[Congressional Record Volume 140, Number 66 (Tuesday, May 24, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. CONRAD (for himself, Mr. Dorgan, Mr. Heflin, Mr. Daschle, 
        Mr. Harkin, Mr. Grassley, Mr. Wellstone, and Mr. Feingold):
  S. 2145. A bill to authorize the Secretary of Agriculture to 
determine which programs of the Department of Agriculture are eligible 
for State mediation and to certify States to administer mediation for 
the programs, and for other purposes; to the Committee on Agriculture, 
Nutrition, and Forestry.


                   agricultural mediation act of 1994

 Mr. CONRAD. Mr. President, I am introducing the Agricultural 
Mediation Act of 1994. This legislation gives the Secretary of 
Agriculture the authority to allow USDA-certified State mediation 
programs to offer mediation on a variety of issues, such as wetlands 
determinations, farm program compliance, rural water loan programs, 
grazing on national forest lands, and pesticide usage. It is modeled 
after, and intended to work in conjunction with, the USDA-certified 
Agricultural Credit Mediation Program which has been remarkably 
successful in resolving thousands of farm credit disputes.
  I introduced versions of this bill in 1992 and 1993 as part of S. 
3119 and S. 1425, respectively, both entitled the USDA National Appeals 
Division [USDA NAD] Act. Companion legislation was introduced in the 
House in 1992 and 1993 by Congressmen Espy and Tim Johnson, 
respectively. In addition, Congressman Pomeroy has introduced H.R. 
4153, the Agricultural Mediation Improvement Act of 1994, which is 
similar to the bill I am introducing today. This legislation was 
requested by the Coalition of Agricultural Mediation Programs [CAMP] 
and has the support of many farm and housing groups.
  There are currently 18 programs in the country that are certified by 
the Farmers Home Administration [FmHA] to provide mediation on 
agricultural credit issues. Mediators in these programs operate as 
facilitors to help disagreeing parties address the facts and reach a 
mutually acceptable solution within the constraints of the law and 
regulations. These State mediation programs have proven to be very 
capable in assisting farmers and their creditors. They have resolved 
the majority of the disputes, and have done so quickly. As a result, 
mediation has enabled participants, the Federal Government, and other 
creditors to avoid the time and expense of appeals and litigation. It 
has helped keep farmers on the farm. When necessary, mediators have 
helped farmers who could no longer make a decent living on the farm 
make the transition to other ways of life. And they have helped the 
Federal Government and other creditors recover as much delinquent debt 
as possible.
  However, current law restricts the State mediation programs to 
providing mediation only on agricultural credit issues. The bill that I 
am proposing would allow them, and other qualified State mediation 
programs, to respond to local regions needs for mediation on other USDA 
issues, such as farm program compliance, rural water loans, and other 
issues. I intend that USDA participants could use these mediators 
during their informal hearings with an agency prior to appealing the 
agency's adverse decision. Appeals would be made to the USDA NAD 
established through the provisions of my bill, S. 1425, that are 
included in S. 1970, the Department of Agriculture Reorganization Act.
  S. 1970 passed the Senate on April 13, 1994. Used in conjunction with 
one another, mediation and an independent, objective appeals system 
will ensure that disputes are resolved quickly, fairly, and 
consistently, and will reduce litigation.
  It is time that we applied the proven expertise that exists in these 
mediation programs to the many contentious disputes that arise in USDA 
programs other than FmHA. The State mediation programs are excellent 
examples of Federal programs that actually save money. USDA matches up 
to 70 percent of the cost of administering these programs, with the 
State providing the remaining funding. It is estimated that for each $1 
of Federal funds spent on these mediation programs, the financial 
savings to the Government--from reduced legal costs, fewer appeals, and 
spreading losses between other creditors and borrowers--is $3.20 to 
$5.59. As further evidence of the programs' success, States using these 
mediation programs have shown a decrease in the delinquency rate for 
FmHA borrowers.
  In fact, Vice President Gore's Report of the National Performance 
Review, ``Creating a Government That Works Better and Costs Less,'' 
praised these mediation programs and proposed increasing their use. His 
review stated that ``this type of innovation''--the mediation 
programs--``should spread faster and further across the Federal 
Government.''
  These programs can also help USDA comply with the Administrative 
Dispute Resolution Act of 1990, which requires Federal agencies to 
adopt a policy that encourages the use of mediation, conciliation, 
arbitration, and other means of alternative dispute resolution. In 
fact, USDA could expand the excellent State mediation programs that 
already exist in order to comply with the act.
  Finally, allowing these mediation programs to resolve disputes on a 
variety of USDA programs will assist in USDA reorganization. The 
mediation programs will be able to fully serve the newly combined 
programs, and they will help the administration realize its goal of a 
farmer-friendly, reasonable USDA.
  USDA programs are becoming increasingly complex and interconnected. 
It just makes sense to use mediation to help resolve disputes arising 
from these programs when possible. USDA participants and the Federal 
Government alike will benefit from mediation programs. I urge my 
colleagues to pass this legislation.
  I ask unanimous consent that the text of my bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 245

