[Congressional Record Volume 140, Number 61 (Tuesday, May 17, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. DORGAN (for himself and Mr. Daschle):
  S. 2118. A bill to improve the national crime database and create a 
Federal cause of action for early release of violent felons; to the 
Committee on the Judiciary.


                 violent crime intervention act of 1994

  Mr. DORGAN. Mr. President, I am today offering, on behalf of myself 
and Senator Daschle, from South Dakota, legislation dealing with crime. 
I wanted to say a few words about it before I introduce it.
  Mr. President, as the Senate-House conference committee works on a 
final crime bill, I would like to address two of the major reasons our 
Nation is facing a crime epidemic and propose what the Federal 
Government can do to stop it.
  As we heard on this floor last November when the Senate debated our 
crime bill, America's violent crime rate has risen to unprecedented 
levels. In 1992, the Federal Bureau of Investigation [FBI] reported 
that 23,760 murders occurred in the United States. That's 10 times the 
homicide rate of Japan or France, 13 times the homicide rate of 
England, and 5 times the rate of our neighbors to the north, Canada.
  And this picture is not limited to homicides. The FBI also reported 
that 109,062 forcible rapes, 676,478 robberies, and 1,126,974 
aggravated assaults occurred in the United States in 1992. These 
numbers translate into a 19-percent increase in violent crime since 
1988. Even more troubling, roughly half of the violent crimes in this 
country are not reported to law enforcement and therefore are excluded 
from these FBI statistics.
  These shocking statistics are no surprise to most Americans. Almost 
all of us have been affected by violent crime. It's no wonder that 
controlling violent crime has become the most important issue for our 
constituents.

  A major reason we face this epidemic is that our State criminal 
justice systems put violent criminals back onto our streets and into 
our communities before they have served their full sentence. Parole and 
other early release programs allow convicted criminals to commit 
additional crimes against innocent victims. According to a Brookings 
Institution study, the typical violent offender commits 12 serious 
crimes--not including drug crimes--every year they are on the street. 
Is it any wonder that we have one of the highest violent crime rates in 
the world?
  Even if a violent criminal is arrested, prosecuted, convicted, and 
sentenced, he or she probably will spend only a fraction of that 
sentence behind bars. Nationwide, violent offenders receive an average 
sentence of almost 8 years, but actually serve less than 3. For the 
ultimate violent crime, murder, the average sentence imposed by State 
courts is 17 years. But killers serve only 7. An average of 7 years in 
prison seems insufficient for a crime in which the victim's sentence 
quite literally is life.
  Mr. President, I understand there are many sources of this desperate 
situation. Drug abuse, broken families, lack of job opportunities--we 
are all familiar with the long sad list. We have to address those 
problems, but we can't wait until they're solved. Unless the States 
start to keep violent prisoners locked up for their full sentence, 
violent crime will continue.
  A large number of violent criminals are back in the community because 
State laws or fiscal priorities actually promote their early release. 
Some fault for the current situation also lies in the poor reliability 
of criminal records. Violent criminals often get off with light 
sentences or are released early because a sentencing judge or parole 
board lacked a complete picture of the individual's criminal history.
  Most criminal justice is dispensed at the State level. More than 90 
percent of criminal offenders are prosecuted in State courts and 
sentenced to State prisons. Unlike the Federal system, where criminals 
generally serve most of their sentences behind bars, States often 
release their violent criminals after serving only a fraction of their 
sentences.
  But violent crime in this country cannot be defined as simply a State 
problem. Violent crime does not respect State boundaries. Just look at 
the violent crime against tourists in Florida. The victims are not 
Florida residents, they are from other States and other countries. 
However, they became the victims of Florida's failure to make its 
violent offenders serve their full sentences. Most of the recent 
attacks on tourists were committed by criminals who should have been 
serving time for a previous violent crime.
  Mr. President, the Senate and House crime bills demonstrate the depth 
of concern at the Federal level about violent crime. Anyone who thinks 
that Washington is not serious about trying to stop violent crime 
should look at the level of funding--between $22 and $28 billion--that 
Congress and the administration are willing to spend on crime 
prevention, even as we try to cut spending dramatically and reduce the 
national debt.
  I vigorously supported the Senate crime bill, which contains several 
amendments from a crime bill I had introduced last fall. These include 
a provision to change the current presumption allowing Federal 
prisoners automatically to receive good-time credit regardless of their 
actual behavior in prison. A second provision would convert closed 
military bases into prisons for nonviolent offenders to free up State 
prison space for violent criminals.
  While the crime bill will be an important step in fighting crime, it 
does not deal with the State responsibility for maintaining most 
criminal records and for sentencing violent criminals. Until the States 
work with the Federal Government to meet these responsibilities, there 
will be major gaps in the crime bill. Today, I am introducing 
legislation that would help fill in these gaps.
  Mr. President, my legislation first would address the need for an 
accurate, up-to-date, and complete national criminal record database. 
It would establish Federal standards for the system and require the 
States to comply with these standards within 2 years. If they didn't, 
they would pay a user fee each time they wanted to use the Federal 
system.
  Every day, States and localities flood the FBI's Interstate 
Identification Index [III] with approximately 85,000 requests for 
criminal record checks. III is an essential tool for all aspects of law 
enforcement, from routine traffic stops to sentencing violent 
criminals. Despite this great need, neither III nor any other record 
system can provide complete and accurate information. Of the 50.5 
million criminal records in this country, only 9.2 million--less than 
20 percent--include case dispositions, are computerized, and are 
accessible to law enforcement nationwide through the III.

  My legislation would establish a complete and accurate national 
criminal history database. It would require States to file their arrest 
reports and final disposition orders in criminal cases with their 
record repository within 21 days. State repositories would then have to 
enter these reports and records into the State database within 14 days. 
And every State database would be required to be connected to the III.
  Mr. President, my legislation adopts a carrot-and -stick approach to 
encourage every State to join the III within 2 years so that the system 
can provide accurate and up-to-date information about the State's 
criminals
  The bill would authorize $100 million in grants to States to 
establish or upgrade their criminal record systems so they can link up 
with the III. States that do not meet the recommended guidelines for 
interconnecting with the III would not be shut off from using the III 
system. That could hurt law enforcement. But they no longer could take 
a free ride by using the III while not providing full and complete 
information to the system. States that are not full participants in the 
III would be required to pay a user fee each time they use the system.
  The second problem my legislation addresses is the early release of 
violent criminals. I firmly believe, as I suspect most Americans 
believe, that violent criminals should serve their full sentences. That 
is just not happening today.
  There are almost 3 million criminal offenders currently on probation 
or parole. That's more than three times the number individuals 
currently locked up in prison. And according to the Bureau of Justice 
Statistics, 60 percent of the violent criminals released early from 
prison will be rearrested within 3 years, and half of those will be 
rearrested for a violent offense.
  These repeat violent offenders are responsible for many of the most 
shocking crimes in the country. From young Polly Klass's murderer in 
California, to the two young men who murdered Michael Jordan's father 
in North Carolina while he napped in his car at a rest stop. this 
country is besieged by violent crimes that wouldn't have happened if 
the criminals had been serving their full sentence for a prior violent 
crime.
  Mr. President, States simply must keep violent offenders behind bars 
for their full sentence, or face the consequences of their decisions to 
release them. The legislation I am introducing today would do this.
  Under my legislation, States would be liable to victims of violent 
felonies committed by a criminal the State had released prior to 
serving his or her full prison sentence for a previous violent crime. 
But a State that has a law requiring those convicted of a violent crime 
to serve their entire, original term of imprisonment behind bars would 
not be liable to victims. This liability would force the States to 
consider the real costs that early release imposes on society. While 
States still would be free to release violent criminals whenever they 
wish, they no longer would be able to shift the cost of that decision 
to innocent victims.
  Mr. President, the legislation I am introducing today would 
complement the crime bill we are currently negotiating. It would create 
incentives for the States to update their criminal records and to make 
them available to law-enforcement nationwide. It would strongly 
encourage States to keep violent criminals locked up for their full 
sentences. Together, these would be a significant step toward 
controlling violent crime in this Nation. I urge my colleagues to 
support this important measure.
  I ask unanimous consent the text of the bill be printed in the Record 
at the conclusion of my remarks.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2118

       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 ``Violent Crime Intervention 
     Act of 1994''.
              TITLE I--NATIONAL CRIMINAL RECORDS DATABASE

     SEC. 101. FINDINGS.

       The Congress finds that--
       (1) nationwide--
       (A) many State criminal record systems are not up to date 
     and contain incomplete or incorrect information; and
       (B) less than 20 percent of all criminal records are fully 
     computerized, include court dispositions, and are accessible 
     through the Interstate Identification Index of the Department 
     of Justice; and
       (2) a complete and accurate nationwide criminal record 
     database is an essential element in fighting crime and 
     development of such a database and is a national urgent 
     priority.

     SEC. 102. STATE CRIMINAL RECORD UPGRADES.

       (a) In General.--Not later than 180 days after the date of 
     enactment of this Act, the Attorney General shall issue 
     guidelines establishing specific requirements for a State to 
     qualify as a fully participating member of the Interstate 
     Identification Index.
       (b) Minimum Requirements.--The guidelines referred to in 
     subsection (a) shall require--
       (1) that all arrest reports and final disposition orders 
     are submitted to the State records repository within 21 days;
       (2) the State repository to enter these records and orders 
     into the State database not more than 14 days after the 
     repository receives the information;
       (3) the State to conduct audits, at least annually, of 
     State criminal records to ensure that such records contain 
     correct and complete information about every felony arrest 
     and report the results of each audit to the Attorney General;
       (4) the State to certify to the Attorney General, on 
     January 1 of each year, that the law enforcement agencies, 
     courts, and records officials of the State are in compliance 
     with this section; and
       (5) such other conditions as the Attorney General 
     determines are necessary.
       (c) Fees.--A State that does not qualify as a fully 
     participating State, pursuant to the guidelines referred to 
     in subsection (a), within 2 years after the date on which the 
     Attorney General issues such guidelines shall pay a user fee 
     for each identification request made to the Interstate 
     Identification Index in an amount equal to the average cost 
     of a single Federal database inquiry, as determined by the 
     Attorney General each year.

     SEC. 103. AUTHORIZATION.

       There are authorized to be appropriated $100,000,000 for 
     fiscal years 1995 and 1996 to the Attorney General for grants 
     to States to establish or improve their criminal record 
     databases to qualify as a fully participating member of the 
     Interstate Identification Index.
        TITLE II--LIABILITY FOR EARLY RELEASE OF VIOLENT FELONS

     SEC. 201. FINDINGS AND PURPOSE.

       (a) Findings.--The Congress finds that--
       (1) violent criminals often serve only a small portion of 
     their original sentences;
       (2) a significant proportion of the most serious violent 
     crimes committed in the United States are committed by 
     criminals who have been released early from a sentence for a 
     previous violent crime;
       (3) violent criminals who are released early from prison 
     often travel to other States to commit additional violent 
     crimes;
       (4) the crime and threat of crime committed by violent 
     criminals released early from prison affects tourism, 
     economic development, use of the interstate highway system, 
     federally owned or supported facilities, and other commercial 
     activities of individuals; and
       (5) the policies of one State regarding the early release 
     of criminals sentenced in that State for a violent crime 
     often affects the citizens of other States, who can influence 
     those policies only through Federal law.
       (b) Purpose.--The purpose of this title is to reduce 
     violent crime by requiring States to bear the responsibility 
     for the consequences of releasing violent criminals before 
     they serve the full term for which they were sentenced.

     SEC. 202. CAUSE OF ACTION.

       (a) In General.--The victim (or in the case of a homicide, 
     the family of the victim) of a violent crime shall have a 
     Federal cause of action in any district court against a State 
     if the individual committing the crime--
       (1) previously had been convicted by the State of a violent 
     offense;
       (2) was released from incarceration prior to serving his or 
     her full sentence for such offense; and
       (3) committed the violent crime before the original 
     sentence would have expired.
       (b) Exception.--A State shall not be liable under 
     subsection (a) if the State requires a violent criminal to be 
     incarcerated for the entire term of imprisonment to which the 
     criminal is sentenced.
       (c) Definition.--As used in this title, the term ``crime of 
     violence'' has the same meaning as in section 16 of title 18, 
     United States Code.
       (d) Damages.--A State shall be liable to the victim in an 
     action brought under this title for the actual damages 
     resulting from the violent crime, but not for punitive 
     damages.
                                 ______
                                 
      By Mr. BREAUX (for himself, Mr. Lott, Ms. Mukulski, Mr. Inouye, 
        Mr. Stevens, Mr. D'Amato, and Mr. Moynihan):
  S. 2119. A bill to prohibit the imposition of additional fees for 
attendance by United States citizens at the United States Merchant 
Marine Academy; to the Committee on Commerce, Science, and 
Transportation.


    prohibition of fees on attendees of the merchant marine academy

  Mr. BREAUX. Mr. President, the bill I am introducing today along with 
my distinguished colleagues, Mr. Lott, Ms. Mikulski, Mr. Inouye, Mr. 
Stevens, Mr. D'Amato, and Mr. Moynihan, would maintain existing policy 
and would prohibit the imposition of additional charges or fees for 
attendance by U.S. citizens at the U.S. Merchant Marine Academy.
  I am introducing this bill in response to a recommendation in the 
administration's National Performance Review [NPR], which was released 
last fall, that proposes to begin charging tuition and fees at the 
Academy at Kings Point, NY, beginning with the 1995-96 academic year.
  Currently, all costs at the Academy, including tuition, fees, 
uniforms, are paid by the Federal Government just as they are at the 
other Federal service academies such as the Air Force Academy and the 
Coast Guard Academy. As a condition of their appointment to the 
Merchant Marine Academy, individuals are obliged, upon graduation to: 
maintain a license as an officer in the U.S. merchant marine for at 
least 6 years; apply for an appointment to, and accept if tendered, an 
appointment to a reserve unit of an armed force of the United States 
for at least 6 years following graduation; and to serve in the foreign 
and domestic commerce and the national defense of the United States for 
at least 5 years following graduation. While the proposal in the NPR 
calls for the possible imposition of tuition at the Academy, it does 
not change the service commitment that is required as a condition of 
acceptance.
  The Academy is an indispensable contributor to the U.S. maritime 
industry. In fact, 72 percent of the Academy's graduates from the last 
20 years are still employed in the maritime industry.
  Cutting the Academy budget in half would require that tuition of 
$15,000 to $16,000 be charged to make up the difference. It is unlikely 
that most individuals could pay that amount, since they would be unable 
to afford the cost of this tuition. The end result of this proposal 
would, therefore, ultimately be closure of the Academy. This loss would 
be devastating to our Nation's merchant marine, which has been already 
experiencing more than its share of hardships in recent years and may 
not be able to survive any further setbacks such as this.
  Mr. President, I ask unanimous consent that the text of the bill I am 
introducing along with my statement be printed in the Congressional 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2119

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PROHIBITION ON IMPOSITION OF ADDITIONAL CHARGES OR 
                   FEES FOR ATTENDANCE AT THE UNITED STATES 
                   MERCHANT MARINE ACADEMY.

