[Congressional Record Volume 140, Number 40 (Thursday, April 14, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: April 14, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. DOLE:
S. 2016. A bill to establish a National Commission on the Future of
Disability, and for other purposes: to the Committee on Finance.
national commission on the future of disability act
Mr. DOLE. Mr. President, 25 years ago today I rose to give my maiden
speech as the newly elected junior Senator from Kansas. It concerned a
minority group whose existence affects every person in our society and
the very fiber of our Nation.
It is an exceptional group which I joined another April 14th, during
World War II. As I said then, it is a group no one joins by personal
choice, and neither respects nor discriminates by age, sex, wealth,
education, skin color, religious beliefs, political party, power, or
prestige.
It is a group that for too long had known exclusion--maybe not
exclusion from the front of the bus, but perhaps from even climbing
aboard it; maybe not exclusion from pursuing advanced education, but
perhaps from experiencing any formal education; maybe not exclusion
from day-to-day life itself, but perhaps from an adequate opportunity
to develop and contribute to his or her fullest capacity.
Mr. President, it is a minority, yet a group to which at least one
out of every five Americans belongs.
progress in 25 years
Mr. President, I was speaking then about Americans with
disabilities--today 49 million persons, 24 million of whom are severely
disabled. As I said in 1969, and which is still true today, the
challenge to our Nation is to help foster their independence, dignity,
and security.
As my fellow Senators know well, we have worked hard over the years
to meet these goals. In fact, they are the foundation of the Americans
with Disabilities Act, a sweeping law to promote equal opportunity and
full participation.
Mr. President, today I will speak of the progress we have made in the
past 25 years, and what remains to be done.
architectural barriers
In 1969, I called for greater removal of architectural barriers. At
that time, there was only a single Federal law requiring accessibility,
and it applied only to new or newly renovated Federal buildings.
In 1973, the Rehabilitation Act expanded this mandate to all
federally funded programs, including State and local governments.
People with disabilities are citizens and taxpayers, and it was
unconscionable that they were denied the benefits of publicly supported
services.
Since then, we have learned that providing accessibility is often not
difficult--where there is the will. Thus, in 1990, with ADA, we
required reasonable accommodations by businesses and other private
entities.
Perhaps in no other area have we had such visible success. Last May,
even before the effective dates of ADA, GAO reported that accessibility
is generally good. ADA should eliminate many of the remaining barriers.
I have been deeply impressed, in my home State of Kansas and elsewhere,
that despite the real costs and some uncertainties about what ADA
requires, people recognize how important accessibility is and are
willing to do their part.
education of children with disabilities
Mr. President, I also spoke about the need to improve education for
children with disabilities. Back then, the Council for Exceptional
Children estimated that less than one-third of children needing special
ed received it. And many thousands with severe or multiple disabilities
had little or no education.
In 1975, Congress passed a national law, the Education of All
Handicapped Children Act, based on pioneering State laws, to make sure
children with disabilities had the same opportunity as others for a
``free and appropriate education.''
Today, almost 5 million young people, 10 percent of all students,
have a disability. Their education poses many challenges. As Senators
Dodd and Jeffords recently pointed out, Congress has never kept its
promise to pay 40 percent of the extra costs of special ed. Inclusive
education works when supports are available, and that costs money. And
I am also deeply concerned about the high percentage of African-
Americans and other minorities assigned to special education.
I hope when we reauthorize the Individuals with Disabilities
Education Act next year we can help fix these and other problems.
health care
Mr. President, then as now, health care is an important and
understandably emotional issue for many people with disabilities. We
have done much, if not enough, through Medicare and Medicaid, to
provide medical insurance. In fact, coverage of people with severe
disabilities is about the same as for the general population--85
percent--though they more often depend on these Federal programs.
There is perhaps no other group for whom health care reform offers
such opportunity and such peril. For those who have stayed out of the
job market in order to keep their Medicare or Medicaid, health care
reform will hopefully mean they can look for work with the confidence
they can obtain other--and perhaps better--medical insurance.
Like all Americans, people with disabilities want security,
simplicity, and portability. I also know they are looking for services
which today are not covered or only partly covered by many insurance
plans--including personal assistance, assistive technology and durable
medical equipment, and rehabilitation services. I can make no promises,
but I hope we can do better.
But, Mr. President, we must also be sobered by the very real limits
of medical care. Medical science has never been more successful at
keeping people alive, but sometimes at the price of severe, lifelong
disability.
I recently received a letter from the parents of a child in a small
town in south central Kansas, near the Oklahoma border. They wrote:
We desperately love our [1-year-old] son and want to do
everything we possibly can for him. His health problems were
so severe that specialists in Wichita told us we probably
would never take him home from birth. . . . [H]e does not
have the part of the brain needed for intellect, reasoning,
etc.
We live in a rural area where there are not many resources
for a family such as ours. Where do we turn for special help?
Yes, there is help for this family, but we are still humbled by what
medical science cannot do.
international human rights
Mr. President, disability is a matter of human rights. In July I
introduced a bill to require the Secretary of State to examine
discrimination against people with disabilities in the annual report on
human rights. My bill received broad bipartisan support--26 cosponsors
across the political spectrum.
The Secretary of State was listening. In this year's report, each of
the 190 countries covered, from Angola to Zimbabwe, includes a short
section on people with disabilities. Some of the accounts are
distrubing. In our country, for example, infants born with birth
defects are considered sorcerers, and sometimes killed at birth. But
other reports are encouraging. Even in some low-income countries, there
are real efforts at advocacy and opportunity.
Mr. President, this report sends the message around the world that
America respects the rights of all people, including those with
disabilities.
dignity and respect
We have also made important contributions in other areas--including
housing, transportation, assistive technology, and help to families of
people with disabilities. I have been proud to be part of many of these
initiatives. In 1983, I created the Dole Foundation, which I am pleased
to say has awarded over $5 million in grants.
But perhaps the greatest success has been in how people with
disabilities are viewed--no longer with pity, but with respect for
their dignity and recognition that disability is a natural part of the
human condition. Where institutional care and dependency were often
considered inevitable, today independent living is an important goal.
The Federal Government backs this view with dollars. In August, I cut
the ribbon at a brand new independent living center in Dodge City, in
the western, most rural part of my State. Kansas now has 12 independent
living centers, bringing their services within reach of most citizens.
Indeed, 50 years ago, we had a President, Franklin Roosevelt, who
could not walk and believed it necessary to disguise that fact from the
American people. Today I trust that Americans would have no problem in
electing as President a man or woman with a disability.
But this is not something Congress can take credit for. It is
something people with disabilities have done for themselves.
In 1970, I spoke on the Senate floor about a young woman, Judy
Heumann, who I read about in the New York Times. Ms. Heumann filed a
lawsuit because the New York City School Board had refused her a
teaching job simply because she was unable to walk and used a
wheelchair.
Well, she won that lawsuit and today is the Assistant Secretary for
Special Education and Rehabilitation Services in the U.S. Department of
Education.
And I, congratulate the advocacy community. When I arrived in the
Senate, there were few organizations representing the interests of
people with disabilities in Washington. In the early 1970's, the
forerunner of today's Consortium for Citizens With Disabilities was
formed. Now CCD is a vigorous association of over 130 member agencies,
representing millions of Americans with disabilities and their
families.
persistent joblessness and poverty
Mr. President, the news is not all good, however. The poet Archibald
Macleish once wrote, ``America is always promises.'' But America's
biggest promise--a job--is too often an empty promise to the disabled.
According to a Census Bureau report released several weeks ago, only 52
percent of people with disabilities are working, and only 23 percent of
those with a severe disability.
Even more disturbing, other surveys have shown that over the past 15
years, the percentage of people with disabilities not working has
remained constant, or even increased.
I would not be concerned if people were well off. But they are not.
According to a 1992 GAO study, 45 percent of families headed by a
person with a disability, and 65 percent of single parents or single
persons with a disability, live in poverty. These numbers are
startling, and I bet unknown to most people.
The Federal Government certainly has tried to help. Between just two
programs, social security disability insurance and supplemental
security income, it spent $54 billion last year for cash incomes to
people with disabilities.
There is no career ladder for social security recipients. The lesson
here is simple: for people with disabilities, as for most Americans,
working is essential to a decent income. We need to help people get off
the disability check and onto a paycheck.
disability future
Mr. President what's wrong, and what's the remedy? In my view, there
are two big problems. First, as I said back in September, our
vocational rehabilitation program is outdated. Our social security
disability programs still discourage people from going to work. True,
we have created work incentives, but few use them.
Second, our expectations for people with disabilities have changed.
What was once acceptable is not any longer. Indeed, many Federal
disability programs are in trouble. We can have little confidence that
our priorities are right or that our money is well spent.
There are also other nondisability programs that serve large numbers
of people with disabilities that need attention. For example, 27
percent of welfare mothers are either disabled or have a child with a
disability. Both Republican and Democratic welfare proposals generally
exempt such individuals from reforms. We mean well, I know, but I fear
we are doing these individuals no favor.
Mr. President, if we are in trouble today, consider the future.
Little attention is paid to the rapidly growing number of people with
disabilities. In my view, disability will soon become the Nation's No.
1 health care and social welfare issue.
Unfortunately, good ideas for change are in short supply, especially
compared to many other areas of policymaking--such as defense and
national security, telecommunications, education, and employment. The
Federal Government itself funds little disability policy research.
Worse, as one disability expert has stated bluntly, ``We in disability
services continue to plan for yesterday * * * to overcome the problems
of a decade ago.''
Our Federal agencies haven't been much help, either. As Senator
Moynihan has said at least twice in the past 6 months, the Social
security administration ``has been brain dead in a policy sense for 15
years.''
a national commission on the future of disability
Mr. President, for these reasons I introduce today a bill to
establish a National Commission on the Future of Disability. Its
purpose is to examine all the Nation's disability programs; evaluate
them according to the Goals of ADA--equal opportunity, full
participation, independent living, and economic self-sufficiency;
recommend priorities; and prepare us for the 21st century. It must
interpret this charge very broadly. And it must look to the unfulfilled
opportunities of rehabilitation science.
This commission is also charged with actually writing bill text. Good
ideas are fine, but we need something to work with.
conclusion
This, then, Mr President, is the sum and substance of my 25th
anniversary speech in the Senate. I know of no more important subject
matter, not solely because of my personal interest, but because in our
great country, to quote the President, ``we have not a single person to
waste.'' I think this is something we can all agree on, Republican or
Democrat.
No doubt about it, much work remains. But I know we are ready and
willing.
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. 2016
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 ``National Commission on the
Future of Disability Act''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) the Nation's proper goals regarding individuals with
disabilities are to ensure equality of opportunity, full
participation, independent living, and economic self-
sufficiency for such individuals;
(2) the vast changes underway in the workplace, information
technologies, and other aspects of society have been
insufficiently studied for the opportunities and hazards such
changes present for individuals with disabilities;
(3) the Federal Government has created many programs to
serve the needs of individuals with disabilities, including
programs that provide financial assistance, medical care,
education, vocational rehabilitation, housing,
transportation, legal assistance, and rehabilitation research
and training, but many of these programs operate in a manner
that is inconsistent with the Nation's goals, work at cross-
purposes with each other, are outdated, or could otherwise be
improved, and new programs to serve individuals with
disabilities may need to be established;
(4) there are Federal programs that are not viewed as
disability programs, yet serve significant numbers of
individuals with disabilities, and the impact and value of
such programs for individuals with disabilities have received
insufficient attention;
(5) the Nation is not well informed about the increasing
number of Americans with disabilities, and disability is a
health and social welfare issue of growing proportions, for
which the Nation is ill prepared; and
(6) it is incumbent upon the Federal Government to examine
its programs that serve individuals with disabilities to
ensure they are consistent with the Nation's goals, reflect
the best use of the its resources, and properly anticipate
societal and technological change.
SEC. 3. ESTABLISHMENT.
There is established a commission to be known as the
National Commission on the Future of Disability (referred to
in this Act as the ``Commission'').
SEC. 4. DUTIES OF THE COMMISSION.
(a) In General.--The Commission shall develop and carry out
a comprehensive study of all matters related to the nature,
purpose, and adequacy of all Federal programs serving
individuals with disabilities, in particular, programs
authorized under the Social Security Act, in terms of both
current performance and future value.
(b) Matters Studied.--The Commission shall prepare an
inventory of Federal programs serving individuals with
disabilities, and shall examine--
(1) trends and projections regarding the size and
characteristics of the population of individuals with
disabilities, and the implications of such analyses for
program planning;
(2) the feasibility and design of performance standards for
the Nation's disability programs;
(3) the adequacy of Federal efforts in rehabilitation
research and training, and opportunities to improve the lives
of individuals with disabilities through all manners of
scientific and engineering research; and
(4) the adequacy of policy research available to the
Federal Government, and what actions might be undertaken to
improve the quality and scope of such research.
(c) Recommendations.--The Commission shall submit to the
appropriate committees of the Congress and to the President
recommendations and, as appropriate, proposals for
legislation regarding--
(1) which (if any) Federal disability programs should be
eliminated or augmented;
(2) what new Federal disability programs (if any) should be
established;
(3) the suitability of the organization and location of
disability programs within the Federal Government;
(4) other actions the Federal Government should take to
prevent disabilities and disadvantages associated with
disabilities; and
(5) such other matters as the Commission considers
appropriate.
SEC. 5. MEMBERSHIP.
(a) Number and Appointment.--
(1) In general.--The Commission shall be composed of 12
members, of whom--
(A) four shall be appointed by the President, of whom not
more than 2 shall be of the same major political party;
(B) two shall be appointed by the Majority Leader of the
Senate;
(C) two shall be appointed by the Minority Leader of the
Senate;
(D) two shall be appointed by the Speaker of the House of
Representatives; and
(E) two shall be appointed by the Minority Leader of the
House of Representatives.
(2) Representation.--The Commission members shall be chosen
based on their education, training, or experience. In
appointing individuals as members of the Commission, the
President and the Majority and Minority Leaders of the Senate
and the Speaker and Minority Leader of the House of
Representatives shall seek to ensure that the membership of
the Commission reflects the diversity of individuals with
disabilities in the United States.
(b) Comptroller General.--The Comptroller General shall
serve on the Commission as an ex officio member of the
Commission to advise and oversee the methodology and approach
of the study of the Commission.
(c) Prohibition Against Officer or Employee.--Each
individual appointed under subsection (a) shall not be an
officer or employee of any government.
(d) Deadline for Appointment; Term of Appointment.--Members
of the Commission shall be appointed not later than 60 days
after the date of enactment of this Act. The members shall
serve on the Commission for the life of the Commission.
(e) Meetings.--The Commission shall locate its headquarters
in the District of Columbia, and shall meet at the call of
the Chairperson, but not less than four times each year
during the life of the Commission.
