[Congressional Record Volume 140, Number 44 (Wednesday, April 20, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: April 20, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. AKAKA (for himself and Mr. Inouye):
S. 2032. A bill to amend the Energy Policy and Conservation Act with
respect to purchases from the Strategic Petroleum Reserve by entities
in the insular areas of the United States, and for other purposes; to
the Committee on Energy and Natural Resources.
emergency petroleum supply act
Mr. AKAKA. Mr. President, today I am introducing the Emergency
Petroleum Supply Act, a bill to ensure that insular areas of the United
States have guaranteed access to the strategic petroleum reserve during
an oil supply disruption. Senator Inouye has joined me in cosponsoring
this legislation.
Hawaii relies on oil for 90 percent of its energy needs, all of which
arrives by ocean tanker. We are the most oil-dependent State in the
Nation. That is why access to oil reserves during an energy emergency
is so important to the people of Hawaii. An oil supply disruption could
stifle our economy and cripple our largest employer the visitor
industry.
The legislation I am introducing today will safeguard Hawaii from the
harsh economic consequences of an oil emergency. The Emergency
Petroleum Supply Act is good energy policy and good economic policy for
the State of Hawaii.
The cold war may be over, but the world continues to be a dangerous
place because of regional tension and conflict. The Middle East, which
controls 65 percent of the world's oil supply, has seen its share of
turmoil and will face instability in the years to come. Last week's
tragic friendly fire incident, in which 26 American soldiers, U.N.
peacekeepers, and Kurdish civilians were killed, serves as a grim
reminder that Iraq, the country with the world's second largest proven
oil reserves, is still a war zone.
Three years ago, Iraq was the site of the largest United States
military engagement since the Vietnam war. While we are all pleased the
attempted occupation of Kuwait was unsuccessful, Iraq's aggression is a
stark reminder of just how vulnerable we are to a cutoff of oil
supplies.
The thought of what Iraq could have achieved had its occupation of
Kuwait been successful remains a frightening prospect. The combined oil
reserves of Iraq and Kuwait total 260 billion barrels. Had these oil
fields come under unified control, they would constitute one-fifth of
the world's oil reserves. It is a sobering thought to imagine so vast
an energy resource under the control of a despot like Saddam Hussein.
The gulf war was not the first time in recent memory that we faced a
major oil supply disruption, however. The invasion of Kuwait triggered
the third disruption of world oil supplies in the past 20 years.
Fortunately, we have a resource in place to insulate U.S. consumers
from energy price shocks. When an oil crisis hits, we turn to the
strategic petroleum reserve. This emergency reserve, located in
Louisiana and Texas, currently holds 580 million barrels of crude.
During the gulf crisis, our emergency reserves were called into
action for the first time. On January 16, 1991, the day Operation
Desert Storm was launched, the President authorized the first emergency
drawdown of the petroleum reserve. Fortunately, the war with Iraq was
short-lived and the SPR drawdown was limited.
Had we been hit by a more severe oil supply disruption, these
emergency reserves would certainly have protected the continental
United States from serious economic harm. Hawaii and the territories
would not have been so fortunate, however. Hawaii's only means of
access to the strategic petroleum reserve is by tanker delivery from
the Gulf of Mexico through the Panama Canal. Unlike the mainland, which
has access to oil transported by pipeline, rail, and highway, all of
Hawaii's crude oil and refined products arrive by ocean tanker. A total
reliance on ocean deliveries makes Hawaii exceptionally vulnerable to a
cutoff of oil supplies.
As any grade school geography student can tell you, Hawaii is a long
way from the Gulf of Mexico, especially when you have to transit the
Panama Canal. The distance between the strategic petroleum reserve
loading docks and Honolulu, by way of the canal, is 7,000 miles--more
than one-quarter of the distance around the globe. The problems of the
other Pacific territories are even more acute. American Samoa is 8,000
miles by ship from the SPR facilities, and Guam is over 10,000 miles
distant from these reserves. Puerto Rico and the Virgin Islands face a
similar predicament.
But distance alone is not the issue. When you add together the time
between the decision to drawdown the reserves and the time for oil from
the reserves to actually reach our shores, the seriousness of the
problem emerges. it takes time to solicit and accept bids for SPR oil,
time to locate and position tankers, time for tankers to wait in line
to gain access to SPR loading docks, and more time to transit the canal
to Hawaii. Obviously, Hawaii is at the end of a very, very long supply
line. People overlook the fact that insular areas have a limited supply
of petroleum products on hand at any one time. While Hawaii waits for
emergency supplies to arrive, oil inventories could run dry and our
economy would grind to a halt.
An oil supply disruption is Hawaii's greatest nightmare. Studies
commissioned by the State of Hawaii have determined that the delivery
time for strategic petroleum reserve oil to Hawaii from the Gulf of
Mexico would be as much as 53 days. This exceeds the State's average
commercial working inventory by 23 days.
As I have said before, when the Middle East sneezes, the mainland may
catch a cold, but Hawaii comes down with double pneumonia. We have good
reason to be concerned about the ability of the strategic petroleum
reserve to serve Hawaii in a crisis. That is why I am introducing this
legislation today.
A study recently completed for the Department of Energy by the East-
West Center provides strong justification for granting Hawaii and the
territories special access to SPR oil during an energy emergency. The
East-West Center study concluded that a major oil supply disruption
would have a much more severe impact on the Pacific islands than the
rest of the United States. Although all of Asia would experience
inflation and recession, the small economies of the insular areas would
be virtually unprotected from volatile economic forces. While the rest
of the United States does not have to rely on ocean transport from
other nations for goods and services that are an essential part of
daily living, the economies of Hawaii and the Pacific islands are
heavily dependent on ocean-borne trade and international tourism.
The East-West Center study thoroughly analyzed the effect of a major
oil supply disruption on the economies of these islands. It found that
although an oil price shock would be traumatic, the aftereffects would
be even more severe. An oil shortage would lead to recession, which
would trigger a decline in tourism and produce a continuing downward
spiral for the island economies. Finally, the date indicate that such a
downward spiral would last longer in island economies than in the much
larger, broadly integrated mainland economy.
According to the East-West Center, a secondary impact of a severe oil
supply disruption would be significant price hikes, with a doubling or
even tripling of prices as a likely outcome, and a corresponding
increase in inflation. Tourism could fall by as much as 50 percent,
causing a 5-percent job loss in the U.S. Pacific islands, or roughly
28,000 jobs in Hawaii. A recession would likely follow, producing a
much more severe downturn that could easily double the effects of the
crisis. In other words, a severe oil supply disruption would create
adverse downstream effects that would not be felt for several months,
yet would continue for several years. The study paints a bleak portrait
of the economic consequences of an oil emergency in Hawaii.
The East-West Center study also provided an analysis of my proposed
legislation. After examining the overall oil supply and demand
situation within the Pacific basin, the inability of refineries to
accept crude from nontraditional suppliers, and the full range of
consequences that would result from a major oil supply disruption, the
report concluded that the bill I am introducing today is ``an excellent
proposal which would greatly reassure the islands that their basic
needs would be maintained.''
The objective of my bill can be summed up in one word: access. Hawaii
and the territories, because of their tremendous distance from the Gulf
Coast, need guaranteed access to the strategic petroleum reserve as
well as priority access to the SPR loading docks.
My bill addresses both these concerns. First, it provides a mechanism
to guarantee an award of SPR oil. Companies serving insular areas would
be able to submit binding offers for a fixed quantity of oil at a price
equal to the average of all successful bids. This concept is modeled
after the way the Federal Government sells Treasury bills. It would
ensure that Hawaii and the territories have ready access to emergency
supplies of oil at a price that is fair to the Government. Without this
change, Hawaii's energy companies, and the population they serve, face
the risk that their bid for SPR oil would be rejected and that oil
inventories would run dry.
The second component of my bill addresses the problems of delay. It
grants ships delivering petroleum to Hawaii and the territories
expedited access to strategic petroleum reserve loading docks. It would
be a terrible misfortune if deliveries to Hawaii or some other oil-
starved territory were further delayed because the ship scheduled to
carry emergency supplies was moored in the Gulf of Mexico, waiting in
line for access to the SPR loading docks.
As the East-West Center study demonstrates, energy security is an
important economic issue for the Pacific islands. Hawaii may be the
50th State, but we deserve the same degree of energy security that the
rest of the Nation enjoys. It's simply a matter of equity. Hawaii's tax
dollars help fill and maintain the strategic petroleum reserve, but
Hawaii doesn't benefit from the energy security the reserve provides.
That's not fair. And it's not right.
I ask unanimous consent that the text of the bill and relevant
portions of the East-West Center study be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2032
Be it enacted by the Senate and House of Representatives of
the United States of American in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Emergency Petroleum Supply
Act''.
SEC. 2. PURCHASES FROM THE STRATEGIC PETROLEUM RESERVE BY
ENTITIES IN THE INSULAR AREAS OF THE UNITED
STATES.
(a) General Provisions.--Section 161 of the Energy Policy
and Conservation Act (42 U.S.C. 6241) is amended by adding at
the end the following new subsection:
``(j)(1) With respect to each offering of a quantity of
petroleum product during a drawdown of the Strategic
Petroleum Reserve:
``(A) A purchaser located in an eligible insular area of
the United States, in addition to having the opportunity to
submit a competitive bid, may submit (at the time bids are
due) a binding offer, and shall on submission of the bid be
entitled to purchase a category of a petroleum product
specified in a notice of sale at a price equal to the average
of the successful bids made for the remaining quantity of
petroleum product within the category that is the subject of
the offering.
``(B) A vessel that arrives at a delivery line of the
Strategic Petroleum Reserve to take on a petroleum product
for delivery to a purchaser located in an eligible insular
area of the United States shall be loaded ahead of other
vessels waiting for delivery if the Governor or other chief
executive officer of the eligible insular area of the United
States certifies that delivery must be expedited to avert a
critical supply shortage in the eligible insular area of the
United States.
``(2)(A) In administering this subsection, and with regard
to each offering, the Secretary may impose the limitation
described in subparagraph (B) or (C) that results in the
purchase of the lesser quantity of petroleum product.
``(B) The Secretary may limit the quantity that any one
purchaser may purchase through a binding offer at any one
offering of \1/12\ of the total quantity of petroleum
products that the purchaser imported during the previous
year.
``(C)(i) Subject to clause (ii), the Secretary may limit
the quantity that may be purchased through binding offers at
any one offering to 3 percent of the offering.
``(ii) If the Secretary imposes the limitation stated in
clause (i), the Secretary shall prorate the quantity among
the purchasers who submitted binding offers.
``(3) In administering this subsection, and with regard to
each offering, the Secretary shall, at the request of a
purchaser--
``(A) if the quantity is less than 50 percent of 1 full
tanker load less than a whole-number increment of a full
tanker load of a petroleum product, adjust upward, to the
next whole-number increment of a full tanker load, the
quantity to be sold to the purchaser; or
``(B) if the quantity is 50 percent of 1 full tanker load
more than a whole-number increment of a full tanker load of a
petroleum product, adjust downward, to the next whole-number
increment of a full tanker load, the quantity to be sold to
the purchaser.
``(4)(A) Except as provided in subparagraph (B), petroleum
products purchased through binding offers pursuant to this
subsection shall be delivered to the eligible insular area of
the United States.
``(B) Purchasers may enter into exchange or processing
agreements that require delivery to other locations.
``(5) As used in this subsection:
``(A) The term `eligible insular area of the United States'
means the State of Hawaii, the Commonwealth of Puerto Rico,
the Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands.
``(B) The term `offering' means a solicitation for bids to
be submitted not later than any specified day for a quantity
or quantities of crude oil or petroleum product from a
delivery line of the Strategic Petroleum Reserve.''.
(b) Effective Dates.--The amendments made by subsection (a)
shall remain in effect until such time as the Secretary
promulgates and implements regulations pursuant to section 3.
SEC. 3. REGULATIONS.
(a) Definitions.--For the purposes of this section--
(1) the term ``insular area'' means the State of Hawaii,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana
Islands; and
(2) the term ``eligible purchaser'' means--
(A) an insular area government; or
(B) a person who owns a refinery that--
(i) is located in an insular area; or
(ii) has supplied refined petroleum product to an insular
area within the year immediately preceding the sale, or
within another period the Secretary determines to be
representative of recent imports to the insular area.
(b) In General.--The Secretary shall issue regulations that
provide benefits for insular areas during the sale of
petroleum product withdrawn from the Strategic Petroleum
Reserve.
(c) Content.--The regulations issued under subsection (a)--
(1) shall permit an eligible purchaser to purchase
petroleum product--
(A) at a price equal to the average price of comparable
quality petroleum product sold at the contemporaneous
competitive sale of petroleum product withdrawn from the
Strategic Petroleum Reserve; or
(B) if no comparable quality petroleum product sold at the
contemporaneous competitive sale, at a price estimated by the
Secretary to be equivalent to the price described in
subparagraph (A);
(2) shall provide for priority cargo lifting of petroleum
product purchased by an eligible purchaser at a competitive
sale or under paragraph (1);
(3) may limit the amount of petroleum product that may be
purchased under paragraph (1) during a sales period--
(A) by an eligible purchaser, to no less than \1/12\ of the
total amount of petroleum product that the purchaser brought
into an insular area during the year immediately preceding
the sale or during another period the Secretary determines to
be representative of recent imports to the insular area; or
(B) by all eligible purchasers, to no less than 3 percent
of the amount of petroleum product offered for sale during
the sales period prorated among the eligible purchasers;
(4) may provide that, at the request of a purchaser, the
quantity of petroleum product to be sold to the purchaser may
be adjusted upward or downward, to the next whole-number
increment of a full tanker load, if the quantity that
otherwise would be sold is less than a whole-number
increment;
(5) may establish procedures for qualifying an entity as an
eligible person before a sale of petroleum product withdrawn
from the Strategic Petroleum Reserve;
(6) may require an eligible purchaser to comply with
financial and performance responsibility requirements applied
to offerors in competitive sale;
(7) except as otherwise provided by this subsection, may
require an eligible purchaser who purchases petroleum product
under paragraph (1) to comply with standard contract
provisions applied to purchasers at competitive sales;
(8) may ensure, to the extent practicable, that an eligible
purchaser who receives benefits under paragraph (1) or (2)
passes on the benefits to an insular area;
(9) may require an eligible purchaser who receives benefits
under paragraph (1) or (2) to furnish the Secretary with
documents and other appropriate information to determine
compliance with this subsection; and
(10) may establish procedures for imposing sanctions on an
eligible purchaser who receives benefits under paragraph (1)
or (2) and who does not comply with the requirements of this
subsection.
(d) Plan Amendments.--No amendment of the Strategic
Petroleum Reserve Plan or the Distribution Plan contained in
the Strategic Petroleum Reserve Plan is required for any
action taken under this subsection if the Secretary
determines that an amendment to the plan is necessary to
carry out this section.
(e) Administrative Procedure.--Regulations issued to carry
out this subsection shall not be subject to the requirements
of section 523 of the Energy Policy and Conservation Act (42
U.S.C. 6393) or of section 501 of the Department of Energy
Organization Act (42 U.S.C. 7191).
____
Energy Vulnerability Assessment for the U.S. Pacific Islands
Oil Supply Disruption Scenarios For the Pacific Islands
The following sections describe the potential oil supply
disruptions scenarios provided by the USDOE for this report,
the likely impacts of these supply disruptions on the island
economies, and selected response issues. The discussions
parallel those in chapters 4 to 7, which also discuss
vulnerability response options for the individual island
entities. The response issues which are discussed below
reflect the larger economies of scale which can be gained by
linking Guam, the CNMI, Palau, and American Samoa. Hawaii and
the Federated States of Micronesia and the Repubic of the
Marshall Islands should be included in any regional groupings
because they are also part of the same oil supply system.
Unfortunately, the terms of reference for this report did not
allow for assessment of these island entities.
Three oil supply disruption scenarios for the Pacific
islands are discussed below and evaluated with respect to
their potential impacts. Figures 2.16, 2.17, and 2.18 provide
the basis for the assessment. The three scenarios are all
estimated to last six months and include:
Scenario I: Major disruption caused by major political
turmoil affecting Middle Eastern and Asian producers with a
net loss of 4.5 MMBD (9.0 MMBD production loss minus 4.5 MMBD
drawdown of global strategic petroleum reserve).
Scenario II: Medium-scale disruption caused by simultaneous
upheaval in West African and Latin American producers with a
net loss 4.5 MMBD (production loss of 6.0 MMBD minus SPR
drawdown of 1.5 MMBD).
Scenario III: Minor disruption based on limited upheaval in
the Middle East with a loss of 2.0 MMBD (production loss of
4.3 MMBD minus production increase by other countries of 2.3
MMBD).
Before discussing the specific scenarios, several
historical reference points should be noted. First, the Asian
market is a net importer of oil sourced largely from the
Middle East. Second, during previous oil crises, Asian
producers such as Indonesia and Malaysia have not diverted
supplies. Instead, Asian producers have generally given
preference to traditional markets, including Singapore, for
their products. Third, most Asian refineries such as those in
Singapore are configured to process Middle Eastern crudes and
are not as well adapted to refining the lighter, sweeter West
African crudes and the heavier, more sour Latin American
crudes. In other words, Asia's refining capacity is geared
towards supplies from the Middle East, and substitutes are
not readily available or easily incorporated. The scenarios
are discussed below beginning in reverse order.
Scenario III: Minor disruption
Under Scenario III, there would be no redirection of Asian
oil supplies. Impact on U.S. West Coast supplies would be
negligible. However, there would be a drop of 10 percent in
supplies for Singapore (approximately 100 to 150 MBD), and a
similar reduction in Australian and New Zealand crude
imports. The result is an anticipated shortfall of
approximately 10 percent for the Pacific islands region.
The effects of this 10 percent shortfall are considered
minimal. Oil price rises would be very modest and there
should be no appreciable negative secondary effects for the
islands region such as a major decline in tourism.
No official response measures would need to be instituted.
However, it is recommended that monitoring of supplies and
prices should be carried out. It is also recommended that
utilities, the oil industry, and governments promote energy
conservation programs, including voluntary measures by the
population to reduce consumption of electricity and gasoline.
Scenario II: Medium disruption
Although the volume of oil lost to the market is
considerable (4.5 MMBD), because the West African and Latin
American producers are linked to other markets, the Asia-
Pacific region would be only slightly affected. There would
be some redirection of Middle Eastern supplies, but it is
anticipated that the net effect would lead to only a 10
percent decrease in supplies for Singapore, Australia and New
Zealand. Similarly, the effect on the U.S. West Coast would
be minimal.
The results and response measures for Scenario II are
identical to those described above for Scenario III.
Scenario I: Major disruption
A global net loss of 4.5 MMBD based on major political
upheaval in the Middle East and Asia and includes a total
loss of 2.5 MMBD from Asia oil producers would affect various
Pacific Rim markets very differently. The direct impact on
U.S. West Coast supplies would be fairly limited (e.g., 5
percent or less) because imports have only a small role in
that market. The direct and indirect effects on supplies to
Australia and New Zealand should be relatively modest,
approximating a 10 percent decline. The Singapore refiners,
however, would be severely affected.
In this scenario, Singapore would experience a 30 percent
loss in Asian supplies. The cutback in Middle Eastern
production would result in an additional 20 percent decrease.
The combined loss of 50 percent would greatly affect the
islands region both directly and indirectly.
Directly, the islands region would lose at-least 50 percent
of its supplies from Singapore. Australia would be able to
provide some additional supplies, but it would also have to
compensate for its own loss of supplies. The net loss to the
islands region could well be in the range of 25 to 50
percent.
A secondary impact would be significant price hikes. Under
Scenario I, spot prices on the Singapore market would soar.
Price doubling and even tripling would be likely outcomes. In
the 1979/80 period, the crisis centered on Iran led to an
additional 20 percent increase in prices. The short-term
consequences of the 1979 oil price rise lead to inflation
rates of 7.5 percent in Japan, 11 percent in Australia, 15
percent in Fiji and nearly 30 percent in Tonga and Vanuatu.