       (a) Prohibition.--Except as provided in subsection (b), no 
     charge or fee for tuition, room, or board for attendance by 
     United States citizens at the United States Merchant Marine 
     Academy may be imposed.
       (b) Exception.--The prohibition specified in subsection (a) 
     shall not apply with respect to any item or service provided 
     to midshipmen at the United States Merchant Marine Academy 
     for which a charge or fee is imposed as of the date of the 
     enactment of this Act. The Secretary of Transportation shall 
     notify the Congress of any change made by the United States 
     Merchant Marine Academy in the amount of a charge or fee 
     authorized under this subsection.

  Ms. MIKULSKI. Mr. President, I am happy to join Senator Breaux today 
as a cosponsor of this important legislation. I am a staunch supporter 
of the U.S.-flag Merchant Marine and of the maritime industry in 
general. The industry is of vital importance to our Nation's economic 
and defense capabilities. Kings Point is vital to the industry.
  Kings Point produces highly trained transportation specialists who 
know how to interact with the Armed Forces to meet our logistics 
requirements. Graduates have gone on to become leaders in 
transportation technology. They have been responsible for technological 
advances such as containerization, piggy backing containers on rail 
cars, and intelligent systems which enhance cargo handling 
efficiencies. With 300,000 people working in our maritime industry, we 
must ensure that these industries are supplied with innovative leaders 
for the next century.
  The maintaining of full funding for Kings Point will assure that a 
highly qualified student body will continue to offer at least 8 years 
of national service in transportation and defense in exchange for their 
education. It will assure that the United States will have merchant 
marine officers and transportation managers who are trained to preserve 
and protect the environment. Finally, it will reaffirm our country's 
conviction that the sea-link is most certainly crucial to the Nation's 
transportation infrastructure. We must be willing to invest in manpower 
for this sector.
                                 ______
                                 
      By Mr. INOUYE (for himself, Mr. Hollings, Mr. Stevens, Mr. Kerry, 
        Mr. Packwood, Mr. Breaux, Mr. Mathews, Mr. Akaka, Mr. Bingaman, 
        Mr. Dodd, Mr. Durenberger, Mr. Gorton, Mr. Graham, Mr. 
        Hatfield, Mr. Kennedy, Mr. Levin, Ms. Mikulski, Mrs. Murray, 
        Mr. Reid, and Mr. Wofford):
  S. 2120. A bill to amend and extend the authorization of 
appropriations for public broadcasting, and for other purposes; to the 
Committee on Commerce, Science, and Transportation.


                    public broadcasting act of 1994

  Mr. INOUYE. Mr. President, today, I am introducing the Public 
Broadcasting Act of 1994. This legislation authorizes funding for the 
Corporation for Public Broadcasting [CPB] for fiscal years 1997 through 
1999. It continues the tradition of advance funding for the Public 
Broadcasting System so that key long-term planning decisions can be 
made. This advance-year funding is critical to the overall stability of 
our Nation's Public Broadcasting system.
  In 1967, the Corporation for Public Broadcasting was established by 
congress ``* * * [to] help make public broadcasting available to all 
citizens * * * and to afford maximum protection to such broadcasting 
from extraneous interference and control.'' In the 25 years since its 
creation, the Public Broadcasting System has grown and matured. Even 
with the increased number of programming services, it is largely 
responsible for much of the high-quality, educational, informational, 
and entertainment radio and television programming we have today.
  The CPB and public broadcasters have built a nationwide system in 
which close to 90 percent of the American households have access to a 
Public Radio signal and nearly 100 percent of households have access to 
a public television signal.
  The legislation I am introducing today reauthorizes funding for the 
CPB in the amount of $425 million for fiscal years 1997 through 1999. 
This amount is identical to the level authorized for the CPB for fiscal 
year 1996.
  Unlike most previous years, this legislation does not increase the 
authorized funding levels for the CPB. This legislation will, however, 
allow public broadcasting stations to maintain the level of high-
quality programming they provide today. I believe that this legislation 
properly balances the needs of Public Broadcasters with the need to 
show fiscal responsibility.
  The CPB supports the production and distribution of nationally 
recognized radio and television programs such as, ``All Things 
Considered,'' ``Sesame Street,'' ``American Playhouse,'' ``Great 
Performances,'' and ``The MacNeil/Lehrer Newshour.'' These programs 
have and will continue to make significant contributions to our 
society.
  The CPB allocates a large percentage of its funds to enhance 
programming by and for minorities and traditionally unserved areas. By 
supporting the Independent Television Service [ITVS] and the five 
minority consortia, Public Broadcasting has enabled Americans to 
explore important social issues and experience a wide variety of 
opinions and ideas. I encourage the CPB and its member stations to 
continue their commitment to these entities.
  Public Broadcasting has a history of innovation that has broadened 
the reach of television to many of our Nation's citizens. For instance, 
Public Television provides closed-captioning for the hearing-impaired, 
and descriptive video services [DVS], an optional audio narration track 
for the sight-impaired. And for Spanish-speaking citizens, the 
``MacNeil/Lehrer News Hour'' airs in many communities with a Spanish 
language soundtrack. Innovative services like these are important as 
our society becomes more diverse.

  Public Broadcasting's efforts in education, advanced technology, and 
program development continue to set the standard for commercial 
broadcasting. For instance, in the area of education, Public Television 
has shown itself to be one of the most economical and efficient 
mechanisms for distributing educational information to our homes and 
schools. Public Television stations are providing their local schools 
and State educational institutions with technical expertise and quality 
programs to supplement classroom instruction. Nationwide, Public 
Television is the largest contributor of video and televised 
instructional materials for schools, colleges, and home viewers in the 
country. Public Television reaches over 29 million students in nearly 
70,000 schools, grades K through 12. Close to 2 million teachers use 
Public Educational Services provided by Public Television.
  The Satellite Educational Resources Consortium [SERC] is another 
example of how Public Broadcasting is using its resources for 
education. SERC is a 23-state partnership of educators and public 
broadcasters that helps schools to meet the needs of their students 
through live interactive satellite delivered courses. Because of 
efforts like these, two-thirds of America's colleges now use Public 
Broadcasting System courses and 2 million adults have earned college 
credit from Public Television.
  Furthermore, the Public Broadcasting System plans to devote 
considerable efforts to develop and implement programs and activities 
as required by the Ready-to-Learn Act.
  The CPB coordinates systemwide planning and conducts research to help 
the Public Broadcasting System keep up with new technologies and 
fluctuating financial conditions. For instance, many Public Radio and 
Television stations are exploring new ways to manage their 
administrative and technical processes to achieve greater efficiencies. 
Some are discussing ways to consolidate their stations and share 
resources. I applaud the efforts of these stations to become more 
efficient and eliminate duplicate program coverage.
  I also encourage the stations to give serious thought to the 1993 
report of the Twentieth Century Fund. The Twentieth Century Fund formed 
a task force to examine the mission, role, funding and accountability 
of Public Television in the 1990's and beyond. The task force compiled 
a list of recommendations for how to maintain a strong public 
television system. I urge public broadcasting stations to move forward 
on the recommendations included in this report.
  In 1992, Congress directed the CPB to increase public participation 
in noncommercial broadcasting. In response to this mandate, the CPB 
launched ``open to the public,'' a series of mechanisms--public 
hearings, town meetings, national polls and regional surveys, a 
dedicated post-office box and a toll-free number--for measuring and 
assessing public perceptions of Public Broadcasting. It is designed to 
provide easily accessible conduits through which the American people 
can share their comments and express their concerns about Public 
Broadcasting. I support these measures and I urge the CPB to continue 
to seek ways to provide an open and accountable decisionmaking process.
  Mr. President, I thank you for the opportunity to renew my support 
for Public Broadcasting. I believe this legislation wisely allocates 
Federal funding to assist the CPB. I urge my colleagues on both sides 
of the aisle to join me in supporting the reauthorization for the 
Corporation for Public Broadcasting.
                                 ______
                                 
      By Mr. JOHNSTON (by request):
  S. 2121. A bill to promote enterpreneurial management of the National 
Park Service, and for other purposes; to the Committee on Energy and 
Natural Resources.


      National park service entrepreneurial management reform act

  Mr. JOHNSTON. Mr. President, at the request of the Department of the 
Interior, I send to the desk a bill to promote entrepreneurial 
management of the National Park Service, and for other purposes''.
  I ask unanimous consent that the bill, the communication, and a 
summary prepared by the National Park Service which accompanied the 
proposal be printed in the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2121

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Park Service 
     Entrepreneurial Management Reform Act''.

     SEC. 2. FINDINGS.

       (a) Findings.--In furtherance of the Act of August 25, 1916 
     (39 Stat. 535), as amended (16 U.S.C. 1, 2-4), which directs 
     the Secretary of the Interior to administer ares of the 
     National Park System in accordance with the fundamental 
     purpose of conserving the scenery, wildlife, natural and 
     historic objects, and providing for their enjoyment in a 
     manner that will leave them unimpaired for the enjoyment of 
     future generations, the Congress finds that--
       (1) management of the National Park System requires 
     entrepreneurial strategies that will enable the National Park 
     Service to meet the increasing demands placed on the System 
     by the American public; and
       (2) in order to preserve the natural and cultural resources 
     of the System for future generations and provide for 
     appropriate enjoyment of those resources, the National Park 
     Service must increase revenues by reforming the nature, level 
     and collection of fees, and increasing voluntary donations 
     and partnerships.

     SEC. 3. DEFINITIONS.

       As used in this Act, the term--
       (1) ``park'' means a unit of the National Park System; and
       (2) ``Secretary'' means the Secretary of the Interior.

     SEC. 4. FEES.

       (a) Admission Fees.--
       (1) In general.--The Secretary shall establish reasonable 
     admission fees to be charged at units of the National Park 
     System where the Secretary determines that such fees are 
     appropriate and feasible.
       (2) Annual passes.--For admission or entrance into any unit 
     of the National Park System designated by the Secretary 
     pursuant to this section, or into several specific units 
     located in a particular geographic area, or for entrance to 
     all units where an admission fee is charged, the Secretary is 
     authorized to make available annual admission permits for 
     reasonable fees to be determined by the Secretary.
       (3) Single visits.--The Secretary shall establish 
     reasonable admission fees for a single visit at any unit of 
     the National Park System designated by the Secretary pursuant 
     to this section for persons who choose not to purchase an 
     annual pass.
       (b) Recreation Use Fees.--The Secretary shall establish 
     reasonable fees for specialized outdoor recreation sites, 
     facilities, equipment, or services that are provided or 
     furnished at Federal expense.
       (c) Special Park Uses.--The Secretary shall establish 
     reasonable fees for uses of park units that require special 
     arrangements including permits. The fees shall cover all 
     costs of providing necessary services associated with special 
     uses and shall be credited to the appropriation current at 
     that time.
       (d) Retention of Fees.--(1) Except as provided below, fees 
     collected pursuant to subsections 4 (a) and (b) of this Act 
     shall be deposited in the special fund account established in 
     Section 4 of the Land and Water Conservation Fund Act of 1965 
     (16 U.S.C. 460 1-6a(i)(4))
       (2) Notwithstanding any other provision of law, beginning 
     in fiscal year 1995 and thereafter, an amount equal to 15 
     percent of the total fees collected in the immediate 
     preceding fiscal year pursuant to subsections 4 (a) and (b) 
     shall be deducted from the current year collections and shall 
     be deposited into a special fund established in the Treasury 
     of the United States titled ``Fee Collection Support--
     National Park System'' and shall be available to the 
     Secretary without further appropriation to cover the costs of 
     collection of the fees, to remain available until expended.
       (3) Notwithstanding any other provision of law, beginning 
     in fiscal year 1996 and thereafter, 50 percent of the 
     difference in additional receipts collected during the 
     immediate preceding fiscal year as compared to total receipts 
     collected in fiscal year 1993 shall be deducted from the 
     current year collections and shall be covered into a special 
     fund established in the Treasury of the United States titled 
     ``National Park Renewal Fund'', and shall be available to the 
     Secretary without further appropriation for infrastructure 
     needs at parks, including but not limited to facility 
     refurbishment, repair and replacement, resource protection, 
     interpretive/educational media (exhibits), and other 
     infrastructure projects beneficial to park resources, to 
     remain available until expended.
       (4) In fiscal year 1995 only, fees authorized to be 
     collected pursuant to subsections 4 (a) and (b) of this Act 
     may be collected only to the extent provided in advance in 
     appropriations acts and shall be credited to the appropriate 
     special fund accounts described in this Act. In addition, 
     said fees shall be available for the purposes of this Act 
     only to the extent provided in advance in appropriations acts 
     and are authorized to be appropriated to remain available 
     until expended. In fiscal year 1996 and thereafter, fees 
     collected as authorized to be collected pursuant to 
     subsections 4 (a) and (b) of this Act may be collected as 
     authorized by this Act and shall be available as provided in 
     this Act without further provision in appropriations acts.
       (e) Use of Fees.--The Secretary shall develop procedures 
     for the use of these receipts that ensure accountability and 
     demonstrated results consistent with the purposes of this 
     act. The Secretary shall report annually to Congress on the 
     expenditure of funds from fees collected, beginning after the 
     first full fiscal year following enactment of this Act.
       (f) Discounts.--In establishing the fees authorized in this 
     section, the Secretary shall establish appropriate discounts 
     for educational groups, persons sixty-two years of age or 
     older, or persons who are blind or permanently disabled. The 
     Secretary may also establish criteria when the fees may be 
     waived for these groups or individuals.
       (g) Criteria.--All fees established pursuant to this 
     section shall be fair and equitable, taking into 
     consideration the direct and indirect cost to the Government, 
     the benefits to the recipient, the public policy or interest 
     served, the comparable fees charged by non-Federal public and 
     private agencies, the economic and administrative feasibility 
     of fee collection and other pertinent factors. The Secretary 
     shall from time to time review the fees for consistency with 
     the provisions of this subsection and provide timely public 
     notice of any proposed changes in the fees.

     SEC. 5.--DONATIONS.