       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 ``Agricultural Mediation Act 
     of 1994''.

     SEC. 2. DEFINITIONS.

       As used in this Act:
       (1) Agricultural mediation program.--The term 
     ``agricultural mediation program'' means a program 
     administered by a State (in accordance with this Act) for the 
     mediation of disputes arising under an eligible Department 
     program.
       (2) Department.--The term ``Department'' means the United 
     States Department of Agriculture.
       (3) Eligible department program.--The term ``eligible 
     Department program'' means a program of the Department under 
     which disputes may be resolved under an agricultural 
     mediation program, as determined by the Secretary under 
     section 4.
       (4) Mediation.--The term ``mediation'' means a process of 
     negotiation in which an impartial third party attempts to 
     assist parties in negotiating a mutually agreeable resolution 
     of a dispute.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of Agriculture.

     SEC. 3. PURPOSES.

       The purposes of this Act are to provide the Secretary with 
     the authority to--
       (1) determine which programs of the Department are eligible 
     for mediation, which has proven to be a valuable means of 
     alternative dispute resolution; and
       (2) certify States to administer mediation for eligible 
     Department programs.

     SEC. 4. DETERMINATION OF ELIGIBLE DEPARTMENT PROGRAMS.

       (a) Determination.--The Secretary is authorized to 
     determine which programs of the Department are eligible 
     Department programs.
       (b) Determination Factors.--In making the determination, 
     the Secretary shall consider--
       (1) the complexity and technical nature of the Department 
     program;
       (2) the protection of the interests of program 
     participants; and
       (3) whether mediation as a form of dispute resolution would 
     achieve fairness for program participants and the Department.

     SEC. 5. NOTICE OF ELIGIBLE DEPARTMENT PROGRAMS.

       Not later than 120 days after the date of enactment of this 
     Act, the Secretary shall publish in the Federal Register--
       (1) notice of which programs of the Department are eligible 
     Department programs; and
       (2) a solicitation to States to apply for certification to 
     administer agricultural mediation programs for the eligible 
     Department programs.

     SEC. 6. CERTIFICATION OF STATES TO ADMINISTER AGRICULTURAL 
                   MEDIATION PROGRAMS.

       (a) In General.--For purposes of this Act, a State is 
     qualified to administer an agricultural mediation program if 
     the Secretary certifies that a proposal by the State to 
     administer the program satisfies the requirements of this 
     section.
       (b) Determinations.--The Secretary shall determine whether 
     a State is qualified to administer an agricultural mediation 
     program of the State not later than 30 days after the 
     Secretary receives from the State a description of the 
     proposed agricultural mediation program and a statement 
     certifying that the State has met all of the requirements of 
     subsection (c).
       (c) Certification Requirements.--To obtain certification to 
     administer an agricultural mediation program, a State must--
       (1) demonstrate a need for the agricultural mediation 
     program within the State based on the agricultural activity, 
     and the number of participants, involved;
       (2) ensure that mediation services will be offered to all 
     individuals who are or may be eligible to participate in the 
     eligible Department program;
       (3) ensure that the agricultural mediation program is 
     administered by the State or an authorized agent of the 
     State;
       (4) provide for the training of mediators;
       (5) ensure that confidentiality of the mediation sessions 
     will be maintained; and
       (6) ensure that persons and agencies of the Department 
     affected by the program, as determined by the Secretary, 
     receive adequate notification of the agricultural mediation 
     program.