(f) Quorum.--Ten members of the Commission shall constitute
a quorum, but a lesser number may hold hearings.
(g) Chairperson and Vice Chairperson.--Not later than 15
days after the members of the Commission are appointed, such
members shall designate a Chairperson and Vice Chairperson
from among the members of the Commission.
(h) Continuation of Membership.--If a member of the
Commission becomes an officer or employee of any government
after appointment to the Commission, the individual may
continue as a member until a successor member is appointed.
(i) Vacancies.--A vacancy on the Commission shall be filled
in the manner in which the original appointment was made not
later than 30 days after the Commission is given notice of
the vacancy.
(j) Compensation.--Members of the Commission shall receive
no additional pay, allowances, or benefits by reason of their
service on the Commission.
(k) Travel Expenses.--Each member of the Commission shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with sections 5702 and 5703 of
title 5, United States Code.
SEC. 6. STAFF AND SUPPORT SERVICES.
(a) Director.--
(1) Appointment.--Upon consultation with the members of the
Commission, the Chairperson shall appoint a Director of the
Commission.
(2) Compensation.--The Director shall be paid the rate of
basic pay for level V of the Executive Schedule.
(b) Staff.--With the approval of the Commission, the
Director may appoint such personnel as the Director considers
appropriate.
(c) Applicability of Civil Service Laws.--The staff of the
Commission shall be appointed without regard to the
provisions of title 5, United States Code, governing
appointments in the competitive service, and shall be paid
without regard to the provisions of chapter 51 and subchapter
III of chapter 53 of such title relating to classification
and General Schedule pay rates.
(d) Experts and Consultants.--With the approval of the
Commission, the Director may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code.
(e) Staff of Federal Agencies.--Upon the request of the
Commission, the head of any Federal agency may detail, on a
reimbursable basis, any of the personnel of such agency to
the Commission to assist in carrying out the duties of the
Commission under this Act.
(f) Other Resources.--The Commission shall have reasonable
access to materials, resources, statistical data, and other
information from the Library of Congress and agencies and
elected representatives of the executive and legislative
branches of the Federal Government. The Chairperson of the
Commission shall make requests for such access in writing
when necessary.
(g) Physical Facilities.--The Administrator of the General
Services Administration shall locate suitable office space
for the operation of the Commission. The facilities shall
serve as the headquarters of the Commission and shall include
all necessary equipment and incidentals required for proper
functioning of the Commission.
SEC. 7. POWERS OF COMMISSION.
(a) Hearings.--The Commission may conduct public hearings
or forums at the discretion of the Commission, at any time
and place the Commission is able to secure facilities and
witnesses, for the purpose of carrying out the duties of the
Commission under this Act.
(b) Delegation of Authority.--Any member or agent of the
Commission may, if authorized by the Commission, take any
action the Commission is authorized to take by this section.
(c) Information.--The Commission may secure directly from
any Federal agency information necessary to enable the
Commission to carry out its duties under this Act. Upon
request of the Chairperson or Vice Chairperson of the
Commission, the head of a Federal agency shall furnish the
information to the Commission to the extent permitted by law.
(d) Gifts, Bequests, and Devises.--The Commission may
accept, use, and dispose of gifts, bequests, or devices of
services or property, both real and personal, for the purpose
of aiding or facilitating the work of the Commission. Gifts,
bequests, or devises of money and proceeds from sales of
other property received as gifts, bequests, or devices shall
be deposited in the Treasury and shall be available for
disbursement upon order of the Commission.
(e) Mails.--The Commission may use the United States mails
in the same manner and under the same conditions as other
Federal agencies.
SEC. 8. REPORTS.
(a) Interim Report.--Not later than 1 year prior to the
date on which the Commission terminates pursuant to section
9, the Commission shall submit an interim report to the
President and to the Congress. The interim report shall
contain a detailed statement of the findings and conclusions
of the Commission, together with the Commission's
recommendations for legislative and administrative action,
based on the activities of the Commission.
(b) Final Report.--Not later than the date on which the
Commission terminates, the Commission shall submit to the
Congress and to the President a final report containing--
(1) a detailed statement of final findings, conclusions,
and recommendations; and
(2) an assessment of the extent to which recommendations of
the Commission included in the interim report under
subsection (a) have been implemented.
(c) Printing and Public Distribution.--Upon receipt of each
report of the Commission under this section, the President
shall--
(1) order the report to be printed; and
(2) make the report available to the public upon request.
SEC. 9. TERMINATION.
The Commission shall terminate on the date that is 2 years
after the date on which the members of the Commission have
met and designated a Chairperson and Vice Chairperson.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act.
Mr. HARKIN. Mr. President, I commend the distinguished majority
leader--or minority lead, excuse that little slip of the tongue there--
the Senator from Kansas, for his tireless leadership of the people of
this country in the area of disabilities. Last night I went home and
sat down on the sofa and reread Senator Dole's maiden speech given in
this Chamber 25 years ago. I first read it during the debates on the
ADA, and I went home last night and read it again.
I thought, as I read it, just how prescient he was at that time, in
1969, and how far ahead of the curve he really was in thinking,
conceptualizing about the role of people with disabilities in our
society.
For 25 years he has been a tireless leader in breaking down those
barriers, the physical barriers and the attitudinal barriers, that
people have in this country against people with disabilities.
He has been in the forefront of every fight that this Congress had
had to break down those barriers and open up opportunities from the
Rehabilitation Act of 1973, the Education for all Handicapped Americans
Act of 1975; of course, the Americans with Disabilities Act could not
have gotten through without his strong leadership. Even in the
international arena, Senator Dole has consistently pushed for the
rights of people with disabilities.
Indeed, since that maiden speech of his 25 years ago, we have come a
long way in this country, but we could not have come this far in these
25 years without the strong leadership of Senator Dole, who understood
these disability issues far better and far before many of us who came
after, and who was willing to work in a bipartisan effort to see that
our policies and our legislative activities moved us in the direction
of independence, inclusion, and empowerment for all Americans.
So while Senator Dole and I may have various disagreements on other
issues, this is one in which I am proud to stand by his side and to
back him up in every effort that he has taken since I have been
privileged to be a Member of the Senate, again in enhancing
opportunities and breaking down the barriers to people with
disabilities. The speech that he gave 25 years ago was really a call to
conscience, and it was a call for us as Americans to put aside the
prejudices and the fears that we have had in the past of people with
disabilities and to understand that not only was it in their best
interests that we break down those barriers, that we gave them full
inclusion and empowerment in society, but that it was in all of our
interests as Americans to do so.
So again I commend today Senator Dole for those 25 years of
courageous leadership, to commend him for the new legislative effort he
has undertaken, and to let him know I will do whatever I can to work
with him in a bipartisan spirit to continue the great efforts that he
started 25 years ago.
Mr. DOLE. Mr. President, let me extend my thanks to the Senator from
Iowa. As we all know, he has been the real leader on disability issues.
We have been able to work together. This is not a partisan issue, as he
knows. He has experienced as a family member what disability is all
about, and I think that makes us all a little bit more sensitive.
So I wish to congratulate the Senator from Iowa for the great work he
has done over the years, and it has been my privilege to join with him
on many of those occasions. And again, as he said, this transcends
partisanship. There is nothing partisan about dealing with these
issues, never has been in this body, and I do not expect there ever
will.
Mr. BIDEN. Mr. President, I, too, would like to congratulate Senator
Dole. Senator Dole has always reminded me of a comment my father would
often make to his children. He used to say, ``Never complain and never
explain. Just go do it.''
One of the things about Bob Dole is his character is reflected in all
that legislation that was recited here. I have never heard the man
complain. I never heard him explain. I have just seen him fight for the
things he thinks important.
I admire him and say congratulations for 25 years of making life
better for a whole lot of people in this country.
______
By Mr. McCAIN (for himself and Mr. Inouye):
S. 2017. A bill to prohibit regulations that classify, enhance, or
diminish the privileges and immunities of an Indian tribe relative to
other federally recognized Indian tribes, and for other purposes; to
the Committee on Indian Affairs.
the indian reorganization act of 1934 amendments act
Mr. McCAIN. Mr. President, today I am introducing legislation
to amend section 16 of the Indian Reorganization Act of 1934. I am
pleased that the distinguished chairman of the Committee on Indian
Affairs, Senator Inouye, has joined me as a cosponsor of this bill.
This bill is intended to stimulate discussion about the
interpretation of section 16 of the Indian Reorganization Act [IRA] by
the Department of the Interior. It has recently been brought to my
attention that for most of the past 60 years the Department has
interpreted section 16 to authorize the Secretary to categorize or
classify tribes as being either ``created'' or ``historic.'' A created
tribe is apparently regarded as lacking retained inherent sovereign
authority because it is viewed as being something less than a tribe.
According to the Department, created tribes are only authorized to
exercise such authority as the Secretary may confer on them. On the
other hand, historic tribes are deemed to retain all inherent sovereign
authority not otherwise limited or divested by a treaty or an act of
Congress.
I find absolutely no basis in law or policy for the manner in which
section 16 has been interpreted by the Department of the Interior. One
of the reasons stated by the Department for distinguishing between
created and historic tribes is that the created tribes are new in the
sense that they never existed before. At the same time, the Department
insists that it cannot tell us which tribes are created and which are
historic because this is determined through a case-by-case review. All
of this ignores a few fundamental principles of Federal Indian law and
policy. Neither the Congress nor the Secretary can create a tribe where
none previously existed. Not only is this simple common sense, it is
also the law as enunciated by the Federal courts.
Section 16 of the IRA did not authorize the Secretary to create
Indian tribes. Congress itself cannot create Indian tribes, so there is
no authority for the Congress to delegate to the Secretary in this
regard. The recognition of a tribe by the Federal Government is just
that--the recognition that there is a sovereign entity with
governmental authority which predates the U.S. Constitution and with
which the Federal Government has established formal relations. All that
section 16 was intended to do was to provide authority and procedures
for the adoption, amendment, and approval of tribal constitutions for
those tribes that choose to employ its provisions.
I have concluded that a serious mistake has been made by the
Department in construing the intent of Congress in enacting section 16.
Such a mistake would be possible since this section of the IRA was
literally written in a conference between the House and Senate by
taking ``* * * phrases from the bill that had passed the House and
other phrases from the bill that had passed the Senate * * *''
according to the great legal scholar Felix Cohen, who urged caution in
the interpretation of section 16.
Clearly, the interpretation which has been developed by the
Department is inconsistent with the principal policies underlying the
IRA, which were to stabilize tribal governments and to encourage self-
government. These policies have taken on additional vitality in the
last 20 years as the Congress has repudiated and repealed the policy of
termination and enacted the Indian Self-Determination and Education
Assistance Act and the Tribal Self-Governance Project. The effect of
the Department's interpretation of section 16 has been to destabilize
tribal governments. Tribes face uncertainty about which category the
Department would place them in and, in addition, those tribes placed in
the created category face uncertainty about the specific governmental
authorities the Department believes they possess.
On its face, section 16 does not authorize or require the Secretary
of the Interior to draw distinctions between tribes or to categorize
them based on their powers of governance. As Mr. Cohen noted in his
1942 Handbook on Federal Indian Law, the IRA ``* * * had little or no
effect upon the substantive powers of tribal self-government vested in
the various Indian tribes * * *''. The courts have consistently
construed the IRA to have had no substantive effect on tribal sovereign
authority.
One example of the absurdity of the Department's interpretation of
section 16 involves the Pascua Yaqui Tribe in Arizona. Despite explicit
direction from the Congress in 1978, the Department has determined that
the Pascua Yaqui Tribe is a created tribe and that it therefore lacks
the authority to provide law enforcement services on its reservation
under the Indian Self-Determination and Education Assistance Act. This
interpretation of the IRA, the Self-Determination Act, and the Pascua
Yaqui legislation of 1978 not only flies in the face of these acts of
Congress, it completely ignores centuries of history of the Pascua
Yaqui people and their Toltec forebears.
In decisions involving other tribes, the Department has determined
that created tribes lack the authority to establish judicial systems or
to enact laws setting forth procedures for evicting tenants from tribal
housing. I am sure that we will never know the number and the full
extent of the absurd and unnecessary determinations which have resulted
from the Department's reading of section 16. We do know that the
implementation of the basic policies implicit in the IRA and the self-
determination and self-governance laws will continue to be impeded by
the Department's interpretation of section 16 unless we act to correct
this situation.
I believe that Federal Indian law and policy clearly supports the
view that tribes that have been recognized by the Federal Government
stand on an equal footing to each other. That is, each federally
recognized Indian tribe has the same governmental status as other
federally recognized tribes by virtue of their status as Indian tribes
with a government-to-government relationship with the United States.
Each federally recognized tribe is entitled to the same privileges and
immunities as other federally recognized tribes and have the right to
exercise the same inherent and delegated authorities.
The legislation we are introducing today will prohibit the Department
from implementing its erroneous interpretation of section 16. By
enacting this bill we will provide the stability for tribal governments
which the Congress thought it was providing 60 years ago when the IRA
was enacted and we will remove a barrier to the full implementation of
the policies of self-determination and self-governance.
We have been advised that the Department may soon take action on its
own to correct its interpretation of section 16. I would certainly
welcome such action by the Department. Depending on what action is
taken, it may well be necessary to consider revising the legislation we
are introducing today. As I stated earlier, this bill is intended to
promote discussion about this issue. Any actions taken by the
Department to correctly interpret section 16 of the IRA will be a
welcome and constructive addition to those discussions.
I ask unanimous consent that the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2017
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That
section 16 of the Act of June 18, 1934 (25 U.S.C. 476) is
amended by adding at the end the following new subsections:
``(f) Privileges and Immunities of Indian Tribes;
Prohibition on New Regulations.--Departments or agencies of
the United States shall not promulgate any regulation or make
any decision or determination pursuant to the Act of June 18,
1934, as amended, or any other Act of Congress, with respect
to a federally recognized Indian tribe that classifies,
enhances, or diminishes the privileges and immunities
available to the Indian tribe relative to other federally
recognized tribes by virtue of their status as Indian tribes.
``(g) Privileges and Immunities of Indian Tribes; Existing
Regulations.--Any regulation or administrative decision or
determination of a department or agency of the United States
that is in existence or effect on the date of enactment of
this Act and that classifies, enhances, or diminishes the
privileges and immunities available to a federally recognized
Indian tribe relative to the privileges and immunities
available to other federally recognized tribes by virtue of
their status as Indian tribes shall have no force or
effect.''.
______
By Mr. PRESSLER:
S. 2018. A bill to reauthorize Public Law 81-815 (School
Construction), and for other purposes; to the Committee on Labor and
Human Resources.
school construction impact aid program reauthorization act
Mr. PRESSLER. Mr. President, I rise today to introduce legislation to
reauthorize Public Law 81-815, the construction portion of the Impact
Aid Program.