In other words, inflation rates in some of the islands nearly
doubled. If the 1979 experience is applied, it would be
reasonable to anticipate a near doubling of inflation rates
for Guam, the CNMI and Palau.
Compounding the direct supply and price effects of Scenario
I, the political complications of the oil supply disruption
have to be considered. Following the onset of the recent
Persian Gulf War, the Iraqi President threatened to attack
U.S. territory and economic interests throughout the world,
and there had been several reports of terrorist activity by
Iraqis in Asia which heightened concern. As a result, Guam,
the CNMI, and Hawaii experienced a downturn in tourism
immediately following the outbreak of the 1991 Gulf War
because tourists were frightened to fly to U.S. territory.
Whether fact or only perception, people reduce their
international travel even to relatively ``safe'' destinations
during crisis periods: if there is political upheaval in a
major Middle Eastern or Asian nation, international business
and tourist travel will be restricted in order to reduce the
vulnerability to terrorist attacks.
Interestingly, the number of tourists to Guam and the CNMI
began to revive soon after the Gulf War and by early 1992
tourist arrivals were at record levels. However, in September
1992, Typhoon Omar struck Guam and the CNMI and was followed
by several other typhoons. The result was a drop of nearly 45
percent in the level of Guam's tourist arrivals, a loss of
1,500 jobs, and a substantial decline in tax revenues, all of
which have been greatly compounded by the continuing slump in
the Japanese economy.
These effects would probably be similar to the effects of
an oil supply disruption under Scenario I. Although difficult
to predict with any level of certainty, tourist arrivals
could fall sharply (by as much as 50 percent) if a political
upheaval in Asia elevated fears of international terrorist
activity and/or resulted in higher travel costs. The near-
term effects would be a loss of jobs by roughly 5 percent and
a fall in tax revenues by a similar level. However, if a
recession were to follow, and this would be a likely outcome,
then the downturn would be much more severe and could easily
double the effects of the crisis.
With Scenario I, it is very likely that in addition to oil
supply shortfalls, oil price increases, inflation, and
reduced levels of international tourism resulting from the
political upheaval causing the oil supply disruption, a
recessionary period in the major economies would ensue. The
effects of a major recession would again greatly affect the
island economies through reduced levels of tourism and
reduced demand for their exports, mainly fresh and canned
seafoods. As an example, the 1973/74 oil price rise led to
global recession, including a severe downturn in Australia
which greatly reduced the levels of Australian tourists to
Fiji. In other words, a severe oil supply disruption creates
downstream effects which are not felt for several months yet
may continue for several years.
Two key questions emerge under Scenario I. The first is
whether the islands would experience more severe impacts than
the rest of the United States. Although all of Asia would
experience inflation and recession, the islands' small open
economies would be virtually unprotected from the global
market: nearly all food and all medicine are imported. The
economies are nearly totally dependent on off-island trade
and international tourism; with the exception of Hawaii, the
rest of the United States does not have to rely on ocean
transport and other nations for essential goods and
services. In sum, there would be no territory of the
United States more severely affected by a major Asian oil
supply disruption than the Pacific islands.
The second question is how to respond with short-term
measures to meet basic demands for petroleum. Oil price and
supply monitoring and voluntary conservation programs would
be insufficient responses to a disruption of this magnitude.
With respect to the oil supply, the U.S. West Coast could
divert some of its supplies to the islands. The Australian
arrangement for the South Pacific islands may provide a
useful guide. In the event of an oil supply disruption which
results in a net market loss of crude oil or petroleum
products of 7 percent of the total International Energy
Agency (IEA) market, the IEA member may elect to activate the
Emergency Oil Sharing System, the objective of which is to
ensure fair sharing of available supplies among the IEA group
of countries (the OECD minus France). As a member of the IEA,
Australia is committed to take certain demand restraint
measures should the IEA Emergency Oil Sharing Scheme go into
effect. The demand restraint is measured as a percentage
decrease in total consumption, including traditional exports.
This means that if a 10 percent demand restraint measure is
instituted, then Australia has to cut its combined own
consumption and traditional exports by 10 percent.
The Australian arrangement covers the independent island
nations sourced from Australia. It does not cover American
Samoa or any of the North Pacific nations and territories
sourced via Guam, including the Federated States of
Micronesia and the Republic of the Marshall Islands. These
nations and territories either have to secure emergency
supplies via Singapore or from a nontraditional supplier, the
United States.
The United States via its military infrastructure has
considerable levels of stocks in the Asia-Pacific region as
well as the shipping capacity to deliver supplies. However,
as Figure 3.2 shows, the military is cutting back on its
commercially leased storage capacity and is also shutting
down some of its own storage facilities in certain locations.
Another potential source of crude petroleum is Papua New
Guinea whose oil production is now at 135,000 b/d. Currently
refined throughout the Asia Pacific region, this crude
resource could provide a substantial margin of safety for the
Pacific islands. A 30,000 b/d refinery has been approved by
the government and could be operating in 1996.
Through the supply capacities of the oil companies
operating in the region, other regional suppliers, and the
U.S. government (Strategic Petroleum Reserve and the
military), the Pacific islands should be able to receive
emergency supplies. It is possible that some type of formal
assurance to the island governments is required. Currently
being considered for legislation in the U.S. Congress is a
proposal which would guarantee the U.S. Pacific islands
including Hawaii a percentage drawdown of the national SPR if
emergency measures were placed in effect. This guarantee
would ensure access to oil supplies for the islands. Market
prices would have to be paid, but basic services could be
maintained. Not guaranteed is transport for the oil supplies.
However, preliminary indications are that tankers could be
acquired, albeit at market rates which would be high during
crisis periods. This is an excellent proposal which would
greatly reassure the islands that their basic needs would be
maintained.
______
By Mr. BAUCUS (for himself and Mr. Burns):
S. 2033. A bill to provide for the exchange of certain lands within
the State of Montana; to the Committee on Energy and Natural Resources.
LOST CREEK LAND EXCHANGE ACT OF 1994
Mr. BAUCUS. Mr. President, I am introducing the Lost Creek
Land Exchange Act of 1994. This legislation exchanges 10,800 acres in
the Deerlodge and Gallatin National Forests and the opportunity to
harvest approximately 3.5 million boardfeet of timber in the Deerlodge
National Forest for 18,300 acres of land that is currently owned by
Brand S. Lumber Co., of Livingston, MT.
This legislation is of real benefit to Montanans and the millions of
Americans who visit our national forest system each year. Specifically,
this legislation accomplishes three very important objects.
First, it brings into public ownership the 14,500 acre Lost Creek
Reserve. Located north of Anaconda in the Deerlodge National Forest,
the Lost Creek Reserve is an outstanding place. The Lost Creek Reserve
is home to Rocky Mountain Bighorn sheep, mountain goats, elk, moose,
and deer, and it is literally right out the backdoor for the community
of Anaconda. Acquiring this property means convenient public access to
some of the best wildlife habitat and hunting in the Rocky Mountains.
Second, this legislation completes consolidation of lands in the
Gallatin Range Wilderness study area, Gallatin National Forest. The
Gallatin National Forest surrounds Yellowstone National Park, and
serves as critical habitat for Yellowstone's elk, deer, moose, and
grizzly bear. Our best trout streams like the Yellowstone and Gallatin
Rivers are fed by streams that originate high in the Gallatin Range.
The outstanding scenery and wildlife opportunities in the Gallatin are
not lost on the public--the Gallatin has the highest visitor use of any
forest in Montana.
Congress has already taken two very important steps to consolidate
public ownership in the Gallatin Range. In 1989-90, Congress
appropriated a total of $7 million to purchase lands in the Gallatin
National Forest that are critical winter range for Yellowstone's elk
herds. This last Congress, President Clinton signed into law the
Gallatin Range Consolidation and Protection Act. Under this act, the
Forest Service will acquire over 70,000 acres of land in the Gallatin
Range.
The Lost Creek Land Exchange Act completes what has been a concerted
effort by many groups over many decades. The Forest Service will
acquire 4,485 acres of land in the Gallatin Range, of which, 3,205 is
within the boundaries of the Gallatin Wilderness study area.
Third, this legislation creates jobs by making timber available for
Brand S Lumber Co. to harvest in an environmentally responsible manner.
Brand S has gained a good deal of respect in Montana for their
dedication to responsible timber management. In this legislation, the
land and timber rights that Brand S will receive are specifically
governed by Best Management Practices developed by the Forest Service.
Additionally, Brand S has agreed to work with the Nature Conservancy
and place conservation easements on the lands that they acquire in the
Gallatin National Forest to protect against future commercial
development.
This legislation is the product of considerable work by Brand S
Lumber Co., local sportsmen, conservationists, the Montana Department
of Fish, Wildlife and Parks, and the U.S. Forest Service. In the end,
these groups pulled together and came up with a land exchange that
makes everyone a winner. Time is short, however, and the Congress must
act as quickly as possible to ensure that these important lands are
brought into public ownership. I urge my colleagues to recognize the
positive nature of this legislation and work with me to pass it into
law in short order.
Mr. President, I ask unanimous consent that land exchange
specifications and the full text of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2033
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 ``Lost Creek Land Exchange Act
of 1994.''
SEC. 2. LAND EXCHANGE.
(a) General.--Notwithstanding any other provisions of law,
the Secretary of Agriculture (referred to in this Act as the
``Secretary'') is authorized and directed to acquire by
exchange certain lands and interests in lands owned by the
Brand S Corporation, its successors and assigns, (referred to
in this Act as the ``Corporation''), located in the Lost
Creek area of in Deerlodge National Forest and within the
Gallatin National Forest.
(b) Offer and Acceptance of Land.--
(1) Non-federal land.--If the Corporation offers fee title
that is acceptable to the United States to approximately
18,300 acres of land owned by the Corporation and available
for exchange, as depicted on the map entitled ``Brand S/
Forest Service Land Exchange Proposal,'' dated March 1994,
and described in the ``Land Exchange Specifications''
document pursuant to paragraph (b)(3), the Secretary shall
accept a warranty deed to the land.
(2) Federal land--Upon acceptance by the Secretary of title
to the Corporation's lands pursuant to paragraph (b)(1), and
subject to reservations and valid existing rights, the
Secretary of the Interior shall convey, by patent, the fee
title to approximately 10,800 acres on the Deerlodge and
Gallatin National Forests, and by timber deed, the right to
harvest approximately 3.5 million board feet of timber on
certain Deerlodge National Forest lands, as depicted on the
map referenced in paragraph (b)(1) and further defined by the
document referenced in paragraph (b)(3).
(3) Agreement.--The document entitled ``Brand S/Forest
Service Land Exchange Specifications'' which was jointly
developed and agreed to by both parties and defines the non-
Federal and Federal lands involved in this exchange, and
includes legal descriptions of exchange lands and
interests, an Access Resolution Agreement and other
agreements is hereby incorporated by reference.
(c) Title.
(1) Review of title.--Within 60 days of receipt of title
documents from the Corporation, the Secretary shall review
the title for the non-Federal lands described in paragraph
(b) and determine whether.--
(A) the applicable title standards for Federal land
acquisition have been satisfied or the quality of title is
otherwise acceptable to the Secretary;
(B) all draft conveyances and closing documents have been
received and approved; and
(C) a current title commitment verifying compliance with
applicable title standards has been issued to the Secretary.
(2) Conveyance of title.--In the event the quality of title
does not meet Federal standards or is otherwise unacceptable
to the Secretary, the Secretary shall advise the Corporation
regarding corrective actions necessary to make an affirmative
determination. The Secretary, acting through the Secretary of
the Interior, shall affect the conveyance of lands described
in paragraph (b)(2) not later than 90 days after the
Secretary has made an affirmative determination.
(d) Resolution of Public Access.--In accordance with the
terms of the Access Resolution Agreement referenced in
paragraph (b)(3), the Secretary shall secure legal pubic road
access to Gallatin National Forest System lands in: (1) the
Eightmile Creek area and (2) the Miller Gulch-Fridley Creek-
Dry Creek area.
SEC. 3. GENERAL PROVISIONS.
(a) Maps and Documents.--The maps referred to in section 2
are subject to such minor corrections as may be agreed upon
by the Secretary and the Corporation. The Secretary shall
notify the Committee on Energy and Natural Resources of the
United States Senate and the Committee on Natural Resources
of the United States House of Representatives of any
corrections made pursuant to this paragraph. The maps and
documents described in section 2(b)(1) and (3) shall be on
file and available for public inspection in the office of
Chief, Forest Service, USDA.
(b) National Forest System Lands.--
(1) In general.--All lands conveyed to the United States
under this Act shall be added to and administered as part of
the Deerlodge or Galatin National Forests, as appropriate, of
the National Forest System by the Secretary in accordance
with the laws and regulations pertaining to the National
Forest System.
(2) Wilderness study area acquisitions.--Lands acquired
within the Hyalite-Porcupine-Buffalo Horn Wilderness Study
Area shall be managed to maintain their wilderness character
and potential for inclusion in the National Wilderness
Preservation System in accordance with the Montana Wilderness
Study Act of 1977 (16 U.S.C. 1132 note). Subject to valid
existing rights, lands acquired within the Hyalite-Porcupine-
Buffalo Horn Wilderness Study Area shall not be available for
entry, appropriation, or disposal under the public land laws;
for location, entry, and patent under the mining laws; or for
disposition under the mineral and geothermal leasing laws,
including all amendments thereto, until such time as the
Congress decides on the wilderness status.
(c) Valuation.--The values of the lands and interests in
lands to be exchanged under this Act and described in section
2(b) are deemed to be of approximately equal value.
(d) Hazardous Material Liability.--The United States of
America, including its departments, agencies, and employees,
shall not be liable under the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (herein
referred to as CERCLA), 42 USC 9601 et seq., or the Clean
Water Act, 33 USC 1251, et seq., or any other Federal, State
or local law, solely as a result of acquiring an interest in
the Lost Creek Tract or due to circumstances or events
occurring before acquisition, including any release or threat
of release of hazardous substances.
____
Draft--Brand-S/Forest Service Land Exchange Specifications--Brand-S
Land Exchange Act of 1994
part i
Property that Brand S Corporation will offer conveyance to
the United States: Principal Meridian--Montana.
Deerlodge NF
Lost Creek Tract:
T. 5 N., R. 11 W:
Sec. 6, all fractional.......................................638.69
Sec. 7, Lots 1-10 inclusive, E\1/2\NE\1/4\, NW\1/4\NE\1/4\,
NE\1/4\NW\1/4\, SE\1/4\SW\1/4\ NE\1/4\SE\1/4\..............573.82
Sec. 8, SW\1/4\NE\1/4\, W\1/2\, SE\1/4\......................520.00
Sec. 9, lots 6, 7, NW\1/4\SW\1/4\, S\1/2\SW\1/4\ (includes MS
4170)......................................................239.56
Sec. 16, all fractional (excludes HES 80, includes portions of
MS 6542 & MS 6577..........................................630.28
Sec. 17, all fractional (includes portions of MS 6542 & MS 65634.86
Sec. 18, Lots 1-8 inclusive, NE\1/4\NE\1/4\, S\1/2\NE\1/4\, E\1/
2\NW\1/4\NE\1/4\SW\1/4\N\1/2\SE\1/4\.......................630.49
Sec. 20, lot 1, NW\1/4\NE\1/4\, S\1/2\NE\1/4\, SE\1/4\ (includes
portion of MS 6577)........................................320.00
Sec. 21, lot 1, NE\1/4\, NE\1/4\NW\1/4\, SW\1/4\NW\1/4\, N\1/
2\SE\1/4\NW\1/4\, SW\1/4\SE\1/4\NW\1/4\, NW\1/4\NE\1/4\SW\1/
4\, W\1/2\SW\1/4\, SE\1/4\ (includes portion of MS 6577)...560.00
Sec. 22, lots 1-8 inclusive, NW\1/4\NE\1/4\, S\1/2\NE\1/4\, W\1/
2\W\1/2\...................................................563.48
T. 5 N., R. 12 W:.............................................
Sec. 1, all fractional.......................................640.08
Sec. 2, Lots 1-4 inclusive, S\1/2\N\1/2\, S\1/2\ less MS 5023633.04
Sec. 3, lots 1, 2, S\1/2\NE\1/4\, SE\1/4\....................320.07
Sec. 11, all.................................................640.00
Sec. 12, all.................................................640.00
Sec. 13, E\1/2\..............................................320.00
Sec. 14, lots 10, 11, W\1/2\NW\1/4\, SW\1/4\, MS 9040........330.06
T. 6 N., R. 11 W:
Sec. 30, lots 3, 4, E\1/2\SW\1/4\, SE\1/4\...................314.32
Sec. 31, all fractional......................................628.56
T. 6 N., R. 12 W:
Sec. 22, SE\1/4\NE\1/4\, E\1/2\SE\1/4\.......................120.00
Sec. 23, SW\1/4\NW\1/4\, SW\1/4\, SW\1/4\ SE\1/4\............240.00
Sec. 25, SW\1/4\NE\1/4\, NW\1/4\NW\1/4\, S\1/2\NW\1/4\, S\1/2480.00
Sec. 26, all.................................................640.00
Sec. 27, all.................................................640.00
Sec. 34, all.................................................640.00
Sec. 35, all less MS 5023....................................630.44
Sec. 36, all.................................................640.00
__________
Subtotal to Deerlodge NF................................13,807.75
==========
_______________________________________________________________________
Gallatin NF
West Pine Tract:
T. 4 S., R. 7 E:
Sec. 1, all fractional.......................................629.53
Sec. 11, all.................................................640.00
Sec. 13, all fractional......................................642.64
T. 4 S., R. 8 E:
Sec. 7, all..................................................640.00
Mud Lake Tract:
T. 5 S., R. 7 E:
Sec. 5, all fractional.......................................654.44
Sec. 7, all fractional.......................................630.20
Sec. 9, all..................................................640.00
__________
Subtotal to Gallatin NF..................................4,476.81
==========
_______________________________________________________________________
Comprising 18,284.56 acres, more or less
Land reservations of Brand S Corporation and exceptions to
title:
reservations
Reserving to Brand S Corporation, its successors and
assigns, until five (5) years from the date legislation is
enacted, the right to harvest and remove up to 60% of the
existing merchantable timber from sections 1 and 7 of the
West Pine Tract. This is more specifically defined as a right
to harvest up to a total of 1383 thousand board feet (MBF)
from section 1, T.4 S., R.7 E. and section 7, T.4 S., R.8 E.
Exercise of these rights is subject to the Secretary's Rules
and Regulations in 36 CFR 251.14 and the Timber Harvest
Guidelines (Exhibit A).
outstanding rights
1. The rights of the United States and third parties
recited in the patents from the United States.
2. An undivided one-fourth of all minerals, including oil
and gas as contained in deed to Edward Mott and June Mott
dated March 28, 1961, recorded February 17, 1965 in Volume
107, pages 481-482, records of Park County, MT. Affects all
lands in T. 4 S., Rs. 7 and 8 E.
3. All mineral rights and mineral interest whatsoever which
were owned of record by George E. Lefgren and Fern Lefgren on
September 20, 1968 as contained in Contract for Deed dated
September 20, 1968, recorded February 1, 1984 in Roll 46,
pages 134-137, records of Park County, MT. Affects all lands
in T. 5 S., R. 7 E.
4. Provisions as contained in deed to Mt. Haggin Livestock,
Inc. recorded in Book 41, page 390, Granite County, MT.
Affects all lands in T. 6 N., R. 12 W.
5. An easement for road purposes as contained in deed to
Story Ranch Corporation, recorded January 3, 1975 on Roll 10,
pages 1331-1333, Park County, MT. Affects section 9, T. 5 S.,
R. 7 E.
6. Right of adjacent landowners to water portions of the
premises as an incident to their irrigation processes as
contained in deed to YVR Partnership recorded June 7, 1978 on
Roll 22, pages 1054-1058, Park County, MT. Affects all lands
in T. 4 S., Rs.7 E. and 8, E; T. 5 S., R. 7 E.