       (a) Requests for Donations.--In addition to other 
     authorities the Secretary may have to accept the donation of 
     lands, buildings, other property, services, and moneys for 
     the purposes of the National park System, the Secretary is 
     authorized to solicit donations of money, property, and 
     services from individuals, corporations, foundations and 
     other potential donors who the Secretary believes would wish 
     to make such donations as an expression of support for the 
     national parks. Such donations may be accepted and used for 
     any authorized purpose or program of the National Park 
     Service, and donations of money shall remain available for 
     expenditure without fiscal year limitation. Any employees of 
     the Department to whom this authority is delegated shall be 
     set forth in regulations issued by the Secretary pursuant to 
     paragraph (d).
       (b) Employee Participation.--Employees of the National Park 
     Service may solicit donations only if the request is 
     incidental to or in support of, and does not interfere with 
     their primary duty of protecting and administering the parks 
     or administering authorized programs, and only for the 
     purpose of providing a level of resource protection, visitor 
     facilities, or services for health and safety projects, 
     recurring maintenance activities, or for other routine 
     activities normally funded through annual agency 
     appropriations. Such requests must be in accordance with 
     guidelines issued pursuant to paragraph (d).
       (c) Prohibitions.--(1) A donation may not be accepted in 
     exchange for a commitment to the donor on the part of the 
     National Park Service or which attaches conditions 
     inconsistent with applicable laws and regulations or that is 
     conditioned upon or will require the expenditure of 
     appropriated funds that are not available to the Department, 
     or which compromises a criminal or civil position of the 
     United States or any of its departments or agencies or the 
     administrative authority of any agency of the United States.
       (2) In utilizing the authorities contained in this section 
     employees of the National Park Service shall not directly 
     conduct or execute major fund raising campaigns, but may 
     cooperate with others whom the Secretary may designate to 
     conduct such campaigns on behalf of the National Park 
     Service.
       (d) Regulations and Guidance.--(1) The Secretary shall 
     issue regulations setting forth those positions to which he 
     has delegated his authority under paragraph (a) and the 
     categories of employees of the National Park Service that are 
     authorized to request donations pursuant to paragraph (b). 
     Such regulations shall also set forth any limitations on the 
     types of donations that will be requested or accepted as well 
     as the sources of those donations.
       (2) The Secretary shall publish guidelines which set forth 
     the criteria to be used in determining whether the 
     solicitation or acceptance of contributions of lands, 
     buildings, other property, services, moneys and other gifts 
     or donations authorized by this section would reflect 
     unfavorably upon the ability of the Department of the 
     Interior or any employee to carry out its responsibilities or 
     official duties in a fair and objective manner, or would 
     compromise the integrity or the appearance of the integrity 
     of its programs or any official involved in those programs. 
     The Secretary shall also issue written guidance on the extent 
     of the cooperation that may be provided by National Park 
     Service employees in any major fund raising campaign which 
     the Secretary has designated others to conduct pursuant to 
     paragraph (c)(2).

     SEC. 6.--CHALLENGE COST-SHARE AGREEMENTS.

       (a) Agreements.--The Secretary is authorized to negotiate 
     and enter into challenge cost-share agreements with 
     cooperators. For purposes of this section, the term--
       (1) ``challenge cost-share agreement'' means any agreement 
     entered into between the Secretary and any cooperator for the 
     purpose of sharing costs or services in carrying out 
     authorized functions and responsibilities of the Secretary 
     with respect to the National Park System; and
       (2) ``cooperator'' means any State or local government, 
     public or private agency, organization, institution, 
     corporation, individual, or other entity.
       (b) Use of Federal Funds.--In carrying out challenge cost-
     share agreements, the Secretary is authorized, subject to 
     appropriation, to provide the Federal funding share from any 
     funds available to the National Park Service.

     SEC. 7.--COST RECOVERY FOR DAMAGE TO PARK RESOURCES.

       Any funds payable to United States as restitution on 
     account of damage to park resources or property shall be paid 
     to the Secretary. Any such funds, and any other funds 
     received by the Secretary as a result of forfeiture, 
     compromise, or settlement on account of damage to park 
     resources or property shall be available without 
     appropriation and may be expended by the Secretary without 
     regard to fiscal year limitation to improve, protect, or 
     rehabilitate any park resources or property which have been 
     damaged by the action of a permittee or any unauthorized 
     person.

     SEC. 8--CONSISTENCY WITH OTHER LAWS.

       (a) Except as provided in subsection (b), to the extent 
     that the provisions of this Act are inconsistent with section 
     4 of the Land and Water Conservation Act of 1965 as amended 
     (16 U.S.C. 4601-6a) or any other provision of law, including 
     any provision that prohibits or limits the charging of a 
     reasonable recreation or other fee, the provisions of this 
     Act shall prevail.
       (b) The following sections of the Land and Water 
     Conservation Act of 1965 as amended (16 U.S.C. 4601-6a) will 
     apply to this Act:
       (1) Rules and regulations; establishment; enforcement 
     powers; penalty for violations.--In accordance with the 
     provisions of this section, the Secretary may prescribe rules 
     and regulations for areas under his or her administration for 
     the collection of any fee established pursuant to this 
     section. Persons authorized to enforce any such rules or 
     regulations issued under this subsection may, within areas 
     under the administration or authority of the Secretary and 
     with or, if the offense is committed in his presence, without 
     a warrant, arrest any person who violates such rules and 
     regulations. Any person so arrested may be tried and 
     sentenced by the United States magistrate judge specifically 
     designated for that purpose by the court by which he was 
     appointed, in the same manner and subject to the same 
     conditions as provided in subsections (b), (c), (d), and (e) 
     of section 3401 of title 18. Any violations of the rules and 
     regulations issued under this subsection shall be punishable 
     by a fine of not more than $1000.
       (2) Criteria, posting and uniformity of fees.--Clear notice 
     that a fee has been established pursuant to this section 
     shall be prominently posted at each area and at appropriate 
     locations therein and shall be included in publications 
     distributed at such areas.
       (3) Contracts with public or private entities for visitor 
     reservation services.--The Secretary, under such terms and 
     conditions as he deems appropriate, may contract with any 
     public or private entity to provide visitor reservation 
     services. Any such contract may provide that the contractor 
     shall be permitted to deduct a commission to be fixed by the 
     agency head from the amount charged the public for providing 
     such services and to remit the net proceeds therefrom to the 
     contracting agency.
       (4) Federal and state laws unaffected.--Nothing in this Act 
     shall authorize Federal hunting or fishing licenses or fees 
     or charges for commercial or other activities not related to 
     recreation, nor shall it affect any rights or authority of 
     the States with respect to fish and wildlife, nor shall it 
     repeal or modify any provision of law that permits States or 
     political subdivisions to share in the revenues from Federal 
     lands or any provision of law that provides that any fees or 
     charges collected at particular Federal areas shall be used 
     for or credited to specific purposes or special funds as 
     authorized by that provision of law.
       (5) Selling of permits and collection of fees by volunteers 
     at designated areas; collecting agency duties; surety bonds; 
     selling of annual admission permits by public and private 
     entities under arrangements with collecting agency head.--
     When authorized by the Secretary, volunteers at designated 
     areas may sell permits and collect fees authorized or 
     established pursuant to this section. The Secretary shall 
     ensure that such volunteers have adequate training 
     regarding--
       (a) the sale of permits and the collection of fees,
       (b) the purposes and resources of the areas in which they 
     are assigned, and
       (c) the provision of assistance and information to visitors 
     to the designated area.
       The Secretary shall require a surety bond for any such 
     volunteer performing services under this subsection. Funds 
     available to the collecting agency may be used to cover the 
     cost of any such surety bond. The head of the collecting 
     agency may enter into arrangements with qualified public or 
     private entities pursuant to which such entities may sell 
     (without cost to the United States) annual admission permits 
     (including Golden Eagle Passports) at any appropriate 
     location.
                                  ____

                                       Department of the Interior,


                                      Office of the Secretary,

                                   Washington, DC, April 14, 1994.
     Hon. Albert Gore,
     President of the Senate, Washington, DC.
       Dear Mr. President: Enclosed is a draft bill, ``To promote 
     entrepreneurial management of the National Park Service, and 
     for other purposes.''
       We strongly recommend that the bill be introduced, referred 
     to the appropriate committee for consideration, and enacted.
       Enactment of the enclosed bill would enable the National 
     Park Service and the Department of the Interior to carry out 
     the recommendations of the National Performance Review. 
     Specifically, the Review proposed management reforms for the 
     National Park Service to ``Promote Entrepreneurial Management 
     of the National Park Service.'' In general, the 
     recommendations would give the Park Service increased fiscal 
     flexibility by authorizing the collection of increasing 
     receipts and earmarking increases for park needs. Legislation 
     is necessary to bring about this result.
       The enclosed bill would establish a new legislative basis 
     for managing receipts taken in by the National Park Service:
       The Secretary would be authorized to set admission, 
     recreation and special use fees at reasonable rates and 
     subject to broad policy guidelines, expanding the possibility 
     and discretion to collect fees at all parks regardless of 
     existing statutory or other limitations. Admission and 
     recreation fees would be available for appropriation back to 
     the National Park Service, except that the cost of collection 
     and 50 percent of any additional receipts over and above FY 
     1993 levels may be placed in the National Park Renewal Fund 
     and Fee Collection Support accounts for use by parks without 
     further appropriation. With a portion of increased revenues 
     made directly available to parks to cover the cost of 
     collection and pressing infrastructure needs, this will 
     provide an entrepreneurial incentive to park superintendents 
     to maximize fee collection year-round.
       Challenge cost-share grants would be authorized, wherein 
     the National Park Service could match donated funds for park 
     projects.
       The authority for National Park Service employees to seek 
     donations would be clearly spelled out.
       Monetary damages payable to the United States on account of 
     damage to park property and resources would be available to 
     the National Park Service for rehabilitation work.
       The bill would give the National Park Service flexibility 
     in responding to management needs and would provide critical 
     funds to supplement rather than supplant existing 
     appropriations, resulting in a stable funding base from which 
     to address the immense backlog of real needs in the parks. 
     Additional receipts that accrue will be displayed in annual 
     National Park Service budget requests.
       The effect of this draft bill on the deficit is:

                                                  FISCAL YEARS
                                            [In millions of dollars]
----------------------------------------------------------------------------------------------------------------
                                                     1995         1996         1997         1998      1995-1998
----------------------------------------------------------------------------------------------------------------
Outlays........................................         -1.6        -39.3        -19.4        -15.3        -75.6
----------------------------------------------------------------------------------------------------------------

       The Omnibus Budget Reconciliation Act (OBRA) requires that 
     all revenue and direct spending legislation meet a pay-as-
     you-go requirement. That is, no such bill should result in an 
     increase in the deficit; and if it does, it must trigger a 
     sequester if it is not fully offset. This bill would decrease 
     direct spending. Considered alone, this bill meets the pay-
     as-you-go requirement of OBRA.
       The Office of Management and Budget has advised that 
     enactment of the enclosed draft bill would be in accord with 
     the program of the President.
           Sincerely,
     B. Cohen.
       Assistant Secretary--Policy, Management and Budget.
                                  ____


 Summary of Proposed National Park Service Entrepreneurial Management 
                               Reform Act

       Purpose: In order to meet the increasing demands placed on 
     the National Park System and to ensure preservation of the 
     natural and cultural resources of the System, entrepreneurial 
     strategies are required that will, among other things, 
     increase revenues by reforming the nature, level and 
     collection of fees, recover costs from damage to park 
     resources and increase voluntary partnerships.
       Fees: The Secretary would be authorized to establish fees 
     for admission, special recreational uses, and special park 
     uses, subject to broad policy guidance. Net fees from 
     admission and special recreational uses would be deposited in 
     a special account and allocated, subject to appropriation, to 
     the parks for any operations. The Secretary may withhold the 
     cost of collecting the fees and 50 percent of the additional 
     receipts over and above the FY 1993 levels, for 
     infrastructure needs at parks, without further appropriation.
       Donations: The Secretary and certain National Park Service 
     employees would be authorized to seek donations for park and 
     program purposes, subject to limitations established by 
     guidelines.
       Challenge Cost-Share Agreements: The Secretary would be 
     authorized to carry out challenge cost-share agreements by 
     using any funds appropriated for the operation of the 
     National Park Service.
       Cost Recovery for Damage to Park Resources: The Secretary 
     is authorized to recover restitution on account of damage to 
     park resources or property. Settlement money would be 
     available without appropriation to improve, protect, or 
     rehabilitate park resources or property, which have been 
     damaged by authorized or unauthorized use .
                                 ______
                                 
      By Mr. COHEN:
  S. 2122. A bill to improve the public and private financing of long-
term care and to strengthen the public safety net for elderly and 
nonelderly disabled individuals who lack adequate protection against 
long-term care expenses, and for other purposes.


         public-private long term care partnership act of 1994

  Mr. COHEN. Mr. President, while health care reform is being debated 
in the Nation's Capital and in the homes of every American family, we 
must not overlook one of the most critical issues to the elderly and 
nonelderly disabled Americans--access to affordable and appropriate 
long-term care services. With an estimated 10 million persons in need 
of some long-term care services, we cannot miss the opportunity that 
national health care reform presents to make some very real 
improvements to our current long-term care systems.
  Today I am introducing legislation to correct some of the serious 
problems in the financing and delivery of long-term care. This proposal 
would create a strong public-private partnership to help individuals 
anticipate and pay for their long-term care needs. For those without 
the resources to finance their own care, this proposal would improve 
our public safety net to better protect low-income families against the 
catastrophic expense of long-term care services.
  While approximately 38 million people lack basic health insurance, 
almost every American family is exposed to the devastating costs of 
long-term care. In fact, less than 3 percent of all Americans have 
insurance to cover long-term care. With average nursing home costs 
nearing $40,000 per year and home health care costing from $50 to $200 
per day, long-term care expenses can quickly wipe out the lifetime of 
savings of a disabled individual and his or her family.

  Moreover, as the population ages, the human and financial costs 
associated with long-term care will accelerate dramatically. As ranking 
minority member of the Special Committee on Aging, I hear countless 
stories of families struggling to provide 24-hour-a-day caregiving to a 
loved one in need. Despite their best efforts, some families are 
literally torn apart or pushed to the brink of financial disaster due 
to the devastating costs of long-term care.
  For example, in a recent hearing of the Aging Committee, we heard 
riveting testimony from Angela Chapman, a 13-year-old girl whose father 
is suffering from Alzheimer's disease. She and her mother endure the 
round-the-clock task of caregiving and are now being forced to sell 
their home to pay for his care. While they desperately want to keep 
their family together as long as possible, they can hardly bear the 
financial and emotional strain of constant caregiving, with little or 
no respite or assistance.
  In my home State of Maine, a 35-year-old woman from Westport had been 
struggling to remain in her home for years with a chronic and disabling 
form of multiple sclerosis. She was able to get by, using her 
disability insurance payments and support from her family. When her 
disease progressed and her insurance ran out, her family was unable to 
provide her care and placed her in a nursing home, even though she 
could have continued to stay at home at a lower cost to government 
programs.

