks fair treatment of their
mother's losses. I hope that my colleagues will support this effort to
bring to a close this sad chapter in the lives of the Tamabayashi
family.
______
By Mr. DOLE (for himself, Mr. Heflin, Mr. Craig, and Mr. Brown):
S. 2006. A bill to require Federal agencies to prepare private
property taking impact analyses, and for other purposes; to the
Committee on Governmental Affairs.
private property rights
Mr. DOLE. Mr. President, as I have traveled around the country over
the past year, time and again I have heard from the people that
Congress must do more to stop the tide of infringement on private
property rights. I believe Members on both sides of the aisle have
heard this message. Even President Clinton has said that he wants to
``put people first.'' One way he can do this is to ensure that
government mandates and government bureaucrats do not run over
individual citizens and individual rights.
Today, Senator Heflin and I are introducing the Private Property
Rights Act of 1994. Now, a lot has been said on this floor regarding
private property rights. I think many of us agree on the need to
protect private property. The question is--How do we best vote and get
government out of peoples backyards? This bill is very simple.
The legislation would require Federal agencies to conduct a takings
impact assessment when promulgating any agency policy, regulation,
guideline, or recommending legislative proposals to Congress. This bill
does not stop legitimate regulatory processes and it only applies to
any action which could result in an actual taking.
The assessment must consider the effect of the agency action, the
cost of the action to the Federal Government, the reduction in value to
private property owners and require the agency to consider alternatives
to taking private property.
I seem to recall that the rights of property owners are supposed to
be protected from the Federal Government under the fifth amendment and
from State governments by the 14th amendment. Unfortunately, those who
have sworn to uphold our Constitution are not always as vigilant as
they need to be. Let's face it, there are billions of dollars in claims
filed against the Federal Government by landowners who believe their
private property has been taken.
It is important to note that a taking can occur even though title to
the property remains with the original owner and the government has
only placed restrictions on its use. Fortunately, courts have
recognized these partial taking are subject to just compensation.
Unfortunately, the only check on the enforcement of the Constitution
has been through the court system, wherein citizens can, at the expense
of vast amounts of money and time, ensure the government complies with
the Constitution.
Mr. President, I ask my colleagues to talk with their small
businessmen and women, their farmers, their ranchers, those who believe
in the private property rights contained in our Constitution, what they
think about this most appropriate legislation. When they do, I am
certain they will agree that we should move this legislation in 1994.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2006
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Private Property Rights Act
of 1994''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) the protection of private property from a taking by the
Government without just compensation is an integral
protection for private citizens incorporated into the
Constitution by the Fifth Amendment and made applicable to
the States by the Fourteenth Amendment; and
(2) Federal agencies should take into consideration the
impact of Governmental actions on the use and ownership of
private property.
SEC. 3. PURPOSE.
The Congress, recognizing the important role that the use
and ownership of private property plays in ensuring the
economic and social well-being of the Nation, declares that
it is the policy of the Federal Government to use all
practicable means and measures to minimize takings of private
property by the Federal Government.
SEC. 4. DEFINITIONS.
For purposes of this Act--
(1) the term ``agency'' means an Executive agency as
defined under section 105 of title 5, United States Code,
and--
(A) includes the United States Postal Service; and
(B) does not include the General Accounting Office; and
(2) the term ``taking of private property'' means any
action whereby private property is taken in such a way as to
require compensation under the Fifth Amendment to the United
States Constitution.
SEC. 5. PRIVATE PROPERTY TAKING IMPACT ANALYSIS.
(a) In General.--The Congress authorizes and directs that,
to the fullest extent possible--
(1) the policies, regulations, and public laws of the
United States shall be interpreted and administered in
accordance with the policies under this Act; and
(2) all agencies of the Federal Government shall submit a
certification to the Attorney General of the United States
that a private property taking impact analysis has been
completed before issuing or promulgating any policy,
regulation, proposal, recommendation (including any
recommendation or report on proposal for legislation), or
related agency action which could result in a taking or
diminution of use or value of private property.