7. Easement for a public road granted to the State of
Montana recorded in Book 42, page 187, Deer Lodge County, MT.
Affects section 9, T. 5 N. R. 11 W.
8. Easement for a public road granted to the State of
Montana recorded in Book 42, page 169, Deer Lodge County, MT.
Affects section 9, T. 5 N., R. 11 W.
9. Lack of legal access.
other encumbrances
1. Unrecorded Consent for Access to EPA, including its
contractors, for purposes of obtaining a hazardous materials
inventory.
Consent for access will be terminated and an authorization
for access will be issued by the Forest Service to EPA,
including its contractors, at closing.
2. Grazing authorization (unwritten).
Disposition?
3. Improvements.
Brand S Corporation will remove from the involved non-
Federal lands, all structures and improvements located on two
sites in the SW\1/4\NE\1/4\ of Sec. 36, T. 6 N., R. 12 W. and
in the SW\1/4\SW\1/4\ of sec. 2, T. 5 N., R. 12 W. Such
removal shall occur prior to acceptance of title by the
Secretary.
4. Water right.
(1) Source: Unnamed Trib., Crystal Creek, Water Rights No.
43B-W-194420-00, T. 5 S., R. 7 E, Sec. 9.
(2) Source: W. Pine Creek, Water Rights No. 43B-E-085045-
00, T. 4 S., R. 7 E., Sec. 13.
Need disposition from Mike Atwood.
6. Delinquent general county taxes for second half of 1992,
1993, 1994 and 1996, if applicable.
Appropriate arrangements will be made to insure payment of
these taxes.
6. Mortgage to secure an indebtedness recorded June 8, 1992
in Book 85, page 253, Mortgagor. Brand S. Corporation;
Mortgagee: United States National Bank of Oregon. Affects all
lands in Deer Lodge County, MT.
This item will be satisfied and the mortgage released.
7. Mortgage to secure an indebtedness recorded April 20,
1993 on Roll 92, pages 874-875. Mortgagor: Brand S
Corporation; Mortgagee: Bridge Mountain Trails, Inc. Affects
all lands in Park County, MT.
This item will be satisfied and the mortgage released.
8. Mortgage to secure an indebtedness recorded June 8, 1992
on Roll 33, page 987. Mortgagor: Brand S Corporation;
Mortgagee: United States National Bank of Oregon. Affects all
lands in Granite County, MT.
This item will be satisfied and the mortgage released.
9. Financing Statement converting all timber filed June 8,
1992 as NO. 7601. Affects all lands in Deer Lodge County, MT.
This item will be released and removed from title.
10. Financing Statement filed June 8, 1992 as No. 23793.
Affects all lands in Granite County, MT.
This item will be released and removed from title.
11. Contract for deed recorded May 30, 1975 on Roll 12,
pages 48-52. Seller: Springhill Ranch; Buyer John S. Brandis,
Jr. and Evelyn Fosse Brandis. Buyer's interest conveyed as
contained in Bargain and Sale Deeds recorded January 2, 1992
on Roll 85, pages 28-31 and on Roll 85, pages 32-35. Affects
all lands in Park County, MT.
These items will be removed from the title.
part ii
Property that the United States will offer for conveyance
to Brand S Corporation: Principal Meridian--Montana.
Deerlodge NF
Elk Park Tract:
T. 4 N., R. 7 W:
Sec. 2, lots 1-7 inclusive, SW\1/4\NE\1/4\, SE\1/4\NW\1/4\, E\1/
2\SW\1/4\, NW\1/4\SE\1/4\..................................501.99
Sec. 11, lots 7, 8, W\1/2\NW\1/4\, SE\1/4\NW\1/4\, SW\1/4\SW\1/
4\.........................................................220.29
Sec. 14, lots 2 and 3.........................................74.41
Rumsey Tract:
T. 6 N., R. 13 W:
Sec. 5, part of lot 1 (2 acres approx), lots 2-7 inclusive,
SW\1/4\NW\1/4\ (estimated)\1\..............................221.44
Sec. 6, lots 1-12 inclusive, E\1/2\SW\1/4\, W\1/2\SE\1/4\....556.29
Sec. 8, lot 1.................................................50.16
Sec. 18, all fractional......................................636.72
Marshall Creek Tract:
T. 7 N., R. 15 W:
Sec. 1, lots 1-4 inclusive, S\1/2\N\1/2\, S\1/2\.............641.20
T. 7 N., R. 14 W:
Sec. 6, lots 1-5 inclusive, SE\1/4\NE\1/4\, NE\1/4\SE\1/4\...273.50
Maywood Ridge Tract:
T. 8 N., R. 13 W:
Sec. 2, S\1/2\SE\1/4\NE\1/4\, S\1/2\NW\1/4\, S\1/2\..........420.00
Subtotal Deerlodge NF (estimated).........................3606.00
\1\Survey (supplemental plat) will be required.
Together with the right to harvest timber subject to the
Timber Harvest Guidelines, as set forth in Exhibit A of this
document, on the following lands:
Highlands Tract: MBF
T. 1 S. R. 7 W: Sec. 6, all fractional...........................1200
Prison Tract:
T. 8 N., R. 10 W:
Sec. 30, all fractional........................................1685
T. 7 N., R. 10 W:
Sec. 6, all fractional..........................................564
__________
Total estimated volume.......................................3449
reservations
1. Excepting and reserving to the United States a right-of-
way thereon for ditches or canals constructed by the
authority of the United States (Act of August 30, 1890, 26
Stat. 391; 43 U.S.C. 945).
2. Excepting and reserving to the United States and its
assigns from the lands so granted, an exclusive perpetual
easement, including all right, title and interest for
existing roads as shown approximately on attached Exhibits *
and more particularly identified and described herein, and
all appurtenances thereto, over, upon, or under the land so
granted, together with such reasonable rights of temporary
use of lands immediately adjacent to said right-of-way as may
be necessary for the maintenance and/or repair of said roads.
Said easements shall be sixty (60) feet in width, thirty
(30) feet on each side of the centerline with such additional
width as required for adequate protection of cuts and fills.
The centerline of the roads lying approximately as follows:
(a) Forest Road No. 1537 (existing): Beginning
approximately 400 ft. south of the northwest corner of Sec.
2, T.4 N., R.7 W., over and across Sec. 2 in a northerly
direction, and ending approximately 200 ft. south of the
northwest corner. Approximate length of segment is 200 ft.
Affects NW\1/4\ of Sec. 2, T.4 N., R.7 W., P.M.MT. (Elk Part
Tract).
(b) Forest Road No. 442--Segment 1 (existing): Beginning in
the southeast corner of Lot 8 of Sec. 11, T.4 N., R.7 W.,
which is approximately 1,850 ft. northeast of the southwest
corner of Sec. 11. Over and across Sec. 11 in a north,
northeasterly direction for approximately \1/2\ mile to a
point on the north line of the SE\1/4\NW\1/4\ of Sec. 11,
which is approximately 2,400 ft. southeast of the northwest
corner of Sec. 11. Affects SE\1/4\NW\1/4\ and NE\1/4\SW\1/4\
of Sec. 11, T.4 N., R.7 W., P.M.MT. (Elk Part Tract).
(c) Forest Road No. 442--Segment 2 (existing): Beginning on
the east line of the NW\1/4\NW\1/4\ of Sec. 11, which is
approximately 1,400 ft. southeast of the northwest corner of
Sec. 11 and traversing over and across Sec. 11 in a
northwesterly direction for approximately .20 miles to the
north section line of Sec. 11, which is approximately 425 ft.
east of the northeast corner of Sec. 11. Affects NW\1/
4\NW\1/4\ of Sec. 11, T.4N., R.7W., P.M.MT. (Elk Park
Tract).
(d) Forest Road No. 9427 (existing): Beginning on Road No.
442, approximately 900 ft. southeast of the northwest corner
of Sec. 11, T.4N., R.7W., thence traversing over and across
the W\1/2\NW\1/4\ of Sec. 11 in a southwesterly direction for
approximately .30 mile, ending on the west line of Sec. 11,
approximately 1,450 ft. south of the northwest corner of Sec.
11. Affects NW\1/4\NW\1/4\ of Sec. 11, T. 4N., R. 7W.,
P.M.MT. (Elk Park Tract).
(e) Forest Road No. 1567 (existing): Beginning on the west
line of Lot 1 of Sec. 8, T. 6N., R. 13W., approximately 1,500
ft. south of the northwest corner of Sec. 8, thence
traversing over and across Lot 1 of Sec. 8 in an easterly
direction for approximately .10 mile to the east line of Lot
1. Affects Lot 1 of Sec. 8, T.6N., R.13W., P.M.MT. (Rumsey
Tract).
(f) Forest Road No. 1578 (existing): Beginning on the west
line of Sec. 18, T. 6N., R. 13W., approximately 350 ft. south
of the northwest corner of Sec. 18, thence traversing over
and across the W\1/2\ of Sec. 18 in a southeasterly to west
direction for approximately 1.25 miles and ending on the
south line of Sec. 18 approximately 150 ft. east of the
southwest corner. Affects W\1/2\ of Sec. 18, T.6N., R.13W.,
P.M.MT. (Rumsey Tract).
(g) Forest Road No. 78350 (existing): Beginning on Forest
Road No. 1578 in the SW\1/4\SW\1/4\of Sec. 18, T. 6N.,
R.13W., approximately 700 ft. northeast of the southwest
corner of Sec. 18, thence traversing over and across the S\1/
2\SW\1/4\SW\1/4\ in a southeasterly direction for
approximately .19 mile, and ending on the south line of Sec.
18 approximately 1,000 ft. east of the southwest corner of
Sec. 18. Affects S\1/2\SW\1/4\SW\1/4\ of Sec. 18, T.6N,
R.13W., P.M.MT. (Rumsey Tract).
(h) Forest Road No. 1528 (existing): Beginning in the NW\1/
4\NW\1/4\ of Sec. 6, T.7N., R.14W., approximately 750 ft.
east of the northwest corner of Sec. 6, thence traversing
over and across the NW\1/4\NW\1/4\NW\1/4\ in a southwesterly
direction for approximately .15 mile, and ending on the west
line of Sec. 6 approximately 200 ft. south of the northwest
corner of Sec. 6. Affects NW\1/4\NW\1/4\NW\1/4\ of Sec. 6,
T.7N., R.14W., P.M.MT. (Marshall Creek Tract);
Also, beginning in the NW\1/4\NE\1/4\ of Sec. 1, T.7N.,
R.15W., approximately 200 ft south of the northeast corner of
Sec. 1, thence traversing over and across the NE\1/4\NE\1/4\
in a northwesterly direction for approximately .33 mile, and
ending on the north line of Sec. 1 approximately 1,200 ft.
west of the northeast corner of Sec. 1. Affects NE\1/4\NE\1/
4\ of Sec. 1, T.7N., R. 15W., P.M.MT. (Marshall Creek Tract).
(i) Forest Road No. 8402 (existing): Beginning on the north
line of the SE\1/4\NW\1/4\ of Sec. 2, T.8N., R. 13W.,
approximately 2,600 ft. southeast of the northwest corner of
Sec. 2, thence traversing over and across the SE\1/4\NW\1/4\
in a southeast direction for approximately .21 mile and
ending on the east line of the SE\1/4\NW\1/4\ approximately
2,650 ft. south of the north \1/4\ corner of Sec. 2. Affects
the SE\1/4\NW\1/4\ of Sec. 2, T.8N., R. 13W., P.M.MT.
(Maywood Ridge Tract)
Also, beginning on the north line of the NW\1/4\SE\1/4\ of
Sec. 2, T. 8N., R.13W., approximately 2,500 ft. west of the
east \1/4\ corner of Sec. 2, thence traversing over
and across the W\1/2\SE\1/4\ in a southerly direction for
approximately .50 mile and ending on the south line of the
SW\1/4\SW\1/4\SE\1/4\ approximately 2,100 ft. west of the
southeast corner of Sec. 2. Affects the W\1/2\SE\1/4\ of
Sec. 2, T. 8 N., R. 13 W., P.M.MT. (Maywood Ridge Tract)
Also, beginning on the south line of the SE\1/4\SW\1/4\ of
Sec. 2, T. 8 N., R. 13 W., approximately 400 ft west of the
south \1/4\ corner of Sec. 2, thence traversing northwest and
thence back southeast through the SE\1/4\SW\1/4\ for
approximately .55 mile and ending on the south line of the
SE\1/4\SW\1/4\ approximately 700 ft. west of the south \1/4\
corner of Sec. 2. Affects the SE\1/4\SW\1/4\ of Sec. 2, T. 8
N., R. 13 W., P.M.MT. (Maywood Ridge Tract)
(j) Forest Road No. 5123 (existing): Beginning at its
junction with Forest Road No. 8402 on the north line of the
SE\1/4\SW\1/4\, Sec. 2, T. 8 N., R. 13 W., approximately
1,600 ft. northwest of the south \1/4\ corner of Sec. 2,
thence traversing over and across the S\1/2\SW\1/4\ in a
southwesterly direction for approximately .47 mile and ending
on the south line of the SW\1/4\SW\1/4\ approximately 50 ft.
east of the SW\1/4\ corner of Sec. 2. Affects the S\1/2\SW\1/
4\ of Sec. 2, T. 8 N., R. 13 W., P.M.MT. (Maywood Ridge
Tract)
(k) Forest Road No. 78488 (existing): Beginning at its
junction with Forest Road No. 8402, which is approximately 30
ft. north of the south line of Sec. 2, T. 8 N., 13 W., thence
traversing over and across the SE\1/4\SE\1/4\SW\1/4\ in a
southeasterly direction for approximately .06 mile and ending
on the south line of the SE\1/4\SW\1/4\ approximately 550 ft.
east of the south \1/4\ corner of Sec. 2. Affects the SE\1/
4\SW\1/4\ of Sec. 2, T. 8 N., R. 13 W., P.M.MT. (Maywood
Ridge Tract)
Provided, that if the Regional Forester determines that the
roads, or any segment thereof, is no longer needed for the
purposes reserved, the easement shall terminate. The
termination shall be evidenced by a statement in recordable
form furnished by the Forest Supervisor to the Landowner, or
its successors or assigns in interest.
outstanding rights and authorized uses
1. Existing Contract/Agreements/Memoranda of Understanding:
None, except as identified herein.
2. Existing public roads: None.
3. Special use authorizations: Telephone and telegraph
permit (underground phone line) T. 4 N., R. 7 W., Sec. 11
(Elk Park Tract), James Harrington, Permit expiration date:
December 31, 2001. Authorized by the Federal Land Policy and
Management Act of 1976.
Transmission line: T. & N., R.13 W., Sec. 2 (Maywood Ridge
Tract), Montana Power Company (33 ft. wide R/W; Brooklyn-
Princeton Line).
These special use permits will terminate upon conveyance of
the involved federal lands. The Forest Service will notify
the permit holders in advance. The Forest Service will assist
this permit holders in making new arrangements with the non-
Federal party.
Land use area permit: T.7., R.15 W., Sec. 6 (Marshall Creek
Tract), Mary Kelley.
This permit will be terminated. Permit holder will acquire
this area from Brand S Corporation.
4. Road Easements: None.
5. Grazing permits:
Lowland Allotment: T.4 N., R.7 W., Secs. 2, 11 and 14 (Elk
Park Tract), Miles and Dale Carpenter, Henry Cerise, Ester
and William Francone.
Parini Allotment: T.4 N., R.7 W., Sec. 2 (Elk Park Tract),
Rudolph Parini.
Spring Park Ranch Allotment: T.6 N., R.13 W., Sec. 18
(Rumsey Tract), Steve Grange.
Marshall Creek Allotment: T.7 N., R.14 W., Sec. 6 (Marshall
Creek Tract), Black Pine Ranch and Linda Yardley.
Gird Creek Allotment: T.8 N., R.13 W., Sec. 2 (Maywood
Ridge Tract), Alan Boomer and Allen Morson.
As provided by section 402(g) of the Federal Land Policy
Management Act of 1976, no permit or lease shall be canceled
without two years' prior notification. The permittees may
elect to waive this right. The Forest Service will notify
each permittee of the proposed exchange. If applicable, the
grazing use will be reserved in the patent for the duration
of the two year notification period.
6. Mining claims: None.
7. Oil & Gas Leases: None.
8. Withdrawals: None.
9. Water Rights: None.
10. Phosphate Lease: Legal Description--T.8 N., R.13 W.,
Sec. 2. Lease No. MTM 055657. Lease Holder: Cominco.
The Forest Service will request the lease holder to
relinquish or modify its lease to exclude the lands involved
in this exchange. If the lease holder opts not to relinquish
or modify its lease, the phosphate estate will be reserved by
the United States in the patent until termination or
relinquishment of the lease. Upon termination or
relinquishment of the said lease all the rights and interest
to the phosphate deposit shall automatically vest in the
patentee, its successors in interest or assigns.
11. Other Encumbrances: Subject to the interest, if any,
created by an existing powerline (affects lots 1-4 and the
NE\1/4\NW\1/4\ of sec. 18. T. 6 N., R. 13 W.) (Rumsey Tract).
Gallatin NF
Wineglass tract:
T. 3 S, R. 8 E.:
Sec. 2, lots 1-4 inclusive, S\1/2\N\1/2\.....................336.48
Sec. 10, E\1/2\..............................................320.00
Sec. 12, lots 1-4 inclusive, W\1/2\E\1/2\, N\1/2\NW\1/4\, SE\1/
4\NW\1/4\, SE\1/4\SW\1/4\..................................481.08
T. 3 S, R. 9 E.:
Sec. 6, all fractional.......................................614.75
Sec. 8, all..................................................640.00
Pole Gulch tract:
T. 5 S., R. 7 E.:
Sec. 2, all fractional.......................................641.81
Sec. 10, all fractional......................................620.16
Sec. 12, all.................................................640.00
Sec. 14, all.................................................640.00
Sec. 24, N\1/2\NE\1/4\, SW\1/4\NE\1/4\, N\1/2\SE\1/4\NE\1/4\,
NW\1/4\, N\1/2\SW\1/4\, SW\1/4\SW\1/4\, S\1/2\SE\1/4\SW\1/4\,
NW\1/4\SE\1/4\.............................................480.00
T. 5 S., R. 8 E.:
Sec. 6, all fractional.......................................643.62
Sec. 18, all fractional......................................637.76
Little Donahue tract:
T. 6 S., R. 7 E.:
Sec. 30, lots 1-4 inclusive, E\1/2\E\1/2\, NW\1/4\NE\1/4\, E\1/
2\W\1/2\, SW\1/4\SE\1/4\...................................533.92
__________
Subtotal Gallatin NF...................................7,229.57
Comprising in total 10,835.57 acres, more or less.
reservations
1. Excepting and reserving to the United States a right-of-
way thereon for ditches or canals constructed by the
authority of the United States (Act of August 30, 1980, 26
Stat. 391; 43 U.S.C. 945).
2. Road and trail reservations: As provided within the
Access Resolution Agreement (Exhibit B), the Forest Service
will reserve in the patents/deeds those trail and road
segments that may be needed after exchange for access to
adjoining National Forest System (NFS) lands.
a. Road reservations: Excepting and reserving to the United
States and its assigns from the lands so granted, an
exclusive perpetual easement, including all right, title and
interest for existing roads as shown approximately on
attached Exhibits and more particularly identified and
described herein, and all appurtenances thereto, over, upon,
or under the land so granted, together with such reasonable
rights of temporary use of lands immediately adjacent to said
rights-of-way as may be necessary for the maintenance and/or
repair of said roads.
Said easements shall be sixty (60) feet in width, thirty
(30) feet on each side of the centerline, with such
additional width as required for adequate protection of cuts
and fills.