As Congress continues the reauthorization of the elementary and
secondary education programs, I feel strongly that school facility
funding can not be overlooked. Some young people are striving to gain
their education in school facilities that provide a less than ideal
learning environment.
Out-dated equipment coupled with overall deplorable school facilities
in some parts of this country distract rather than support the learning
environment. Updating equipment and renovating school facilities would
be a big step towards providing a level playing field. But this costs
money, lots of money for construction projects.
In the case of the Impact Aid Program, providing additional funding
is a Federal responsibility. Public Law 81-815 authorizes funds for
constructing and renovating schools where federally connected students
are in attendance.
For the benefit of my colleagues, a federally connected student is
the term used to describe students in school districts affected by a
Federal Government activity; for example a military base, Indian
reservation, or a national park. These federal activities remove
taxable land or have other revenue consequences for local funding of
school districts. The Impact Aid Program, under both Public Law 81-874
and Public Law 81-815, authorizes Federal funds to make up for this
loss of local revenue.
I have already introduced legislation to revise and reauthorize
Public Law 81-874. S. 874, cosponsored by 15 of my colleagues, is
awaiting further action by the Committee on Labor and Human Resources.
Today, I am pleased to introduce legislation to reauthorize and improve
Public Law 81-815.
During the last reauthorization of the Elementary and Secondary
Education Act, I offered an amendment to require the General Accounting
Office [GAO] to examine Public Law 81-815 in order to determine: First,
the gap between the eligible requests and the amount available for
school construction funds; and second, whether the Department's
criteria for ranking unfunded projects are equitable. Mr. President, I
ask unanimous consent that the GAO letter to me dated July 12, 1990
(GAOHRD90-90), be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. General Accounting Office,
Washington, DC, July 12, 1990.
Hon. Edward M. Kennedy,
Chairman, Committee on Labor and Human Resources, U.S.
Senate.
Hon. Larry Pressler,
U.S. Senate.
The Hawkins-Stafford Elementary and Secondary School
Improvement Amendments of 1988 directed us to review the
federal school construction program for school districts
affected by federal activities. This program (authorized by
P.L. 81-815) provides federal funds for constructing and
renovating schools in districts that educate ``federally
connected'' children, such as those whose parents live and/or
work on military installations and Indian reservations. These
funds are used to provide classrooms and classroom equipment
to qualifying school districts. The Department of Education
determines applicant eligibility, calculates the federal
share of construction project costs,\1\ and awards grants to
school districts.
---------------------------------------------------------------------------
\1\For example, the federal share of school construction
costs to certain eligible school districts is the product of
the number of federally connected children eligible for
payment and the state's average per pupil cost of school
construction.
---------------------------------------------------------------------------
The Congress funded almost all eligible requests for school
construction assistance between 1950 (when the program began)
and 1967. However, since 1967, federal appropriations have
been insufficient to fund the estimated federal share of all
construction projects in federally impacted school districts.
The continuing shortfall has resulted in a substantial
backlog of eligible unfunded projects in districts with
federally connected enrollment increases,\2\ nontaxable
federal property, children residing on Indian land, and
Indian land. The Department ranks, for funding purposes,
these unfunded projects in priority order based, in part, on
the number of federally connected children eligible for
payment in the school district.
---------------------------------------------------------------------------
\2\``Enrollment'' is referred to by the Department as
``membership.'' If state law does not define membership, the
Department defines it as the number of children listed on a
school district's current enrollment records.
---------------------------------------------------------------------------
As agreed with your offices, we determined (1) the gap
between the eligible requests for school construction funds
and the amount of available Public Law 81-815 funds and (2)
whether the Department's criterion for ranking unfunded
projects is equitable.
results of our analysis
Department records show that as of fiscal year 1988, the
estimated funding gap was about $200 million. This figure,
however, is misleading because it includes the estimated
federal costs of projects in school districts that may no
longer be eligible for the program, as well as the costs of
projects that are no longer needed by the districts. This
figure also includes project cost estimates that have not
been revised to reflect increased school construction costs.
Therefore, the actual amount of the gap is unknown because
the Department does not regularly reconfirm applicants'
eligibility nor revise outdated funding estimates.
The Department's criteria for (1) computing priority
numbers (scores) of eligible projects for funding purposes
and (2) ranking projects are equitable, but the Department
does not periodically reevaluate these scores once projects
are ranked on waiting lists. Priority scores reflect
federally connected enrollments and school construction needs
when districts applied for assistance; however, most project
requests are at least 12 years old. These project scores may
be outdated and invalid because for many of the projects we
reviewed, the school districts subsequently completed their
projects without federal assistance. In addition, federally
connected enrollments have declined in some districts. Thus,
since the Department does not periodically reevaluate project
priority scores to reflect this kind of information, it
cannot provide the Congress with an accurate ranking of
federally impacted schools with current school construction
needs.
The law requires that those school districts that qualify
for assistance based on federally connected enrollment
increases receive payments based on the average state per
pupil construction costs near the time of application.
Because of increased construction costs, such school
districts with projects that have been waiting for federal
payments for many years will receive a smaller share of total
construction costs than they would have received had they
been funded promptly.
recommendation to the congress
We recommend that the Congress amend Public Law 81-815 to
require that school construction payments to eligible school
districts with federally connected enrollment increases
(those eligible under section 5) be based on average state
per pupil construction costs in the year these projects are
funded.
recommendation to the secretary of education
To ensure that the Congress and the Department have
accurate information when they make program decisions, we
recommend that the Secretary require school districts to
apply annually for school construction assistance so that
project requests reflect (1) school districts' current
enrollments of federally connected children and school
construction needs and (2) the current estimate of the
federal share of school construction costs. (See p. 20.)
matter for consideration by the congress
To provide federal assistance to more eligible school
districts and thereby reduce the backlog of unfunded
projects, the Congress may want to consider authorizing the
Secretary of Education to distribute available appropriations
among a greater number of higher-priority projects. This
could be accomplished by reducing on a pro-rata basis funds
awarded to school districts with the greatest school
construction needs. (See p. 20.)
agency comments
The Department of Education generally agreed with our
recommendation to the Congress. However, it said that our
recommendation to the Secretary, requiring annual school
construction applications, may also require a legislative
change to implement.
The Department raised several concerns about the (1)
disposition of currently unfunded projects if an annual
process was instituted and (2) the administrative burden that
such a process may place on school districts. The National
Association of Federally Impacted Schools had similar
comments about this recommendation.
Both the Department and the association disagreed with our
suggestion to distribute limited program funds on a pro-rata
basis. These and other comments along with our evaluation are
included on pages 20-25 of this report. We made changes to
the text where appropriate.
We are sending copies of this report to the Secretary of
Education, appropriate congressional committees, the National
Association of Federally Impacted Schools, and other
interested parties. Please call me on (202) 275-1793 if you
or your staff have any questions about this report. Other
major contributors are listed in appendix VIII.
Franklin Frazier,
Director, Education and
Employment Issues.
Mr. PRESSLER. Mr. President, one of the major problems, as identified
in this GAO letter is out-dated eligible requests. A good example of
this would be the application from the Dupree School District in my
home State. Their application to the Department of Education has
remained unfunded since 1974--20 years, Mr. President. Other school
districts have had the same problem--growing enrollments causing
overcrowded school facilities, but no construction funding available.
The bill I am introducing today limits the eligibility of a
construction funding request to three years. If the eligible request
has not received funding, a new request may be submitted to the
Secretary of Education, thereby keeping school district applications
current to reflect accurate funding needs under this law.
Mr. President, I ask unanimous consent that the text of the bill and
additional material be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2018
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SCHOOL CONSTRUCTION.
The Act entitled ``An Act relating to the construction of
school facilities in areas affected by Federal activities,
and for other purposes'' approved September 23, 1950 (20
U.S.C. 631 et seq.) is amended to read as follows:
``SECTION 1. STATEMENT OF PURPOSE AND AUTHORIZATION OF
APPROPRIATIONS.
``(a) Statement of Purpose.--It is the purpose of this Act
to provide financial assistance to federally impacted school
districts which are urgently in need of--
``(1) school facilities in school districts--
``(A) that have substantial increases in school membership
as a result of new or increased Federal activities; and
``(B) the membership of which includes children in need of
minimum school facilities; and
``(2) facility improvements or structural modifications due
to the need to meet life safety codes, average daily
attendance requirements, Federal laws, rules or regulations,
or curriculum improvements.
``(b) Authorization of Appropriations.--
``(1) In general.--There are authorized to be appropriated
$29,000,000 for fiscal year 1995, and such sums as may be
necessary for each of the fiscal years 1996 through 1999, to
carry out sections 5, 9, 10, and 13.
``(2) Administrative expenses.--There are authorized to be
appropriated such sums as may be necessary for each of the
fiscal years 1995 through 1999 for the administrative
expenses of the Department of Education.
``(3) Availability.--Funds appropriated pursuant to the
authority of paragraph (1) shall remain available until
expended.
``SEC. 2. PORTION OF APPROPRIATIONS AVAILABLE FOR PAYMENTS.
``(a) In General.--For each fiscal year the Secretary shall
determine the portion of the funds appropriated pursuant to
the authority of section 1 which shall be available for
carrying out the provisions of sections 9 and 10. The
remainder of such funds shall be available for paying to
local educational agencies the Federal share of the cost of
projects for the construction of school facilities for which
applications have been approved under section 6.
``(b) Allocation Between Sections 5 and 13.--In any fiscal
year the remainder of funds described in the second sentence
of subsection (a) shall be used so that--
``(1) 50 percent of such funds are used for payments under
section 5 for such year; and
``(2) 50 percent of such funds are used for payments under
section 13 for such year.
``(c) Allocation Within Section 5.--In any fiscal year, the
amount of funds available for payments under section 5 for
such year shall be used so that--
``(1) 50 percent of such funds are available for activities
described in section 1(a)(1)(A); and
``(2) 50 percent of such funds are available for activities
described in section 1(a)(1)(B).
``SEC. 3. ESTABLISHMENT OF PRIORITIES.
``(a) In General.--In the event that funds appropriated
pursuant to the authority of section 1 and remaining
available for payment to local educational agencies under
this Act are less than the Federal share of the cost of the
projects with respect to which applications have been filed
prior to such date (and for which funds under section 1 have
not already been obligated), the Secretary shall make
payments under section 5--
``(1) in the case of activities described in section
1(a)(1)(A), on the basis of the highest percentage of
children in need of minimum school facilities; and
``(2) in the case of activities described in section
1(a)(1)(B), on the basis of the highest percentage of
federally connected students eligible for payment.
``(b) Special Rule.--Only applications meeting the
conditions for approval under this Act (other than section
6(b)(2)(C)) shall be considered applications for purposes of
subsection (a).
``(c) Increases.--
``(1) In general.--The priorities described in this section
shall be applied so that applications for payments based upon
increases in the number of children residing on, or residing
with a parent employed on, property which is part of a low-
rent housing project assisted under the United States Housing
Act of 1937 shall not be approved for any fiscal year until
all other applications for payments under paragraph (1) of
section 5(a) for payments relating to military connected
children, and under subsections (a) and (b) of section 13 for
payments relating to Indian children, have been approved for
that fiscal year.
``(2) Military connected children.--For the purpose of
paragraph (1), the term `military connected children' means
children described in--
``(A) section 3(a) of Public Law 81-874 who reside on a
military installation;
``(B) section 3(b)(1) of such Public Law who reside on a
military installation;
``(C) section 3(b)(2) of such Public Law who have a parent
employed on a military installation; and
``(D) section 3(b)(3) of such Public Law.
``SEC. 4. FEDERAL SHARE FOR ANY PROJECT.
``(a) In General.--Subject to section 5 (which imposes
limitations on the total of the payments which may be made to
any local educational agency), the Federal share of the cost
of a project under this Act shall be equal to such cost, but
in no case to exceed the cost, in the school district of the
applicant, of constructing minimum school facilities, and in
no case to exceed the cost in such district of constructing
minimum school facilities for the estimated number of
children who will be in the membership of the schools of such
agency at the close of the second year following the increase
period and who will otherwise be without such facilities at
such time.
``(b) Determination.--For the purposes of subsection (a),
the number of such children who will otherwise be without
such facilities at such time shall be determined by reference
to those facilities which as of the date the application for
such project is approved, are included in a project the
application for which has been approved under this Act.
``SEC. 5. LIMITATION ON TOTAL PAYMENTS TO ANY LOCAL
EDUCATIONAL AGENCY.
``(a) Limitation.--
``(1) In general.--Subject to the limitations in subsection
(c), the total of the payments to a local educational agency
under this Act may not exceed the sum of the following:
``(A) The estimated increase, since the base year, in the
number of children determined with respect to such agency who
live on Federal property and have a parent who works on
Federal property multiplied by 100 percent of the average per
pupil cost of constructing minimum school facilities in the
State in which the school district of such agency is
situated.
``(B) The estimated increase, since the base year, in the
number of children determined with respect to such agency who
have a parent who lives on or works on Federal property
multiplied by 50 percent of such cost.
``(2) Computation rule.--In computing for any local
educational agency the number of children in an increase
under subparagraph (A) or (B) of paragraph (1), the estimated
number of children described in such subparagraphs who will
be in the membership of the schools of such agency at the
close of the increase period shall be compared with the
estimated number of such children in average daily membership
of the schools of such agency during the base year, except
that the base year average daily membership shall be adjusted
to exclude the number of children that formed the basis for
previous payments on applications approved 30 or more years
prior to the close of the increased period for the
application for which the determination is made.
``(b) Election.--If both subparagraphs (A) and (B) of
subsection (a)(1) apply to a child, the local educational
agency shall elect which of such subparagraphs shall apply to
such child, except that, notwithstanding the election of a
local educational agency to have such subparagraph (B) apply
to a child instead of such subparagraph (A), the
determination of the maximum amount for such agency under
subsection (a)(1) shall be made without regard to such
election.
``(c) Minimum Increase Requirement.--A local educational
agency shall not be eligible to have any amount included in
its maximum by reason of subparagraph (A) or (B) of
subsection (a)(1) unless the increase in children referred to
in such subparagraphs is--
``(1) at least 20; and
``(2)(A) equal to at least 6 percent of the number of
federally connected children who were in the average daily
membership of the schools of such agency during the base
year; or
``(B) at least 750,
whichever is the lesser.
``(d) Exceptional Circumstances.--Notwithstanding the
provisions of subsection (c) of this section, whenever and to
the extent that, in the Secretary's judgment, exceptional
circumstances exist which make such action necessary to avoid
inequity and avoid defeating the purposes of the Act, the
Secretary may waive or reduce the minimum number requirement
or any percentage requirement described in subsection (c).