  For years, long-term care has been only an after-thought, or 
stepchild, of health care reform. Our current system is a maze of 
fragmented, inequitable Federal and State programs. While we spend 
millions of Medicaid dollars to provide nursing home and some home 
care, the system is falling under its own weight: Long term care is the 
fastest growing segment of State Medicaid expenses, and State budgets 
are breaking due to the exploding costs.
  As a Nation we do not have satisfactory ways to help families 
anticipate and pay for their long-term care needs. Instead, families 
are too often left on their own to juggle caregiving needs with their 
own jobs, or are forced to institutionalize their elderly parents or 
disabled children when they desperately want to keep them at home, 
simply because there is no other affordable care available to them.
  In earlier days, when Federal deficits did not loom so large over our 
economy, the solution would have been relatively simple: just create a 
new open-ended entitlement program. Today, however, we can no longer 
afford to constuct new, unrestrained non-means-tested programs. Such an 
approach is not only fiscally irresponsible, but also impedes the 
creation of a private long-term care insurance market and fails to 
encourage individuals who are financially able to plan and save for 
their own future long-term care needs.
  As we undertake health care reform, we must make it easier for 
individuals to financially plan for their future long-term care needs. 
Individuals should consider the need for long-term care a normal risk 
of growing old, and plan for this risk just as they plan their 
retirement, purchase life insurance to protect their families, purchase 
health, or car insurance. A strong private long-term care market will 
not only give individuals greater financial security for their future, 
but will ease the financial burden on the Federal Government for years 
to come, as our population ages and more elderly persons need long-term 
care services.
  The legislation I am introducing today provides important tax 
incentives for the purchase of long-term care insurance and places 
consumer protections on long-term care insurance policies so quality 
products will be affordable and accessible to more Americans. It allows 
States to develop programs under which individuals can keep more of 
their assets and still qualify for Medicaid if they take steps to 
finance their own long-term care needs, allows individuals to make tax 
free withdrawals from their individual retirement accounts without 
penalty if they purchase private long-term care insurance, and provides 
for consumer education to help families decide how to best plan for 
their own particular circumstances.
  While long-term care insurance can be very affordable when purchased 
at a younger age, we must recognize that steps should be taken to help 
those elderly individuals today who have not insured themselves for 
long-term care, and those at lower incomes who are unable to afford 
private insurance coverage. Even a strong private sector insurance 
market will not replace the need for public programs to provide a 
safety net for the millions of American families who cannot afford 
insurance.

  The proposal we are offering today would work to improve our public 
safety net to better protect those at low-income levels against the 
catastrophic expense of long-term care services. The bill eliminates 
the current bias in our system toward nursing home care and sets up 
criteria allowing individuals with income levels up to 150 percent of 
the poverty level to qualify for home care benefits. Far too often, 
elderly or disabled individuals are forced to enter nursing homes 
prematurely simply because this is the only care that is covered under 
Medicaid. While there will always be those who require 
institutionalized care, for many others home and community-based care 
can be a less expensive alternative, saving millions of dollars for the 
overall system.
  Finally, the bill provides for demonstration projects and establishes 
a commission to explore ways to better integrate long-term care with 
the rest of the health care system. These initiatives will work to 
create a more balanced and integrated delivery system that will meet 
people's needs over the years. In a recent hearing held before the 
Senate Select Committee on Aging, the General Accounting Office 
testified that we could bring about better long-term care services 
without spending more money by simply focusing greater attention to 
individual needs and through more flexible programs. I strongly believe 
that we can and must do better to serve individuals in need of long-
term care, without placing more pressure on State and Federal budgets.
  Mr. President, while we spend the next few months debating the merits 
of such issues as managed competition, health care alliances, the 
amount of regulation necessary, and who should pay for each proposal, 
we must keep in mind that the ultimate measure of reform for each 
American will be, ``What will health care reform mean for me?'' For a 
senior citizen with Parkinson's disease, a young mother with multiple 
sclerosis, and their families, making long-term care more affordable 
and accessible is not a fringe issue, but rather a key test for health 
care reform legislation.
  Last September I held a hearing in Augusta, ME, on long-term care 
that was attended by over 500 senior citizens, caregivers, health care 
providers, and policymakers. The interest and enthusiasm of the 
participants sent me a clear message on the need to correct many of the 
deficiencies in our long-term care system.
  The legislation I am introducing today, takes several significant 
steps to accomplish this goal and will provide some meaningful relief 
to families facing exorbitant long-term care costs.
  I am extremely pleased that several other bills before Congress such 
as the administration's Health Security Act, Senator Chafee's HEART 
proposal, and Senator Packwood's secure choice bill contain important 
long-term care provisions. While I believe my legislation offers a 
reasonable alternative, I am supportive of initiatives which expand 
appropriate home and community-based services to those most in need and 
improve private sector participation in the financing of long-term 
care.
  I urge my colleagues to support this long-term care legislation that 
creates a strong public-private partnership and I look forward to 
working together to ensure health care reform makes improvements in the 
way long-term care services are provided for disabled individuals both 
now and in the future.
  Mr. President, I ask unanimous consent that a section-by-section 
analysis of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Section By-Section Summary--Public-Private Long-Term Care Partnership 
                              Act of 1994

       Purpose: This bill is designed to build a public-private 
     partnership for the payment and planning of long-term care 
     services for elderly and non-elderly disabled. An emphasis is 
     placed on removing tax barriers and creating incentives which 
     encourage individuals and their families to finance their 
     future long-term care needs. The bill creates consumer 
     protection standards for long-term care insurance, and 
     provides incentives and public education to encourage the 
     purchase of private long-term care insurance. For those 
     individuals who cannot afford long-term care insurance or 
     those who are already disabled, the bill expands the public 
     safety net for long-term care under Medicaid.


          Title I.--Tax Treatment of Long-term Care Insurance

Sec. 101. Qualified long-term care services treated as medical expenses

       Section 213 of the Internal Revenue Code is amended to 
     allow qualified individuals to deduct out-of-pocket long-term 
     care services as medical expenses subject to a floor of 7.5 
     percent of adjusted gross income. Qualified long-term care 
     services include necessary diagnostic, preventive, 
     therapeutic, rehabilitative, maintenance and personal care 
     performed in either a residential or nonresidential setting. 
     Qualified individuals must be determined by a licensed 
     professional or qualified community case manager to be unable 
     to perform without substantial assistance at least two 
     activities of daily living (ADLs) or suffer from a moderate 
     cognitive impairment.

            Sec. 102. Treatment of long-term care insurance

       Section 213 is also amended to allow qualified long-term 
     care insurance premiums to be deducted as medical insurance 
     subject to the 7.5 percent-of-adjusted-gross-income-floor. 
     Qualified long-term care insurance premiums are also 
     deductible as a business expense and employer-provided long-
     term care insurance is excluded from an employee's taxable 
     income. A qualified long-term care insurance policy must meet 
     the regulatory standards as established in Title II. The 
     provision would apply to taxable years beginning after 
     December 31, 1995.

Sec. 103. Treatment of benefits under qualified long-term care policies

       Benefits paid under qualified long-term care 
     insurance policies would be excluded from income under 
     section 105(c) ``Payments Unrelated to Absence from 
     Work'', and employer-paid long-term care insurance would 
     be a tax free employee fringe benefit.
       The daily benefit cap for all long term care policies would 
     be established at $150 per day and indexed for inflation. All 
     payments above the established cap are treated as income.
       Private long-term care insurance is exempt from the 
     continuation of coverage requirements created by COBRA. In 
     addition, long-term care will be considered a ``qualified 
     benefit'' that may be included in a cafeteria plan.
       The provision would apply to policies issued after December 
     31, 1995

   Sec. 105. Tax treatment of accelerated death benefits under life 
                          insurance contracts

       Clarifies that an accelerated death benefit received by an 
     individual on the life of an insured who is terminally ill 
     individual (expected to die within 12 months) is excluded 
     from taxable income as payment by reason of death.


           Title II.--Standards for long-term care insurance

                     Sec. 201. Policy requirements

       Insurers are required to meet the National Association of 
     Insurance Commissioners (NAIC) January 1, 1993 standards for 
     long-term insurance. Additional requirements include: a 
     mandatory offer of nonforfeiture benefits, rate 
     stabilization, minimum rate guarantees, limits and 
     notification of increases on premiums and reimbursement 
     mechanisms for long-term care policies. Policies that do not 
     meet these consumer protection standards would be denied the 
     favorable tax treatment described in Section I.

    Sec. 202. Additional requirements for issuers of long-term care 
                           insurance policies

       A penalty of $100 per day per policy shall be imposed on 
     long-term care issuers failing to meet the NAIC model 
     standards as outlined in this section.

            Sec. 203. Coordination with State requirements.

       A State retains the authority to apply additional standards 
     or regulations that provide greater protection of 
     policyholders of long-term care insurance.

               Sec. 204. Uniform language and definitions

       The NAIC is directed to no later than January 1, 1995 issue 
     standards for the use of uniform language and definitions in 
     long-term care insurance policies, with permissible 
     variations to take into account differences in state 
     licensing requirements for long-term care providers.

                       Sec. 205. Effective dates

       The provisions would apply to policies issued after 
     December 31, 1995


 title iii.--incentives to encourage the purchase of private insurance

          Sec. 301. Public Information and education programs

       The Secretary of Health and Human Services is directed to 
     establish a program designed to educate individuals on the 
     risks of incurring catastrophic long-term care costs and the 
     coverage options available to insure against this risk. 
     Education should increase consumers knowledge of the lack of 
     coverage for long-term care in Medicare, Medigap and most 
     private health insurance policies and explain the various 
     benefits and features of private long-term care insurance.

  Sec. 302 Assets or resources disregarded under the Medicaid Program

       Amends Section 1917(b) of the Social Security Act, related 
     to Medicaid Estate Recoveries, to allow for states to 
     establish asset protection programs for individuals who 
     purchase qualified long-term care insurance policies, without 
     requiring states to recover such assets upon a beneficiaries 
     death. This provision is aimed at encouraging more middle-
     income persons to purchase long-term care insurance by 
     allowing individuals to keep a limited amount of assets and 
     still quality for Medicaid, if they have purchased long-term 
     care insurance.
       States that develop asset protection programs to encourage 
     private insurance purchase are required to conform with 
     uniform reporting and documentation requirements established 
     by the Secretary of Health and Human Services.

  Sec. 303. Distributions from individual retirement accounts for the 
             purchase of long-term care insurance coverage

       Individuals above 59\1/2\ are allowed tax-free 
     distributions from an IRA or an individual retirement annuity 
     for the purchase of a long-term policy. Also allows 
     individuals below the age of 59\1/2\ to withdraw from their 
     individual retirement account without penalty in order to 
     purchase a qualified long-term care plan. Individuals who 
     obtain tax-free distributions from their IRA or individual 
     retirement annuity would be restricted from deducting 
     their long-term care insurance premium as a medical 
     expense under Title I of this act. The amendments made by 
     this section apply to taxable years beginning after 
     December 31, 1995.


        title iv.--Improved public safety net for long-term care

                     Sec. 401. References in title

       All references in this title apply to the Social Security 
     Act.

    Sec. 402. Spend-down eligibility for nursing facility residents

       Requires states to expand eligibility for nursing facility 
     residents who are determined to be ``medically needy.'' Such 
     individuals are those with incomes below the SSI poverty 
     level when expenses for medical care are deducted from their 
     income.

 Sec. 403. Increase in personal needs allowance for institutionalized 
                              individuals

       Amends Medicaid by increasing to $50 per month (from $30) 
     the amount of funds an individual residing in a nursing 
     facility is able to retain for personal needs.

 Sec. 404. Increased resource disregard for nursing facility residents

       Amends Medicaid to allow states to disregard up to $8,000 
     in assets by an unmarried, institutionalized individual.

   Sec. 405. Informing nursing home residents about availability of 
            assistance for home and community-based services

       Requires that an individual who is a resident of a nursing 
     facility or an intermediate care facility for the mentally 
     retarded, receive at the time of application and periodically 
     thereafter, information on the range of home and community-
     based services available in the State.

Sec. 406. Establishment of State programs furnishing home and community 
        based services to certain individuals with disabilities

       This provision expands Medicaid by adding an optional 
     state-administered, means-tested program to cover home 
     care services for low income individuals with severe 
     disabilities. Beginning in 1997, those persons eligible 
     for benefits with less than $8,000 in assets and incomes 
     below 90 percent of poverty would qualify for home and 
     community-based services under this program. In calendar 
     year 1998, the coverage will increase to 110 percent of 
     poverty; 1999: 130 percent; and 2000: 150 percent of 
     poverty. Individuals with incomes above these levels could 
     qualify for benefits once they have spent down their 
     assets and income to allowable amounts.
       To be eligible, individuals must be unable without 
     significant assistance to perform two or more activities of 
     daily living such as eating, dressing, transferring, toilet, 
     bathing, and continence, have profound mental retardation, or 
     be assessed as severely disabled child under the age of six 
     who would otherwise need institutionalized care.
       Significant flexibility is given to the states to design 
     their long-term care program. All individuals will receive 
     personal assistance services, however states can cover any 
     appropriate service including: homemaker assistance, respite 
     services, assistive devices, adult day care services, 
     habilitation and rehabilitation, and skilled home health care 
     services.
       All states will be matched up to 75 percent for services 
     covered under this section, with a maximum matching rate 
     fixed at 88 percent. States will have the option to require 
     minimal copayments for services from individuals above 100 
     percent of poverty based on a sliding scale.

 Sec. 407. Require Secretary of HHS to report to Congress on long-term 
                             care programs

       Directs the Secretary to make interim and final reports to 
     Congress on the effectiveness of the new long-term care 
     program and growth and developments in the private market for 
     long-term care insurance.
       Requires the Secretary of HHS to report on the feasibility 
     of integrating acute and long-term care services and the cost 
     of including institutional and community based long-term care 
     as a standard benefit under a comprehensive benefit plan for 
     all Americans.

             Sec. 408. Establish a chronic care commission

       For purposes of this title chronic care refers to: the 
     ongoing provision of medical, functional, psychological, 
     environmental, social and medical services that enable 
     chronically ill individuals to optimize their functional 
     independence. Chronic care includes an integrated continuum 
     of primary prevention, acute, transitional, and long-term 
     care services.
       The President shall, in consultation with Congress, 
     establish a bipartisan, national Commission on Chronic Care 
     Reform. The Commission shall consist of 11 individuals. The 
     membership of the Commission shall include representatives of 
     chronically ill individuals; providers who furnish primary, 
     acute, institutional services, and home and community-based 
     services, health insurance industry; and Federal and State 
     health programs. The Commissions shall work under the 
     leadership of the Secretary of HHS, and in consultation with 
     national demonstration on integrating acute and long-term 
     care. The Commission shall have the following duties:
       Make legislative recommendations to Congress no later than 
     July 1, 1997 which simplify and improve care for chronically 
     ill individuals. The recommendations should: encourage health 
     care providers to establish community based networks of care 
     which furnish a full range of individualized chronic care 
     services including primary care, hospital, nursing home, and 
     community-based services; reduce the escalation of cumulative 
     costs across time and setting; outline service delivery 
     reform which simplifies systems for administration; identify 
     barriers to integration of services as established by 
     existing legislation, regulation, and administrative 
     practices; and maintain a private sector, community based 
     approach to furnishing services to such individuals.