The centerline of each road lying approximately as follows:
(i) Eightmile Creek Road No. 2553 (existing): Beginning at
a point on the east property line of NE\1/4\NE\1/4\ of
Section 6, T5S, R8E, P.M., MT.; Thence over and across said
NE\1/4\NE\1/4\ of Section 6 in a west-northwesterly direction
approximately 0.2 mile; and ending at a point on the north
line of the NE\1/4\NE\1/4\ of said Section 6; and including
additional area for vehicle parking along the south side of
the road in said NE\1/4\NE\1/4\ of Section 6. The parking
area measures approximately fifty (50) feet in width (north-
south) by one hundred twenty (120) feet in length (east-
west), which is in addition to and located outside the road
right-of-way limits.
(ii) Miller Creek Road No. 1769 (existing): Beginning at a
point on the east property line of SE\1/4\SE\1/4\SE\1/4\ of
Section 10, T5S, R7E, P.M., MT; Thence over and across said
SE\1/4\SE\1/4\SE\1/4\ of Section 10 in a southwesterly
direction approximately 0.1 mile; and ending at a point on
the south line of said SE\1/4\SE\1/4\SE\1/4\ of Section 10.
It is agreed that the Landowner, its successors and
assigns, shall have the right to use the existing roads
described above for all purposes deemed necessary or
desirable in connection with the protection, administration,
management, and utilization of Landowner lands or resources,
subject, however, to traffic-control regulations under 36 CFR
261.12, and the bearing of road maintenance costs
proportionate to use as provided in 36 CFR 212.7(d).
Provided, that if the Regional Forester determines that the
roads, or any segment thereof, is no longer needed for the
purposes reserved, the easement shall terminate. The
termination shall be evidenced by a statement in recordable
form furnished by the Forest Supervisor to the Landowner, or
its successors or assigns in interest.
b. Trail reservation: Also, excepting and reserving to the
United States and its assigns from the lands so granted, an
exclusive perpetual easement, including all right, title and
interest for an existing trail as shown approximately on
attached Exhibit and more particularly identified and
described herein, and all appurtenances thereto, over, upon,
or under the land so granted, together with such reasonable
rights of temporary use of lands immediately adjacent to said
right-of way as may be necessary for the maintenance and/or
repair of said trail.
Said trail easement shall be twenty (20) feet in width, ten
(10) feet on each side of the centerline, with such
additional width as required for adequate protection of cuts
and fills.
The centerline of the trail lying approximately as follows:
(i) South Fork Eightmile Trail No. 146 (existing):
Beginning at a point on the west property line of Section 10,
T5S, R7E, P.M., MT. near the west 1/4 corner of said Section
10; THENCE over and across the S1/2 of said Section 10 in a
southeasterly direction approximately 1.2 miles; and Ending
at a point on the east line of the SE1/4SE1/4 of said Section
10.
Provided, that if the Forest Supervisor determines that the
trails, or any segment thereof, is no longer needed for the
purposes reserved, the easement shall terminate. The
termination shall be evidenced by a statement in recordable
form furnished by the Forest Supervisor to the Landowner, or
its successors or assigns in interest.
outstanding rights and authorized uses
1. Existing Contracts/Agreements/Memoranda of
Understanding: None, except as identified herein.
2. Existing public roads: None.
3. Special use authorizations:
James L. and Gayle E. Murphy--FLPMA permit in T.6S., R.7E.
Section 30. Permit is for access to private lands within the
Gallatin National Forest boundary for the purpose of
harvesting timber, and expires and terminates December 31,
1995.
Wineglass Joint Venture--FLPMA permit for access to private
lands. Lands covered by the permit are located in T.3.S.,
R.9E., Section 8, NE1/4. This permit expires and terminates
on December 31, 2003.
Montana Land and Cattle Company--Special Use Permit for a
water transmission pipeline across T.5S., R.7E., Section 12,
NE1/4. This permit expires and terminates on December 31,
2001.
These special use permits will terminate upon conveyance of
the involved federal lands. The Forest Service will notify
the permit holders in advance and assist these permit holders
in making new arrangements with the non-Federal party.
4. Road Easements: None.
5. Grazing Allotments: Wineglass Allotment includes lands
in the following sections: T.3S., R.8E., Sec. 2, portion;
T.3S., R.9E., Sec. 6, portion, and Sec. 8, portion;
Wineglass allotment has been vacant since 1986.
Coke Allotment includes lands in the following sections:
T.3S., R.8E., Sec. 2, portions of section not in Wineglass
Allotment, and Sec. 10 and 12, portions (160 acres is owned
by Peterson).
T.3S., R.9E., Sec. 6 and Sec. 8, portions of sections that
are not in Wineglass Allotment are in the Coke allotment.
The following hold permits in Coke Allotment: Brawner Ranch
Co., Quenton Brawner, Depuy Enterprises, O'Hair Ranch
Company, Hilda Peterson.
Pole Gulch Allotment includes lands in the following
sections: T.5S., R.7E., Sec. 2 all, Sec. 10 portion, Sec. 12
all, Sec. 14 portion and Sec. 24 portion; T.5S., R.8E., Sec.
6 and Sec. 18, all:
The following hold permits in Pole Gulch Allotment: John
S., Jr. and Evelyn F. Brandis.
Fridley Creek Allotment includes lands in the following
sections: T.5S., R.7E., Sec. 10, 14 and 24, portions that are
not included in the Pole Gulch Allotment.
The following hold permits on Fridley Creek Allotment: Dan
Brutger, Story Ranch Company.
Big Creek Allotment includes lands in the following
sections: T.6S., R.7E., Sec. 30.
The following individuals hold permits on the Big Creek
Allotment: James L. and Gayle E. Murphy.
As provided by section 402(g) of the Federal Land Policy
Management Act, no permit or lease shall be canceled without
two years' prior notification. The permittees may elect to
waive this right in writing. The Forest Service will notify
each permittee of the proposed exchange. If applicable, the
grazing use will be reserved in the patent for the duration
of the two year notification period.
6. Mining claims: None.
7. Oil and Gas Leases:
Legal Description, Lease No., and Lease Holder:
T.3S., R.8E., Sec. 2; M32847; Equitable Resources Energy
Co.
T.3S., R.8E., Sec. 10; M34549; Wolverine Exploration Co.,
Texaco Exploration & Production.
T.3S., R.9E., Sec. 6; M32848; Equitable Resources Energy
Co.
T.5S., R.7E., Sec. 2; M36455; Conoco, Inc.
T.5 S., R.7 E., Sec. 10, 12 & 14; M36454; Conoco, Inc.
T.5 S., R.7 E., Sec. 24; M36453; Conoco, Inc.
T.5 S., R.7 E., Sec. 6 & 18; M36451; Conoco, Inc.
T.6 S., R.7 E., Sec. 30; M36456; Conoco, Inc.
The above leases have been suspended by the BLM under the
Ninth Circuit Court of Appeals Ruling in Connor vs. Burford.
The Forest Service will request each of the lease holders
to relinquish or modify their leases to exclude the lands
involved in this exchange. If the lease holders opt not to
relinquish or modify their leases, the oil/gas estates will
be reserved by the United States in the patent until
termination or relinquishment of the leases. Upon termination
or relinquishment of the said lease all the rights and
interests to the oil and gas deposits shall automatically
vest in the patentee, its successors in interest or assigns.
8. Withdrawals: None.
9. Water Rights:
(1) Source: Unnamed Trib., Strickland Creek, Water Right
No. 43B-W-059905-00, T. 3 S., R. 8 E., Sec. 12.
(2) Source: Strickland Creek, Water Right No. 43B-W-059963-
00, T. 3 S., R. 8 E., Sec. 12.
The Forest Service will transfer these water rights to
Brand-S, provided that Brand-S shall allow existing (stock
water) uses to continue until the involved grazing permits
terminate (within two years from the date of notification).
10. Other Encumbrances: None.
PART III--GENERAL AGREEMENTS
1. Upon conveyance of the timber on the Highlands and
Prison Tracts, Brand-S Corporation agrees to implement and
abide by the Timber Harvest Guidelines (Exhibit A) as
developed and mutually agreed upon between the parties.
2. Both parties agree to the provisions in the Access
Resolution Agreement (Exhibit B) which pertain to access on
the Gallatin NF and it is hereby made a part of this
document.
3. Upon completion of the land exchange, Jack Brandis,
owner of Brand S Corporation, has pledged to donate, and The
Nature Conservancy has agreed to accept, conservation
easements (in the form of permanent deed restrictions) on the
lands that Brandis will receive in the Pole Gulch, Little
Donahue and Wineglass Tracts (excepting the E\1/2\ of sec.
10, T. 3 S., R. 8 E.). Brandis has also pledged to include in
the grant of conservation easement the additional contiguous
acreage that he owns in the Pole Gulch area. The voluntary
decision by Brandis to convey these permanent conservation
easements to the Conservancy will ensure that future
subdivision and development are limited, and that forestry
and range management activities are conducted in a manner
consistent with the conservation of wildlife habitat,
watershed and open-space characteristics.
4. Brand S Corporation, its transferees and assigns, or
other successors in interest, agree that these provisions
shall be a covenant running with the subject property, and
that they shall indemnify, defend and hold the United States
of America, its various agencies and/or employees, harmless
from any damage, loss, claims, liability and costs resulting
in any way from the United States' ownership, and/or any and
all activities, operations (including but not limited to the
storing, handling, and dumping of hazardous materials or
substances), or other acts conducted by Brand S Corporation
or its licensees, employees, agents, successors or assigns on
the Lost Creek Tract, whether such activities, operations or
other acts occurred prior to, on, or after the enactment of
the Brand S Land Exchange Act of 1994. This covenant shall be
enforceable by the United States in a Court of competent
jurisdiction.
5. Both parties agree that these Land Exchange
Specifications may be amended at any time by mutual
agreement. Any such amendment(s) must be in writing and
signed by the parties hereto. Any such amendment(s) shall be
provided by the Forest Service to the Energy Committee of the
United States Senate and by the Interior Committee of the
United States House of Representatives. Minor technical
changes mutually agreeable to both parties, but not subject
to Committee notice, shall be documented, signed, and made
part of these Specifications.
In witness whereof, the Landowner and the Regional
Forester, acting for and on behalf of the Forest Service have
executed these Specifications. The Specifications shall be
effective on the last date signed.
Landowner: Brand S Corporation, An Oregon Corporation.
Name, Title, and Date.
(Corporate Seal.)
Attest:
Title.
United States of America, USDA, Forest Service.
David F. Jolly, Regional Forester and Date.
____
Exhibit Draft Timber Harvest Guidelines
The objective of Brand S will be to sustain and enhance the
forest resources through effective use of conservation
forestry practices. Timber harvest will be directed to
maintain sustainability of all forest resources, and
diversity of forest types, ages and stand structure, and to
emulate the historical range of variability and vegetative
patterns.
Brand S and the U.S. Forest Service agree that general
Timber Harvest Guidelines contained in Part I of this text
will apply to timber reserved by Brand S in the West Pine
Tract on the Gallatin National Forest of this exchange. The
parties further agree that the Timber Harvest Guidelines
contained in Part II of this text will apply to the Prison
and Highlands Tracts on the Deerlodge NF lands where timber
only is to be conveyed to Brand S.
Part
The parties agree that these guidelines will apply to
Gallatin NF lands where timber is reserved by Brand S on the
West Pine Tract.
The following guidelines will not preclude Brand S from
harvesting timber volumes to meet timber valuation contained
in the exchange.
Brand S will consult and coordinate with the appropriate
public agencies (U.S. Forest Service-Gallatin National
Forest, State Department of Lands, and Montana Department of
Fish, Wildlife, and Parks (MDFWP)) in design, implementation
and monitoring of resource management decisions.
Brand S will meet with a review team comprised of U.S.
Forest Service, Montana Department of State Lands, and MDFWP
annually to assess harvesting plans and discuss future
practices as they relate to general guidelines contained in
this text.
Brand S will adhere to all laws pertaining to timber
harvest activities including but not limited to the
Streamside Management Act, Forestry Best Management Practices
(BMP) recognized by the Montana State Department of Lands,
Federal Agencies, and the State Legislature as the foundation
for timber harvest practices and for fire prevention.
In accordance with the provisions of the Customs and Trade
Act of 1990, Title IV--Forest Resource Conservation and
Shortage Relief Act of 1990, unprocessed logs originating
from reserved timber on the West Pine Tract will not be
exported or substituted for other logs that are or will be
exported.
The following criteria will be used for project planning
and implementation:
A. specific Resource considerations
visual quality
1. The ``Modification'' Visual Quality Objective (VQO), as
defined in the Forest Service Visual Management System will
be used as a guide to mitigate visual impacts of timber
harvesting. Brand S and Gallatin National Forest will design
harvests to emulate natural openings present on the
landscape avoiding straight lines and abrupt edges.
wildlife and fish habitat
1. Adequate forest cover will be retained as much as
possible to protect big game and other species.
Elk habitat potential will be maintained where possible by
retention of 30% of the total land area in suitable elk cover
(cover that hides 90% of an elk at 200 feet). Elk habitat
effectiveness will be maintained by managing roads so there
is generally less than one mile of open road per section
following harvest. It is understood that lands conveyed to
Brand S in the Wineglass Tract are exempt due to surrounding
existing vegetative conditions and human development which
would preclude harvest.
The existing main access road in the Pole Gulch Management
Unit (Sections 1, 3, 10, 11, 12, 13, 14 and 24 in T. 5 S., R.
7 E. and Section 18 in T. 5 S., R. 8 E.) will be exempt and
remain open at the landowner's discretion.
2. Key habitat components including riparian areas, licks,
caves, cliffs, wallows, meadows and parks will be identified
and protected in timber harvest and road planning.
3. In harvested areas, an average of at least 3 to 6 snags
and an equal number of replacement residual green trees per
acre will be retained. The residual trees and snags can be
left in a random manner (example, groups, patches and
corridors) or uniformly distributed. In proposed harvest
areas, the review process will develop prescribed slash plans
to meet landowner objectives and to maintain site
productivity and wildlife habitat (erosion control, nutrient
and organic recycling and animal habitat.
4. Brand S will manage these lands to meet State water
quality standards and to maintain fish habitat were
applicable.
5. Lands will be managed to retain and enhance aspen and
other deciduous trees and shrubs, especially in riparian and
wet areas.
water and soils
1. Best Management Practices (BMP) will be used in the
planning and implementation of harvest and road construction
activities. Reference ``Montana Forestry Best Management
Practices''; 1992 and the 1991 Streamside Management Act.
Noxious weeds
1. All harvesting equipment likely to be operated off of
road systems will be power washed of weed seeds before
entering these lands.
2. Brand S will treat noxious weeds on lands disturbed by
their operations during the period of project activities. The
total time period will not exceed the five years which Brand
S will be permitted to operate on these lands.
b. timber harvest
1. The appropriate even-aged or uneven-aged silvicultural
system will be used for each stand. Brand S and Gallatin
National Forest will agree on the appropriate silvicultural
systems and standards for different forest types, to achieve
desired vegetative conditions. To the extent possible;
silvicultural systems will be designed for natural
regeneration.
In general, partial cutting harvest systems that emulate
historical vegetative patterns will be utilized. In the
Douglas-fir types, partial cutting systems, including
shelterwood, group or individual tree selection, and
commercial thinning may be used as appropriate to meet
management objectives including old growth characteristics.
In the lodgepole pine types, age, insect and disease
conditions and individual stand conditions will determine
silvicultural systems. Clearcutting will be used only where
it is the optimum system. Where clearcut harvest is used,
reserve patches of advance reproduction and other small
diameter trees (lodgepole pine, subalpine fir, Douglas-fir
and spruce) and snags will be protected.
2. Harvest openings, location, size and shape will utilize
the principles of landscape design as described in the Forest
Service Visual Management System, and the principles of
wildlife habitat for protection of cover, edge effect, travel
linkages and concentrated use areas. Harvest openings created
by even-aged silviculture will normally be 40 acres or less.
Any larger openings will be as a result of prescribed harvest
to meet historic vegetation variation or as a result of
catastrophic fire or insect and disease.
3. Brand S will formulate and implement harvest activity
fuel treatment according to Montana State Hazard Reduction
Laws.
c. transportation system
1. Roads will generally be designed to achieve a minimum
distance of 1,000 feet apart except as they approach
junctions with other roads. Design features will be utilized
as outlined in the Montana Forestry BMP. Secondary roads
constructed or used by Brand S will be closed and stabilized,
including revegetation and erosion control in an effort to
promote wildlife habitat effectiveness and watershed
stability.
2. To avoid excessive soil compaction, skid trails will be
designed to minimize compaction and generally be located 75
feet apart. Line harvest systems are generally applled for
slopes greater than 40%. Soil conditions and topographic
features will direct system application.
3. The Forest Service agrees to grant to Brand S
appropriate road access and use rights as needed to access,
harvest and transport the reserved timber by Brand S in this
exchange. Specific road locations and haul routes will be
identified by mutual agreement between the Forest Service and
Brand S. In a timely manner, the Forest Service will grant
road access and use rights appropriate for each access
facility, through FLPMA (special use permits) and/or FRTA
(commercial road use permits) authorities. The parties agree
to cooperate to ensure timely completion of any needed road
location, survey, design, exhibit preparation and permit
authorization work. This agreement will not obligate Brand S
to convey public access in any form in the Pole Gulch
management unit.
d. field layout
timber harvest units
1. All units will be flagged in blue ribbon for field
review purposes. Following approval, all boundaries will be
marked with intervisible, vertical stripes of blue paint on
trees at eye level.
tree designation
1. Cut trees will be marked just above ground level on the
downhill side with a stump spot and at eye level with a
horizontal band of orange paint.
2. Leave trees will be marked with blue paint in the same
manner as for cut trees.
3. Designation of cut or leave trees may also be by a
combination of species and/or diameter.
volume determination
Brand S and Gallatin National Forest will agree on the unit
layout, harvest prescriptions and cruise for the tract of
land, described below, where 1.383 MMBF of timber is reserved
to Brand S for the harvest.
West Pine Tract (Section 1 T4S R7E and Section 7 T4S R8E)
1. Volume determination shall be done in accordance with
2409.12 Timber Cruising Handbook and applicable Region 1
supplements. Cruise standards for Tree Measurement Sales
shall apply. Minimum standards shall be a tree 7 inches or
greater at diameter breast height which contains a 16 foot
log to a 5.6 top that is at least 33\1/3\ sound.
Brand S and Gallatin National Forest will work together on
volume determination. Volume determination shall include all
phases of the cruise process including cruise design,
traversing when necessary, field measurements and check
cruising. Check cruising will be accomplished by a Forest
Service Certified Check Cruiser. If the results of the check
cruise fail to meet regional standards, an additional check
shall be run and combined with the first. If results are
still unsatisfactory, 25% of the original samples shall be
checked and the cruise adjusted by the difference between the
check and the original work.
2. Brand S and Gallatin National Forest will collect cruise
information using Forest Service data forms. The information
will be run on the Forest Service computer system. Brand S
shall be furnished a copy of all input and output data and be
able to review the results and check for any errors that
would affect the volume. Any input or calculation errors
detected shall be corrected.
3. If small cutting units are employed on portions of the
area they shall be combined using the subdivision/unit
concept for minimum unit sampling error. These units shall be
agreed to by the Forest Service and Brand S at the time the
cruise is designed.
e. project implementation
1. Timber harvest and postsale activities will be completed
within five (5) years after the date that legislation is
enacted. Extensions of time shall only be granted for causes
beyond the control of either party such as extensive periods
of moist soils or restrictions due to fire seasons. Brand S
will annually develop a schedule of planned activities so
that work can be coordinated and completed in a workman-like
manner. Brand S will notify the Gallatin National Forest when
all timber reservation activities are completed. Agreement on
that finding will be reached by both parties.
2. Brand S will formally designate a field representative
who will administer the project according to the preapproved
conceptual plan.
The Gallatin National Forest will formally designate a
project coordinator who will monitor progress and compliance
with the preapproved plan.
part ii
The parties agree that these guidelines will apply to the
Prison and Highlands Tracts on the Deerlodge National Forest
lands where timber only is conveyed to Brand S:
Brand S will adhere to all laws pertaining to forest
management activities recognized by the Federal Agencies and
the State Legislature as the foundation for sound timber
harvest practices and for fire prevention.