``(e) Count Limitation.--
``(1) In general.--In determining under this section the
total of the payments which may be made to a local
educational agency on the basis of any application, the total
number of children counted for purposes of subparagraph (A)
or (B) of subsection (a)(1) may not exceed--
``(A) the number of children whose membership at the close
of the increase period for the application is compared with
average daily membership in the base period for purposes of
that paragraph (except that the base year average daily
membership shall not include any children counted for
purposes of a payment pursuant to an application approved 30
or more years ago), minus
``(B) the number of such children whose membership at the
close of the increase period was compared with membership in
the base year for purposes of such subparagraph under the
last previous application, if any, of the agency on the basis
of which any payment has been or may be made to that agency.
``(2) Last previous application.--For the purpose of
paragraph (1)(B) the term `last previous application' means
the last application for assistance under this Act that was
funded within 4 fiscal years preceding the fiscal year for
which the determination is made.
``SEC. 6. APPLICATIONS.
``(a) Application Required.--No payment may be made to any
local educational agency under this Act except upon
application therefore which is submitted through the
appropriate State educational agency and is filed with the
Secretary in accordance with regulations prescribed by the
Secretary.
``(b) Contents.--
``(1) In general.--Each application by a local educational
agency shall set forth the project for the construction of
school facilities for such agency with respect to which it is
filed, and shall contain or be supported by--
``(A) a description of the project and the site therefore,
preliminary drawings of the school facilities to be
constructed thereon, and such other information relating to
the project as may reasonably be required by the Secretary;
``(B) assurance that such agency has or will have title to
the site, or the right to construct upon such site school
facilities as specified in the application and to maintain
such school facilities on such site for a period of not less
than 20 years after the completion of the construction;
``(C) assurance that such agency has legal authority to
undertake the construction of the project and to finance any
non-Federal share of the cost thereof as proposed, and
assurance that adequate funds to defray any such non-Federal
share will be available when needed;
``(D) assurance that such agency will cause work on the
project to be commenced within a reasonable time and
prosecuted to completion with reasonable diligence;
``(E) assurance that, except for emergency relief under
section 7 of the Act of September 30, 1950 (Public Law 81-
874), all laborers and mechanics employed by contractors or
subcontractors on all construction and minor remodeling
projects assisted under this Act shall be paid wages at rates
not less than those prevailing on similar construction and
minor remodeling in the locality as determined by the
Secretary of Labor in accordance with the Davis-Bacon Act, as
amended (40 U.S.C. 276a-276a-5) and the Secretary of Labor
shall have, with respect to the labor standards specified in
this subparagraph, the authority and functions set forth in
Reorganization Plan Numbered 14 or 1950 and section 2 of the
Act of June 13, 1934, as amended (40 U.S.C. 276c), (20 U.S.C.
1232(b));
``(F) assurance that the school facilities of such agency
will be available to the children for whose education
contributions are provided in this Act on the same terms, in
accordance with the laws of the State in which the school
district of such agency is situated, as such facilities are
available to other children in such school district; and
``(G) assurance that such agency will from time to time
prior to the completion of the project submit such reports
relating to the project as the Secretary may reasonably
require.
``(2) Approval.--Except as provided in paragraph (3), the
Secretary shall approve any application if the Secretary
finds--
``(A) that the requirements of paragraph (1) have been met
and that approval of the project would not result in payments
in excess of those permitted by sections 4 and 5;
``(B) after consultation with the State and local
educational agencies, that the project is not inconsistent
with overall State plans for the construction of school
facilities; and
``(C) that there are sufficient Federal funds available to
pay the Federal share of the cost of such project and of all
other projects for which Federal funds have not already been
obligated and applications for which, under section 3, have a
higher priority.
``(c) Notice and Hearing.--No application under this Act
shall be disapproved in whole or in part until the Secretary
has afforded the local educational agency reasonable notice
and opportunity for hearing.
``(d) Submission.--An application for a payment under this
Act shall be submitted by June 30 of the fiscal year
preceding the fiscal year for which payment is requested. An
application submitted pursuant to the preceding sentence
shall remain active for a period of 2 fiscal years following
the fiscal year for which payment under this Act is
requested. If a local educational agency wishes to make an
application for payment under this Act after the expiration
of the 2-year period described in the preceding sentence such
agency shall resubmit an application in accordance with this
section.
``SEC. 7. PAYMENTS.
``(a) In General.--Upon approving the application of any
local educational agency under section 6, the Secretary shall
pay to such agency an amount equal to 10 percent of the
Federal share of the cost of the project. After final
drawings and specifications have been approved by the
Secretary and the construction contract has been entered
into, the Secretary, in accordance with regulations
prescribed by the Secretary and at such times and in such
installments as may be reasonable, shall pay to such agency
the remainder of the Federal share of the cost of the
project.
``(b) Repayment.--Any funds paid to a local educational
agency under this Act and not expended for the purposes for
which paid shall be repaid to the Treasury of the United
States.
``SEC. 8. ADDITIONAL PAYMENTS.
``(a) In General.--Not to exceed 10 percent of the funds
appropriated pursuant to the authority of section 1(b)(1) for
any fiscal year may be used by the Secretary, under
regulations prescribed by the Secretary, to make grants to
local educational agencies where--
``(1) the application of such agencies would be approved
under this Act but for the agencies' inability, unless aided
by such grants, to finance the non-Federal share of the cost
of the projects set forth in their applications; or
``(2) although the applications of such agencies have been
approved, the projects covered by such applications could
not, without such grants, be completed, because of flood,
fire, or similar emergency affecting either the work on the
projects or the agencies' ability to finance the non-Federal
share of the cost of the projects.
``(b) Special Rule.--The grants described in subsection (a)
shall be in addition to the payments otherwise provided under
this Act, shall be made to those local educational agencies
whose need for additional aid is the most urgent and acute,
and insofar as practicable shall be made in the same manner
and upon the same terms and conditions as such other
payments.
``(c) Additional Appropriations Required.--The provisions
of this section shall take effect only when funds are
specifically appropriated to carry out this section.
``SEC. 9. WHERE EFFECT OF FEDERAL ACTIVITIES WILL BE
TEMPORARY.
``Notwithstanding the preceding provisions of this Act,
whenever the Secretary determines that the membership of some
or all of the children, who may be included in computing
under section 5 the maximum on the total of the payments for
any local educational agency, will be of temporary duration
only, such membership shall not be included in computing such
maximum. Instead, the Secretary may make available to such
agency such temporary school facilities as may be necessary
to take care of such membership; or the Secretary may, where
the local educational agency gives assurance that at least
minimum school facilities will be provided for such children,
pay (on such terms and conditions as the Secretary deems
appropriate to carry out the purposes of this Act) to such
agency for use in constructing school facilities an amount
equal to the amount which the Secretary estimates would be
necessary to make available such temporary facilities. In no
case may the amount so paid exceed the cost, in the school
district of such agency of constructing minimum school
facilities for such children. The Secretary may transfer to
such agency or its successor all the right, title, and
interest of the United States in and to any temporary
facilities made available to such agency under this section;
and such transfer shall be without charge, but may be made on
such other terms and conditions, and at such time as the
Secretary deems appropriate to carry out the purposes of this
Act.
``SEC. 10. CHILDREN FOR WHOM LOCAL AGENCIES ARE UNABLE TO
PROVIDE EDUCATION.
``(a) In General.--In the case of children who it is
estimated by the Secretary in any fiscal year will reside on
Federal property at the end of the next fiscal year--
``(1) if no tax revenues of the State or any political
subdivision thereof may be expended for the free public
education of such children; or
``(2) if it is the judgment of the Secretary, after the
Secretary has consulted with the appropriate State
educational agency, that no local educational agency is able
to provide suitable free public education for such children,
the Secretary shall make arrangements for constructing,
leasing, renovating, remodeling, or rehabilitating or
otherwise providing the minimum school facilities necessary
for the education of such children. In any case in which the
Secretary makes arrangements under this section for
constructing, leasing, renovating, remodeling, or
rehabilitating or otherwise providing minimum school
facilities situated on Federal property in Puerto Rico, Wake
Island, Guam, American Samoa, the Northern Mariana Islands,
or the Virgin Islands, the Secretary may also include minimum
school facilities necessary for the education of children
residing with a parent employed by the United States though
not residing on Federal property, but only if the Secretary
determines, after consultation with the appropriate State
educational agency, (A) that the construction or provision of
such facilities is appropriate to carry out the purposes of
this subsection, (B) that no local educational agency is able
to provide suitable free public education for such children,
and (C) that English is not the primary language of
instruction in schools in the locality. Such arrangements may
also be made to provide, on a temporary basis, minimum school
facilities for children of members of the Armed Forces on
active duty, if the schools in which free public education is
usually provided for such children are made unavailable to
such children as a result of official action by State or
local governmental authority and it is the judgment of the
Secretary, after the Secretary has consulted with the
appropriate State educational agency, that no local
educational agency is able to provide suitable free public
education for such children.
``(b) Special Rules.--
``(1) Comparability.--To the maximum extent practicable
school facilities provided under this section shall be
comparable to minimum school facilities provided for children
in comparable communities in the State.
``(2) Inapplicability.--This section shall not apply to--
``(A) children who reside on Federal property under the
control of the Atomic Energy Commission; and
``(B) Indian children attending schools supported by the
Bureau of Indian Affairs.
``(3) Special rule.--Whenever it is necessary for the
Secretary to provide school facilities for children residing
on Federal property under this section, the membership of
such children may not be included in computing under section
5 the maximum on the total of the payments for any local
educational agency.
``(c) Transfers.--When the Secretary determines it is in
the interest of the Federal Government to do so, the
Secretary may transfer, upon the written request of the local
educational agency, to the appropriate local educational
agency all the right, title, and interest of the United
States in and to any facilities provided under this Act (or
section 204 or 310 of Public Law 81-815 as such law was in
effect January 1, 1958). Prior to any transfer, the facility
shall meet all State and Federal building health and safety
codes, regulations and laws. Any such transfer shall be
without charge, but may be made on such other terms and
conditions and at such time as the Secretary deems
appropriate to carry out the purposes of this Act.
``(d) Special Rule Regarding Tax Revenues.--If no tax
revenues of a State or of any political subdivision of the
State may be expended for the free public education of
children who reside on any Federal property within the State,
or if no tax revenues of a State are allocated for the free
public education of such children, then the property on which
such children reside shall not be considered Federal property
for the purposes of section 5 of this Act.
``SEC. 11. WITHHOLDING OF PAYMENTS.
``(a) In General.--Whenever the Secretary, after providing
reasonable notice and opportunity for hearing to a local
educational agency, finds that--
``(1) there is a substantial failure to comply with the
drawings and specifications for the project;
``(2) any funds paid to a local educational agency under
this Act have been diverted from the purposes for which paid;
or
``(3) any assurance given in an application is not being or
cannot be carried out,
the Secretary may notify such agency that no further payment
will be made under this Act with respect to such agency until
there is no longer any failure to comply or the diversion or
default has been corrected or, if compliance or correction is
impossible, until such agency repays or arranges for the
repayment of Federal moneys which have been diverted or
improperly expended.
``(b) Judicial Review.--The final refusal of the Secretary
to approve part or all of any application under this Act, and
the Secretary's final action under subsection (a) of this
section, shall be subject to judicial review on the record,
in the United States court of appeals for the circuit in
which the local educational agency is located, in accordance
with the provisions of the Administrative Procedure Act.
``SEC. 12. USE OF OTHER FEDERAL AGENCIES TRANSFER AND
AVAILABILITY OF APPROPRIATIONS.
``(a) Administration.--In carrying out the provisions of
this Act, the Secretary is authorized to utilize the services
and facilities of any agency of the Federal Government and of
any other public or nonprofit agency or institution, in
accordance with appropriate agreements, and to pay for such
services either in advance or by way of reimbursement, as may
be agreed upon.
``(b) Requests for Information.--All Federal departments or
agencies administering Federal property on which children
reside, and all such departments or agencies principally
responsible for Federal activities which may give rise to a
need for the construction of school facilities, shall to the
maximum extent practicable, comply with requests of the
Secretary for information the Secretary may require in
carrying out the purposes of this Act.
``(c) Special Rule.--No appropriation to any department or
agency of the United States, other than an appropriation to
carry out this Act, shall be available for the same purposes
as this Act.
``SEC. 13. SCHOOL CONSTRUCTION ASSISTANCE IN OTHER FEDERALLY
AFFECTED AREAS.
``(a) Assistance Authorized for Certain Indian Children.--
``(1) In general.--If the Secretary determines with respect
to any local educational agency that--
``(A) such agency is providing or, upon completion of the
school facilities for which provision is made under this
subsection, will provide free public education for children
who reside on Indian lands, and whose membership in the
schools of such agency has not formed and will not form the
basis for payments under other provisions of this Act, and
that the total number of such children represents a
substantial percentage of the total number of children for
whom such agency provides free public education, or that such
Indian lands constitute a substantial part of the school
district of such local educational agency, or that the total
number of such children who reside on Indian lands located
outside the school district of such agency equals or exceeds
100;
``(B) the immunity of such Indian lands to taxation by such
agency has created a substantial and continuing impairment of
such agency's ability to finance needed school facilities;
``(C) such agency is making a reasonable tax effort and is
exercising due diligence in availing itself of State and
other financial assistance available for the purpose of this
section; and
``(D) such agency does not have sufficient funds available
to such agency from other Federal, State, and local sources
to provide the minimum school facilities required for free
public education of a substantial percentage of the children
in the membership of its schools,
then the Secretary may provide the additional assistance
necessary to enable such agency to provide such facilities
upon such terms and in such amounts (subject to the
provisions of this section) as the Secretary may consider to
be in the public interest, except that such additional
assistance may not exceed the portion of the cost of such
facilities or improvements or structural modifications which
the Secretary estimates has not been, and is not to be,
recovered by the local educational agency from other sources,
including payments by the United States under any provision
of this Act or any other law.
``(2) Waiver.--Notwithstanding the provisions of this
subsection, the Secretary may waive the percentage
requirement described in paragraph (1)(A) whenever, in the
Secretary's judgment, exceptional circumstances exist which
make such actions necessary to avoid inequity and avoid
defeating the purposes of this section. Assistance may be
furnished under this subsection without regard to paragraph
(1)(B) (but subject to the other provisions of this
subsection and subsection (e)) to any local educational
agency which provides free public education for children who
reside on Indian lands located outside its school district.
``(3) Definition.--For purposes of this subsection `Indian
lands' means Indian reservations or other real property
referred to in the second sentence of section 14(4).