    Sec, 409. Demonstration on acute and long-term care integration

       The national demonstration on acute and long-term care 
     integration directs the Secretary of Health and Human 
     Services to implement a 7-year national demonstration, at not 
     more than 25 sites, which seeks to develop new integrated 
     approaches to the financing, administration, and delivery of 
     services for the chronically ill or individuals with 
     disabilities. The Secretary must evaluate demonstration 
     projects and make interim and final reports to Congress.
                                 ______
                                 
      By Mr. DORGAN (for himself and Ms. Mikulski):
  S. 2123. A bill to prohibit insured depository institutions and 
credit unions from engaging in certain activities involving derivative 
financial instruments.


                  derivatives limitations act of 1994

  Mr. DORGAN. Madam President, I have an Associated Press dispatch in 
my hand that says that the Federal Reserve Board met a few hours ago, 
locked the door, closed the room and once again in secret took action 
to increase short-term interest rates by one-half of 1 percent.
  The Federal Reserve Board met today on Tuesday, and the American 
people lost again. I know that the Federal Reserve Board wants to be 
seen as fearless inflation fighters. The fact is that the Federal 
Reserve Board has a hair trigger on inflation issues and has clay feet 
on issues that affect economic growth and opportunity in this country.
  The Federal Reserve Board is increasing interest rates now the fourth 
time saying we have inflation just over the horizon.
  I say to the Federal Reserve Board what inflation? What inflation?
  Last week Thursday, the Producer Price Index came out. You know what 
it showed? Down one-tenth of 1 percent. Friday the Consumer Price Index 
came out. You know what it says? Up only one-tenth of 1 percent.
  So I ask the Federal Reserve Board what inflation are you talking 
about? Why do you impose this tax on the American people. Every 
American family will pay a higher interest rate as a result of behavior 
of the Federal Reserve Board.
  Yes, this is good politics for the Federal Reserve Board. They served 
their constituency, the big money center banks. I guarantee you it is 
not good monetary policy for this country.
  I hope others in the Chamber will share that view and make that known 
to the Federal Reserve Board.
  The Federal Reserve Board is applying the brakes to this country's 
economy at precisely the wrong time. Increasing interest rates will 
slow down the American economy at exactly the time when we need more 
economic growth, more jobs and more opportunity. That is a fact. The 
Fed is uniquely capable--it demonstrated again today--of taking the 
wrong action at exactly the wrong time.
  Madam President, in addition to my displeasure with the Federal 
Reserve Board, let me indicate to my colleagues that I just introduced 
a piece of legislation to prohibit banks in this country from engaging 
in proprietary trading in derivatives. That all sounds like a foreign 
language. But, this week the General Accounting Office will release a 
major report on a new threat to the taxpayers and the economy of this 
Nation.
  The threat is not from foreign competition, or Government deficits or 
regulation. It is from Wall Street, and a new form of sophisticated 
financial bingo called derivatives. Even Fortune magazine--hardly a 
carping business critic--is warning that derivatives could swamp our 
economy in a sea of red ink.
  Fortune estimates the new derivatives game at some $16 trillion, 
which is more than twice our Nation's total economic output. A single 
default, the magazine said, could ignite a chain reaction that runs 
rampant through the financial markets. ``Inevitably, that would put 
deposit insurance funds, and the taxpayers behind it, at risk.''
  That is a risk that Congress must not permit. Already the taxpayers 
of this country are footing the bill for the $500 billion bailout of 
the savings and loan industry. A gang of financial high-fliers tried to 
get rich quick on junk bonds and inflated real estate loans, and the 
taxpayers had to clean up the mess. Congress learned a lesson, or 
should have, at least.

  That is why I am introducing today a bill to protect the taxpayers of 
this country from a replay of the savings and loan fiasco. 
Specifically, my bill would prevent banks and other institutions with 
Federal insurance from playing roulette in the derivatives market. If 
an institution has deposits insured by the Federal Government, it 
should not be involved in trading risky derivatives for its own 
account. Such proprietary trading involves a degree of risk that is 
totally out of step with safe and sound banking practices. It will not 
occur if my bill is enacted.
  What investors do with their own money is their own business. But 
what they do with money insured by the American taxpayers, is the 
business of Congress. The purpose of deposit insurance is to encourage 
saving. It is to promote a pool of capital that is available to build 
homes and businesses and jobs. Deposit insurance is not supposed to 
underwrite rampant speculation on Wall Street, and my bill will help 
prevent that from happening.
  Derivatives are essentially a form of bet. Investors stake a position 
that interest rates, or the dollar, or commodities, or whatever, will 
rise or fall. Up to a point, this is simply a form of hedging risk. 
Banks and corporations have hedged in this manner for many years, and 
my bill would not affect these traditional and conservative hedging 
transactions.
  But Wall Street passed the point of innocuous risk-protection long 
ago. Far from hedging risk, derivatives today have become a form of 
risk. Some nations define them as gambling, which is what they are. In 
the words of Henry Kaufman, the investment advisor, they mean that 
``more credit is available to people who may have no business getting 
it.''
  This is not idle doomsaying. Already, the Kidder-Peabody investment 
firm has lost some $350 million. Proctor & Gamble Co. has taken a $157 
million bath, and investment analysts warn that many more such losses 
lay buried in the balance sheets of corporations and investment firms 
alike. Orange County, CA, had to meet a $140 million collateral call 
because some derivative speculations started going bad. This raises the 
specter that local taxpayers may end up holding the bag as well.
  Derivatives are the latest episode in a daisy chain of financial 
mismanagement, in which the bankers and financiers of this Nation have 
tried to cover their bad investments with worse ones. First came the 
foolish third world loans. Then the junk bonds and fatuous real estate 
investments of the eighties. Now we have derivatives, which up the risk 
ante to new heights, and spread nitroglycerine over the debt structure 
of the entire Nation.
  The three biggest players in the derivatives game are New York 
banks--Chemical Bank, Bankers Trust, and Citicorp. Together, these 
three banks are into this market for over $6 trillion; Chemical Bank 
alone is in for $2.5 trillion. All of these banks have Federal deposit 
insurance. The purpose of my bill is to make sure that the banks don't 
have to use it.
  In the late 1980's Congress prohibited Savings and Loans from 
investing in junk bonds. The bill came too late to prevent the S&L 
fiasco. But at least it applied a tourniquet to stop the bleeding. Now 
we have a chance to prevent a crisis instead of rushing belatedly to 
staunch it.
  Banks ought not to be involved in proprietary trading on derivatives. 
That is gambling with taxpayers' money and we ought to take action to 
stop it. That is the purpose of introducing the bill today, and I urge 
my colleagues to support this legislation.
  I ask unanimous consent that the full text of this bill be included 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2123

       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 ``Derivatives Limitations Act 
     of 1994''.

     SEC. 2. INSURED DEPOSITORY INSTITUTIONS.

       The Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.) 
     is amended by adding at the end the following new section:

     ``SEC. 44. DERIVATIVE INSTRUMENTS.

       ``(a) Derivatives Activities.--
       ``(1) General prohibition.--Except as provided in paragraph 
     (2), neither an insured depository institution, nor any 
     affiliate thereof, may purchase, sell, or engage in any 
     transaction involving a derivative financial instrument for 
     the account of that institution or affiliate.
       ``(2) Exceptions.--
       ``(A) Hedging transactions.--An insured depository 
     institution may purchase, sell, or engage in hedging 
     transactions to the extent that such activities are approved 
     by rule, regulation, or order of the appropriate Federal 
     banking agency issued in accordance with paragraph (3).
       ``(B) Separately capitalized affiliate.--A separately 
     capitalized affiliate of an insured depository institution 
     that is not itself an insured depository institution may 
     purchase, sell, or engage in a transaction involving a 
     derivative financial instrument if such affiliate complies 
     with all rules, regulations, or orders of the appropriate 
     Federal banking agency issued in accordance with paragraph 
     (3).
       ``(C) De minimis interests.--An insured depository 
     institution may purchase, sell, or engage in transactions 
     involving de minimis interests in derivative financial 
     instruments for the account of that institution to the extent 
     that such activity is defined and approved by rule, 
     regulation, or order of the appropriate Federal banking 
     agency issued in accordance with paragraph (3).
       ``(D) Existing interests.--During the 3-month period 
     beginning on the date of enactment of this section, nothing 
     in this section shall be construed--
       ``(i) as affecting an interest of an insured depository 
     institution in any derivative financial instrument which 
     existed on the date of enactment of this section; or
       ``(ii) as restricting the ability of the institution to 
     acquire reasonably related interests in other derivative 
     financial instruments for the purpose of resolving or 
     terminating an interest of the institution in any derivative 
     financial instrument which existed on the date of enactment 
     of this section.
       ``(3) Issuance of rules, regulations, and orders.--The 
     appropriate Federal banking agency shall issue appropriate 
     rules, regulations, and orders governing the exceptions 
     provided for in paragraph (2), including--
       ``(A) appropriate public notice requirements;
       ``(B) a requirement that any affiliate described in 
     subparagraph (B) of paragraph (2) shall clearly and 
     conspicuously notify the public that none of the assets of 
     the affiliate, nor the risk of loss associated with the 
     transaction involving a derivative financial instrument, are 
     insured under Federal law or otherwise guaranteed by the 
     Federal Government or the parent company of the affiliate; 
     and
       ``(C) any other requirements that the appropriate Federal 
     banking agency considers appropriate.
       ``(b) Definitions.--For purposes of this section--
       ``(1) the term `derivative financial instrument' means--
       ``(A) an instrument the value of which is derived from the 
     value of stocks, bonds, other loan instruments, other assets, 
     interest or currency exchange rates, or indexes, including 
     qualified financial contracts (as defined in section 
     11(e)(8)); and
       ``(B) any other instrument that an appropriate Federal 
     banking agency determines, by regulation or order, to be a 
     derivative financial instrument for purposes of this section; 
     and
       ``(2) the term `hedging transaction' means any transaction 
     involving a derivative financial instrument if--
       ``(A) such transaction is entered into in the normal course 
     of the institution's business primarily--
       ``(i) to reduce risk of price change or currency 
     fluctuations with respect to property which is held or to be 
     held by the institution; or
       ``(ii) to reduce risk of interest rate or price changes or 
     currency fluctuations with respect to loans or other 
     investments made or to be made, or obligations incurred or to 
     be incurred, by the institution; and
       ``(B) before the close of the day on which such transaction 
     was entered into (or such earlier time as the appropriate 
     Federal banking agency may prescribe by regulation), the 
     institution clearly identifies such transaction as a hedging 
     transaction.''.

     SEC. 3. INSURED CREDIT UNIONS.

       Title II of the Federal Credit Union Act (12 U.S.C. 1781 et 
     seq.) is amended by adding at the end the following new 
     section:

     ``SEC. 215. DERIVATIVE INSTRUMENTS.

       ``(a) Derivative Activities.--Except as provided in 
     subsection (b), neither an insured credit union, nor any 
     affiliate thereof, may purchase, sell, or engage in any 
     transaction involving a derivative financial instrument.
       ``(b) Applicability of Section 44 of the Federal Deposit 
     Insurance Act.--Section 44 of the Federal Deposit Insurance 
     Act shall apply with respect to insured credit unions and 
     affiliates thereof and to the Board in the same manner that 
     such section applies to insured depository institutions and 
     affiliates thereof (as those terms are defined in section 3 
     of that Act) and shall be enforceable by the Board with 
     respect to insured credit unions and affiliates under this 
     Act.
       ``(c) Derivative financial instrument.--For purposes of 
     this section, the term `derivative financial instrument' 
     means--
       ``(1) an instrument the value of which is derived from the 
     value of stocks, bonds, other loan instruments, other assets, 
     interest or currency exchange rates, or indexes, including 
     qualified financial contracts (as defined in section 
     207(c)(8)(D)); and
       ``(2) any other instrument that the Board determines, by 
     regulation or order, to be a derivative financial instrument 
     for purposes of this section.''.

     SEC. 4. BANK HOLDING COMPANIES.

       Section 3 of the Bank Holding Company Act of 1956 (12 
     U.S.C. 1842) is amended by adding at the end the following 
     new subsection:
       ``(h) Derivatives Activities.--
       ``(1) In general.--A subsidiary of a bank holding company 
     may purchase, sell, or engage in any transaction involving a 
     derivative financial instrument for the account of that 
     subsidiary if it--
       ``(A) is not an insured depository institution or a 
     subsidiary of an insured depository institution; and
       ``(B) is separately capitalized from any affiliated insured 
     depository institution.
       ``(2) Applicability of section 44 of the federal deposit 
     insurance act.--Section 44 of the Federal Deposit Insurance 
     Act shall apply with respect to bank holding companies and 
     the Board in the same manner that those such subsections 
     apply to an insured depository institution (as defined in 
     section 3 of that Act) and shall be enforceable by the Board 
     with respect to bank holding companies under this Act.
       ``(3) Derivative financial instrument.--For purposes of 
     this subsection, the term `derivative financial instrument' 
     means--
       ``(A) an instrument the value of which is derived from the 
     value of stocks, bonds, other loan instruments, other assets, 
     interest or currency exchange rates, or indexes, including 
     qualified financial contracts (as defined in section 
     207(c)(8)(D)); and
       ``(B) any other instrument that the Board determines, by 
     regulation or order, to be a derivative financial instrument 
     for purposes of this subsection.''.

  Mr. DORGAN. Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator speaking as the Senator from 
Maryland would like to be included as a cosponsor.
  Without objection, it is so ordered.
                                 ______
                                 
      By Mr. CAMPBELL (for himself and Mr. Brown):
  S. 2124. A bill to provide for private development of power at the 
Mancos project and for other purposes; to the Committee on Energy and 
Natural Resources.


         mancos project private power development authorization

  Mr. CAMPBELL. Mr. President, I am sending legislation to the desk 
that will allow the construction of a hydropower plant at the Jackson 
Gulch Reservoir in southwestern Colorado. The legislation will also 
allow the Mancos Water Conservancy District to receive the power 
revenues.
  This legislation is necessary because while the Jackson Gulch 
Reservoir is a Federal project, the Bureau of Reclamation is not 
permitted to issue a permit, under the terms of the district's project 
repayment contract and the Water Conservation and Utilization Act of 
1939, that would allow the district to use revenues from the hydropower 
project to operate and maintain its facilities.
  In other words, while the Bureau could issue a Lease of Power 
Privilege, the revenues would return to the Federal treasury--not to 
the district, which would construct, operate and maintain the 
hydropower project just as it already operates and maintains the Mancos 
irrigation project without cost to the Federal Government. To ask the 
district to build a project to defray these costs, then take away the 
revenues, isn't fair.
  A feasibility report and an engineering and construction report for 
the Jackson Gulch Reservoir and hydroelectric project have been 
submitted to the Colorado Division of Wildlife and the U.S. Fish and 
Wildlife Service.