In accordance with the provisions of the Customs and Trade
Act of 1990, Title IV--Forest Resource Conservation and
Shortage Relief Act of 1990, unprocessed logs originating
from Deerlodge National Forest lands will not be exported or
substituted for other logs that are or will be exported.
The project will be based on the Deerlodge Forest Plan
Standards and Management Area direction. However, the
standards and direction will not preclude Brand S from
harvesting timber volumes to meet timber valuation as defined
in the exchange.
The following criteria will be used for project planning
and implementation:
a. specific resource considerations
visual quality
1. The ``modification'' visual quality objective (VQO), as
defined in the Forest Service Visual Management System, will
guide design of timber harvesting.
wildlife
1. Adequate forest cover will be retained as much as
possible to protect big game and other species.
Elk habitat potential will be maintained where possible by
retention of 30% of the total land area in suitable elk cover
(cover that hides 90% of an elk at 200 feet). Elk habitat
effectiveness will be maintained by managing roads so there
is generally less than one mile of open road per section
following harvest.
water, soils and riparian
1. Montana State Streamside Zone Rules and Montana Forestry
Best Management Practices will be used in the planning and
implementation of road construction, harvest and postsale
activities.
noxious weeds
1. All harvesting equipment likely to be operated off road
systems will be power washed of weed seeds prior to entering
these lands.
2. Brand S will treat noxious weeds on lands disturbed by
their activities during the period of project activities. The
Forest Service will be responsible for treatment at the
conclusion of project activities and for other lands not
disturbed by Brand S.
recreation
1. To minimize impact to recreational activities, the
following timing restrictions will apply: In section 30, T8N,
R10W, and Section 6, T7N, R10W road construction, logging and
post sale activities will be limited to the periods of June
16th through October 14th.
unique and critical habitats
1. Key habitat components including riparian areas, licks,
caves, cliffs, wallows, meadows and parks will be identified
and protected during project activities.
b. timber harvest
1. Brand S and Deerlodge National Forest will agree on the
appropriate even-aged or uneven-aged silvicultural system to
achieve desired vegetative conditions. The desired conditions
will be based on target stands and silvicultural
prescriptions supplied by the Deerlodge National Forest. To
the maximum extent possible, silvicultural systems will be
designed for natural regeneration.
In general, partial cutting harvest systems that emulate
historical vegetative patterns will be utilized. In the
Douglas-fir type, this will include shelterwood, group
selection, individual tree selection, and commercial thinning
may be used as appropriate to meet management objectives
including old growth characteristics. In the lodgepole and
spruce-alpine fir types, age, insect and disease conditions
and individual stand conditions will determine the
appropriate system to use. Clearcutting will be used only
where it is the optimum system. Where clearcutting is used,
some snags and reserve patches of advance reproduction and
other small diameter trees will be protected.
2. Harvest openings location, size and shape will utilize
the principles of landscape design as described in the Forest
Service Visual Management System, and the principles of
wildlife habitat for protection of cover, edge effect, travel
linkages and concentrated use areas. Harvest openings created
by even-aged silviculture will normally be 40 acres or less.
Any larger openings will be as a result of harvest
prescriptions to meet historic vegetation variation or as a
result of catastrophic fire or insect and disease damage.
3. Stand diagnosis will include a narrative and map display
of all proposed logging. The description of stands proposed
for logging will include vegetative objectives and field
inventory information on species, tree sizes, habitat types,
harvest methods, logging methods and post-treatment needs.
4. Brand S will implement fuel treatments (including
burning of landings and dozer piles) according to target
stand objectives. Broadcast burning will not be considered
for this project.
c. transportation plan
1. Roads will generally be designed to achieve a minimum
distance of 1000 feet apart except as they approach junctions
with other roads. Designs will incorporate Montana Forestry
BMP. Upon completion of use, roads will be closed and
stabilized, including revegetation and erosion control, in an
effort to promote wildlife habitat effectiveness and
watershed stability.
2. Soil conditions and topographic features will direct
systems applications. Operations will only be conducted on
slopes over 40% when they can safely be accomplished with
dozers or rubber-tired skidders. Operations will be suspended
during moist, soil conditions when rutting (tracks greater
than 3'' deep for more than 10 continuous feet) or excessive
soil disturbance is occurring. In soil types that are subject
to soil compaction, skidding equipment may be required to
operate from skid trails that are generally located at least
75 feet apart.
3. The Forest Service agrees to grant to Brand-S
appropriate road access and use rights as needed to access,
harvest and transport the national forest timber to be
conveyed to Brand-S in this exchange. Specific road locations
and haul routes will be identified by mutual agreement
between Forest Service and Brand-S. In a timely manner.
Forest Service will grant road access and use rights
appropriate for each access facility, through FLPMA (special
use permits) and/or FRTA (commercial road use permits)
authorities. The parties agree to cooperate to ensure timely
completion of any needed road location, survey, design,
exhibit preparation and permit authorization work.
d. project development
Brand S will take the lead and Deerlodge National Forest
will assist and provide guidance to develop the conceptual
plan through field layout of harvest activities. The primary
method of achieving project approval and monitoring will be
through reviews conducted jointly by Brand S and the
Deerlodge National Forest. The minimum schedule of office/
field reviews will be:
Office review of conceptual paper design and agreement on
unit costs of post harvest treatments.
Cruise plan to be reviewed by Forest Service certified
cruiser.
Field review when field layout is approximately 50%
complete.
Office/field review when field layout is complete and
before any ground disturbing activities occur.
On-going road construction, log removal and post sale work
will be monitored currently by Forest Service coordinator. A
staff field review will be conducted at completion of field
activities and as requested by Forest Service coordinator.
The intent is to have at least one review during field
operations and one at the conclusion of field operations.
e. field layout
timber harvest units
1. All units will be flagged in blue ribbon for field
review purposes. Following approval, all boundaries will be
marked with the intervisible, vertical stripes of blue paint
on trees at eye level.
tree designation
1. Cut trees will be marked just above ground level on the
downhill side with a stump spot and at eye level with a
horizontal band of orange paint.
2. Leave trees will be marked with blue paint in the same
manner as for cut trees.
3. Designation of cut or leave trees may also be by a
combination of species and/or diameter.
timber volume determination
The project will consist of the removal of about 3.5
million board feet of timber and associated temporary road
construction and postsale activities. The volume identified
for harvest is located on the lands described as follows:
Highlands Tract--sec. 6, T. 1 S., R. 7 W.
Prison Tract--sec. 30, T. 8 N., R. 10 W. and sec. 6, T. 7
N., r. 10 W.
1. Volume determination shall be done in accordance with
2409.12 Timber Cruising Handbook and applicable Region 1
supplements. Cruise standards for Tree Measurement Sales
shall apply. Minimum tree standards shall be at tree 7 inches
or greater at diameter breast height which contains a 16 foot
log to a 5.6'' to that is at least 33\1/3\ sound. Volume
determination shall include all phases of the cruise process
including cruise design, traversing when necessary, field
measurements and check cruising. Check cruising will be
accomplished by Forest Service Certified Check Cruiser and
Brand S representative may accompany the Forest Service Check
Cruiser. If the results of the check cruise fail to meet
regional standards, an additional check shall be run and
combined with the first. If results are still unsatisfactory,
25% of the original samples shall be checked and the cruise
adjusted by the difference between the check and the original
work.
2. Brand S will collect cruise information using Forest
Service data forms. The information will be run on the Forest
Service computer system. Brand S shall be furnished a copy of
all input and output data and be able to review the results
and check for any errors that would affect the volume. Any
errors detected shall be corrected.
3. Cruising shall be by an acceptable method to the Forest
Service and Brand S which will accomplish results in the most
economical fashion. If small cutting units are employed on
portions of the area they shall be combined using the payment
unit concept for minimum unit sampling error. These units
shall be agreed to by the Forest Service and Brand S at the
time the cruise is designed.
roads
1. Road locations will be flagged with orange ribbon prior
to field review.
f. project implementation
Timber harvest and postsale activities will be completed
within five (5) years after conveyance of the timber (by
timber deed) to Brand S. Extensions of time shall only be
granted for conditions beyond the control of either party
such as extensive periods of moist soils or restrictions due
to fire seasons. Brand S will annually develop a schedule of
planned activities so that work can be coordinated and
completed in a workman-like manner.
Brand S will post a performance bond equal to 75% of the
cost of post sale treatment needs. The Forest Service and
Brand S agree that harvest prescriptions will be designed to
achieve natural tree regeneration to the maximum extent
possible. However, planting might be necessary to meet
requirements for tree regeneration under the National Forest
Management Act in some situations. The post harvest work will
include an estimate of the direct cost of planting that might
be necessary. The prescriptions agreed to at the conceptual
stage will dictate the type of reforestation and necessary
steps to achieve adequate regeneration to stock the harvest
areas. Brand S will not be liable for any additional
reforestation costs if the terms of the prescription are met.
The bond can be reduced in proportion to, but not less than
the amount of post sale work remaining to be completed. The
amount based on reforestation needs shall be finalized with
the results of the reforestation surveys conducted at the end
of the 3rd growing season following site preparation.
Brand S will formally designate a field representative who
will administer the project according to the preapproved
conceptual plan.
The Deerlodge National Forest will formally designate a
project coordinator who will monitor progress and compliance
with the preapproved plan.
Project activities will progress in a workman-like manner
as generally defined in the Annual Schedule of Planned
Activities. Examples are:
1. A unit or group of units will be completed prior to
beginning logging operations in unlogged units.
2. Erosion control measures will be accomplished
immediately after the facility is no longer needed.
3. Required post harvest treatment (dozer pilling,
trampling, site preparation and burning of landings and dozer
piles) will be done on a unit within one season after logging
has been completed.
The cost of fire suppression will be borne by Brand S when
caused by their operations.
The Deerlodge National Forest shall be responsible for
conducting reforestation surveys and implementing any
artificial reforestation activities that might be necessary.
However, Brand S shall have the option of doing any required
artificial reforestation in lie of making deposits. They will
use and pay for stock provided by the Deerlodge National
Forest.
In the event that Brand S elects to offer for sale any of
the timber conveyed in Part II, Brand S agrees to fully
comply with existing Forest Service small business program
procedures. Brand S will set minimum bid rates in accordance
with Forest Service transaction evidence procedures. In the
event that no qualified small business entity shall meet the
minimum bid, Brand S shall have the right to offer said
timber to large business.
Brand S and the Forest Service agree that conceptual
designs and unit layout will avoid or mitigate impact to any
known cultural resource or Threatened, Endangered or
Sensitive species. In the event that new sites are discovered
during operations and impacts cannot be mitigated by standard
measures, then an equal volume of timber within the same
market area will be provided to replace the affected timber.
All rights, title and interest in and to any conveyed timber
shall remain with the Forest Service until the timber
designated for removal has been cut and removed form National
Forest System lands. The Forest Service will not be liable
for replacing any timber lost or destroyed due to Brand S's
operations.
____
Exhibit C--Draft Access Resolution Agreement--Forest Service and Brand-
S/Diamond-B Ranch Land Exchange, Gallatin National Forest
Introduction
In 1993, Brand-S/Diamond B Ranch (BS/DB) initiated a
proposal to exchange National Forest System (NFS) and private
lands on the Gallatin and Deerlodge National Forest (FS).
Brand-S developed ITS initial proposal to achieve two stated
goals:
(1) Place ITS Lost Creek lands in public ownership.
(2) Secure a supply of timber by acquiring equal-valued NF
timberlands within operating distance of the Brand-S mill in
Livingston.
In the ensuing months, BS/DB staff met with staff of the
two Forests, and with Bozeman/Livingston and Butte/Anaconda
conservation and sportsman groups, the Governor's office,
Montana Department of Fish Wildlife and Parks (MT FWP) and
others to discuss the proposal. Through this process BS/DB
gained some support, and also identified concerns about
certain aspects of ITS proposal. In a series of meetings, FS
and BS/DB staff made substantive modifications to develop a
more workable exchange package that addresses the agency and
public concerns.
the access issue
Within the proposal, BS/DB would acquire approx. 4,300
acres (seven parcels) of Gallatin NF lands in the Pole Gulch/
Eightmile area on the west side of Yellowstone Valley. These
public lands are intermixed with BS/DB Ranch lands.
This particular area of the Forest has no legal access from
public roads to the NF boundary. Access is controlled by
several private landowners, including BS/DB Ranch. In fact,
no legal Forest access exists between West Pine Road on the
north and Big Creek Road on the south, a distance of about 30
miles. The Gallatin Forest Plan contains direction to secure
five public access facilities in this area (linking public
roads to the Forest boundary in the north Dry Creek,
Eightmile, Pole Gulch, Fridley, and south Dry Creek
drainages). Once inside the Forest boundary, a network of
system trails exists, facilitating travel to alternating
sections of public lands.
Early on, and consistently throughout the exchange
discussions, the FS informed BS/DB staff that to consider
exchanging the identified NFS lands in the Pole Gulch/
Eightmile area, the issue of public access to surrounding NFS
lands must be addressed. The FS, MT FWP, Public Lands Access
Association, Inc. (PLAAI) and local sportsman/wildlife groups
recognize and agree that this proposal must not cause a loss
or deterioration of public access in the Pole Gulch/
Eightmile/Fridley area, particularly because existing access
is so limited. An exchange that fails to protect access would
be inconsistent with Forest Plan direction, and would also
conflict with ongoing efforts to protect trail access across
intermingled private lands in the Yellowstone Valley (e.g.
Donahue Trail).
access resolution
In the exchange proposal, BS/DB would exchange four
sections of land IT recently purchased in West Pine to the
FS. This public acquisition would improve access in the West
Pine area. However, until late July 1993, BS/DB and the FS
were unable to reach agreement on resolution of access in the
Eightmile/Pole Gulch/Fridley area. Several options were
identified by the FS to help resolve this issue. BS/DB has
been unwilling to accept any of these options. Without
resolving this matter, the FS could not support the exchange
proposal. Through discussions between BS/DB and the FS,
agreement was reached on provisions to resolve access in the
Eightmile/Pole Gulch/Fridley area, within the exchange
package and ensuring legislation.
These provisions are as follows:
(1) Existing Trails and Roads: The FS has evaluated the
existing NF trail system and road system on the NFS lands
identified for exchange, and on the existing BS/DB lands in
the Pole Gulch, and has identified:
(a) Those existing NF trails and roads that are needed for
public access to adjoining NFS lands after the exchange.
(b) Those existing NF trails and roads that are no longer
needed after the exchange.
The identified trails and roads to be reserved and those
that are no longer needed are shown on the attached map. The
identified trails and roads to be reserved are more
specifically described in Part II of Land Exchange
Specifications.
The FS will reserve in the patent the identified needed
trail and road segments on the NFS lands to be exchanged to
BS/DB. Minor relocation of trail and road segments will be
considered where more logical locations exist, provided
relocation is mutually acceptable to the FS and BS/DB.
The FS agrees:
(a) Not to reserve any rights in trails and roads
identified as no longer needed on the NFS lands to be
exchanged to BS/DB.
(b) To relinquish trails and roads identified as no longer
needed BS/DB lands in Pole Gulch.
(2) Legislative Provision to Secure Access: Any exchange
legislation must contain specific Congressional direction as
follows:
The Forest Service shall secure legal public road accesses
to Gallatin National Forest System lands in: 1) the Eightmile
Creek area, and 2) the Miller Gulch-Fridley Creek-Dry Creek
area.
The Forest Service and Brand-S/Diamond B agree that this
provision shall be included in the legislation. It is
anticipated that the Montana delegation, MT FWP, recreation
and conservation groups will endorse this provision.
Mr. BURNS. Mr. President, I join my colleague from Montana in
introducing the Lost Creek land exchange.
Early last year negotiations began on this delicate land exchange
called the Lost Creek Exchange. The exchange involve lands in the Deer
Lodge and Gallatin National Forests and privately owned lands. One
particular piece of private land that will become publicly owned is the
pristine Lost Creek area in the Anaconda Pintlers. This property was
purchased for timber harvest, but immediately local citizens and
conservation groups began looking for some avenue by which the public
could acquire the land.
The result of this local grassroots effort, we have before us today.
Our children and grandchildren will be the beneficiaries of this
landmark exchange. We have just completed a series of public meetings
to determine the level of support this exchange has across the affected
areas and I was pleased to see universal support from conservation
groups, sportsmen associations, private landowners and local
communities. The acquisition of the prime big horn sheep and mountain
goat habitat, plus the acquisition of key wilderness areas on the
Gallatin National Forest are accomplishments that will benefit the
State of Montana for future generations.
In addition, this exchange will mean the harvesting of timber by the
Brand S lumber company in Livingston. And that's good news to the
community where good family paying jobs are needed.
Legislative time is short, but I look forward to this bill moving
forward and being sent to the President for his signature.
______
By Ms. MOSELEY-BRAUN:
S. 2034. A bill to improve the quality of public elementary and
secondary school libraries, media centers, and facilities in order to
help meet the National Education Goals; to the Committee on Labor and
Human Resources.
educational infrastructure act of 1994
Ms. MOSELEY-BRAUN. Mr. President, I rise today to introduce the
Education Infrastructure Act of 1994, legislation designed to help
local school districts finance the repair, renovation, alteration, and
construction of public elementary and secondary school facilities.
The American system of public education has historically given local
school boards primary responsibility for maintaining our Nation's
education infrastructure.
For a long time, local school boards were able to meet that
responsibility. They built the school buildings in America. However,
the ability of local school boards to continue to meet that
responsibility has steadily declined. As a result, our schools are
aging. Thirty one percent of our nation's schools were constructed
before world war II, and 43 percent during the fifties and sixties to
augment the existing education infrastructure in order to meet baby
boom needs.
Less than 25 percent of existing schools were built during the
1970's, the 1980's, and the 1990's.
To build schools, local school boards rely on local property taxes.
And, as we all know, school boards in every State in the country are
finding it increasingly difficult to support their academic programs,
much less their school facilities, with local property taxes.
Mr. President, local property taxes are an inadequate source of
funding for public education because they make the quality of public
education dependent upon the local property wealth.
Two districts in Illinois illustrate the gross disparities created by
our current school financing system.
In 1990, the owner of a $100,000 home in a prosperous community paid
$2,103 in local property taxes. This community spent an average of
$10,085 on its public school students. On the other hand, the owner of
a $100,000 home in a low- and moderate-income community paid $4,139,
almost twice as much, even though that community was able to spend only
$3,483 on each of their public schools students--less than one-third of
the money the more prosperous community was spending.
In 1992, 57 percent of voters in Illinois voted to address the
problems created by our system's reliance on local property taxes by
directing the State to increase its share of public education funding.
The voters of Michigan also voted recently to shift funding for
public education away from the local property taxes to more equitable
sources of funding.
The Education Infrastructure Act would not infringe upon local
control over public education in any way. Rather, this legislation is
designed to help local school boards support the repair, renovation,
alteration, and construction of our Nation's public elementary and
secondary school facilities.
By providing assistance for the schoolhouses, we will assist local
school boards in their efforts to fund badly needed instructional
services inside the schoolhouse.
By providing an environment conducive to learning, we will help our
children learn.
By providing this needed and long overdue support, we will begin to
address our failure to adequately engage Federal resources in behalf of
preparing our children for competition in this global economy and
securing the future of our democratic institutions. This is in our
children's interest; this is in our the national interest.
Mr. President, several recent studies have found that the problems
facing our Nation's education infrastructure have reached crisis
proportions.
In a recent survey of State educational agencies, the Education
Writers Association found that our Nation's education infrastructure
needs are about $125 billion: $84 billion for new construction and $41
billion for maintenance and repairs.
In fact, the EWA survey also reported that, while 42 percent of our
Nation's school facilities are in good condition, 33 percent are only
adequate, and 25 percent are shoddy places for learning.
More specifically, this survey found that 61 percent of our Nation's
inadequate school facilities needed major repairs; 43 percent were
obsolete; 42 percent were environmentally hazardous; 25 percent were
overcrowded; and 13 percent were structurally unsound.