``(b) Assistance Authorized for Other Indian Children.--
``(1) In general.--If the Secretary determines with respect
to any local educational agency that--
``(A) such agency is providing or, upon completion of the
school facilities for which provision is made under this
subsection will provide free public education for children
who reside on Indian lands, and whose membership in the
schools of such agency has not formed and will not form the
basis for payments under other provisions of this Act, and
that the total number of such children represents a
substantial percentage of the total number of children for
whom such agency provides free public education, or that such
local educational agency, or that the total number of such
children who reside on Indian lands located outside the
school district of such agency equals or exceeds 100; and
``(B) the immunity of such Indian lands to taxation by such
agency has created a substantial and continuing impairment of
such agency's ability to finance needed school facilities,
then the Secretary may, upon such terms and in such amounts
(subject to the provisions of this section) as the Secretary
may consider to be in the public interest, provide the
additional assistance necessary to enable such agency to
provide the minimum school facilities required for free
public education of children in the membership of the schools
of such agency who reside on Indian lands, except that such
additional assistance may not exceed the portion of the cost
of constructing such facilities which the Secretary estimates
has not been, and is not to be, recovered by the local
educational agency from other sources, including payments by
the United States under any provisions of this Act or any
other law.
``(2) Waiver.--Notwithstanding the provisions of this
subsection, the Secretary may waive the percentage
requirement in paragraph (1)(A) whenever, in the Secretary's
judgment, exceptional circumstances exist which make such
action necessary to avoid inequity and avoid defeating the
purpose of this section. Assistance may be furnished under
this subsection without regard to paragraph (1)(B) (but
subject to the other provisions of this subsection and
subsection (e)) to any local educational agency which
provides free public education for children who reside on
Indian lands located outside its school district.
``(3) Definition.--For purposes of this subsection `Indian
lands' means Indian reservations or other real property
referred to in the second sentence of section 14(4).
``(c) Assistance Authorized for Inadequately Housed
Children.--
``(1) In general.--If the Secretary determines with respect
to any local educational agency that--
``(A) such agency is providing or, upon completion of the
school facilities for which provision is made under this
subsection, will provide, free public education for children
who are inadequately housed by minimum school facilities and
whose membership in the schools of such agency has not formed
and will not form the basis for payments under other
provisions of this section, and the total number of such
children represents a substantial percentage of the total
number of children for whom such agency provides free public
education, and Federal property constitutes a substantial
part of the school district of such agency;
``(B) the immunity of such Federal property from taxation
by such agency has created a substantial and continuing
impairment of such agency's ability to finance needed school
facilities;
``(C) such agency is making a reasonable tax effort and is
exercising due diligence in availing itself of State and
other financial assistance available for the purpose of this
section; and
``(D) such agency does not have sufficient funds available
to such agency from other Federal, State, and local sources
to provide the minimum school facilities required for free
public education of a substantial percentage of the children
in the membership of its schools,
then the Secretary may provide the assistance necessary to
enable such agency to provide minimum school facilities for
children in the membership of the schools of such agency whom
the Secretary finds to be inadequately housed, upon such
terms and conditions, and in such amounts (subject to the
applicable provisions of this section) as the Secretary may
consider to be in the public interest. Such assistance may
not exceed the portion of the cost of such facilities or
improvements or structural modifications which the Secretary
estimates has not been, and is not to be, recovered by the
local educational agency from other sources, including
payments by the United States under any other provisions of
this Act or any other law.
``(2) Waiver.--Notwithstanding the provisions of this
subsection, the Secretary may waive the percentage
requirement in paragraph (1)(A) whenever, in the Secretary's
judgment, exceptional circumstances exist which make such
action necessary to avoid inequity and avoid defeating the
purposes of this section.
``(d) Application.--No payment may be made to any local
educational agency under subsection (a) or (b) except upon
application therefor which is submitted through the
appropriate State educational agency and is filed with the
Secretary in accordance with regulations prescribed by the
Secretary, and which meets the requirements of section
6(b)(1). In determining the order in which such applications
shall be approved, the Secretary shall consider the relative
educational and financial needs of the local educational
agencies which have submitted approved applications and the
nature and extent of the Federal responsibility. No payment
may be made under subsections (a) or (b) unless the Secretary
finds, after consultation with the State and local
educational agencies, that the project or projects with
respect to which the payment is made are not inconsistent
with overall State plans for the construction of school
facilities. All determinations made by the Secretary under
this section shall be made only after consultation with the
appropriate State educational agency and the local
educational agency.
``(e) Payments.--Amounts paid by the Secretary to local
educational agencies under subsections (a) or (b) may be paid
in advance of, or by way of reimbursement for, work performed
or purchases made pursuant to the agreement with the
Secretary under this section, and may be paid in such
installments as the Secretary may determine. Any funds paid
to a local educational agency under this section and not
expended or otherwise used for the purposes for which paid
shall be repaid to the Treasury of the United States.
``(f) Inapplicability of Certain Provisions.--None of the
provisions of sections 1 through 10, other than section
6(2)(A) shall apply with respect to determinations made under
this section.
``SEC. 14. DEFINITIONS AND DETERMINATIONS.
``(a) Definitions.--As used in this section:
``(1) Base year.--The term `base year' means the third or
fourth regular school year preceding the fiscal year in which
an application was filed under section 6, as may be
designated in the application.
``(2) Child.--The term `child' means any child who is
within the age limits for which the applicable State provides
free public education.
``(3) Construct; constructing; and construction.--The terms
`construct', `constructing', and `construction' include the
preparation of drawings and specifications for school
facilities; erecting, building, acquiring, altering,
remodeling, improving, modifying, or extending school
facilities; and the inspection and supervision of the
construction of school facilities.
``(4) Federal property.--(A) The term `Federal property'
means real property which is owned by the United States or is
leased by the United States, and which is not subject to
taxation by any State or any political subdivision of a State
or by the District of Columbia. Except for purposes of
sections 5, 10, and 13(c), such term includes--
``(i) real property held in trust by the United States for
individual Indians or Indian tribes, and real property held
by individual Indians or Indian tribes which is subject to
restrictions on alienation imposed by the United States;
``(ii) any low-rent housing (whether or not owned by the
United States) which is part of a low-rent housing project
assisted under the United States Housing Act of 1937; and
``(iii) any interest in Federal property (as defined in the
provisions of clauses (i) and (ii)) under an easement, lease,
license, permit, or other arrangement, as well as any
improvements of any nature (other than pipelines or utility
lines) on such property even though such interests or
improvements are subject to taxation by a State or political
subdivision of a State or by the District of Columbia.
``(B) Notwithstanding the provisions of subparagraph (A),
such term does not include--
``(i) any real property used for a labor supply center,
labor home, or labor camp for migratory farm workers; and
``(ii) any real property under the jurisdiction of the
United States Postal Service and used primarily for the
provision of postal services.
``(5) Free public education.--The term `free public
education' means education which is provided at public
expense, under public supervision and direction, and without
tuition charge, and which is provided as elementary or
secondary school education in the applicable State.
``(6) Increased period.--The term `increased period' means
the period of 4 consecutive regular school years immediately
following such base year.
``(7) Local educational agency.--The term `local
educational agency' means a board of education of any public
school or other legally constituted local public school
authority having administrative control and direction of free
public education in a county, township, independent, or other
school district located within a State. Such term includes
any State agency which directly operates and maintains
facilities for providing free public education or which has
responsibility for the provision of such facilities.
``(8) Parent.--The term `parent' includes a legal guardian
or other person standing in loco parentis.
``(9) School facilities.--The term `school facilities'
includes classroom and related facilities; and initial
equipment, machinery, and utilities necessary or appropriate
for school purposes. Such term does not include athletic
stadiums, or structures or facilities intended primarily for
athletic exhibitions, contests, or games or other events for
which admission is to be charged to the general public.
Except as used in sections 9 and 10 such term does not
include interests in land and offsite improvements.
``(10) Secretary.--The term `Secretary', unless otherwise
specified, means the Secretary of Education.
``(11) State.--The term `State' means a State, the
Commonwealth of Puerto Rico, Guam, the District of Columbia,
American Samoa, the Commonwealth of the Northern Mariana
Islands, the Virgin Islands, or Wake Island.
``(12) State educational agency.--The term `State
educational agency' means the officer or agency primarily
responsible for the State supervision of public elementary
and secondary schools.
``(b) Determinations.--
``(1) Membership of schools.--(A) The membership of schools
shall be determined in accordance with State law or, in the
absence of State law governing such a determination, in
accordance with regulations of the Secretary, except that,
notwithstanding any other provisions of this section, where
the local educational agency of the school district in which
any child resides makes or contracts to make a tuition
payment for the free public education of such child in a
school situated in another school district, for purposes of
this section the membership of such child, shall be held and
considered--
``(i) if the 2 local educational agencies concerned so
agree, and if such agreement is approved by the Secretary, as
membership of a school of the local educational agency
receiving such tuition payment; and
``(ii) in the absence of any such approved agreement, as
membership of a school of the local educational agency so
making or contracting to make such tuition payment.
``(B) In any determination of membership of schools,
children who are not provided free public education (as
defined in subsection (a)(5)) shall not be counted.
``(2) Average per pupil cost.--The average per pupil cost
of constructing minimum school facilities in the State in
which the school district of a local educational agency is
situated shall be determined by the Secretary on the basis of
the average State per pupil construction cost in the year
previous to the year of funding (including costs of minimum
site improvements, minimum initial equipment, and applicable
architectural, engineering, and legal fees). The cost of
constructing minimum school facilities in the school district
of a local educational agency shall be determined by the
Secretary, after consultation with the State and local
educational agencies, on the basis of such information as may
be contained in the application of such local educational
agency and such other information as the Secretary may
obtain.
``(3) Timing and information requirement.--Estimates of
membership, and all other determinations with respect to
eligibility and maximum amount of payment, shall be made as
of the time of the approval of the applications for which
made, and shall be made on the basis of the best information
available at the time of such approval.
``(4) Minimum school facilities.--Whether or not school
facilities are minimum school facilities shall be determined
by the Secretary, after consultation with the State and local
educational agencies, in accordance with regulations
prescribed by the Secretary. Such regulations shall--
``(A) require the local educational agency concerned to
give due consideration to excellence of architecture and
design;
``(B) provide that no facility shall be disqualified as a
minimum school facility because of the inclusion of works of
art in the plans therefor if the cost of such works of art
does not exceed 1 percent of the cost of the project; and
``(C) require compliance with such standards as the
Secretary may prescribe or approve in order to ensure that
facilities constructed with the use of Federal funds under
this Act shall be, to the extent appropriate in view of the
uses to be made of the facilities, accessible to and usable
by individuals with disabilities.''.
____
Section-by-Section Analysis of S. 2018
Section 1--Purpose and Appropriation
Purpose--To provide financial assistance to federally
impacted schools urgently in need of:
(1) School facilities due to increased enrollment.
(2) School facility improvements or modifications due to
ADA or safety codes.
Appropriations--In FY1995, $29 million and FY1996, FY1997,
FY1998 and FY1999 such sums as necessary.
Section 2--Division of Funds
Priority: Section 9 (temporary facilities), Section 10
(Department of Education Schools) and then divide remaining
funds equally between military districts and districts on
Indian lands.
Section 3--Establishment of Priorities
All applicants will be reviewed and a priority list will be
developed by the Secretary of Education. Projects will be
funded starting with highest percentage of students and go on
down the list of applicants.
Section 4--Federal Share of Any Project
No project can exceed that actual cost of construction of
minimum school facilities.
Section 5--Limitation on total Payments to Any Local Education Agency
Establishes formula for payments to districts serving
military dependents. For a district to apply for PL815 funds,
the district must have a growth in student enrollment of at
least 6% of their enrollment or 750 students, which ever is
less
Section 6--Applications
(1) Description of project
(2) Assurance that LEA has title to site and right to
construct. LEA must be able to maintain facility for at least
20 years.
(3) Assurance that LEA has legal authority to undertake
construction and finance any non-federal share of project.
(4) Assurance LEA will cause work to be commenced in
reasonable time.
(5) Assurance LEA will follow Davis-Bacon Act.
(6) Assurance facilities will be available to children
whose education contributions are provided for in this Act.
(7) Assurance LEA will provide reports requested by the
Secretary of Education.
(8) Applications due June 30 of fiscal year.
(9) Application not funded within three years will need to
be updated to remain active.
Section 7--Payments
Approved applications will be given 10% of the federal
share upon approval. Other payments will follow as work is
completed. Any unused funds are returned to the U.S.
Treasury.
Section 8--Additional Payments
Allows the Secretary to make additional payments to school
districts which have had their application approved, but
cannot finance the non-federal share of the cost of the
project.
Section 9--Where the Effect of Federal Activities will be Temporary
Establishes a procedure for an LEA to receive funds under
Section 5 if need is temporary. Secretary of Education has
authority to transfer title of temporary facilities to LEA.
Section 10--Children for Whom LEA are Unable to Provide Education
Outlines the criteria for eligibility for schools
requesting Department of Education to provide facility. These
facilities are built and owned by federal government,
however, at some point the Secretary of Education may
transfer facility to LEA if LEA agrees.
Section 11--Withholding Payments
Allows the Secretary of Education to withhold any future
payments (after reasonable notice and opportunity for a
hearing are extended) from a LEA, if there is a reasonable
failure to comply with the drawings and specifications of the
project or if any of the funds have been diverted to other
purposes.
Section 12--Use of Other Federal Agencies Transfer & Availability of
Appropriations
Requires federal agency cooperation.
Section 13--School Construction Assistance in Other Federally Affected
Areas
Establishes formula for payments to districts serving
students on Indian lands.
Criteria for eligibility:
Immune from taxation; substantial number of students on
Indian land; LEA making all efforts to seek funds from state
and local sources; insufficient funds from all sources to
provide minimum school facilities.
Allows LEA's to construct facilities and renovate existing
facilities to meet ADA or safety codes.
Section 14--Definitions and Determinations
______
By Mr. SARBANES (for himself, Mr. Warner, and Ms. Mikulski):
S. 2020. A bill to authorize the establishment of a pilot program to
provide environmental assistance to non-Federal interest in the
Chesapeake Bay watershed, and for other purposes; to the Committee on
Environment and Public Works.
chesapeake bay environmental restoration act of 1994
Mr. SARBANES. Mr. President, today I am introducing legislation
together with Senator Warner and Senator Mikulski to expand the
authority of the U.S. Army Corps of Engineers to assist in the
environmental restoration of the Chesapeake Bay. The legislation
specifically authorizes a $30 million pilot program for the corps to
design and construct water-related environmental and resource
protection projects in the Chesapeake Bay including such projects as
making beneficial use of dredge material to restore eroding islands and
shoreline, creating wetlands, and removing barriers to fish passage in
the bay watershed.