(b) Content of Analysis.--A private property taking impact
analysis shall be a written statement that includes--
(1) the specific purpose of the policy, regulation,
proposal, recommendation, or related agency action;
(2) an assessment of whether a taking of private property
may occur under such policy, regulation, proposal,
recommendation, or related agency action;
(3) the effect of the policy, regulation, proposal,
recommendation, or related agency action on the use or value
of private property, including an evaluation of whether such
policy, regulation, proposal, recommendation, or related
agency action requires compensation to private property
owners;
(4) alternatives to the policy, regulation, proposal,
recommendation, or related agency action that would lessen
the adverse effects on the use or value of private property;
(5) an estimate of the cost to the Federal Government if
the Government is required to compensate a private property
owner; and
(6) an estimate of the reduction in use or value of any
affected private property as a result of such policy,
regulation, proposal, recommendation, or related agency
action.
(c) Public Availability of Analysis.--An agency shall--
(1) make each private property taking impact analysis
available to the public; and
(2) to the greatest extent practicable, transmit a copy of
such analysis to the owner or any other person with a
property right or interest in the affected property.
(d) Presumptions in Proceedings.--For the purpose of any
agency action or administrative or judicial proceeding, there
shall be a rebuttable presumption that the costs, values, and
estimates in any private property takings impact analysis
shall be outdated and inaccurate, if--
(1) such analysis was completed 5 years or more before the
date of such action or proceeding; and
(2) such costs, values, or estimates have not been modified
within the 5-year period preceding the date of such action or
proceeding.
SEC. 6. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to--
(1) limit any right or remedy, or bar any claim of any
person relating to such person's property under any other
law, including claims made under section 1346 or 1402 of
title 28, or chapter 91 of title 28; or
(2) constitute a conclusive determination of the value of
any property for purposes of an appraisal for the acquisition
of property, or for the determination of damages.
SEC. 7. STATUTE OF LIMITATIONS.
No action may be filed in a court of the United States to
enforce the provisions of this Act on or after the date
occurring 6 years after the date of the submission of the
certification of the applicable private property taking
impact analysis with the Attorney General.
SEC. 8. EFFECTIVE DATE.
The provisions of this Act shall take effect 120 days after
the date of the enactment of this Act.
Mr. HEFLIN. Mr. President, I rise today as an original cosponsor of
the Private Property Rights Act of 1994. This bill recognizes the
important role the use and ownership of property plays in American
society and declares the policy of the Federal Government to be one
that will minimize takings of private property. This bill will require
Federal agencies to certify to the Attorney General that a taking
impact assessment has been completed prior to promulgating any agency
policy to Congress. The takings impact assessment will consider the
effect of the agency action, the cost of the action to the Federal
Government, the reduction in value to private property owners and
require the agency to consider alternatives to taking private property.
This bill will ensure that the impact on private property rights is
duly considered in Federal Government agencies' regulatory activities.
In no way does it limit an agency's authority to regulate or meet a
legislative mandate. But it does require Government decisionmakers to
analyze the potential impact of their regulatory actions on private
property rights and to minimize those actions to the fullest extent
possible. Compliance with this act will help avoid inadvertent takings
of constitutionally guaranteed rights and therefore reduce the Federal
Government's financial liability for such compensable takings.
Government regulations too often harm American farmers and others by
taking away the value of their land. For example, farmers complain that
their property rights can be taken away without just compensation or
due process when they are denied a wetlands permit. This legislation
will give farmers and other private citizens a chance to be heard in
court if they believe the Government has not properly followed its own
procedures to make sure it does not take private property without
adequate compensation.
The Private Property Rights Act of 1994 will give statutory weight to
procedures like those outlined in Executive Order 12630, issued by
former President Reagan. Many organizations which strongly defend
private property rights are supportive of this legislation, including
the American Forest Council, National Cattlemen's Association, National
Farmers Organization, National Milk Producers Association, National
Water Resources Association, and the U.S. Chamber of Commerce. Private
property rights are the foundation of American agricultural production
and the individual liberties we all enjoy. This bill provides a
strategic method for balancing the Government's necessary action and
protecting these private rights.
I urge my colleagues to join me in supporting this important
legislation.
____________________