Other studies have shown that our Nation's education infrastructure
is falling apart in both rural and urban school districts alike.
The Council of Great City Schools, for example, recently reported
that New York City, Los Angeles, Detroit, and Chicago need more than $1
billion each to repair old school buildings and build new ones.
Several education researchers have also concluded that one-half of
all rural school buildings in the United States are unsafe, inadequate,
and inaccessible to disabled students.
In 1992, the Illinois State Board of Education found that its local
school districts needed more than $542 million for repairs and over
$468 million to meet State and Federal disability and energy
conservation laws.
The Illinois State Board of Education also found that one-third of
Illinois' public schools were over 50 years old.
Nonetheless, the Federal Government, as well as most States continue
to force local school districts to rely increasingly on local property
taxes for public education in general, and for school repair and
construction projects in particular.
In Illinois, for example, the local share of public education funding
increased from 48 percent during the 1980-81 school year to 58 percent
during the 1992-93 school year, while the State's share, the larger
pie, fell from 43 percent to 34 percent in the same period. At the same
time, State support for repair, renovation, alteration, and
construction of public school facilities has fallen even more
dramatically in Illinois, one of at least 23 States, Mr. President,
which provides little or no funding for school facilities projects.
Although the Illinois General Assembly created the Capital Assistance
Program in the early 1970's to help local school districts finance
school repair and construction projects, support for this program has
diminished rapidly. During fiscal years 1985 through 1990, the State of
Illinois only appropriated $18 million for local school repair and
construction projects, and then only on an individual direct-grant
basis.
In most cases, individual schools are finding it increasingly
difficult to support routine maintenance and repairs within their
tightening school budgets. In fact, the Council of Great City Schools
reported in 1987 that the percentage of local school budgets devoted to
building maintenance has steadily declined from 12.7 percent in 1939 to
3.3 percent in 1986. Again, that is in the context of an aging school
facility sample.
Mr. President, in his book ``Savage Inequalities,'' Jonathan Kozol
used a series of interviews and personal observations to highlight the
negative effects that inadequate school facilities have on our Nation's
children. Mr. Kozol quoted in that book a 1989 St. Louis Post Dispatch
story relating the following:
The Martin Luther King Junior School in East St. Louis,
Illinois was evacuated Friday afternoon after sewage flowed
into the kitchen, the gym, and the parking lot.
Mr. Kozol then encourages his readers to see the school crisis
through the eyes of a young girl who said:
We have a school in East St. Louis named for Dr. King. The
school is full of sewer water, and the doors are locked with
chains. Every student in the school is black. It is like a
terrible joke on history.
Mr. Kozol also quoted another student who was so frustrated with her
school environment she stated:
I don't go to physics class, because my lab has no
equipment. I don't even use the toilets. If I do, I come back
into class feeling dirty.
The Federal Government must accept a share of the blame in failing to
provide students in East St. Louis and throughout this country with
school environments which are conducive to learning
In the last decade alone, the Federal Government's share of public
education funding has dropped from 9.8 percent to 6.1 percent
Yet, what most Americans do not know is that out of the $12.9 billion
that we spent or invested in elementary and secondary education during
the 1989-90 school year, only $12 million of that, or about one-one-
thousandth of that amount, was devoted to our Nation's education
infrastructure, and then only in school districts negatively impacted
by Federal activities.
Nationwide, Federal support for elementary and secondary education
was only 6.2 percent during the 1990-91 school year. What is compelling
is that of that minuscule amount, only, again, one-one-thousandth of
that amount goes to the facility, the environment in which learning is
expected to take place. This hardly comports with our stated support
for education.
In her research at Georgetown University, Maureen Edwards found that
students in poor school facilities can be expected to fall 5.5
percentage points below those at schools in fair condition and 11
percentage points below those in schools in excellent condition. And so
the learning environment is directly related to educational performance
in school.
Mr. President, up to this point, the Federal Government has addressed
the problems facing our Nation's public schools by passing currently
unfunded Federal mandates, like section 504 of the Rehabilitation Act
of 1973, the Asbestos Hazard Emergency Response Act of 1986, and the
Americans With Disabilities Act of 1990. While these mandates have
laudable goals, and I support them, they have the effect, as a
practical matter, of passing on even greater unfunded costs to already
overburdened school districts.
The Education Infrastructure Act of 1994 challenges Congress to take
the first important step toward making elementary and secondary
education the kind of financial priority that it should be.
This legislation would authorize the Secretary of Education to
allocate $600 million directly to local school districts throughout
this country for the repair, renovation, alteration, and construction
of public elementary and secondary schools, school libraries, media
centers, and facilities used for academic or vocational instruction.
The Secretary of Education would be authorized to distribute those
funds to local school districts, including, by the way, those with
large numbers of or percentages of disadvantaged students, which can
demonstrate urgent repair, renovation, alteration, or construction
needs. I underscore ``urgent'' because $600 million just begins to
address this problem. More specifically, the Education Infrastructure
Act would help local school districts: First, inspect their facility;
second, repair the facilities that pose a health or safety risk to
students; third, upgrade their facilities to accommodate new
instructional technologies; fourth, install school security and
communications systems; fifth, conserve energy; and sixth, build new
schools to replace old ones that are most cost effectively torn down.
The bill would help local school districts meet important yet
currently unfunded Federal mandates, including section 504 of the
Rehabilitation Act of 1973, the Asbestos Hazard Emergency Response Act
of 1986, and the Americans With Disabilities Act of 1990.
Mr. President, like most of my colleagues, I voted for the crime bill
last year because it makes an important investment in the safety and
security of our communities.
I firmly believe that if the Senate can make the tough choices
necessary to invest $600 million in each of the next 5 years for the
construction of regional prisons, we can--no, we must--work together in
a bipartisan effort to begin making the necessary investments in our
Nation's public schools.
the Corrections Yearbook estimated that the average cost of
constructing a new maximum security prison was over $74,000 per
prisoner in 1993, while, at the same time, the American School and
University Magazine found that the average cost of constructing a new
elementary, middle, or high school was less than $14,000 per student in
1993. We can clearly invest a little in schools to save a lot in jails.
We can build classrooms instead of prison cells and enhance our
society's return on its investment a thousand-fold.
Mr. President, these savings do not even take into account the
savings in welfare, drug addiction, and crime programs created by
investing in public schools as opposed to Federal prisons.
Nevertheless, I recognize the fact that some of my colleagues may not
yet know that the problems facing our education infrastructure have
reached crisis proportions. Therefore, I want to take this opportunity
to show my colleagues some of the very disturbing pictures I have
received of the current condition of our Nation's public schools.
The first picture is of a science lab, and I will not describe where
the schools are. This is by way of demonstration, because we have
demonstrative evidence from all over this country, and it is currently
being collected. I hope, at some point, to be able to provide every
Member of this Senate with specific information regarding the schools
in their State. But this first picture is of a science lab in a high
school. You will notice that there is no equipment, no electrical
outlets, missing floor tiles, and it is in a general deteriorated
condition.
Small wonder that you cannot do much scientific research or learning
in an atmosphere like that.
The second picture is another science lab. This one again has no
equipment, no electrical outlets, missing floor tiles, a generally
deteriorated condition overall.
The third picture is the ceiling in a classroom. This is actually a
classroom, Mr. President. Leaking water has knocked the plaster down,
and it clearly poses a safety hazard for any youngster who thought he
or she was going to learn anything in that environment.
The fourth picture, Mr. President, is a ceiling in a classroom in a
high school. Here you see the lathing falling apart, the plaster gone,
the wood lath half gone. This is a function of termites eating at
plaster, and the school district did not have the money to provide for
the reconstruction of this facility.
The fifth picture I have here is a portable classroom. You can
remember particularly during the post-war years a number of school
districts put up portable classrooms. This one is over 40 years old
now. It is no longer obviously considered temporary. It was put up as a
temporary classroom 40 years ago. It is no longer temporary. You see
the lighting is such that it is almost impossible to learn or to read
even in that environment.
The sixth picture is again another school classroom. Again the
physical condition is falling apart. There is no money in this school
district for new paint or, for that matter, even for new chairs.
This next picture, Mr. President, is again another safety hazard.
This is exposed deteriorated electrical wiring in a high school. This
is clearly a safety hazard and would require extensive and costly
renovation that the school district is just not able to put together.
Picture 8 is a deteriorating school roof. This school was 115 years
old, and the school roof is too expensive to replace with modern-day
costs. So again this is another urgent renovation and repair or
reconstruction need.
In this next picture, and everybody who has been at school lately
will recognize the disgusting school bathroom, nonfunctioning drain
pipes, no money to correct the drainage, problem graffiti on the walls.
This is part and parcel of the school facility problem we are facing
now.
The next picture is rusting lockers. This is a class of school that
is decades old. These lockers are decades old, and there is no money to
replace them. They do not lock. But again that is the condition of our
schools today.
The eleventh picture is an outside stairwell, and this is a little
hard to see. This is a stairwell in a high school. There are actually
holes in the floor. The rust has eaten through to the risers, and this
again is a safety hazard that has not yet been cured.
The next picture is an attic stairwell in an elementary school. Now
the reason this looks like a junky stairwell is the fact this is a
special education classroom, Mr. President. This is what the school
board did to respond to our mandate that we provide educational
opportunity to handicapped youngsters. This, it seems to me, is
disgraceful, but this was what they were forced to do because of the
lack of facilities.
The next picture here is one as we talk about our competition in the
global economy. This is a school library, deteriorating book shelf in
the school library, lack of adequate books. Most school library books,
and this is reported by the American Libraries Association, are 25
years old. I daresay that in 25 years an awful lot has happened in the
world that we want our youngsters to get in the course of an education.
The next picture is one of windows in a high school entrance. As you
can see the lighting is terrible. There is no other lighting in the
hallway, and these replacement windows have been there for years and
they have not been replaced.
So I show these pictures, Mr. President, to make the point if it has
not been made already how desperately and urgently needed investment in
our school facilities has become.
Mr. President, I am one of the original cosponsors of the Goals 2000
legislation which we recently passed, which was a signal event and very
important legislative initiative by this Congress. The Educate America
Act was signed by President Clinton into law on March 31 of this year.
I support Goals 2000 because it promises to create a coherent
national framework for education reform founded on the national
education goals.
One essential building block of reform is better school facilities. I
am pleased, therefore, that Goals 2000 included an amendment that
directs the National Education Standards and Improvement Council to
develop voluntary national opportunity-to-learn standards which address
the condition of school facilities.
However, Mr. President, more needs to be done, and that is why the
Education Infrastructure Act is so very necessary.
Local school boards need more than model standards in order to be
able to provide their students with environments which are conducive to
learning. Local school boards need Federal financial assistance to
address the problems now facing our Nation's public school facilities.
This act, the Education Infrastructure Act, is endorsed by the
national PTA, the National Education Association, the National
Association of School Boards, the American Association of School
Administrators, the Council of Great City Schools, the National
Committee for Adequate School Housing, the City University of New York,
the AFL-CIO Building and Trades Commission, the Military Impacted
Schools Association, the American Library Association, the American
Federation of Teachers, the National Association of Federal Education
Program Administrators, ASPIRA, the Council of Education Facilities
Planners International, and the American Federation of School
Administrators.
As much to the point, Mr. President, a 1991 poll taken among
America's high school students found that their No. 1 priority, one of
their priorities--it was the No. 1 priority among high school students
for investment--would be additional educational dollars invested in
improved maintenance and construction of the schools. The young people
know that school construction renovation and repair is vitally
necessary and a long-neglected responsibility.
Mr. President, I would like to conclude my remarks by urging my
colleagues to support the Education Infrastructure Act and ask for
their support and assistance.
Again, I look forward to visiting with Members on the relative
committees and with Members of this body to provide whatever
information may be helpful with regard to the specifics in their State.
But I submit to you, Mr. President, this is a national problem, this is
a national crisis, and our national interest is involved in providing
an atmosphere and environment in which our young people can learn.
Mr. President, I ask unanimous consent that a copy of the bill and a
summary of its provisions be printed at this point in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2034
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 ``Education Infrastructure Act
of 1994''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) improving the quality of public elementary and
secondary school libraries, media centers, and facilities
will help our Nation meet the National Education Goals;
(2) Federal, State, and local funding for the repair,
renovation, alteration and construction of public elementary
and secondary school libraries, media centers, and facilities
has not adequately reflected need; and
(3) the challenges facing our Nation's public elementary
and secondary schools require the concerted and collaborative
efforts of all levels of government and all sectors of the
community.
SEC. 3. PURPOSE.
It is the purpose of this Act to help our Nation meet the
National Education Goals through the repair, renovation,
alteration and construction of public elementary and
secondary school libraries, media centers, and facilities,
used for academic or vocational instruction.
SEC. 4. DEFINITIONS.
For purposes of this Act--
(1) the term ``alteration'' refers to any change to an
existing property for use for a different purpose or
function;
(2) the term ``construction'' refers to the erection of a
building, structure, or facility, including the concurrent
installation of equipment, site preparation, associated
roads, parking, and utilities, which provides area or cubage
not previously available, including--
(A) freestanding structures, additional wings, or floors,
enclosed courtyards or entryways, and any other means to
provide usable program space that did not previously exist;
and
(B) the complete replacement of an existing facility;
(3) the term ``eligible local educational agency'' means a
local educational agency, as such term is defined in section
1471 of the Elementary and Secondary Education Act of 1965,
which demonstrates in the application submitted under section
7 that such agency--
(A) has urgent repair, renovation, alteration and
construction needs for its public elementary or secondary
school libraries, media centers, and facilities, used for
academic or vocational instruction; and
(B) serves large numbers or percentages of disadvantaged
students;
(4) the term ``renovation'' refers to any change to an
existing property to allow its more efficient use within such
property's designated purpose;
(5) the term ``repair'' refers to the restoration of a
failed or failing real property facility, component, or a
building system to such a condition that such facility,
component, or system may be used effectively for its
designated purpose, if, due to the nature or extent of the
deterioration or damage to such facility, component, or
system, such deterioration or damage cannot be corrected
through normal maintenance; and
(6) the term ``Secretary'', unless otherwise specified,
means the Secretary of Education.
SEC. 5. IMPROVEMENT OF PUBLIC ELEMENTARY AND SECONDARY
EDUCATION FACILITIES PROGRAM AUTHORIZED.
(a) Program Authority.--From amounts appropriated pursuant
to the authority of subsection (b) in any fiscal year, the
Secretary shall award grants to eligible local educational
agencies having applications approved under section 6 to
carry out the authorized activities described in section 7.
(b) Authorization of Appropriations.--There are to be
appropriated $600,000,000 for fiscal year 1995, and such sums
as may be necessary for each of the fiscal years 1996 through
2004, to carry out this Act.
SEC. 6. APPLICATIONS.
Each eligible local educational agency desiring to receive
a grant under this Act shall submit an application to the
Secretary. Each such application shall--
(1) contain an assurance that such application was
developed in consultation with parents and classroom
teachers; and
(2) include--
(A) a description of each architectural, civil, structural,
mechanical, electrical, or telephone line, deficiency to be
corrected with funds provided under this Act, including the
priority for the repair of the deficiency;
(B) a description of the corrective action to be supported
with funds provided under this Act;
(C) a cost estimate of the proposed corrective action;
(D) an identification of the total amount and percentage of
such agency's budget used in the preceding fiscal year for
the maintenance, repair, renovation, alteration, and
construction of public elementary and secondary school
libraries, media centers, and facilities;
(E) a description of how such agency plans to maintain the
repair, renovation, alteration, or construction supported
with funds provided under this Act;
(F) a description of the extent to which the repair,
renovation, alteration, or construction will help the
Secretary meet the goals described in section 9(1)(A); and
(G) such other information as the Secretary may reasonably
require.
SEC. 7. AUTHORIZED ACTIVITIES.
Each eligible local educational agency receiving a grant
under this Act shall use such grant funds to help our Nation
meet the National Education Goals through the repair,
renovation, alteration, and construction of a public
elementary or secondary school library, media center, or
facility, used for academic or vocational instruction,
including--
(1) inspection of such library, center, or facility;
(2) repairing such library, center, or facility that poses
a health or safety risk to students;
(3) upgrading of and alteration to such library, center, or
facility in order to accommodate new instructional
technology;
(4) meeting the requirements of section 504 of the
Rehabilitation Act of 1973 and the Americans with
Disabilities Act of 1990;
(5) removal or containment of severely hazardous material
such as asbestos, lead, and radon using a cost-effective
method;
(6) installation or upgrading of school security and
communications systems;
(7) energy conservation;
(8) meeting Federal, State, or local codes related to fire,
air, light, noise, waste disposal, building height, or other
codes passed since the initial construction of such library,
center, or facility; and
(9) replacing an old such library, center, or facility that
is most cost-effectively torn down rather than renovated.
SEC. 8. REQUIREMENTS.
(a) Special Rules.--
(1) Maintenance of effort.--An eligible local educational
agency may receive a grant under this Act for any fiscal year
only if the Secretary finds that either the combined fiscal
effort per student or the aggregate expenditures of that
agency and the State with respect to the provision of free
public education by such local educational agency for the
preceding fiscal year was not less than 90 percent of such
combined fiscal effort or aggregate expenditures for the
fiscal year for which the determination is made.
(2) Supplement not supplant.--An eligible local educational
agency shall use funds received under this Act only to
supplement the amount of funds that would, in the absence of
such Federal funds, be made available from non-Federal
sources for the repair and construction of school facilities
used for educational purposes, and not to supplant such
funds.
(b) General Limitations.--
(1) Real property.--No part of any grant funds under this
Act shall be used for the acquisition of any interest in real
property.
(2) Maintenance.--Nothing in this Act shall be construed to
authorize the payment of maintenance costs in connection with
any projects constructed in whole or in part with Federal
funds provided under this Act.
(3) Environmental safeguards.--All projects carried out
with Federal funds provided under this Act shall comply with
all relevant Federal, State, and local environmental laws and
regulations.
(4) Applicability of laws regarding individuals with
disabilities.--Sections 504 and 505 of the Rehabilitation Act
of 1973 and the Americans with Disabilities Act of 1990 shall
apply to projects carried out with Federal funds provided
under this Act.
SEC. 9. CONTRACTS.
If a project assisted under this Act will be carried out
pursuant to a contract, the following limitations shall
apply:
(1) Minority participation.--The Secretary shall
establish--
(A) goals for the participation of small business concerns
as contractors or subcontractors that meet or exceed the
governmentwide goals established pursuant to section 15(g)(1)
of the Small Business Act (15 U.S.C. 644(g)(1)) for the
participation of such concerns in contracts supported with
funds under this Act (and subcontracts under such contracts);
and
(B) an evaluation process for such participation that gives
significant weight to the goals described in subparagraph
(A).
(2) Davis-bacon.--All laborers and mechanics employed by
contractors or subcontractors in the performance of any
contract and subcontract for the repair, renovation,
alteration, or construction, including painting and
decorating, of any building or work that is financed in whole
or in part by a grant under this Act, shall be paid wages not
less than those determined by the Secretary of Labor in
accordance with the Act of March 3, 1931 (commonly known as
the Davis-Bacon Act); as amended (40 U.S.C. 276a-276a-5). The
Secretary of Labor shall have the authority and functions set
forth in reorganization plan of No. 14 of 1950 (15 FR 3176;
64 Stat. 1267) and section 2 of the Act of June 1, 1934
(commonly known as the Copeland Anti-Kickback Act) as amended
(40 U.S.C. 276c, 48 Stat. 948).
SEC. 10. TECHNICAL ASSISTANCE.
The comprehensive regional centers established under
section 2203 of the Elementary and Secondary Education Act of
1965 may provide assistance in the repair, renovation,
alteration, and construction of public elementary or
secondary school libraries, media centers, or facilities to
eligible local educational agencies receiving assistance
under this Act.
SEC. 11. FEDERAL ASSESSMENT.