The Corps of Engineers has been an integral part of the Chesapeake
Bay Program for many years. As the lead Federal agency in water
resource management, the corps has completed some of the most
comprehensive investigations of the entire Chesapeake Bay basin
including a landmark report in 1984 which identified many of the
serious problems facing the bay. In addition to the agency's
responsibilities for maintaining the navigational channels in the bay,
the corps has conducted numerous water resource planning studies and
projects, constructed water supply and wastewater treatment systems,
implemented regulatory activities, and has provided support to DOD and
Army installations within the bay watershed. The corps has played a
vital role in the development of the program's complex computer
simulation modeling needs, improving our understanding of the
watershed's fresh water inflow needs, and regulating valuable wetlands
habitats. Clearly, the corps has an important civil engineering,
planning, and technical expertise that can be ofinvaluable help in
addressing the myriad of environmental problems facing the bay.
The Chesapeake Bay suffers from several problems which the corps has
perhps the unique capabilities to address--shoreline erosion and
sedimentation, wetlands losses, and impediments to fish passage.
Shoreline erosion continues to be a very serious problem in the
Chesapeake Bay watershed. The geography and topography of the
Chesapeake Bay region make this area particularly susceptible to the
processes of erosion and sedimentation. At Smith and Popular Islands in
the Maryland waters of the bay, to name only two locations, erosive
forces are taking land at such an alarming rate that the very existence
of these islands is threatened.
Erosion is not only causing serious property damage, but also
contributes nearly 5 million cubic yards of sediment annually to the
bay, adversely impacting water quality, habitat, and navigation. During
storms, tremendous amounts of sediments are released from these
properties and from behind the dams on the Susquehanna, blanketing the
bay in a plume of sediment and robbing the bay of life-sustaining
sunlight and oxygen. Valuable wetlands, submerged aquatic vegetation,
and woodlands, which are a vital part of the bay's ecological system,
providing nesting, breeding and feeding areas for populations of
finfish, shellfish, and migratory and resident bird species, are being
lost to erosion. The sediments are also clogging the bay's navigational
channels--our water highways and harbors--creating an additional
problem of dredged material disposal.
Over the past century, approximately 45,000 acres, or 70 square miles
of land--an area equal in size to the District of Columbia--have been
lost to forces of erosion. Unless the problem is addressed soon, under
present conditions, many of the bay's lowlands will disappear in the
next 100 years.
There is a creative solution that can address the serious erosion
problem and help protect and promote the recovery of the bay--making
environmentally beneficial use of clean dredged material to stabilize
eroding shorelines and restore lost wetlands in the bay. Past efforts
have shown that these restoration efforts can be successful. Through
its operation and maintenance activities for navigation, the corps has
demonstrated successful beneficial use projects using clean dredged
material which include: the rebuilding of eroding islands and
enhancement of the environment at Barren Island, and wetlands creation
and restoration on the James and Anacostia Rivers.
Unfortunately, the corps is currently limited in the degree to which
it can participate in environmental restoration projects in the bay.
Beneficial use projects using dredged material are generally more
expensive than traditional disposal alternatives, such as open water
dumping, and Federal policies presently limit the funding and contain
other disincentives to making this a viable long-term option. This
legislation seeks to provide the Corps of Engineers with the authority
and funding to undertake such projects.
The legislation would also permit the corps to play a greater role in
the restoration and enhancement of wetlands and aquatic habitat in the
Chesapeake Bay. Wetlands have been a vital component of the Chesapeake
Bay ecosystem and historically, have been abundant throughout the bay.
Unfortunately, our Nation's estuary has experienced a dramatic decline
in wetlands averaging over 2,800 acres annually. According to a 1991
report by the Department of the Interior, 73 percent of the wetlands in
Maryland that existed in the 1780's are now gone. For Virginia the
estimate is 42 percent, and for Pennsylvania, the wetlands loss is 56
percent. These figures together represent a cumulative loss of over 2
million acres of wetlands in the principal three-State Chesapeake
basin.
These are some of the most extensive and valuable wetlands along the
Atlantic coast, and in the Nation. In fact, the Chesapeake was one of
the first wetland areas in the United States to qualify under the
``Convention on Wetlands of International Importance Especially as
Waterfowl Habitat,'' commonly known as the Ramsar Convention. The
wetlands serve as a source of food and habitat for waterfowl and fish,
help filter out sediments and other pollutants, and provide dissolved
oxygen to the watercolumn. They are, in short, absolutely essential to
the biological integrity of the Chesapeake Bay.
The Chesapeake Bay Program has made restoration and enhancement of
wetlands in the bay and its tributaries a top priority for restoring
the bay. The program has developed a wetlands policy and implementation
plan and committed to no-net loss in the short term, and net-gain in
the long term. The Corps of Engineers and other State and Federal
agencies have been assigned important responsibilities under that plan,
including wetland restoration and creation activities. This legislation
would give the corps additional authority to carry out these
responsibilities.
A third problem inhibiting the recovery of the Chesapeake Bay which
this legislation would enable the corps to address is man-made barriers
to fish passage. Through the years, we have seen record declines in
stocks of migratory fish including striped bass, American shad, hickory
shad, river herring, white and yellow perch, and American eel. These
species have historically been among the most economically and
ecologically important species in the Chesapeake Bay, supporting
extensive fisheries in the States of Maryland, Pennsylvania, and
Virginia. Over 1,000 man-made barriers to migratory fish, ranging in
size from large hydroelectric projects to road culverts, exist on
tributaries throughout the bay watershed. These barriers prevent
passage of fish to spawning and nursery habitat essential to the
viability of the breeding populations. The general ecology of the bay
and its tributaries has been adversely affected by the absence of these
fish species which play important roles in the ecosystem's aquatic food
chain.
The bay program has devoted significant resources to provide for fish
passage at dams and to remove stream blockages wherever necessary to
restore natural passage for migratory fish. Significant progress has
been made to identify priority tributaries for fish passage
initiatives. The coordinated work of the bay community has resulted in
the provision of fish passage at four dams in the James River basin, at
Conowingo, Holtwood, Safe Harbor, and York Haven Dams in the
Susquehanna basin, and at many sites in Maryland. With these larger
blockages removed, a magnitude of work remains to be done to restore
the historic habitat above these dams. The Corps of Engineers has a
critical role to play in the bay program's fish passage initiatives.
This legislation will enable the corps to provide its technical
expertise in these efforts.
Mr. President, this legislation is a modest proposal. It recognizes
the budget constraints and is limited in scope and funding authority.
It does not seek to address all of the challenges facing the bay, but
it will enable the corps to bring its expertise to bear on some key
problems in the Chesapeake Bay watershed.
The legislation is strongly supported by the Chesapeake Bay
Commission, the Chesapeake Bay Foundation, and the Maryland Department
of Transportation. I ask unanimous consent that letters from these
organizations endorsing the legislation be printed in the Record. I
also ask unanimous consent that the bill be printed in the Record.
It is my hope that this legislation will be considered when the
Senate takes up the Water Resources Development Act of 1994.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2020
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled,
SECTION 1. CHESAPEAKE BAY ENVIRONMENTAL RESTORATION AND
PROTECTION PROGRAM.
(a) Establishment.--
(1) In general.--The Secretary of the Army (referred to in
this section as the ``Secretary'') shall establish a pilot
program to provide environmental assistance to non-Federal
interests in the Chesapeake Bay watershed.
(2) Form.--The assistance shall be in the form of design
and construction assistance for water-related environmental
infrastructure and resource protection and development
projects affecting the Chesapeake Bay estuary, including
projects for sediment and erosion control, protection of
eroding shorelines, protection of essential public works,
wastewater treatment and related facilities, water supply and
related facilities, and beneficial uses of dredged material,
and other related projects that may enhance the living
resources of the estuary.
(b) Public Ownership Requirement.--The Secretary may
provide assistance for a project under this section only if
the project is publicly owned, and will be publicly operated
and maintained.
(c) Local Cooperation Agreement.--
(1) In general.--Before providing assistance under this
section, the Secretary shall enter into a local cooperation
agreement with a non-Federal interest to provide for design
and construction of the project to be carried out with the
assistance.
(2) Requirements.--Each local cooperation agreement entered
into under this subsection shall provide for the following:
(A) Plan.--Development by the Secretary, in consultation
with appropriate Federal, State, and local officials, of a
facilities or resource protection and development plan,
including appropriate engineering plans and specifications
and an estimate of expected resource benefits.
(B) Legal and institutional structures.--Establishment of
such legal and institutional structures as are necessary to
ensure the effective long-term operation and maintenance of
the project by the non-Federal interest.
(d) Cost Sharing.--
(1) Federal share.--Except as provided in paragraph (2)(B),
the Federal share of the total project costs of each local
cooperation agreement entered into under this section shall
be 75 percent.
(2) Non-federal share.--
(A) Value of lands, easements, rights-of-way, and
relocations.--In determining the non-Federal contribution
toward carrying out a local cooperation agreement entered
into under this section, the Secretary shall provide credit
to a non-Federal interest for the value of lands, easements,
rights-of-way, and relocations provided by the non-Federal
interest, except that the amount of credit provided for a
project under this paragraph may not exceed 25 percent of
total project costs.
(B) Operation and maintenance costs.--The non-Federal share
of the costs of operation and maintenance of carrying out the
agreement under this section shall be 100 percent.
(e) Applicability of Other Federal and State Laws and
Agreements.--
(1) In general.--Nothing in this section waives, limits, or
otherwise affects the applicability of any provision of
Federal or State law that would otherwise apply to a project
carried out with assistance provided under this section.
(2) Cooperation.--In carrying out this section, the
Secretary shall cooperate fully with the heads of appropriate
Federal agencies, including--
(A) the Administrator of the Environmental Protection
Agency;
(B) the Secretary of Commerce, acting through the
Administrator of the National Oceanic and Atmospheric
Administration;
(C) the Secretary of the Interior, acting through the
Director of the United States Fish and Wildlife Service; and
(D) the heads of such other Federal agencies and
departments and agencies of a State or political subdivision
of a State as the Secretary determines to be appropriate.
(f) Demonstration Project.--The Secretary shall establish
at least 1 project under this section in each of the States
of Maryland, Virginia, and Pennsylvania. A project
established under this section shall be carried out using
such measures as are necessary to protect environmental,
historic, and cultural resources.
(g) Report.--Not later than December 31, 1998, the
Secretary shall transmit to Congress a report on the results
of the program carried out under this section, together with
a recommendation concerning whether or not the program should
be implemented on a national basis.
(h) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section $30,000,000 for
fiscal year 1995, to remain available until expended.
____
Chesapeake Bay Commission,
Annapolis, MD, April 11, 1994.
Hon. Paul Sarbanes,
309 Hart Senate Building,
Washington, DC.
Dear Senator Sarbanes: It is my understanding that you will
soon be introducing a bill that expands the authority of the
Army Corps of Engineers to put clean dredge material to
beneficial use. The legislation also provides for enhanced
Corps activities related to habitat restoration and fish
passage. The Chesapeake Bay Commission strongly endorses this
proposal.
The Commission is a tri-state legislative authority
composed of members from Maryland, Pennsylvania and Virginia.
As a signatory to the Chesapeake Bay Agreements, the
Commission serves as the legislative arm of the Bay
restoration effort. Federal partnerships have always been
viewed by the Commission as pivotal to the cleanup campaign.
We believe that enhanced Corps involvement will serve as a
catalyst for activity throughout the region. It will also
help to leverage additional dollars from state, local and
private sources for beneficial use of dredged material,
wetlands creation and the provision of fish passage.
The Commission is a strong supporter of beneficial use of
dredged materials and has worked hard to provide fish passage
within the watershed. I have enclosed several resolutions
which speak to this commitment.
We are encouraged by your shared dedication to these issues
and offer our assistance to you as you shepherd this
legislation through the Congress. Thank you for your efforts.
Sincerely,
Ann Pesiri Swanson,
Executive Director.
____
Chesapeake Bay Foundation,
Annapolis, MD, April 13, 1994.
Paul S. Sarbanes,
309 Senate Hart Office Building, Washington, DC.
Dear Senator Sarbanes: I am writing to enthusiastically
support your proposal for a pilot program for watershed
restoration programs in the Bay. As you know, I have long
maintained that we cannot be satisfied with merely stopping
the decline of the Chesapeake Bay--Saving the Bay means
restoring its health and productivity. The expertise and
capability of the Army Corps of Engineers is an essential
component of that effort.
There is certainly no lack of need for the types of
projects described here--oyster reef construction and
wetlands restoration are two that immediately spring to mind.
I am sure there will be no difficulty in identifying worthy
projects that far outstrip the available funding. I also
believe that the success of this effort will provide the kind
of national demonstration for which the Chesapeake Bay
Program has become justly famous.
In short, this is precisely the kind of program we have
been advocating for some time, and we look forward to working
with you and the Corps to implement it. Thank you again for
all of your efforts on behalf of the Bay.
Very truly yours,
William C. Baker,
President.
____
Maryland Department
of Transportation,
April 14, 1994.
Hon. Paul Sarbanes,
309 Hart Senate Office Building,
Washington, DC.
Dear Senator Sarbanes: I was pleased to learn you will
introduce a bill authorizing the U.S. Army Corps of Engineers
to participate in a $30 million pilot program to design and
construct environmental and resource protection projects in
the Chesapeake Bay.
Your legislation will not only have a positive impact on
the environment of the Bay, but will also be of assistance to
Maryland in its effort to maintain the competitive position
of the Port of Baltimore.
We have seen a turnaround in the health of the Port of
Baltimore in the last two years. While we expect continued
growth in cargo and jobs, we are concerned about the ability
to adequately and economically maintain channels leading to
the port. Each year, the U.S. Army Corps of Engineers needs
to dredge approximately 3.5 million cubic yards of clean,
environmentally safe material from shipping channels in the
Maryland portion of the Chesapeake Bay--just to maintain
these channels at their authorized depths. It is becoming
increasingly difficult to locate sites where dredged material
can be placed in an environmentally sensitive manner. Clearly
we must do this--otherwise the competitive position of the
Port of Baltimore would be adversely affected.
The State of Maryland, the U.S. Army Corps of Engineers,
and other parties concerned with the Chesapeake Bay are
working to devise a master plan for dredge disposal which
combined ``beneficial use projects''--those that actually
enhance the bay environment--with more conventional disposal
techniques. The bill that you plan to introduce will greatly
assist us in this effort.
Increased federal participation in environmental
restoration projects in the Chesapeake Bay will improve both
the environment and the economic health of the Port of
Baltimore. This is one partnership that is needed in
Maryland. Your legislation allowing the federal government to
participate in this partnership is greatly welcomed. My
Department is ready to assist you as this legislation moves
through Congress.
Sincerely,
O. James Lighthizer,
Secretary.