  The Colorado Division of Wildlife has concluded that based on these 
documents, the volume, timing and temperature of the flows from the 
reservoir will not be altered and that no adverse impact to the fish 
and wildlife resources is anticipated.
  The U.S. Fish and Wildlife has made a similar finding, and added that 
the proposed project is not likely to cause any adverse impact to 
endangered or candidate species, nor will it pollute or deplete any 
water in the San Juan River Basin.
  Mr. President, this bill should be viewed as a housekeeping measure 
because it clarifies what our policy ought to be with respect to 
hydropower development at projects authorized by the Water Conservation 
and Utilization Act of 1939. These projects are now more than 50 years 
old. Local sponsors should be encouraged to ensure these projects 
continue to provide multiple benefits for another generation of farming 
families.
  I hope my colleagues will agree with me that this is the right 
approach and I now ask unanimous consent that several documents be 
placed in the Record along with my statement--a copy of the bill; 
letters of support from the Montezuma County commissioners, the Mancos 
Water Conservancy District and the town of Mancos; a brief description 
of the history and economics of the Jackson Gulch Reservoir that was 
prepared by the irrigation district staff; letters from the Colorado 
Division of Wildlife and the U.S. Fish and Wildlife Service; and 
finally, a copy of the Department of the Interior's Associate Solicitor 
memorandum concerning hydropower development at Water Conservation and 
Utilization Act Projects.
  Mr. President, I ask unanimous consent that a copy of the bill and 
supporting materials be included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2124

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This bill may be cited as the ``Mancos Project Private 
     Power Development Authorization Act of 1994.''

     SEC. 2. FINDINGS.

       Congress finds that--
       (a) Development of hydroelectric power at the Mancos 
     Project consistent with the Feasibility Report and 
     Engineering and Construction Report for the Jackson Gulch 
     Reservoir Hydroelectric Project dated April 19, 1991, and 
     revised on May 13, 1992 and February 10, 1993, by the Mancos 
     Water Conservancy District
       (1) will be without cost to the United States;
       (2) will not impair the efficiency of the project for 
     irrigation purposes;
       (3) will not alter the volume, timing or temperatures of 
     flows from the reservoir; and
       (4) is not likely to cause any new or increased adverse 
     impacts to any federally listed or candidate species.
       (b) That the Mancos Water Conservancy District is currently 
     operating and maintaining facilities at the Mancos Project 
     and that the development of hydroelectric power at the Mancos 
     Project consistent with the Feasibility Report and 
     Engineering and Construction Report for the Jackson Gulch 
     Reservoir Hydroelectric Project dated April 19, 1991, revised 
     on May 13, 1992, and February 10, 1993, by the Mancos Water 
     Conservancy District will not increase operation and 
     maintenance costs of the federal government.
       (c) That any lease of power privileges issued by the 
     Secretary pursuant to this Act does not constitute a 
     ``contract'' under section 202(1) of Public Law 97-293 (96 
     Stat. 1261; 43 U.S.C.A section 390bb) and that nothing in 
     this Act is intended to make applicable any section of Public 
     Law 97-293 (96 Stat. 1261; 43 U.S.C.A section 390aa et. seq.) 
     that would not previously apply.

     SEC. 3. AUTHORIZATION TO LEASE POWER PRIVILEGES.

       Notwithstanding the provisions of the Water Conservation 
     and Utilization Act (16 U.S.C. sections 90y-590z-11) or any 
     relevant provision of the repayment contract Ilr-384, dated 
     July 20, 1942, as amended December 22, 1947, the Secretary is 
     authorized to enter into a lease of power privileges at the 
     Mancos Project, Colorado, with the Mancos Water Conservancy 
     District.

     SEC. 4. LEASE CONDITIONS.

       Any such lease of power privileges issued pursuant to 
     Section 3 of this Act shall not exceed a period of forty 
     years and shall be consistent with rates charged by the 
     Federal Energy Regulatory Commission for comparable sized 
     projects. Moneys derived from such lease shall be covered 
     into the reclamation fund in accordance with relevant parts 
     of federal reclamation law, the Act of June 17, 1902, and 
     Acts supplementary thereto and amendatory thereof (43 U.S.C. 
     371).

     SEC. 5. REVENUES DERIVED FROM POWER DEVELOPMENT.

       Notwithstanding the provisions of the Water Conservation 
     and Utilization Act (16 U.S.C. sections 590y-590z-11) or any 
     relevant provision of the repayment contract Ilr-384, dated 
     July 20, 1942, as amended December 22, 1947, the Mancos Water 
     Conservancy District may receive revenues from the sale of 
     the power generated pursuant to such lease of power 
     privilege.
                                  ____

                                                  Montezuma County


                                       Board of Commissioners,

                                         Cortez, CO, May 13, 1994.
     Hon. Senator Ben Nighthorse Campbell,
     Hon. Senator Hank Brown,
     Senate Office Building, Washington, DC.
       Dear Senators, On behalf of the Board of County 
     Commissioners for Montezuma County I would like to take this 
     opportunity to express our strong support for legislation 
     that will allow the installation of a small hydro-electric 
     plant at Jackson Gulch Dam which was built in the 1940s, by 
     Bureau of Reclamation project for the Mancos Conservancy 
     District.
       The Mancos Valley still has a viable agricultural community 
     which depends on this project. In order to properly operate 
     and maintain a project this old, it is necessary to find new 
     and innovative ideas to derive revenue for the continued 
     upkeep of project facilities.
       The Mancos Water Conservancy District conceived and 
     designed this project at their own expense and initiative. 
     The revenues derived from the hydro-electric plant are an 
     integral part of keeping the cost of water to the Mancos 
     Valley at a level that will continue to sustain the 
     agricultural community.
       This project also supplies water through a rural water 
     system to many residents in the Mancos Valley as well as the 
     Town of Mancos. These domestic users will also benefit from 
     the improved maintenance that the hydro project will allow.
       We certainly appreciate the congressional support for this 
     project and remain willing to assist in any way to see that 
     this project receives proper legislation.
       If you have any questions, please don't hesitate to give me 
     a call.
           Sincerely,
                                                Thomas K. Colbert,
     Chairman, Montezuma County Commissioners.
                                  ____

                                                      Mancos Water


                                         Conservancy District,

                                         Mancos, CO, May 16, 1994.
     Hon. Ben Nighthorse Campbell,
     Hon. Hank Brown,
     U.S. Senate, Washington, DC.
       Dear Senator: The Mancos Water Conservancy District is in 
     strong support of this legislation for a number of reasons. 
     The project is deteriorating and in need of extensive 
     repairs. The yearly revenue we collect simply cannot keep up 
     with the 1990's cost of repair and yet we cannot raise the 
     rates for our water users beyond their means as this would 
     drive many of them out of the valley which in turn would 
     strongly hurt the local economy which relies heavily on the 
     water provided by the project.
       Ironically, the potential for the increased revenue is 
     easily accessible except for the need to change the wording 
     of the project authorization language (Water Conservation and 
     Utilization Act) of the federal government. In order to do 
     this, we are forced to seek legislative language permitting 
     us to proceed with a hydropower plant. We have never 
     requested any federal money nor do we ever intend to request 
     federal money to build this plant. We have prepared the 
     studies and feasibility work ourselves. We cannot stress 
     enough how badly these revenues are needed to prolong the 
     life of our project so that it can continue to serve it's 
     original purpose.
       The Mancos Project was approved for construction by the 
     President of the United States on December 19, 1941. On July 
     20, 1942, the Mancos Water Conservancy District entered into 
     a contract with the United States. On January 1, 1963, the 
     Bureau of Reclamation transferred the operations of the 
     project over to the Mancos Water Conservancy District who are 
     still in charge of the operations and maintenance of the 
     project to date.
       Water from Jackson Gulch Reservoir serves 13,746 acres. 
     8,208 of these acres are currently in agricultural 
     production. The remaining acres are urban and suburban use, 
     dry dropped, idle fallow or grazed and gardened. Current 
     population is estimates at 2,087. Along with irrigation, it 
     serves as municipal water for the Town of Mancos, the Rural 
     water company of the Mancos Valley and Mesa Verde National 
     Park.
       The District has an annual income of $76,000. This covers 
     administration, insurance, operations and maintenance of the 
     project, operations and maintenance of district equipment and 
     facilities as well as wages. The project features and 
     equipment are 45 years old. This equipment requires much 
     repair.
       Routine maintenance of the dam, tunnel and structures below 
     the dam are absolutely necessary for the fitness and safety 
     of the dam. The cost of one repair, especially one that was 
     not predicted, can wipe out the entire budget. Administrative 
     costs are continually increasing due to the additional 
     regulations required of water districts and other such 
     entities every year.
       The valley currently has a low to middle economic base 
     compared to the cost of living standards being set today 
     across the nation. Water rates are reasonable and comparable 
     to the current cost of living standards within the valley. 
     The income derived for the District is fair but certainly not 
     enough to keep up with the rapid increase in the cost of 
     maintenance, routine and emergency. Again, it is considered 
     crucial to the District and the people it serves to maintain 
     water rates within the reasonable means of the people who use 
     it while continuing the routine and emergency maintenance of 
     the entire project.
       This District finally received confirmation that they could 
     not move forward with the hydro development with this 
     language and must seek legislation to change the language to 
     allow said development on November 12, 1993. Cost to build 
     the power plant increased each passing year while awaiting 
     this decision. The District cannot stress enough the need to 
     build as soon as possible to take advantage of today's 
     interest rates and dollar stability or the importance of the 
     continued success and maintenance of the project for the 
     overall economic well-being of this entire valley and her 
     residents!
       Thank you on behalf of the District. We hope that you can 
     see our cause as just and we ask if there is anything that we 
     can assist in to expedite this matter please let us know. We 
     cannot say enough how much this would help our District.
       Sincerely,
                                 Mancos Water Conservancy District
     Board of Directors.
                                  ____



                                                Town of Mancos

                                         Mancos, CO, May 16, 1994.
     Hon. Hank Brown,
     U.S. Senate, Washington, DC.
     Re Jackson Lake hydro power project.
       Dear Honorable Hank Brown: The Town of Mancos would like to 
     express it's support for the proposed Jackson Lake Hydro-
     Power Project.
       Jackson Lake is the main water supplier for the Mancos 
     Valley and has been since 1950.
       Jackson Lake provides irrigation water, municipal water and 
     recreation in boating and fishing. With adding hydro-power to 
     Jackson it only increases it's usefulness to the Mancos 
     Valley.
           Sincerely,
                                                     Jay Dotzenko,
     Town of Mancos Public Works Director.
                                  ____


 Mancos Water Conservancy District Jackson Gulch Reservoir History and 
                               Economics

       The Mancos Valley was basically settled by miners followed 
     by ranching and timber production on private and public 
     lands. Irrigation began in 1876 but crop success depended on 
     the rain fall and the previous winter snow fall which 
     dictated the runoff of the Mancos River which was very low. 
     The river was also the primary water source of the valley, 
     including domestic use for the town and the rural homes. 
     Ranching and farming dominated the valley's economic base. 
     The railroad opened up the valley in 1892 and brought with 
     the first commercial freight facilities. This also brought 
     more people to the valley making claim to the water. This and 
     the late season water shortages caused the people to see the 
     need for a supplemental water supply. The Bureau of 
     Reclamation started investigation on what was called the 
     Mancos Project in October, 1936.
       The Mancos Project was authorized under the Water 
     Conservancy and Utilization Act of August 11, 1939, as 
     amended, and was approved for construction by the President 
     of the United States on December 19, 1941. Construction of 
     the project was started in July of 1941. The project 
     consisted of 4.8 miles of canal and one dam with a reservoir 
     capacity of 9980 acre feet of storage. This is one of the few 
     off-river storage projects constructed. On July 20, 1942, the 
     Mancos Water Conservancy District entered into a contract 
     with the United States to pay $600,000 toward the repayment 
     of the construction cost of the Jackson Gulch Dam and 
     Reservoir, inlet and outlet canals. An amendment contract 
     made December 22, 1947, raised the repayment obligation to 
     $900,000 to be repaid in 60 successive installments of 
     $15,000 annually beginning in December, 1954. On January 1, 
     1963, the Bureau of Reclamation transferred the operations of 
     the project over to the Mancos Water Conservancy District who 
     are still in charge of the operations and maintenance of the 
     project to date.
       Water from Jackson Gulch Reservoir serves 13,746 acres. 
     8,208 of these acres are currently in agricultural 
     production. The remaining acres are urban and suburban use, 
     dry cropped, idle fallow or grazed and gardened. Current 
     population is estimated at 2,087. Alfalfa hay averaged 2.1 
     tons per acre at $105.00/ton. Grass hay averaged 2.4 tons per 
     acre at $95.00/ton. Pasture acreage consisted of 3.8 animal 
     units per acre at $11.25/acre per animal unit. Average yield 
     of project water was .8 acre feet per acre.
       Along with irrigation, Jackson Gulch water serves as 
     municipal water for the Town of Mancos and the rural Mancos 
     Valley. Mesa Verde National Park has storage rights within 
     the reservoir. The original water plant facility for the park 
     is established at the foot of the dam.
       The District has an annual income of $76,000. This covers 
     administration, insurance, operations and maintenance of the 
     project, operations and maintenance of district equipment and 
     facilities as well as wages. The project features and 
     equipment are 45 years old. This equipment requires much 
     repair.
       The project has 1.5 miles of concrete flume and the natural 
     environment has taken its toll (rocks falling, ground moving, 
     freeze-thaw cycles, etc.). The District has done many things 
     to preserve the flumes but even with constant repair 
     replacement of these structures is inevitable and are being 
     planned for 15 to 20 years from now. The replacement cost of 
     the flume at todays rates would run around 1.5 million 
     dollars. The project has been plagued with land slide 
     problems above the canals. These slides have reduced in 
     activity but are still a threat. The slides generally occur 
     during the spring runoff and require immediate attention 
     because spring is the only time the water is diverted into 
     the reservoir. To remove slide material becomes an emergency 
     situation which requires immediate attention thereby 
     increasing the cost of such removal since it requires more 
     equipment and more personnel than the usual repair which in 
     most cases is done in a timely manner by the manager, the 
     district's only full-time employee.
       In addition to the concrete flumes there are 3.3 miles of 
     earthen canal. The lower section of the earthen inlet canal 
     will need major repair in the form of erosion control. This 
     will require up-to-date equipment or a contractor will have 
     to be hired and will have to be done 5 to 10 years from now. 
     In either case, the cost of the repair will be expensive 
     (rough estimates run between $30,000-$100,000).
       With each passing year, the increase of the cost to repair 
     the existing structures prioritize repairs on a crucial to 
     severe basis. In 1994, a repair on the inlet canal stilling 
     basin structure is going to cost the District approximately 
     $5,000.00. This is the only repair which could be scheduled 
     within the budget for this year. Any repair beside this one 
     will be considered only if it is an emergency.
       The headquarters were built in 1942 as bunk houses, 
     offices, etc., as temporary structures to house the men who 
     built the dam. Some were remodeled in 1948 to serve as the 
     manager's residence, machine shop and warehouses. These are 
     the same buildings in use today. In 1990, the electrical and 
     water system were redone and upgraded within the residence to 
     bring them to safety standards. The machine shop and storage 
     units have not been up-graded due to lack of funds throughout 
     the years. These will and do require much maintenance, repair 
     or replacement or they will soon crumble.
       Administrative costs are continually increasing due to the 
     additional regulations required of water districts and other 
     such entities every year. In order to use the pesticides 
     needed to keep brush and weeds off the canals as required by 
     the Bureau of Reclamation, a license is required and it is 
     necessary to have the proper equipment. The office had to be 
     upgraded with modern equipment in order to more efficiently 
     process the ever increasing paper work to make the most of 
     time so that efforts can be directed to the rest of the 
     project. Insurance is now a major budget item that as of four 
     years ago was a minimum budget figure. Here is an approximate 
     estimate of expenditures in a year for this district:
Expenditures:
  Insurance.....................................................$15,000
  Manager's wages................................................20,000
  Debt Retirement................................................18,000
  Administrative..................................................9,000
  Operations and Maintenance.....................................14,000
                                                             __________
                                                             