The Secretary shall reserve not more than 1 percent of
funds appropriated pursuant to the authority of section
5(b)--
(1) to collect such data as the Secretary determines
necessary at the school, local, and State levels; and
(2) to conduct studies and evaluations, including national
studies and evaluations, in order to--
(A) monitor the progress of projects supported with funds
provided under this Act; and
(B) evaluate the state of American public elementary and
secondary school libraries, media centers, and facilities;
and
(3) to report to the Congress by July 1, 1997, regarding
the findings of the studies and evaluations described in
paragraph (2).
____
Section-by-Section Analysis
section 1
Short title: ``The Education Infrastructure Act of 1994.''
section 2
Congressional findings.
section 3
Purpose: ``To help our nation meet the national education
goals through the repair, renovation, alteration, and
construction of public elementary and secondary school
libraries, media centers, and facilities used for academic or
vocational instruction''.
section 4
Definitions:
Alteration: Any change to an existing property for use for
a different purpose or functions.
Construction: the erection of a building structure, or
facility, including the concurrent installation of equipment,
site preparation, associated roads, parking and utilities,
which provides area or cubage not previously available,
including--
(A) freestanding structures, additional wings, or floors,
enclosed courtyards, or entryways, and any other means to
provide usable program space that did not previously exist;
and
(B) the complete replacement if an existing facility;
Eligible Local Educational Agency: a local educational
agency, as such term is defined in section 1471 of the
Elementary and Secondary Education Act of 1965, which
demonstrates in the application submitted under section 7
that such agency--
(A) has urgent repair, renovation, alteration and
construction needs for its public elementary or secondary
school libraries, media centers, and facilities, used for
academic or vocational instruction; and
(B) serves large numbers or percentages of disadvantaged
students;
Renovation: any change to an existing property to allow its
more efficient use within such property's designated
purposes;
Repair: the restoration of a failed or failing real
property facility, component, or a building system to such a
condition that such facility, component, or system may be
used effectively for its designated purpose, if, due to the
nature or extent of the deterioration or damage cannot be
corrected through normal maintenance; and
Secretary: the Secretary of Education.
section 5
Authorization: $600,000,000 in fiscal year 1995 and such
sums as may be necessary in fiscal years 1996 through 2004 to
carry out the purpose of this act.
section 6
Applciations: Each eligible local educational agency
desiring to receive a grant under this Act shall submit an
application to the Secretary. Each such application shall--
(1) contain an assurance that such application was
developed in consultation with parents and classroom
teachers; and
(2) include:
(A) a description of each architectural, civil, structural,
mechanical, electrical, or telephone line deficiency to be
corrected with funds under this Act, including the priority
for the repair of the deficiency;
(B) a description of the corrective action to be supported
with funds under this Act;
(C) a cost estimate of the proposed corrective action;
(D) an identification of the total amount and percentage of
such agency's budget used in the preceding fiscal year for
the maintenance, repair, renovation, alteration, and
construction of public elementary and secondary school
libraries, media centers, and facilities;
(E) a description of how such agency plans to maintain the
repair, renovation, alteration, or construction supported
with funds under this Act;
(F) a description of the extent to which the repair,
renovation, alteration, or construction will help the
Secretary meet the goals described in section 9(1)(A); and
(G) such other information as the Secretary may reasonably
require.
section 7
Authorized Activities: Each eligible local educational
agency receiving a grant under this Act shall use such grant
funds to help our Nation meet the National Education Goals
through the repair, renovation, alteration, and construction
of a public elementary or secondary school library, media
center, or facility, used for academic or vocational
instruction, including--
(1) inspection of such library, center, or facility:
(2) repairing such library, center, or facility that poses
a health or safety risk to student;
(3) upgrading of and alterations to such library, center,
or facility, to accommodate new instructional technology;
(4) meeting the requirements of Section 504 of the
Rehabilitation Act of 1973 and the Americans with
Disabilities Act;
(5) removal or containment of severely hazardous material
such as asbestos, lead, and radon using a cost effective
method;
(6) installation or upgrading of school security and
communications systems;
(7) energy conservation;
(8) meeting local, state of federal codes related to fire,
air, light, noise waste disposal, building height, or other
codes passed since the initial construction of the library,
center, or facility; and
(9) replacing an old such library, center, or facility that
is most cost-effectively torn down rather than renovated''.
section 8
Requirements.
section 9
Contracts.
section 10
Technical Assistance: ``The comprehensive regional centers
established under section 2203 of the Elementary and
Secondary Education Act of 1965 may provide assistance in the
repair, renovation, alteration, and construction of public
elementary or secondary school libraries, media centers, or
facilities to eligible local educational agencies receiving
assistance under this Act.
section 11
Federal Assessment: The Secretary shall reserve not more
than 1 percent of funds appropriated pursuant to the
authority of section 5(b)--
(1) to collect such data as the Secretary determines
necessary at the school, local, and State levels; and
(2) to conduct studies and evaluations, including national
studies and evaluations, in order to--
(A) monitor the progress of projects supported with funds
under this Act;
(B) evaluate the state of American public elementary and
secondary school libraries, media centers, and facilities;
and
(3) to report to Congress by July 1, 1997, regarding the
findings of the studies and evaluations described in
paragraph (2).
______
By Mr. BUMPERS:
S. 2035. A bill to withdraw certain lands located in the Mark Twain
National Forest from the mining and mineral leasing laws of the United
States, and for other purposes; to the Committee on Energy and Natural
Resources.
ozark rivers protection act of 1994
Mr. BUMPERS. Mr. President, I rise today to introduce the
Ozark Rivers Protection Act of 1994. This legislation will withdraw
certain lands within the Mark Twain National Forest from the mining and
mineral leasing laws of the United States in order to protect several
environmentally sensitive waterways located near the forest and the
area's drinking water supply.
The Eleven Point River, located within the 3-million-acre Mark Twain
National Forest in Missouri, is one of the eight original Wild and
Scenic Rivers designated by Congress in 1968. The Eleven Point River is
part of the habitat of the federally endangered bald eagle and State
endangered Swainson's Warbler, while nearby caves harbor two federally
endangered bat species--Gray and Indiana. The natural and recreational
opportunities attract 4 million visitors annually to this wild area.
American Rivers recently designated the Eleven Point River as one of
the 20 most threatened rivers in the country due to the potential of
lead mining in the Eleven Point District of the Mark Twain National
Forest.
In addition, the Current and Jacks Fork Rivers in the area make up
the Ozark National Scenic Riverways, which were the first National
Rivers designated by Congress in 1964. The National Park Service, which
oversees the Ozark National Scenic Riverways, has called for the
prohibition of mining in the Eleven Point District because of the high
likelihood mining activity in the area would have of contaminating the
Ozark Scenic Riverways.
In 1992, the Bureau of Land Management authorized the Doe Run Co. to
perform exploratory drilling in the Eleven Point District of the Mark
Twain Forest to determine the extent of lead deposits located in the
forest. If sufficient deposits are found, Doe Run will undoubtedly seek
permission to mine in the area, which is located 1.5 miles from the
Eleven Point River and within the subsurface watershed of the Ozark
National Scenic Riverways. There is great potential damage for these
nationally recognized watersheds if mining is permitted to occur. The
karst terrain of the underlying rock is characterized by easily
dissolved bedrock, numerous springs, caves, losing streams, and sink
holes. The nature of the area makes it impossible to contain mining or
milling effluents on the surface or subsurface. In addition, the
aquifer located beneath the forest is the primary source of water for
20,000 residents in southeast Missouri and northeast Arkansas. In order
to mine any lead located in the area, Doe Run would have to bore
through two area aquifers.
Mr. President, I am sure there is no need to extensively address the
long litany of health problems associated with lead. According to the
American Academy of Pediatrics, between 2 and 4 million American
children have sufficient lead in their blood to diminish their IQ,
reduce physical stature, damage hearing, decrease hand-eye coordination
and impair their ability to pay attention in school. The Department of
Health and Human Services has called lead poisoning ``the most
important environmental health problem facing young children.'' We must
act to prevent the water supply in northeast Arkansas and southeast
Missouri from being contaminated with lead, thereby threatening our
children.
The Ozark Rivers Protection Act would prohibit mining in the Eleven
Point District of the Mark Twain National Forest from the application
of the mining and mineral leasing laws. This legislation does nothing
more than protect an especially environmentally sensitive area. Given
the fact that the Bureau of Mines estimates that we currently have a
60-year supply of lead, it would not impact our national security
interests. I urge my colleagues to support the bill.
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. 2035
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 ``Ozark Rivers Protection Act
of 1994.''
SEC. 2. WITHDRAWAL OF LANDS WITHIN MARK TWAIN NATIONAL
FOREST.
Subject to valid existing rights, after the date of
enactment of this Act, all federal lands within the Eleven
Point District of the Mark Twain National Forest are
withdrawn from entry, location, or patent under the general
mining laws, the operation of the mineral and geothermal
leasing laws and the mineral material disposal laws.
______
By Mr. McCAIN (for himself and Mr. Inouye):
S. 2036. A bill to specify the terms of contracts entered into by the
United States and Indian tribal organizations under the Indian Self-
Determination and Education Assistance Act, and for other purposes; to
the Committee on Indian Affairs.
indian self-determination contract reform act of 1994
Mr. McCAIN. Mr. President, today I am introducing the Indian Self-
Determination Contract Reform Act of 1994. I am pleased that Senator
Inouye, the chairman of the Committee on Indian Affairs, has joined
with me as a cosponsor of this legislation.
I am introducing this bill to stimulate discussion and debate about
the implementation of the Indian Self-Determination and Education
Assistance Act. This legislation would prohibit the Secretary of the
Interior and the Secretary of Health and Human Services from
promulgating regulations under the Self-Determination Act. It
prescribes the terms and conditions which must be used in any contract
between an Indian tribe and the Bureau of Indian Affairs [BIA] or the
Indian Health Service [IHS]. No modifications could be made to any
contract which is entered into under the authority of the Self-
Determination Act without the written consent of the Secretary and the
tribe.
The policy of self-determination has proven to be very successful in
terms of promoting tribal operation of Federal programs and services
administered by the BIA and IHS. The policy has its origins in
President Nixon's 1970 ``Special Message to the Congress on Indian
Affairs'' which stated:
For years we have talked about encouraging Indians to
exercise greater self-determination, but our progress has
never been commensurate with our promises. Part of the reason
for this situation has been the threat of termination. But
another reason is the fact that when a decision is made as to
whether a Federal program will be turned over to Indian
administration, it is the federal authorities and not the
Indian people who finally make the decision.
This situation should be reversed. In my judgment, it
should be up to the Indian tribe to determine whether it is
willing to assume administrative responsibility for a service
program which is presently administered by a federal agency.
In response to President Nixon, the Congress passed the Indian Self-
Determination and Education Assistance Act in 1974 and it was signed
into law by President Ford on January 4, 1975. Major amendments were
enacted in 1988 in an effort to improve the implementation of the Act.
Today, approximately $531 million of the funds appropriated to the BIA
are administered by tribal governments under self-determination
contracts. There are over 400 contracts between Indian tribes and the
IHS involving about $497 million annually. Indian tribes contract with
the IHS for the operation of 8 fully accredited hospitals, 347 health
centers, and 70 service units.
Despite these successes, the implementation of the act has
consistently been plagued by an oppressive Federal bureaucracy. During
the consideration of the 1988 amendments, the Senate Committee on
Indian Affairs noted that the act had failed to meet its goal of
reducing the Federal bureaucracy and ending the Federal domination of
Indian programs. In fact, there had been no reduction in the Federal
bureaucracy. Instead the act had spawned an increase in Federal
officials who were employed to monitor self-determination contracts.
The Committee found that Federal bureaucrats had imposed administrative
and reporting requirements on Indian tribes which were more stringent
than the standards which would apply to direct Federal operation of the
programs, activities, and services that the tribes were contracting to
provide under the act. So many layers of bureaucracy and rules had been
imposed that the contract approval process required an average of 6
months rather than the 60 days mandated by the act.
The committee found that the original goal of ensuring maximum tribal
participation in the planning and administration of Federal services,
programs and activities intended for the benefit of Indians had been
undermined by excessive bureaucracy and unnecessary contract
requirements. The 1988 amendments were intended to ``* * * remove many
of the administrative and practical barriers that seem to persist * * *
under the act. The amendments required new regulations to be developed
by BIA and IHS with the participation of Indian tribes. Senate Report
100-274, which accompanied the amendments, stated:
The regulations regarding contracts under the Indian Self-
Determination Act should be relatively simple,
straightforward, and free of unnecessary requirements or
procedures. The Committee intends * * * [the] regulations to
become effective prior to the beginning of the first Fiscal
Year following enactment of this amendment.
Mr. President, it has now been nearly 6 years since the 1988
amendments were enacted. During those years there have been at least
three oversight hearings to determine why the required regulations had
not been developed and implemented. On January 20, 1994, the BIA and
IHS finally published proposed regulations in the Federal Register.
Despite the fact that the regulations were supposed to be relatively
simple, straightforward, and free of unnecessary requirements or
procedures, the new regulations are 83 pages long and contain hundreds
of new requirements. As one commentator noted: ``* * * in numerous
instances the proposed regulations are more restrictive than existing
regulations and raise new obstacles and burdens for Indian tribes
seeking the opportunities for effective tribal self-government promised
by the act.''
I find the conduct of the BIA and the IHS to be outrageous. The
Congress passed and the President signed a law calling for exactly the
opposite result. In addition, this administration like its predecessor,
is committed to reducing Federal regulatory burdens. I can think of no
better place to start to reduce the crippling effect of regulations
than in the area of Indian self-determination. It is time that the BIA
and IHS get the message. Self-determination is not simply another
Federal program and it is not an excuse for Federal officials to
continue seeking domination over the affairs of tribal governments. In
this instance, the BIA and the IHS suffer from the delusion that tribal
programs can only be operated in the way that the BIA or IHS have
operated them. To the contrary, self-determination requires a
diminishment of the Federal presence in tribal affairs. This includes
reducing the Federal work force and minimizing regulatory interference.
Since the BIA and IHS seem unable or unwilling to accomplish these
goals, I believe it has become necessary to repeal their authority to
promulgate regulations under the Self-Determination Act.
It is entirely possible that regulations will be required in certain
areas to effectuate the purposes of the act. However, the burden of
proof should be on the Federal agencies or any other interested party
to justify to the Congress and to the tribes the need for such
regulations. In any case, I believe self-determination regulations
should be kept to a minimum.
When the Committee on Indian Affairs conducted hearings on this
legislation, I invite the Federal agencies and other interested parties
to identify any provisions in the recently proposed regulations which
are necessary to effectuate the purposes of the act. In addition, I
invite the BIA and IHS to document the personnel reductions which have
occurred since 1975 as the act has been implemented. I am hopeful that
this legislation will finally lead to full compliance with the letter
and spirit of the Indian Self-Determination and Education Assistance
Act.
I ask unanimous consent that the bill and a section-by-section
summary be printed in the Record immediately following my remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2036
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 ``Indian Self-Determination
Contract Reform Act of 1994''.
SEC. 2 CONTRACT SPECIFICATIONS.
Section 105 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j) is amended to read as
follows:
``SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.
``Each contract or grant entered into under this Act,
except an agreement entered into pursuant to title III (25
U.S.C. 450f note), shall contain, or incorporate by
reference, the following provisions, with modifications where
indicated and the blanks appropriately filled:
``(a) Authority and Purpose.--
``(1) Authority.--This agreement, denoted a Contract of
Self-Determination (hereinafter referred to as the
`Contract'), is entered into by the Secretary of the Interior
(or the Secretary of Health and Human Services) (hereinafter
referred to as the `Secretary'), for and on behalf of the
United States pursuant to the Indian Self-Determination and
Education Assistance Act and by the authority of the
tribal government. Unless otherwise provided in this
agreement, all of the provisions of the Indian Self-
Determination and Education Assistance Act are incorporated
herein.
(2) Purpose.--This Contract shall be liberally construed to
transfer the funding, functions, and activities for the
following programs from the Federal Government to the
tribal government: [List functions, activities, and
programs.]
``(3) Tribal law and forums.--The laws of the
tribal government shall be applied in the execution of this
Contract and the powers and decisions of the Tribal Court
shall be respected to the extent that Federal law, construed
in accordance with the applicable canons of construction and
the Indian Self-Determination and Education Assistance Act,
is not inconsistent.
``(b) Terms, Provisions and Conditions.--
``(1) Term.--The term of this Contract shall not exceed 3
years, unless the Secretary and the tribe agree on a longer
period pursuant to section 106 of the Indian Self-
Determination and Education Assistance Act. The calendar year
is the basis for contracts under this Act, unless the
Secretary and the tribe agree on a different period.
``(2) Effective date.--This Contract shall become effective
upon approval and execution by the tribe and the Secretary,
unless otherwise provided by law.
``(3) Funding amount.--Subject to the appropriation of
funds by Congress, the Secretary shall make available to the
tribe the total amount specified in the annual agreement
incorporated by reference in subsection (f)(2).
``(4) Payment.--
``(A) In general.--Payments shall be made as expeditiously
as possible in compliance with applicable Treasury Department
regulations and shall include financial arrangements to cover
funding during periods under continuing resolutions to the
extent permitted by such resolutions.
``(B) Quarterly payments.--To the extent authorized by law,
for each fiscal year covered by this Contract, the Secretary
shall make available the funds specified for the fiscal year
under the annual agreement by paying to the tribe on a
quarterly basis one-quarter of the total amount provided for
in the annual agreement for that fiscal year, or by using an
instrument such as a letter of credit, or other method
authorized by law, as may be specified in the annual
agreement. To the extent applicable, each quarterly payment
shall be made on the first day of each quarter of the fiscal
year except for the first quarter, for which the quarterly
payment shall be made not later than the date that is 10
calendar days after the date on which the Office of
Management and Budget apportions the appropriations for the
fiscal year for the programs, services, function, and
activities subject to the Contract.
``(5) Records.--(A) Except for previously provided copies
of tribal records that the Secretary demonstrates are clearly
required to be maintained as part of the recordkeeping system
of the Department of the Interior, tribal records shall not
be considered Federal records for purposes of chapter 5 of
title 5, United States Code.
``(B) The tribe shall maintain a recordkeeping system, and
provide reasonable access to records to the Secretary that
permits the Department of the Interior to meet its minimum
legal recordkeeping program requirements under chapter 31 of
title 44, United States Code.
``(6) Property.--(A) At the request of the tribe, the
Secretary shall make available to the tribe reasonably
divisible real property, facilities, equipment, and personal
property that the Department had previously utilized to
provide the programs, services, functions, and activities now
consolidated by the tribe pursuant to subsection (c)(1) of
this Contract. A mutually agreed upon list specifying the
property, facilities, and equipment so made available shall
also be prepared and periodically revised.
``(B) Subject to the agreement of the General Services
Administration, the Secretary shall delegate to the tribe the
authority to acquire such `excess' property as may be
appropriate in the judgment of the tribe to support the
programs, services, functions, and activities consolidated
under subsection (c)(1) of this Contract. The Secretary
agrees to make best efforts to assist the tribe in obtaining
such confiscated or excess property as may become available
to tribes or local governments. Subject to the agreement of
the General Services Administration, a screener
identification card (General Services Administration form
2946) shall be issued to the tribe not later than the
effective date of this Contract. The designated official
shall, upon request, assist the tribe in securing the use of
the card.
``(C) The tribe shall, upon acquisition of excess United
States Government property, provide adequate documentation to
the Secretary to facilitate recordation of the property in
the Bureau of Indian Affairs Property Inventory.
``(D) The tribe shall determine what capital equipment,
leases, rentals, property, or services it shall require to
perform its obligations under this subsection, and shall
acquire and maintain records of such capital equipment,
property rentals, leases, property, or services through
tribal procurement procedures.
``(7) Savings.--Notwithstanding any other provision of law,
any funds appropriated pursuant to the Act of November 2,
1921 (42 Stat. 208, chapter 115; 25 U.S.C. 13) shall remain
available until expended.