Ms. MIKULSKI. Mr. President, I rise today as an original cosponsor to
express my strong support for the Chesapeake Bay environmental
restoration and protection bill introduced by Senator Sarbanes.
This bill expands the authority of the U.S. Army Corps of Engineers
to assist in the restoration of the Chesapeake Bay. It establishes a
pilot program for the corps to assist in the design and construction of
water-related environmental infrastructure and resource protection and
development projects.
I have consistently fought for the future of the bay, supporting
projects as diverse as erosion control structures at Eastern Neck
National Wildlife Refuge, oyster reseeding programs, and funding of
improvements to the Back River sewage treatment plant.
This bill represents an important step in my fight for continued
protection and restoration of the bay. This bill will allow beneficial
uses of dredge materials, protect eroding shorelines, and restore
wetlands habitats.
Under this legislation, dredge materials could be used for creative
solutions to shoreline erosion and the resulting water quality
degradation. By using clean dredge material to rebuild and protect
eroding islands, the sediment dumped in the bay would be significantly
reduced. Less sediment means improved water quality and a healthier
bay. Clean dredge material could also be used to rebuild lost wetlands.
Wetlands are a vital link in the bay's ecosystem. They provide
essential habitat for waterfowl, fish, and other wildlife.
The corps is an important part of the Federal team that works to
protect and restore the bay. It is therefore appropriate for the corps
to be allowed to use clean dredged material to improve and restore the
bay's environment. It is a natural extension of the corps' current
authority.
Unfortunately however, the corps is limited in the extent to which it
can participate in such projects. This legislation would reduce the
barriers and allow the corps to play a more active and positive role in
the bay program. It would remove the disincentives that now stop the
corps from using clean dredged materials for environmental restoration.
The Chesapeake Bay Commission and the Chesapeake Bay Foundation both
strongly support this bill.
I thank my colleague from Maryland, Senator Sarbanes, for his vision
and leadership on this issue, and I urge all my colleagues in the
Senate to support this important effort.
______
By Mr. RIEGLE (for himself, Mr. D'Amato, Mr. Kerry, and Mr.
Metzenbaum) (by request):
S. 2021. A bill to clarify the statute of limitations for actions
brought by the Federal Deposit Insurance Corporation and the Resolution
Trust Corporation as conservator or receiver; to the Committee on
Banking, Housing, and Urban Affairs.
Bank and Thrift Statute of Limitations Clarification Act of 1994
Mr. RIEGLE. Mr. President, I rise today, along with Senators D'Amato,
Kerry, and Metzenbaum, to introduce by request of the Federal Deposit
Insurance Corporation a bill titled the ``Bank and Thrift Statute of
Limitations Clarification Act of 1994.'' The bill is the FDIC's
proposal to clarify the statute of limitations for actions brought by
the FDIC and the RTC as conservator or receiver. The FDIC estimates
that over $500 million in claims in pending lawsuits involving FDIC and
old FSLIC receiverships, and millions more for claims still under
investigation, are at risk for dismissal on statute of limitations
grounds if the provisions contained in this bill are not enacted into
law. The FDIC further indicates that claims of the same general order
of magnitude involving RTC receiverships are similarly at risk.
The FDIC informs me that this legislation is necessary to correct
certain court decisions that have interpreted the statute of
limitations provisions contained in FIRREA in a manner contrary to the
expressed congressional intent regarding those provisions. This
legislation would clarify the statute of limitation provisions
originally passed in 1989. The FDIC advises that this legislation is
critical to allowing them and the RTC to fulfill their missions to hold
wrongdoers accountable and to recover losses for the insurance funds
and the taxpayers.
I ask unanimous consent that a letter from Acting FDIC Chairman
Andrew Hove asking me to introduce the bill on behalf of the FDIC, a
copy of the bill, and explanatory materials be reprinted in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2021
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 ``Bank and Thrift Statute of
Limitations Clarification Act of 1994''.
SEC. 2. AMENDMENTS TO FEDERAL DEPOSIT INSURANCE ACT.
Section 11(d)(14)(B)(i) of the Federal Deposit Insurance
Act (12 U.S.C. 1821(d)(14)(B)(i)) is amended by inserting
after ``receiver'' the following: ``, regardless of whether
the claim may have been barred under any otherwise applicable
statute of limitation at the date of such appointment, unless
such claim was barred more than 5 years before the date of
such appointment''.
SEC. 3. APPLICABILITY.
The provisions of this Act shall apply to all actions
pending or brought by the Corporation as conservator or
receiver on or after August 9, 1989.
____
Federal Deposit
Insurance Corporation,
Washington, DC, April 11, 1994.
Hon. Donald W. Riegle, Jr.
Chairman, Committee on Banking, Housing, and Urban Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I would like to bring to your attention
concerns that the Federal Deposit Insurance Corporation has
with respect to recent court decisions interpreting the
statute of limitations governing actions brought by the FDIC
and the Resolution Trust Corporation as receiver or
conservator of failed institutions.
The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA) provides that the statute of
limitations for tort claims brought by the FDIC and the RTC
as conservator or receiver is the longer of three years or
the period applicable under state law. FIRREA also clearly
states that the date on which the statute of limitations
begins to run is the later of the date of the appointment of
the Corporation as conservator or receiver or the date on
which the cause of action accrues. Nevertheless, the courts
have added the further requirement that the claim must not be
barred under state law at the time the FDIC takes over.
As described in the enclosed analysis of the issue, we
believe the courts have incorrectly applied the statute of
limitations that was established under FIRREA. Also enclosed
is legislation intended to clarify FIRREA with respect to
this issue. How the statute of limitations is computed is
critical to the FDIC's mission to hold bank and tariff
officials and professionals accountable and to maximize
recoveries from failed institutions. We estimate that over
$500 million in claims in pending lawsuits involving FDIC and
old FSLIC receiverships, and millions more for claims still
under investigation, are at risk for dismissal on statute of
limitations grounds if the proposed legislation is not
enacted. We understand that claims of the same general order
of magnitude involving RTC receiverships are similarly at
risk.
I urge you to introduce the proposed legislation and to
promote its passage. Legislation to clarify the statute of
limitations is critical to allowing the FDIC and the RTC to
fulfill their missions to hold wrongdoers accountable and to
recover losses for the insurance funds and the taxpayers.
Without such legislation, more and more RTC and FDIC
professional liability cases will continue to be dismissed on
the ``technicality'' of the statute of limitation having run
before the institution failed. Such legislation is important
not only to maximize recoveries involving institutions that
failed in the past but also to ensure the orderly resolution
of institutions that may fail in the future.
Please let me know if you have any questions or need
assistance with respect to our proposal.
Sincerely,
Andrew C. Hove, Jr.,
Acting Chairman.
____
Explanation of Need to Clarify the Statute of Limitations
Recent Cases
Courts recently have dismissed a number of FDIC
professional liability lawsuits as time-barred. In those
cases, the FDIC has sued former officers and directors and
professional advisors for negligence, gross negligence or
breach of fiduciary duty, for loans that were approved
several years before the bank failed and that subsequently
defaulted. These loans generally contained serious defects in
underwriting, lacking the most basic requirements to protect
the bank's interest, such as adequate collateral or adequate
financial information indicating that the borrower had the
means to repay the loan. In other cases, loans violated
specific laws or regulations, such as limits to a single
borrower.
Despite the clear misconduct involved in approving such
loans, courts have dismissed lawsuits against the responsible
bank officials because the claims for the bad loans, which
were approved and funded several years before the bank
failed, were deemed to have accrued and expired under state
statute of limitations before the FDIC was appointed
receiver. Thus, although such flagrantly irresponsible loan
decisions may have been the major cause of the bank's
failure, the FDIC has been prevented from seeking recoveries
from those who made such damaging decisions.
Until recently, the FDIC and the RTC have had some success
in invoking the doctrine of adverse domination to toll the
statute of limitations and proceed with lawsuits against
responsible officers and directors. See, e.g., FDIC v. Bryan,
902 F.2d 1520 (10th Cir. 1990) (copy attached). That doctrine
recognizes that the members of the board of directors cannot
be expected to sue themselves while they continue to control
the board, and thus the statute of limitations is tolled
while those members remain in control.
In the past year, however, several courts have, for various
reasons, refused to apply the doctrine of adverse domination,
at least as established under federal law, to toll the
limitations period. The leading case is FDIC v. Dawson, 4
F.3d 1303 (5th Cir. 1993), petition for cert. filed, 62
U.S.L.W. ---- (U.S. March 21, 1994) (No. 93-1486), where the
Fifth Circuit upheld the trial court's decision finding the
FDIC's claims against three members of the Board of Directors
of the Texas Investment Bank were time-barred (copy
attached). In so finding, the court refused to apply federal
tolling principles and instead looked to Texas law on adverse
domination, which the court found to be more stringent in the
requirements that must be met to toll the statute. The court
stated that the adverse domination theory would be applied
only when the culpable directors constituted a majority of
the board and when ``wrong-doing or fraud'' were involved,
not negligence.
Subsequently, a number of courts, particularly district
courts in the Fifth Circuit, have followed Dawson. RTC v.
Seale, 13 F.3d 850 (5th Cir., Jan. 26, 1994); FDIC v. Bel
Fay, Civil Action No. H-91-1273 (S.D. Tex., Dec. 17, 1993);
RTC v. Action, Civil No. 3:92-CV-0624-H (N. D. Tex., Feb. 1,
1994); FDIC v. Allison, No. 6-93-CV-59C (N.D. Tex., Jan. 21,
1994); FDIC v. Benson, Civil Action No. H-93-640, (S.D. Tex.,
March 3, 1994); FDIC v. Henderson, 6:91cv481, (E.D. Tex.,
March 9, 1994). In the Bel Fay case, for example, the court
applied Dawson to dismiss claims against outside directors
for gross negligence, and total abdication of duty in
approving defective loans, including an insider loan to
another director. Further, just this month, the FDIC's case
against the defendant owner, CEO and president of the thrift
in Henderson was dismissed for not satisfying Dawson
requirements on the adverse domination doctrine even though a
federal jury had returned a verdict finding that the
defendant was grossly negligent and had breached his
fiduciary duty.
The problem is not limited to Texas and the Fifth Circuit.
In FDIC v. Cocke, 7 F.3d 396 (4th Cir. 1993), petition for
cert. filed, 62 U.S.L.W. ---- (U.S. March 21, 1994) (No. 93-
1485), the Fourth Circuit refused to toll Virginia's one-year
statute of limitations and held that the FDIC's claims based
on bad loans were time-barred by the time the FDIC was
appointed receiver. Under such a short statute of
limitations, it is virtually impossible for the FDIC to hold
bank officials accountable because it normally takes at least
one year from approval of even patently defective loans
before the bank is forced to admit that the loans are in
default and have caused damage to the institution.
CONGRESSIONAL INTENT
We believe the courts have been incorrectly applying the
statute of limitations that was established under FIRREA. As
codified at 12 U.S.C. Sec. 1821(d)(14), FIRREA provides that
the statute of limitations for tort claims brought by the
FDIC or RTC as conservator or receiver (the most common type
of professional liability claim) is the longer of three years
or the period applicable under state law. 12 U.S.C.
Sec. 1821(d)(14)(A).
As set forth at 12 U.S.C. Sec. 1821(d)(14)(B), FIRREA
clearly states that the date on which the statute of
limitations ``begins to run . . . shall be the later of--
(i) the date of the appointment of the Corporation as
conservator or receiver; or
(ii) the date on which the cause of action accrues.''
(emphasis supplied)
This provision is clear on its face that the statute does
not start to run, at a minimum, until the FDIC (or RTC) takes
over a bank. Nevertheless, the courts have added the
further requirement that the claim must not be barred
under state law at the time the FDIC takes over. In other
words, FIRREA, despite its plain language to the contrary,
has been interpreted not to revive claims that had expired
under the state statute of limitations. E.g., Randolph v.
RTC, 995 F.2d 611 (5th Cir. 1993); FDIC v. Shrader & York,
991 F.2d 216 (5th Cir. 1993), petition for cert. filed, 62
U.S.L.W. 3336 (Oct. 26, 1993).
That this interpretation may be contrary to Congressional
intent, was acknowledged by the court in RTC v. Sealt, 13 F.
3d 850 (5th Cir., Jan. 26, 1994) (copy attached), even while
it rejected the RTC's claims as time-barred. As the Seale
court pointed out, there is evidence in the legislative
history that Congress intended FIRREA to revive claims that
would have been considered stale under state law. As Chairman
of the House-Senate Conference on FIRREA, Mr. Chairman, you
stated that the statute was intended ``to maximize potential
recoveries by the Federal Government by preserving to the
greatest extent permissible by law claims that otherwise
would have been lost due to the expiration of hitherto
applicable limitations periods.'' 135 Cong. Rec. s 10205
(daily ed. Aug. 4, 1989). Moreover, the House-Senate
Conference Committee rejected a provision stating that FIRREA
could not revive stale claims. See Seale, 13 F.3d 850, 853.
PROPOSED LEGISLATION
Section 1 of the attached legislation makes clear that
FIRREA was intended to be interpreted as already written--
that is, that the statute of limitations for the claim begins
to run on the date the receiver was appointed, regardless of
whether it was still viable under state law on that date.
However, recognizing a need for some limit on the
revivability of claims (see RTC v. Krantz, 757 F. Supp. 915,
921 (N.D. Ill. 1991)), section 1 further provides that claims
may not be revived if they had expired more than five years
before the FDIC or RTC is appointed receiver. The five-year
revival period is designed to strike a balance. It recognizes
the reality that defective loans that contribute to bank
failure often are approved several years before the
institution actually fails and often before the relatively
short period (typically, only one, two or three years) under
state statute of limitations. At the same time, a revival
period of only five years promotes the public policy of a
reasonable limit to protect citizens from stale claims.
A time-certain revival is preferable to federal legislation
codifying adverse domination because it is mechanical and
mathematical. It is thus less likely to spawn litigation on
the facts necessary to make or defeat a showing of adverse
domination.
Section 2 provides that this legislation applies to all
cases filed or pending on or after August 9, 1989, the
effective date of FIRREA. Because this legislation is
intended to clarify and amplify Congressional intent when
originally passing FIRREA, we believe it should not be
criticized or dismissed as retroactive. Rather, it merely
effects the original intent of FIRREA. But even if it were
considered retroactive, this does not in any way raise a
constitutional concern. See Chase Securities Corp. v.
Donaldson, 325 U.S. 304 (1944).
Mr. D'AMATO. Mr. President, today I join with Senators Riegle, Kerry,
and Metzenbaum in introducing, by request, legislation suggested by the
Federal Deposit Insurance Corporation concerning the statute of
limitations governing actions by the FDIC and the RTC against parties
that have caused losses to closed banks and savings and loans.