    Total Income.................................................76,000
       The operations and maintenance balance has to cover the 
     cost of repairs to the aging equipment, aging structures such 
     as buildings, and aging structures such as the canals. 
     Routine maintenance of the dam, tunnel and structures below 
     the dam are absolutely necessary for the fitness and safety 
     of the dam and are also included in this category. The cost 
     of one repair, especially one that was not predicted, can 
     wipe out the entire budget figure.
       The valley currently has a low to middle economic base 
     compared to the cost of living standards being set today 
     across the nation. Water rates are reasonable and comparable 
     to the current cost of living standards within the valley. 
     The income derived for the District is fair but certainly not 
     enough to keep up with the rapid increase in the cost of 
     maintenance, routine and emergency. It is considered crucial 
     to the District and the people it serves to maintain water 
     rates within the reasonable means of the people who use it 
     while continuing the routine and emergency maintenance of the 
     entire project. To raise the rates to compensate for the cost 
     of operations of the District every year would be a dramatic 
     increase which will soon result in many of the rural water 
     users losing their business and homes along with them. This 
     would be a great loss for the entire valley and it's economic 
     system. The last few years have seen a subdivision of the 
     large land holdings, causing an influx of people. The 
     importance of this reservoir system is as great, if not 
     greater, at the present time than it was in the early 40's.
       The Board felt they needed to look for an alternative to 
     raise revenues rather than a drastic increase in the water 
     rates. Hydro power seemed the most promising. Lemon Dam and 
     Pine River Dam, both in the area, had successfully 
     established small power plants which were proving to be 
     economically feasible. Development of hydro-power on this 
     project was first considered in 1984 by a private developer 
     who dropped his F.E.R.C. license due to financial problems 
     within his corporation (1988). The Board took up the 
     investigation to develop the power themselves taking into 
     consideration the Ames Plant which is still in operation 
     after 90 years. Tours of the two projects mentioned above 
     were made, looking into feasibility, construction costs, etc. 
     In 1990, the Board hired an engineering/construction firm to 
     do a feasibility study on a hydro-power project on Jackson 
     Gulch Reservoir. The preliminary results were that a hydro-
     power plant would be feasible for the District and would 
     accomplish their revenue goal. The power plant the Board was 
     considering will raise approximately $30,000 per year in 
     today's dollars after debt service which is 15 years from 
     now; a time when those dollars will be most needed.
       In April, 1990, the District requested a license to 
     generate electrical power from a hydro-power plant from the 
     Bureau of Reclamation. The District's Board met with the 
     Bureau to determine what would be required from an 
     administrative viewpoint from the Bureau. At that time, the 
     Board specifically informed the Bureau that it would proceed 
     under the Reclamation Licensing Jurisdiction and were 
     informed that they (the District) could proceed under the 
     Bureau's jurisdiction. The Board had obtained financial 
     backing for the project insuring that they could construct a 
     power plant without Federal government money. On September 
     10, 1991, the District was officially informed by the Bureau 
     of Reclamation that a Lease of Power Privilege could not be 
     provided due to language in the Project Repayment Contract 
     and later in the Water Conservation and Utilization Act of 
     1939. The District was in the final design stages of the 
     project at this time with construction scheduled immediately.
       This District finally received confirmation that they could 
     not move forward with the hydro development with this 
     language and must seek legislation to change the language to 
     allow said development on November 12, 1993. In the interim, 
     numerous trips not included in the District's budget were 
     made to Salt Lake City, Washington D.C., and surrounding area 
     offices talking with head officials and solicitors from the 
     Bureau of Reclamation, the Department of Interior, Colorado 
     Senators and Congressmen and many others in an effort to 
     expedite the decision so construction could begin. Cost to 
     build the power plant increased each passing year while 
     awaiting this decision. The District cannot stress enough the 
     need to build as soon as possible to take advantage of 
     today's interest rates and dollar stability or the importance 
     of the continued success and maintenance of the project for 
     the overall economic well-being of this entire valley and her 
     residents!
                                  ____

         State of Colorado, Department of Natural Resources, 
           Division of Wildlife,
                                        Durango, CO, May 26, 1992.
     Gary Kennedy,
     Superintendent, Mancos Water Conservancy District, Mancos, 
         CO.
       Dear Mr. Kennedy: The Colorado Division of Wildlife has 
     reviewed the Feasibility Report and Engineering and 
     Construction Report for the Jackson Gulch Reservoir 
     Hydroelectric Project. I also discussed the project with you 
     on the telephone today. Since volume, timing, and temperature 
     of the flows from the reservoir will not be altered by the 
     project, we do not anticipate any negative impacts.
       Thank you for the opportunity to comment.
           Sincerely,
                                                    Gary T. Skiba,
     Wildlife Biologist.
                                  ____

         U.S. Department of the Interior, Fish and Wildlife 
           Service, Ecological Services,
                             Grand Junction, CO, October 26, 1993.


                               memorandum

     To: Max J. Stodolski, Projects Manager, Bureau of 
       Reclamation, Durango Projects Office, 835 East 2nd Avenue, 
       P.O. Box 640, Durango, Colorado 81302-0640
     From: Assistant Field Supervisor, Ecological Services, Grand 
       Junction, Colorado, Mail Stop 65412
     Subject: Proposed Hydroelectric project at Jackson Gulch Dam, 
       Mancos Project, Colorado (Endangered Species)

       This responds to your letter of October 20, 1993, 
     requesting review of the plan to increase the hydroelectric 
     capacity of the Jackson Gulch Dam in the Mancos Project.
       The Fish and Wildlife Service (Service) feels that the 
     proposed project is not likely to cause any new or increased 
     adverse impacts to any federally listed or candidate species. 
     Your report indicates that the project will not pollute and/
     or deplete any water from the San Juan River basin, and since 
     the endangered river fish do not occur in the project area, 
     there should not be any adverse effect on these species. The 
     plan was also analyzed for possible impacts to any other 
     listed or candidate species and none were found.
       We appreciate the opportunity to review this plan. If the 
     Service can be of further assistance, please contact Michael 
     Tucker at the letterhead address.
     Keith L. Rose.
                                  ____

                                  U.S. Department of the Interior,


                                      Office of the Solicitor,

                                                   Washington, DC.
     Memorandum to: Deputy Commissioner.
     From: Associate Solicitor, Division of Energy and Resources.
     Subject: Hydropower Development at Water Conservation and 
         Utilization Act Projects.
       This is in response to your request, dated April 19, 1993, 
     for an opinion interpreting section 9 of the Water 
     Conservation and Utilization Act (WCUA), 16 U.S.C. Sec. 590z-
     7. You have asked whether title in and revenues from 
     facilities provided for surplus power must remain in the 
     United States. More specifically, you inquired whether 
     authority exists to amend the contract to allow a non-federal 
     party to retain the revenue from the sale of electricity 
     generated by a hydropower project constructed with non-
     federal funds. This opinion concludes that, although the WCUA 
     reserves power development to the federal government, even if 
     non-federal power development were authorized, the use of 
     revenues would be restricted by the language of the WCUA.


                             a. background

       The Bureau of Reclamation (Reclamation) constructed the 
     Mancos Project under general authority of the WCUA. The 
     specific determination to proceed with the Mancos Project is 
     found in a letter from Secretary of the Interior Harold Ickes 
     dated October 21, 1940, and approved by President Franklin D. 
     Roosevelt on October 24, 1940. At that time, Reclamation 
     found hydropower development not to be feasible and no costs 
     were allocated to power. To our knowledge, no other WCUA 
     project includes hydropower facilities.1
---------------------------------------------------------------------------
     \1\ The Federal Energy Regulatory Commission (FERC) issued a 
     license for non-federal hydropower development on the Jackson 
     Gulch Dam on December 29, 1986, to Prodek, Inc. On May 23, 
     1988, Prodek filed an application to surrender its license. 
     FERC issued an order accepting surrender of the license on 
     August 31, 1988.
---------------------------------------------------------------------------
       The Mancos Water Conservancy District (Mancos) has 
     requested the right to develop non-federal power on project 
     facilities. Under the proposal, Mancos would construct 
     hydropower generation facilities on Jackson Gulch Dam. In 
     order for the project to be economically viable, Mancos needs 
     to receive the revenue from the sale of electricity 
     generated by the project.
       Section 9 of the WCUA authorizes the Secretary to make 
     ``provisions, including contrasts of sale * * *  for 
     developing and furnishing'' surplus power. 16 U.S.C. 
     Sec. 590z-7. It further provides that ``[a]ll right, title, 
     and interest in the facilities provided for such * * * 
     surplus power and the revenue derived therefrom shall be and 
     remain in the United States.'' Id.
       The existing repayment contract with Mancos contains 
     language which reserves all hydropower rights to the United 
     States. Article 16(a) of the contract states:
       The District shall have the perpetual right to the use of 
     all water that becomes available through the construction and 
     operation of the Project Works, delivered at the lower end of 
     the outlet canal for irrigation, domestic, municipal, and 
     industrial purposes exclusive of the development of hydro-
     electric power as hereinafter excepted. (Emphasis added.)
       In addition, subarticle 16(b)(4)(ii) reserves to the United 
     States the right--
       [t]o use the Project Works and Water supply for the 
     development of hydro-electric power * * * as provided in 
     subdivision (a) of this article. Revenues from any such power 
     development shall be the property of the United States * * *. 
     (Emphasis added.)


                        b. statutory authorities

       Authority to develop the hydropower potential of federally-
     owned dams or sites must originate with the Congress. 
     Congress possesses the authority to regulate hydropower 
     development under the Commerce Clause.
       1. Town Sites and Power Development Act of 1906--In section 
     5 of the Town Sites and Power Development Act of 1906, 
     Congress granted the Bureau of Reclamation authority to 
     develop the hydropower potential of government dams, or to 
     license private development through a lease of power 
     privilege:
       Whenever a development of power is necessary for the 
     irrigation of lands under any project undertaken under the 
     said reclamation Act, or an opportunity is afforded for the 
     development of power under any such project, the Secretary of 
     the Interior is authorized to lease for a period not 
     exceeding ten years, giving preference to municipal purposes, 
     any surplus power or power privilege, and the moneys derived 
     from such leases shall be covered into the reclamation fund 
     and be placed to the credit of the project from which such 
     power is derived: Provided, That no lease shall be made of 
     such surplus power or power privileges as will impair the 
     efficiency of the irrigation project * * * . 34 Stat. 117; 43 
     U.S.C. Sec. 522 (Emphasis added.)
       2. Reclamation Project Act of 1939.--In 1939, Congress 
     enacted the Reclamation Project Act (1939 Act) which effected 
     a significant reauthorization of the Reclamation program. It 
     granted broad authorities to the Secretary with respect to 
     curing repayment and accounting problems and provided new 
     authorities to the Secretary with respect to contracting. 
     Section 9(c) of the 1939 Act provides authority for 
     furnishing municipal water supplies and provides new terms 
     for contracting for electric power and leases of power 
     privileges:
       The Secretary is authorized to enter into contracts to 
     furnish water for municipal water supply or miscellaneous 
     purposes * * * . Any sale of electric power or lease of power 
     privileges, made by the Secretary in connection with the 
     operation of any project or division of a project, shall be 
     for such periods, not to exceed forty years, and at such 
     rates as in his judgment will produce power revenues at least 
     sufficient to cover an appropriate share of the annual 
     operation and maintenance costs, interest on an appropriate 
     share of the construction investment at not less than 3 per 
     centum per annum, and such other fixed charges as the 
     Secretary deems proper: Provided further, That in said sales 
     or leases preference shall be given to municipalities and 
     other public corporations or agencies; and also to 
     cooperatives and other nonprofit organizations financed in 
     whole or in part by loans made pursuant to the Rural 
     Electrification Act of 1936. Nothing in this subsection shall 
     be applicable to provisions in existing contracts, made 
     pursuant to law, for the use of power and miscellaneous 
     revenues of a project for the benefit of users of water from 
     such project. The provisions of this subsection respecting 
     the terms of sales of electric power and leases of power 
     privileges shall be in addition and alternative to any 
     authority in existing laws relating to particular projects. 
     No contract relating to municipal water supply or 
     miscellaneous purposes or to electric power or power 
     privileges shall be made unless, in the judgment of the 
     Secretary, it will not impair the efficiency of the 
     project for irrigation purposes. 53 Stat. 1194; 43 U.S.C. 
     Sec. 485h(c) (Citation omitted.) (Emphasis added.) Thus, 
     the 1906 Town Sites and Power Development Act provides 
     explicit authorization to the Secretary to develop the 
     power potential of a Reclamation project and leave the 
     surplus power or to enter into leases of power privilege 
     to enable non-federal hydropower development. The 1939 Act 
     elaborates on the terms of such leases of surplus power or 
     power privileges.\2\
---------------------------------------------------------------------------
     \2\ It can be argued that the 1939 Act did not provide new 
     authority to enter contracts for the lease of surplus power 
     or power privileges, it merely provided additional terms to 
     be included in contracts when authority otherwise existed to 
     enter such contracts. In section 9, Congress selected 
     different language with respect to furnishing water for 
     municipal water supply or miscellaneous purposes and in 
     determining contract terms for sale of electric power or 
     lease of power privileges. In the case of municipal and 
     miscellaneous water supplies, Congress expressly 
     ``authorized'' the Secretary to enter contracts. On the topic 
     of providing electric power, Congress did not authorize the 
     Secretary to ``enter contracts.'' Rather, Congress specified 
     terms which could apply to ``[a]ny sale of electric power or 
     lease of power privileges.''
     On the other hand, several previous Solicitor's opinions 
     list, without analysis, the 1939 Act as authority for 
     hydropower development on Reclamation projects. See, e.g., 
     Memorandum from Associate Solicitor, Energy and Resources to 
     Commissioner, Bureau of Reclamation (Jan. 31, 1985) 
     (discussing the Grand Valley Project); Memorandum from 
     Solicitor Tarr to Commissioner, Bureau of Reclamation (July 
     16, 1986) (discussing Hoover Powerplant modifications). 
     Because this opinion turns on the specific limitation in 
     section 9 of the WCUA, the issue of whether the 1939 Act 
     constitutes independent authority to lease power privileges 
     is not decided here. Nor does this opinion decide the issue 
     of the continuing applicability or scope of the 1906 Town 
     Sites Act following enactment of the 1920 Federal Power Act 
     and, in particular, the 1935 amendments thereto.
---------------------------------------------------------------------------
       3. Water Conservation and Utilization Act.--One week after 
     enacting the 1939 Act Congress enacted the WCUA. Congress 
     amended the WCUA in 1940, adding sections 9 and 10 among 
     other changes. 53 Stat. 1418; 54 Stat. 1119. The WCUA 
     authorizes the construction of small projects which 
     generally would have been infeasible under the Reclamation 
     program. Section 9 of the WCUA addresses hydropower 
     development specifically:
       In connection with any project undertaken pursuant to this 
     act, provisions, including contracts of sale, may be made for 
     furnishing municipal or miscellaneous water supplies, or for 
     developing and furnishing power in addition to the power 
     requirements of irrigation: Provided, * * * That no contract 
     relating to a water supply for municipal or miscellaneous 
     purposes or to electric power shall be made unless, in the 
     judgment of the Secretary, it will not impair the efficiency 
     of the project for irrigation purposes. On any project where 
     such provisions are made, the Secretary shall allocate to 
     municipal or miscellaneous water purposes or to surplus power 
     the part of the estimated construction costs of the project 
     which he deems properly so allocable; and such allocations 
     shall not be included in the reimbursable construction costs 
     covered by the repayment contract or contracts required under 
     section 4 [codified at 16 U.S.C. Sec. 590z-2. All right, 
     title, and interest in the facilities provided for such 
     municipal or miscellaneous water supplies or surplus power 
     and the revenues derived therefrom shall be and remain in the 
     United States. Contracts for such municipal or miscellaneous 
     water supplies or for such surplus power shall be at such 
     rates as, in the Secretary's judgment, will produce revenues 
     at least sufficient to cover the appropriate share of the 
     annual operation and maintenance cost of the project and such 
     fixed charges, including interest, as the Secretary deems 
     proper. Contracts for the sale of surplus power shall be for 
     periods not to exceed forty years . . . And provided further, 
     That in sales or leases of such power, preference shall be 
     given to municipalities and other public corporations or 
     agencies; and also to cooperatives and other nonprofit 
     organizations financed in whole or in part by loans made 
     pursuant to the Rural Electrification Act of 1936. 16 U.S.C. 
     Sec. 590z-7 (emphasis added.) Thus, in contrast to the Town 
     Sites Act which explicitly authorizes the lease of power 
     privileges for non-federal development, section 9 of the WCUA 
     explicitly authorizes the Secretary to develop hydropower and 
     furnish the surplus power through sale or lease, subject to 
     several conditions.