``(8) Transportation.--
``(A) Use of motor vehicles.--Subject to the agreement of
the General Services Administration, the Secretary hereby
authorizes the tribe to obtain interagency motor pool
vehicles and related services, if available, for performance
of any activities under this Contract.
``(B) Use of other transportation services.--The Secretary
shall make best efforts to obtain the concurrence of the
General Services Administration to provide the tribe and its
employees with eligibility for services and supplies pursuant
to General Services Administration programs and contracts
with private entities, including airlines and other
transportation carriers.
``(9) Regulatory authority.--The tribe is not required to
abide by Federal program guidelines, manuals, or policy
directives unless otherwise agreed to by the tribe and the
Secretary.
``(10) Disputes.--(A) Obligations of the United States
under this Contract shall be considered to be `duties' under
section 110 of the Indian Self-Determination and Education
Assistance Act.
``(B) Section 110 of the Indian Self-Determination and
Education Act shall apply to disputes under this Contract.
``(C) In addition or as an alternative to remedies and
procedures prescribed by section 110 of the Indian Self-
Determination and Education Assistance Act the parties may
jointly--
``(i) submit disputes under this Contract to third-party
mediation, which for purposes of this section means that the
Secretary and the tribe nominate a third party who together
choose a third party mediator (`third-party' means a person
not employed by a significantly involved with either the
tribe, the Secretary, or the Department of the Interior);
``(ii) submit the dispute to the Court of the tribe; or
``(iii) submit the dispute to mediation processes provided
for under the law of the tribe.
``(D) The Secretary shall accept decisions reached by
mediation processes or the tribal court, but shall not be
bound by an decision that might be in conflict with the
interests of the Indians or the United States.
``(11) Tribal administrative procedures.--Tribal law and
tribal forums shall provide for administrative due process
with respect to programs, services, functions, and activities
that are provided by the tribe pursuant to this Contract and
pursuant to the Indian Civil Rights Act of 1968 (25 U.S.C.
1301 et seq.).
``(12) Successor annual agreement.--Negotiations for a
successor annual agreement, as provided for in subsection
(f)(2), shall begin not later than 120 days prior to the
conclusion of the preceding annual agreement. The tribe is
hereby assured that future funding of successor annual
agreements shall only be reduced pursuant to section 106(b)
of the Indian Self-Determination and Education Assistance
Act. The Secretary agrees to prepare and supply relevant
information, and to promptly comply with any request by the
tribe for information reasonably needed to determine the
funds that may be available for a successor annual agreement
as provided for in subsection (f)(2) of this Contract.
``(13) Secretarial approval.--(A) Except as provided in
subparagraph (B), for the term of the Contract, section 2103
of the Revised Statutes (25 U.S.C. 81) and section 16 of the
Act of June 18, 1934 (25 U.S.C. 476), shall not apply to any
contract entered into by the tribe in connection with this
Contract.
``(B) Each contract entered into by the tribe shall--
``(i) be in writing;
``(ii) identify the interested parties, their authorities,
and purposes;
``(iii) state the work to be performed; and
``(iv) state the basis for any claim, the payments to be
made, and the terms of the contract, which shall be fixed.
``(c) Obligation of the Tribe.--
``(1) Consolidation.--Except as provided in subsection
(d)(2), the Tribally Controlled Community College Assistance
Act of 1978 (25 U.S.C. 1801 et seq.), and title XI of the
Education Amendments of 1978 (25 U.S.C. 2001 et seq.), the
tribe shall perform the programs, services, functions, and
activities as provided in the annual agreement under
subsection (f)(2) of this Contract.
``(2) Amount of funds.--The total amount of funds covered
by the Contract provided for in paragraph (1) that the
Secretary shall make available to the Indian tribe
shall be determined in an annual agreement between the
Secretary and the tribe, which shall be incorporated in its
entirety into this Contract and attached as provided in
subsection (f)(2).
``(3) Tribal programs.--The tribe agrees to provide the
programs, services, functions, and activities identified in
the annual agreement. The tribe pledges to practice good
faith in upholding its responsibility to provide such
programs, services, functions, and activities.
``(4) Trust services for individual indians.--To the extent
that the annual agreement endeavors to provide trust services
to individual Indians that were formerly provided by the
Secretary, the tribe shall maintain at least the same level
of service as was previously provided by the Secretary,
subject to the availability of appropriated funds for such
services. The tribe pledges to practice good faith in
upholding its responsibility to provide such service. Trust
services for individual Indians means only services that
pertain to land or financial management connected to
individually held allotments.
``(d) Obligation of the United States.--
``(1) Trust responsibility.--The United States reaffirms
its trust responsibility to the Indian tribe of
the Indian Reservation to protect and conserve the
trust resources of the Indian tribe and of
individual Indians of the Indian Reservation.
Nothing in this Contract is intended to, nor shall be
construed, to terminate, waive, modify, or reduce the trust
responsibility of the United States to the tribe or
individual Indians. The Secretary pledges to practice good
faith in upholding said trust responsibility.
``(2) Programs retained.--As specified in the annual
agreement, the United States hereby retains the programs,
services, functions, and activities with respect to the tribe
that are not specially assumed by the tribe in the annual
agreement.
``(e) Other Provisions.--
``(1) Designated officials.--On or before the effective
date of this Contract, both the United States and the tribe
shall provide each other with a written designation of a
senior official as its representative for notices, proposed
amendments to the Contract and other purposes for this
Contract.
``(2) Indian preference in employment, contracting, and
subcontracting.--Tribal law shall govern the provision of
Indian preference in employment, contracting, and
subcontracting pursuant to this Contract. Section 5 of the
Indian Self-Determination and Education Assistance Act shall
apply to individuals who leave Federal employment for tribal
employment pursuant to this contract.
``(3) Contract modifications or amendments.--To be
effective any modifications of this Contract shall be in the
form of a written amendment to the Contract, and shall
require the written consent of the tribe and the Secretary.
``(4) Officials not to benefit.--No Member of Congress, or
resident commissioner, shall be admitted to any share or part
of any contract executed pursuant to this Contract, or to any
benefit that may arise therefrom; but this provision shall
not be construed to extend to any contract under this
contract if made with a corporation for its general benefit.
``(5) Covenant against contingent fees.--The parties
warrant that no person or selling agency has been employed or
retained to solicit or secure any contract executed pursuant
to this Contract upon an agreement or understand for a
commission, percentage, brokerage, or contingent fee,
excepting bona fide employees or bona fide established
commercial or selling agencies maintained by the contractor
for the purpose of securing business. For breach or violation
of this warranty the Government shall have the right to annul
any contract without liability or, in its discretion, to
deduct from the Contract price or consideration, or otherwise
recover, the full amount of such commission, percentage,
brokerage, or contingent fee.
``(f) Attachments.--
``(1) Approval of contract.--The resolution of the
Indian tribe approving this Contract is attached hereto as
attachment 1.
``(2) Annual agreement.--The negotiated and duly approved
annual agreement with respect to the Indian tribe
which shall only contain terms that identify the programs,
services, functions, and activities to be performed, the
general budget category assigned, the funds to be provided,
the time and method of payment, and a requirement that all
modifications or amendments shall be written and signed by
both parties, is hereby incorporated in its entirety in this
Contract and attached hereto as attachment 2.''.
SEC. 3. REGULATIONS.
(a) In General.--The Secretary of the Interior and the
Secretary of Health and Human Services shall not promulgate
any regulation relating to grants, contracts, or cooperative
agreements entered into pursuant to the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.).
(b) Existing Regulations.--The provisions of this Act shall
supersede any conflicting provisions of law or regulation in
existence on the date of enactment of this Act.
SEC. 4. REPEAL.
(A) In General.--Section 107 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450k)
is repealed.
(b) Conforming Amendments.--
(1) Section 104(b) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450h(b)) is amended by
striking ``, in accordance with regulations adopted pursuant
to section 107,''.
(2) Section 106(h) of such Act (25 U.S.C. 450j(h)) is
amended by striking ``and the rules and regulations adopted
by the Secretaries of the Interior and Health and Human
Services pursuant to section 107''.
____
section-by-section summary
Section 1. Short Title. This section provides that the Act
may be cited as the ``Indian Self-Determination Contract
Reform Act of 1994''.
Section 2. Contract Specifications. This Section amends
section 105 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j) to require every grant or
contract, except self-governance compacts, entered into under
the Act to contain the following provisions:
(a)(1) Authority. This subsection provides that the
contract is entered into pursuant to the Indian Self-
Determination and Education Assistance Act and incorporates
all of the provisions of that Act.
(a)(2) Purpose. This subsection provides that the contract
shall be liberally construed to transfer funding, functions
and activities for specific federal programs from the Federal
government to a tribal government.
(a)(3) Tribal Law and Forums. This subsection provides that
tribal law shall be applied to the execution of the contract
to the extent that such law is not inconsistent with Federal
law.
(b)(1) Term. This subsection limits the term of the
contract to three years unless the provisions of section 106
of the Act are applicable and the Secretary and the Indian
tribe agree to a longer term. This subsection also provides
that the basis for the contract is the calendar year unless
the Secretary and the tribe agree to a different period.
(b)(2) Effective Date. This subsection provides that the
contract shall become effective upon its execution by the
parties or on such date as the parties may specify.
(b)(3) Funding Amount. This subsection requires the
Secretary to make available to the tribe the amount specified
in the annual agreement pursuant to subsection (f)(2) and
subject to the availability of appropriations.
(b)(4)(A) Payment.-In General. This subsection requires
payment under the contract to be made as expeditiously as
possible in compliance with applicable Treasury Department
regulations.
(b)(4)(B) Quarterly Payments. This subsection requires the
Secretary to make quarterly payments if authorized by law and
to do so on the first day of each quarter of the fiscal year
except for the first quarter when such payment shall be made
within ten days after the office of Management and Budget
apportions the applicable appropriations.
(b)(5) (A), (B) Records. These subsections provide that
unless the Secretary determines that tribal records are
required as part of the record keeping system of the
Department of the Interior, tribal records shall not be
considered to be Federal records under Title 5 of the United
States Code. The tribe is required to maintain and ensure
access to a record keeping system which will enable the
Secretary to comply with the record keeping requirements of
chapter 31 of Title 44 of the Untied States Code.
(b)(6) (A), (B), (C) & (D) Property. These subsections
authorize the Secretary to make available to the tribe the
real and personal property, facilities and equipment which
have previously been used to provide the programs, services,
functions and activities transferred to the tribe under the
contract. Subject to the agreement of the General Services
Administration, the tribe is also authorized to acquire
excess or confiscated property which may be appropriate to
support the tribe's activities under the contract. All such
excess property shall be recorded in the Bureau of Indian
Affairs' property inventory. The tribe is required to keep
records of all capital equipment, property rentals, leases or
services which it determines are necessary to perform its
obligations under this subsection.
(b)(7) Savings. This subsection provides that any funds
appropriated pursuant to the Snyder Act, 25 U.S.C. 13, shall
remain available until expended.
(b)(8) (A) & (B) Transportation. Subject to the agreement
of the General Services Administration, these subsections
authorize Indian tribes to obtain interagency motor pool
vehicles and other transportation services and supplies.
(b)(9) Regulatory Authority. This subsection exempts the
tribe from Federal program guidelines, manuals or policy
directives except as may be otherwise provided by agreement
of the parties under this subsection.
(b)(10) (A), (B), (C) & (D) Disputes. These subsections
provide that obligations of the United States under the
contract shall be construed as duties under section 110 of
the Act and that section 110 will govern dispute resolution
unless the parties agree to submit disputes to mediation or
to the tribal court. The Secretary is required to accept
decisions made through mediation or by a tribal court unless
such decisions are in conflict with the interests of the
Indian tribe or the United States.
(b)(11) Tribal Administrative Procedures. This subsection
requires the tribe to provide due process of law pursuant to
the Indian Civil Rights Act with respect to all programs,
services, functions and activities carried out under the
contract.
(b)(12) Successor Annual Agreement. This subsection
provides that negotiations for a new annual agreement shall
begin not later than 120 days prior to the conclusion of
the current annual agreement and that funding levels will
only be reduced in the event that appropriations are
reduced.
(b)13)(A) & (B) Secretarial Approval. These subsections
provide that 25 U.S.C. 81 and 476 shall not apply to the
tribe with respect to any contract entered into in connection
with this contract, but all such contracts must be in writing
and clearly specify the parties, their duties and the
payments to be made.
(c)(1) Obligation of the Tribe-Consolidation. This
subsection provides that the tribe will perform all of the
programs, services, functions and activities, except for
certain education programs, as provided in the annual funding
agreement.
(c)(2) Amount of Funds. This subsection provides that the
total funding available to the tribe shall be determined by
the annual funding agreement which is expressly incorporated
into this contract.
(c)(3) Tribal Programs. This subsection obligates the tribe
to make a good faith effort to provide the programs,
services, functions and activities identified in the annual
funding agreement.
(c)(4) Trust Services for Individual Indians. This
subsection requires the tribe to provide the same trust
services to individuals as were formerly provided by the
Secretary, subject to the availability of appropriated funds.
(d)(1) Obligation of the United States-Trust
Responsibility. This subsection provides that the United
States reaffirms its trust responsibility and that nothing in
this contract shall be construed to terminate, waive, modify
or reduce the Federal trust responsibility.
(d)(2) Programs Retained. This subsection provides that the
United States retains all programs, services, functions and
activities that are not specifically assumed by the tribe
under the annual funding agreement.
(e)(1) Other Provisions-Designated Officials. This
subsection requires the parties to designate officials to
receive notices and proposed amendments to the contract.
(e)2) Indian Preference In Employment, Contracting and
Subcontracting. This subsection provides that tribal law
governs Indian preference in employment, contracting and
subcontracting under the contract and that section 5 of the
Act applies to individuals who leave federal employment for
tribal employment under the contract.
(e)(3) Contract Modifications or Amendments. This
subsection requires all modifications to the contract to be
in the form of a written amendment to the contract and to
have the consent of the Secretary and the tribe.
(e)(4) Officials Not to Benefit. This subsection prohibits
federal officials from sharing in or benefiting from the
contract.
(e)(5) Covenant Against Contingent Fees. This subsection
requires the parties to warrant that no one has been employed
or retained to secure this contract in return for a
percentage or contingent fee.
(f)(1) Attachments-Approval of Contract. This subsection
references the resolution of the tribe which approves the
contract.
(f)(2) Annual Agreement. This subsection incorporates the
annual funding agreement into the contract and limits its
terms to identification of the programs, services, functions
and activities to be performed, the budget category, the
funds provided, the time and method of payment and a
requirement that all modifications or amendments must be
written and signed by both parties.
Section 3. Regulations. This section prohibits the
Secretary of the Interior and the Secretary of Health and
Human Services from promulgating any regulations relating to
the Indian Self-Determination and Education Assistance Act
and provides that the provisions of the Indian Self-
Determination Contract Reform Act supersede any conflicting
regulations or provisions of law.
Section 4. Repeal. This section repeals the provisions of
the Indian Self-Determination and Education Assistance Act
which authorized the Secretary of the Interior and the
Secretary of Health and Human Services to promulgate
regulations to implement the Act.
______
By Mr. JOHNSTON (for himself and Mr. Breaux):
S.J. Res. 182. A joint resolution to designate the year 1995 as
``Jazz Centennial Year''; to the Committee on the Judiciary.
jazz centennial year
Mr. JOHNSTON. Mr. President, I am pleased to introduce
legislation to request the President to designate 1995 as the ``Jazz
Centennial Year.''
Jazz is the United States most widely recognized indigenous art form
and was designated as a ``rare and valuable national treasure'' in 1987
by Concurrent Resolution 57.
The Louisiana Music Commission, an organization funded by the State
of Louisiana to promote the awareness and development of the State's
abundant music resources, has convened a prominent group of music
historians, players, and supporters to create the New Orleans' Jazz
Centennial Celebration [NOJCC] and has chosen 1995 to mark the
centennial of jazz. They based this on a general benchmark relating to
the formation of the Buddy Bolden band, and the New Orelans'
celebration of the 50th anniversary of jazz in 1945.
Mr. President, NOJCC planners are hoping to make this a global
celebration. Many believe a Mexican brass band that played at the New
Orleans Cotton Exposition of 1885 was an early influence on jazz and
Mexico will play a role in the celebration. No doubt, many other cities
in America and throughout the world also lay claims to contributing to
the evolution of jazz. All are welcome to join in the commemoration,
which will only be limited by the imagination of people around the
world.
Since Jazz owes its formation to a variety of styles and cultures,
and epitomizes the American experiment, the passage of this bill would
mark an important step in recognizing the importance of Jazz and impact
it has had all around the world. I hope many of my colleagues will join
me in this effort. I ask unanimous consent that the text of this
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. 182
Whereas jazz is the most widely recognized indigenous art
form in the United States and was designated as a rare and
valuable national treasure by the Congress in 1987;
Whereas New Orleans, Louisiana is widely recognized as the
birthplace of jazz and continues as a center for the
employment, performance, preservation, development, and
progression of jazz;
Whereas the Louisiana Music Commission, an organization
funded by the State of Louisiana to promote the awareness and
development of the State's abundant music resources, has
convened a prominent group of music historians, players, and
supporters to create the New Orleans Jazz Centennial
Celebration;
Whereas the Louisiana Music Commission has chosen 1995 as
the centennial of jazz, based on a general benchmark relating
to the formation of the Buddy Bolden band; and
Whereas the chairman of the Louisiana Music Commission
announced to the International Association of Jazz Educators
that a year-long commemoration of the centennial of jazz will
take place throughout 1995: Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the year
1995 is hereby designated as ``Jazz Centennial Year''. The
President is authorized and requested to issue a proclamation
calling upon the people of the United States to observe this
year with appropriate ceremonies and activities that promote
a better understanding and awareness of--
(1) jazz as a rare and valuable national treasure;
(2) the appropriate means by which all Americans may learn
about our Nation's most widely recognized indigenous art
form; and
(3) how this national treasure can be preserved and
promoted for the enjoyment of future generations.
Mr. BREAUX. Mr. President, it is indeed an honor to join my
colleague and friend, Senator J. Bennett Johnston, the senior Senator
of my State, the great State of Louisiana, in introducing a resolution
that would designate the year 1995 as ``Jazz Centennial Year.''
There is uncertainty, Mr. President, about the exact year of the
birth of jazz. I expect, though, that most music historians will agree
with the New Harvard Dictionary of Music's finding that as this unique
American music creation began to ``emerge in the 1890's through 1910,
the great majority of its most original players resided in New Orleans,
Louisiana.'' Mr. President, in the early decades of the 20th century
these great black American musicians include among others, Buddy
Bolden, Papa Jack Laine, Freddie Keppard, King Oliver, and Louis
Armstrong.
Accordingly, Mr. President, the Louisiana Music Commission, under the
chairmanship of Ellis Marsalis, states, and I quote:
In 1995, Louisiana will be staging a yearlong celebration
of 100 years of jazz called the New Orleans Centennial
Celebration (NOJCC). In choosing 1995, the NOJCC is relying
on a general benchmark relating to the formation of the Buddy
Bolden band, and the city's celebration of the 50th
anniversary of jazz in 1945.
Owing its formation to a variety of styles and cultures,
Jazz epitomizes the American experiment, and like America,
continues to influence the world. However, it was the special
blend of cultures in the Deep South--particularly in
Louisiana--that gave rise to this music as a clearly defined
style. Thus Louisiana lays claim to being the most musical
place on Earth--Jazz, Blues, Gospel, Rhythm & Blues, Country,
Rock & Roll, Cajun, Zydeco, and many other styles of music
all continue to grow in the fertile souls of Louisiana.
Mr. President, clearly it is fitting and proper that Louisiana lead
this Nation and the world in this celebration of Jazz, America's rich
and extraordinary musical gift to the world. It is equally fitting that
the celebration of Jazz begin with a joint resolution of the Congress
of the American people, which will proclaim and honor the founding of
this national and world treasure by designating the year 1995 as ``Jazz
Centennial Year.'' I urge my colleagues to join Senator Johnston and
myself in passing this obviously worthy resolution.
____________________