In 1989, Congress passed the Financial Institutions Reform, Recovery
and Enforcement Act [FIRREA]. In this legislation, Congress provided
that the applicable statute of limitations for either the FDIC or RTC
would begin on the date the Government is appointed conservator or
receiver, or the date on which the cause of action accrues, whichever
is later.
According to the FDIC, some courts have dismissed a number of FDIC
and RTC suits against parties alleged to have caused losses in
Federally-insured institutions on the ground that the applicable State
statute of limitations had run prior to the appointment of the FDIC or
RTC as conservator or receiver. Due to these cases, the Federal
Government may not be able to recover from parties who may have caused
substantial losses to the Federal deposit insurance system, and in the
case of failed savings institutions, to the American taxpayer. In fact,
the FDIC estimates that over $500 million in claims in pending lawsuits
could be dismissed on statute of limitations grounds, even though suit
was brought within the applicable time limits set out in the 1989
FIRREA legislation.
The legislation proposed by the FDIC provides that the statute of
limitations shall begin to run when the Government is appointed
receiver or conservator, regardless of whether the claim may have been
barred under State law when the institution was taken over. This
amendment would apply to all actions pending or brought by the FDIC or
RTC as of August 9, 1989.
Mr. President, this legislation would clarify the 1989 legislation,
and prevent the continued misinterpretation of a Federal statute of
limitations provision that could cost the American taxpayer hundreds of
millions of dollars. However, I do have some concerns about retroactive
features of the amendment recommended by the FDIC with respect to cases
that have already been finally decided. The FDIC has advised that it
does not intend to use this authority retroactively, even though as
drafted it could be. With this understanding, I am pleased to join
Chairman Riegle in introducing this bill at the request of the FDIC. I
hope to work with the FDIC and my colleagues in the Senate to further
perfect this legislation.
______
By Mr. STEVENS:
S. 2022. A bill to reduce waste of fishery resources off Alaska by
eliminating the catch of prohibited species, requiring full retention
of economic discards and full utilization of processing waste, and for
other purposes; to the Committee on Commerce, Science, and
Transportation.
north pacific fisheries waste reduction act
Mr. STEVENS. Mr. President, at the close of these remarks I wish to
introduce and have appropriately referred the North Pacific Fisheries
Waste Reduction Act of 1994.
The U.N. Food and Agricultural Organization recently listed 12 of the
world's 17 major fisheries as overfished or in serious trouble.
Luckily, none of our Alaskan fisheries were on that list. My bill will
help make sure that Alaska fisheries never get on that list.
The bill would require the North Pacific Fishery Management Council
to adopt conservation and management measures to address the excessive
waste of valuable fishery resources that does occur in fisheries off
Alaska.
Mr. President, specifically, this bill will require the elimination,
to the extent practicable, of the incidental harvest of prohibited
species, the full retention of economic discards and full utilization
of processing waste, the reduction of bycatch of nontarget species, and
rebuilding of fish stocks that are at risk of being overfished.
As Members of the Senate know, roughly 60 percent of the fish caught
in the U.S. waters, the waters off our continent, are caught off
Alaska. That is true in terms of value as well as, I think, in terms of
number.
Now, while this bill would apply only to fisheries off Alaska, I
believe it would address a significant portion of the United States
fisheries where excessive discards, bycatch and waste are occurring. In
terms of harvesting fisheries, the problem in Alaska is not necessarily
the gear being used but the way the gear is being used. Virtually all
the gear in use in the fisheries of the North Pacific could be used
more cleanly.
In 1993, some trawl fisheries discarded over half of the target
species for economic reasons. Those fish were either too big or too
small to be processed by the facilities on board. Some hook and line
fisheries discarded 30 percent of the fish they caught.
In 1993, fishermen off Alaska discarded 693 million pounds of
groundfish, 14 million pounds of halibut, 19 million crab, and 372,000
salmon.
Now, I do not want to be too critical of this. I think the Senate
knows one of my sons is the captain of a fishing vessel. There are many
trawl, long-line, and pot fisheries off Alaska that take only a very
minimal amount of economic discards, bycatch, or prohibited species. It
is almost impossible to fish without catching some fish that are not
targeted. It is the reduction in waste that is possible in all of these
fishing practices, I think, we are after. We want to maximize the
number of clean fishermen that we have in the waters off Alaska.
The bill I introduce today would define ``bycatch'' ``economic
discards,'' ``processing waste'' and ``prohibited species'' to help
delineate between the types of waste that do occur in the North
Pacific. By January 1, 1996, our North Pacific Council would be
required to include fees or other incentives to reduce economic
discards and processing waste in each fishery management plan.
By January 1, 1998, these incentives would be required to include an
allocation preference for cleaner fishing practices within each gear
group. In other words, those who eliminate waste would be given a
preference in the allocation of fishery species in the North Pacific.
My bill would also require the North Pacific Fishery Management
Council to submit a plan to the Secretary of Commerce by January 1,
1996, to phase in the full retention and full utilization of all
fisheries resources except prohibited species.
The council would also establish a cap for those prohibited species,
and on reaching that cap a commercial fishery would be closed for that
season.
I wish to make sure the Senate understands that. We would set a limit
on the incidental harvesting of species that are not targeted species
for that fishery. If the combined fishery catches that amount of fish,
then all commercial fishery practices in the area where the prohibited
species exist would close.
I was pleased that at a recent appropriations hearing Commerce
Secretary Brown told me the administration would consider fees to
reduce waste and bycatch as a part of the fish fee package the
administration intends to submit this spring. I urge the Secretary to
do that. The fishing industry is not in good shape. It really cannot
pay $75 million a year, as the administration proposed, particularly
when one remembers that 60 percent of those fees would be paid by
people fishing off Alaska's shores. But if the administration proposal
creates disincentives for wasteful practices and a way for responsible
fishermen to avoid those fees, I believe the fishermen and Members of
the Senate--as a matter of fact, I believe the whole Congress--would be
willing to support such a concept.
Both the North Pacific Fishery Management Council and the fishing
industry have been progressive in the conservation of valuable
fisheries resources off Alaska in the past. As I said, the findings
show that we have the healthiest area in the world for fisheries; our
wild fisheries are the best in the world, we believe. While we
sometimes disagree about the means, I think all involved in the Alaska
fisheries share the goal of conserving the resources and thereby
preserving the fabric of the Alaska economy and the Alaska coastal
communities.
Mr. President, the fishing industry is the major employer in my
State. The bill I am introducing does not attempt to address the
intricate details needed to reduce the waste in those fisheries. It
establishes the goals and gives the North Pacific Fishery Management
Council the mandate to achieve those goals. I believe they can do it
with the full participation of those involved in the fisheries off our
State.
I anticipate a healthy reaction. Perhaps some people will disagree.
But the bill I am introducing today I believe is one that will cause
people to think. It is my hope that this bill will be considered as an
amendment to the Magnuson Act, and I look forward to receiving comments
as the Congress focuses our attention this year on the reauthorization
of that act.
______
By Mr. STEVENS (for himself and Mr. Murkowski):
S. 2023. A bill to provide for the transfer of certain real property
to the General Services Administration and for other purposes; to the
Committee on Governmental Affairs.
wrangell institute act of 1994
Mr. STEVENS. Mr. President, I am introducing legislation today to
authorize the return of the Wrangell Institute to the General Services
Administration [GSA].
The Wrangell Institute was owned and operated by the Federal
government as a Bureau of Indian Affairs [BIA] boarding school and
medical facility for Indian and Eskimo children between 1932 and 1975.
In 1977, the Department of the Interior [DOI] requested that GSA accept
the Wrangell Institute as surplus property. DOI did not mention any
contamination in their reports to GSA. In fact, BIA stated there was no
contamination and no need for cleanup of the site in the statement of
intent to relinquish the property.
In 1977 the GSA surplused the Wrangell Institute and the property was
obtained by Cook Inlet Region, Inc. [CIRI] in 1978 with monetary
credits from the CIRI Property Account at the U.S. Treasury. CIRI is an
Alaska Native Corporation. The Property Account was established by
Congress to compensate CIRI for relinquishing their holdings in the
Lake Clark National Park in Alaska.
The properties that CIRI relinquished to the government were pristine
acreage and are now part of one of the crown jewels of the National
Park System. Unfortunately, the property that CIRI received in return
was contaminated.
The contamination was left by the Government. The BIA was the sole
tenant of the property other than for a short period during World War
II when the Army used the Wrangell Institute as a relocation center for
Alaska Natives who were evacuated from the Aleutian Islands after the
Japanese attack of Dutch Harbor and the Island of Attu.
This legislation would return the property to GSA in return for the
original monetary credits, interest on the credits for the period after
the contamination was discovered, and expenses incurred due to the
contamination. CIRI would be relieved of any liability associated with
the contamination caused by the U.S. Government. This is just a matter
of fairness. CIRI was not aware of the contamination when GSA
transferred the property and they should not have to bear the costs of
contamination created by the Federal Government.
The Congressional Budget Office reviewed the bill and found it to
have ``no net impact on the federal budget.''
______
By Mr. SIMON (for himself, Ms. Moseley-Braun, Mr. Cochran, and
Mr. Thurmond):
S.J. Res. 181. A joint resolution to designate the week of May 8,
1994, through May 14, 1994, as ``United Negro College Fund Week;'' to
the Committee on the Judiciary.
united negro college fund week
Mr. SIMON. Mr. President, next month the United Negro college
Fund [UNCF] celebrates its 50th anniversary. All of us are familiar
with UNCF's slogan, ``A mind is a terrible thing to waste.'' And most
of us--especially those of us who have served in the other Chamber--
know Bill Gray, UNCF's outstanding president and chief executive
officer.
But few of us are familiar with the history of UNCF. The organization
was the brainchild of Dr. Frederick D. Patterson, who wrote in January,
1943, that the Nation's private black colleges and universities need to
``pool their small monies and make a united appeal to the national
conscience.'' Otherwise, he argued, these schools risked their very
existence.
It was on May 13, 1944, that ``Dr. Pat,'' as he was affectionately
known, formed UNCF by bringing together college, foundation, and
business leaders, including: the presidents of private black colleges,
including Fisk University, Howard University, Spelman College, Dillard
University, Morehouse College, Tuskegee Institute, Clark College,
Gammon Theological Seminary--now Interdenominational Theological
Seminary; key philantropic leaders representing the Rockefeller
Foundation, the Rosenwald Fund; and key business executives such as the
head of Lord & Taylor and a representative from John Price Jones. At
the time, Dr. Benjamin E. Mays, president emeritus of Morehouse
College, said, ``Of course, you have in mind our doing this for two or
three years, and then going back to what we were doing, don't you?''
Mr. President, I give thanks that UNCF was not just a temporary
effort. The first UNCF campaign grossed an impressive $760,000; last
year, UNCF's annual campaign grossed more than $58 million, and more
than $190 million was raised for Capital Campaign 2000. These efforts
have helped support UNCF member institutions so that today they educate
nearly 55,000 students.
The Nation, too, should give thanks that UCNF never altered course.
Many of our African American leaders attended UNCF member institutions:
The Rev. Dr. Martin Luther King, Jr., Vernon Jordan, and former Atlanta
Mayor Maynard Jackson attended Morehouse College; Andrew Young, former
U.N. Ambassador and Atlanta Mayor, and Ellis Marsalis, jazz musician
and instructor, attended Dillard University; Ralph Wiley, author and
columnist, attended Knoxville College; attorney and children's advocate
Marian Wright Edelman attended Spelman College; Larry Little,
Temple University basketball coach and Hall of Fame Miami Dolphins
guard, attended Bethune Cookman College; opera diva Leontyne Price
attended Wilberforce University; our outstanding Surgeon General, Dr.
Joycelyn M. Elders, attended Philander Smith College; Secretary of
Energy Hazel Rollins O'Leary attended Fisk University; and former
Virginia Governor L. Douglas Wilder attended Virginia Union University.
While UNCF member institutions are not in every state, the alumni are
nationwide. In Illinois, they are among the most prominent attorneys,
doctors, elected officials, teachers and school administrators. Many of
my colleagues have had graduates of UNCF member institutions serve with
distinction on their staffs. For almost 9 years, William A. ``Bud''
Blakey, who attended Knoxville College, served as my subcommittee
counsel and staff director in the House of Representatives and here in
the Senate. Much of what I accomplished in the areas of education and
training was achieved through his counsel and hard work.
Mr. President, we have come a long way in achieving equal opportunity
in higher education. But we still have many miles to go. UNCF member
institutions are leading the way by providing a quality higher
education for a broad cross-section of African-American students.
I commend UNCF's fine work, and I encourage my colleagues to join me
and Senator Moseley-Braun, Senator Thurmond, and Senator Cochran in
supporting this resolution commemorating the fiftieth anniversary.
I ask unanimous consent that the text of the joint resolution be
printed in the Record.
There being no objection, the joint resolution was ordered to be
printed in the Record, as follows:
S.J. Res. 181
Whereas in 1943, Dr. Frederick D. Patterson of the Tuskegee
Institute convened the first meeting to consider the
feasibility of a united appeal on behalf of historically
black private colleges and universities;
Whereas on May 13, 1944, the organizing meeting of the
United Negro College Fund was held at the Waldorf-Astoria
Hotel in New York City;
Whereas Atlanta University, Bethune-Cookman College, Clark
College, Dillard University, Fisk University, Gammon
Theological Seminary, Morehouse College, Spelman College, and
the Tuskegee Institute were the founding member institutions
of the United Negro College Fund;
Whereas the initial combined campaign of the United Negro
College Fund raised $760,000;
Whereas through the year 1993, the 41 member institutions
of the United Negro College Fund now enroll more than 55,000
students, have shared more than $58,000,000, and have raised
more than $889,000,000 for the 50th Annual Campaign, and more
than $190,000,000 for the United Negro College Fund Capital
Campaign 2000; and
Whereas the United Negro College Fund continues to provide
students quality academic instruction in a positive learning
environment and assists the mission of the Federal Government
to promote equal opportunity in higher education: Now,
therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That--
(1) the week of May 8, 1994, through May 14, 1994, is
designated ``United Negro College Fund Week'', and the
President is authorized and requested to issue a proclamation
calling upon the people of the United States to observe that
week with appropriate programs, ceremonies, and activities;
(2) Congress salutes and acknowledges the United Negro
College Fund, the president of the United Negro College Fund,
William H. Gray, III, and the presidents, faculties, staff,
and trustees of the 41 member institutions of the United
Negro College Fund for their vigorous and persistent efforts
in support of equal opportunity in higher education, and
commends the students who benefit from the United Negro
College Fund for their pursuit of academic excellence; and
(3) this joint resolution may be cited as the ``United
Negro College Fund 50th Anniversary Resolution''.
____________________