                              c. analysis

       It has been argued that section 9 of the WCUA is not a 
     prohibition against development of power by private parties 
     for non-project purposes and that section 10 of the WCUA 
     provides general authority for non-federal power 
     development at WCUA projects. Section 10 of the WCUA 
     provides that the ``Secretary shall have the same 
     authority, with regard to the utilization of lands owned 
     by the United States * * * as he has in connection with 
     projects undertaken pursuant to the Federal reclamation 
     laws: * * *'' 16 U.S.C. Sec. 590z-8(a). Under this 
     analysis, the Town Sites and Power Development Act would 
     authorize non-federal power development at WCUA projects, 
     and the provision on retention of revenue by the United 
     States contained in the WCUA would not apply.
       While that argument has some appeal, according to accepted 
     methods of statutory interpretation we believe that the 
     better view is that section 9 of the WCUA controls hydropower 
     development at WCUA projects and that section 9 does not 
     authorize Reclamation to issue the necessary leases of power 
     privilege to enable non-federal power development. Even if 
     non-federal power development is authorized, we believe that 
     the revenue and title restrictions would apply. Finally, it 
     is our opinion that FERC does not have authority to license 
     non-federal power development at WCUA projects.
       1. Section 9 of the WCUA governs hydropower development at 
     WCUA projects.--Unless there is a clear intention otherwise, 
     a specific provision will not be controlled or nullified by a 
     general one. See, e.g., Crawford Fitting Co. v. J.T. Gibbons, 
     Inc. 482 U.S. 437, 444-45 (1987) (rejecting the claim that 
     general authority to allow the payment of costs authorized 
     payment of expert witness fees in excess of limitations 
     contained in the specific witness fee provision). Of special 
     relevance here is Uncompahgre Valley Water Users Ass'n v. 
     Federal Energy Regulatory Comm'n, 785 F.2d 269, 275-76 (10th 
     Cir.), cert. denied sub nom. Town of Norwood v. Uncompahgre 
     Valley Water Users Ass'n, 479 U.S. 829 (1986), which held 
     that a specific statute granting authority to the Department 
     of the Interior to contract with private entities for the 
     development and sale of surplus power at a Reclamation 
     project takes precedence over the general licensing authority 
     of the Federal Energy Regulatory Commission (FERC) under the 
     Federal Power Act.\3\ ``[W]e believe that our conclusion is 
     supported by the principle of construction that the more 
     specific legislation covering the given subject-matter will 
     take precedence `over the general language of the same or 
     another statute which might otherwise prove controlling,' '' 
     Id. at 276 (quoting Kepner v. United States, 195 U.S. 100, 
     125 (1904)).
---------------------------------------------------------------------------
     \3\ Moreover, the Uncompaghre court had before it the 
     language and legislative history of the 1906 Act and found 
     that the Secretary's authority to develop hydropower rested 
     on the project-specific statute which authorized the project. 
     785 F.2d at 275-76.
---------------------------------------------------------------------------
       Section 9 of the WCUA establishes a comprehensive statutory 
     framework specifically addressing hydropower development at 
     WCUA projects. The command of the section is inclusive: the 
     Secretary may make ``provisions'' for the development of 
     hydropower. There is absolutely no indication in the 
     structure of the statute itself or in its legislative history 
     that Congress intended section 10 to override the 
     restrictions contained in section 9 for a certain class of 
     hydroelectric power projects. Without foundation in the 
     statutory scheme or legislative history, such interpretation 
     would render meaningless the revenue and title restrictions 
     in section 9 with regard to private hydropower development at 
     WCUA projects. In addition, the structure of the power 
     provisions of the 1906 and 1939 Acts, which address federal 
     and non-federal power development together in the same 
     section, reinforces the interpretation that section 9 
     provides the complete authority for power development under 
     the WCUA.
       2. Section 9 does not authorize Reclamation to permit 
     nonfederal power development at WCUA projects.--Section 9 
     expressly authorizes the Secretary to include production of 
     surplus power in projects developed under the WCUA, subject 
     to several conditions. However, we find that it does not 
     expressly or impliedly authorize Reclamation to issue leases 
     of power privilege at WCUA projects. Instead, we find that 
     hydropower development at WCUA projects is reserved to the 
     federal government.\4\
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     \4\ This interpretation of the WCUA is not inconsistent with 
     any other opinion issued by the Solicitor's Office. however, 
     we note that a memorandum from the Commissioner of the Bureau 
     of Reclamation to Reclamation's regional directors listed the 
     WCUA as general authority for the development of hydropower 
     at Reclamation projects, and stated that hydropower is 
     authorized to the extent found feasible in reports submitted 
     to the President and Congress. Memorandum from Commissioner, 
     Bureau of Reclamation, to Regional Directors and Assistant 
     Commissioner, Engineering and Research (Oct. 23, 1986) 
     (entitled ``Criteria for Determining Federal vs. Non-Federal 
     (FERC) Hydropower Development at Bureau of Reclamation 
     Facilities''). The memorandum further stated that ``[i]n the 
     event we are not seeking Federal financing to develop the 
     hydropower potential of the site, we would be willing to 
     enter into a lease of power privilege under which a non-
     Federal entity would develop the site under Reclamation law 
     using non-Federal funding.'' Id. at 2. However, this did not 
     represent a legal opinion of this office and, in fact, 
     deviated from a memorandum dated three months earlier from 
     the Solicitor to the Commissioner discussing the same 
     analytical approach but which did not include the WCUA as a 
     basis for private hydropower development. See Memorandum from 
     Solicitor Tarr to the Commissioner, Bureau of Reclamation 11 
     (July 16, 1986), (relating to modifications to the Hoover 
     Powerplant).
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       As the Supreme Court recently noted, ``[n]ot every silence 
     is pregnant.'' Burns v. United States, ---- U.S. ----, 111 
     S.Ct. 2182, 2186 (1991) (quoting State of Illinois Dept. of 
     Public Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983)). 
     The inference drawn from congressional silence will be 
     interpreted in light of other textual and contextual evidence 
     of congressional intent. Id.
       Section 9 of the WCUA authorizes the Secretary to make 
     ``provisions, including contracts of sale * * * for 
     developing and furnishing'' surplus power. While taken alone, 
     this could be interpreted to authorize leases of power 
     privilege, the section goes on to refer exclusively to the 
     sale or lease of surplus power. Thus, there is no textual 
     evidence that Congress intended section 9 to authorize leases 
     of power privileges.
       Nor is there contextual evidence to support authority for a 
     lease of power privilege under section 9. No legislative 
     history supports such implication, and there is no support 
     for the idea that omission of reference to leases of power 
     privileges was simply an oversight. This omission is in 
     direct contrast to the 1906 and 1939 Acts. The 1906 Town 
     Sites Act explicitly authorizes the lease of ``surplus power 
     or power privileges.'' Similarly, the 1939 Act specifically 
     references the ``sale of electric power or lease of power 
     privileges.'' Under the longstanding tenet of statutory 
     construction of expressio unius est exclusio alterius, Where 
     Congress has considered an issue and has included in the 
     enacted legislation a provision explicitly addressing that 
     issue, there is an implied exclusion of other term not 
     mentioned. See, e.g., Malone v. White Motor Corp., 435 U.S. 
     497, 505 (1978); Public Serv. Co. of Colo. v. Federal Energy 
     Regulatory Comm'n., 754 F.2d 1555, 1567 (10th Cir. 1985). In 
     light of the careful attention paid by Congress in the prior 
     statutes to including specific reference to leases of power 
     privileges, Congress surely would have made explicit 
     reference here had such authority been intended at WCUA 
     projects.\5\
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     \5\ This conclusion is bolstered by the stated purpose of the 
     WCUA. While not intended to be identical, the legislative 
     history of the WCUA indicates that its purpose was to 
     establish procedures for authorizing small projects more like 
     that of the Reclamation Project Act, enacted just fourteen 
     months earlier. See Hearings before the Committee on 
     Irrigation and Reclamation, House of Representatives, 76th 
     Cong., 3rd Sess. 29-30 (1940) (testimony of Dr. H.H. Barrows, 
     chairman, Northern Great Plans Committee).
     In fact, the WCUA does contain most of the same provisions 
     relating to hydropower development as are contained in the 
     1939 Act, such as the stipulation that irrigation will not be 
     impaired, the 40-year limitation on contracts or leases, the 
     requirement that rates must produce power revenues at least 
     sufficient to cover an appropriate share of O&M and fixed 
     costs, and the preference for municipalities. Since the WCUA 
     was intended to be modeled after the 1939 Act, yet unlike the 
     1939 Act omits any reference to leases of power privileges, 
     we conclude that Congress intended power development at WCUA 
     projects to be reserved to the federal government.
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       Accordingly, we cannot assume that a lease of power 
     privilege is authorized.
       3. Even if the WCUA permits non-federal power development, 
     the restriction on revenues would apply.--Further, even if 
     the mandate to make ``provisions for development'' 
     encompasses non-federal hydropower development, the express 
     language of the WCUA provides that the United States must 
     retain title to all project works and all revenue from the 
     development of hydropower facilities at projects constructed 
     under its authority. The proposed contract amendment would 
     not be consistent with the statute under which the project 
     was authorized and now operates.
       The most persuasive evidence that neither section 9 nor 
     section 10 authorizes private interests to retain power 
     revenues is found in the purpose of the WCUA and the 
     repayment structure it established. Enacted in the Depression 
     era, the WCUA authorized small projects that would not have 
     been considered feasible under reclamation laws but which 
     aided local employment through use of Work Projects 
     Administration (WPA) and Civilian Conservation Corps (CCC) 
     labor. See 16 U.S.C. Sec. Sec. 590y to 590z. Local water 
     users were required to repay only the costs allocated to 
     irrigation. See 16 U.S.C. Sec. Sec. 590z-1 to Sec. Sec. 590z-
     2. Unlike projects under the 1939 Act which generally 
     required the water users to repay all costs except those 
     allocated to navigation and flood control, see 43 U.S.C. 
     Sec. 485h(a), the U.S. Treasury absorbed much of the cost for 
     WCUA projects in nonreimbursable labor costs.\6\ At Mancos, 
     water users were obligated to repay only $900,000 of the 
     approximately $2 million total cost of the project; the 
     remainder was nonreimbursable and financed by U.S. 
     taxpayers. This supports the notion that Congress intended 
     that revenues from power production and municipal water 
     supply should remain with the United States to recoup 
     these reimbursed expenditures.
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     \6\ The Secretary could find a project feasible under the 
     WCUA if the water users could repay the part of the costs 
     allocated to irrigation. See 16 U.S.C. Sec. 590z-1. Under the 
     1939 Act, however, the Secretary could find a project 
     feasible if the total estimated costs of construction could 
     be allocated to irrigation, power, municipal water supply or 
     other miscellaneous purposes, flood control, or navigation. 
     See 43 U.S.C. Sec. 485h(a).
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       4. FERC does not have authority to license non-federal 
     power development at WCUA projects.--Thus, it is our opinion 
     that Reclamation does not have authority to issue leases of 
     power privilege at WCUA projects. Furthermore, under 
     Uncompahgre Valley Water Users Ass'n. v. Federal Energy 
     Regulatory Comm'n., 785 F.2d 269, 275-76 (10th Cir.). cert. 
     denied sub nom. Town of Norwood v. Uncompahgre Valley Water 
     Users Ass'n:  479 U.S. 829 (1986), FERC lacks such authority 
     at WCUA projects. In Uncompahgre, the Tenth Circuit Court of 
     Appeals ruled that specific statutory authority regarding 
     hydropower development at Reclamation projects divested FERC 
     of jurisdiction under the Federal Power Act. Id. at 275-76. 
     Here, the WCUA provides the specific statutory authority for 
     the Mancos project. By the same reasoning, the WCUA divests 
     FERC of jurisdiction to license non-federal development by 
     reserving hydropower production to the federal government.\7\
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     \7\ This comports with the conclusion of a 1980 opinion from 
     this office finding that ``[W]here Congress has expressly 
     authorized [Reclamation] to develop the hydropower potential 
     of a project feature, the Commission's licensing authority is 
     withdrawn, and it may not license non-Federal development of 
     the same facility.'' Memorandum from Associate Solicitor, 
     Division of Energy and Resources, to Commissioner, Water and 
     Power Resources Service 5 (July 28, 1980). Likewise, the MOU 
     between Reclamation and FERC provides that FERC is not 
     authorized to issue licenses for hydroelectric power plants 
     utilizing federal dams where hydroelectric power has been 
     reserved exclusively for federal development. MOU, supra note 
     3.
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       Please feel free to contact me if you have any further 
     questions regarding this matter.
     Patricia J. Beneke.

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