     SEC. 7. RECERTIFICATION.

       (a) In General.--To retain certification to administer an 
     agricultural mediation program, a State must--
       (1) recertify the program in a manner prescribed by the 
     Secretary; and
       (2) provide affected agencies of the Department with all 
     information required by the Secretary (in consultation with 
     interested parties) on the disputes mediated under the 
     program, subject to the confidentiality requirements of 
     Federal and State law.
       (b) Public Availability.--The information described in 
     subsection (a)(2) shall be made available by the Secretary to 
     the public.

     SEC. 8. MATCHING GRANTS TO STATES.

       (a) In General.--Subject to the availability of 
     appropriations, the Secretary shall provide matching grants 
     to a State for the administration and operation of an 
     agricultural mediation program.
       (b) Amount.--Subject to the availability of appropriations, 
     the Secretary may pay up to 70 percent of the cost of the 
     administration and operation of an agricultural mediation 
     program by a State.
       (c) Use.--A State that receives a matching grant to 
     administer an agricultural mediation program under this 
     section may use the financial assistance only to administer 
     and operate the program.
       (d) Penalty.--If the Secretary determines that a State has 
     not complied with subsection (c), the State shall not be 
     eligible for additional matching grants under this section.

     SEC. 9. ADMINISTRATION.

       (a) Information.--If the Secretary receives a request from 
     a person for information or analysis that is relevant to a 
     mediated dispute (as determined by the Secretary), the 
     Secretary shall provide the information or analysis to the 
     person.
       (b) Participation by Secretary.--Subject to subsection (c), 
     the Secretary shall participate in each agricultural 
     mediation program established under this Act.
       (c) Mediation Nonbinding on the Secretary.--The Secretary 
     shall not be bound by a decision or negotiated agreement 
     resulting from mediation conducted under an agricultural 
     mediation program if the Secretary has not agreed to the 
     decision or agreement.

     SEC. 10. REGULATIONS.

       The Secretary shall issue regulations to carry out this Act 
     not later than 120 days after the date of enactment of this 
     Act.

     SEC. 11. CONSTRUCTION.

       The authority provided by this Act is in addition to, and 
     in no way affects, the authority provided under title V of 
     the Agricultural Credit Act of 1987 (7 U.S.C. 5101 et seq.).

     SEC. 12. CONFORMING AMENDMENTS.

       (a) Waiver of Farm Credit Mediation Rights by Borrowers.--
     Section 4.14E of the Farm Credit Act of 1971 (12 U.S.C. 
     2202e) is amended by striking ``the agricultural loan'' and 
     inserting ``an agricultural''.
       (b) Waiver of FmHA Mediation Rights by Borrowers.--Section 
     358 of the Consolidated Farm and Rural Development Act (7 
     U.S.C. 2006) is amended by striking ``the agricultural loan'' 
     and inserting ``an agricultural''.

     SEC. 13. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated to 
     carry out this Act $7,500,000 for each of fiscal years 1995 
     through 1998.
       (b) Fees.--The Secretary is authorized, subject to the 
     availability of funds appropriated in advance, to expend such 
     funds as are necessary to pay any fees charged to an agency 
     that administers an agricultural mediation program for 
     mediating individual disputes to which the agency is a party.

     SEC. 14. TERMINATION OF AUTHORITY.

       The authority provided by this Act shall terminate on 
     September 30, 1998.

     SEC. 15. EFFECTIVE DATE.

       (a) In General.--Except as provided in subsection (b), this 
     Act and the amendments made by this Act shall become 
     effective on the date of enactment of this Act.
       (b) Transitional Provision.--During the 2-year period 
     beginning on the date of enactment of this Act, a State that 
     (on the date of enactment of this Act) is certified to carry 
     out an agricultural loan mediation program under title V of 
     the Agricultural Credit Act of 1987 (7 U.S.C. 5101 et seq.) 
     shall be considered certified (under section 6 of this Act) 
     to administer any agricultural mediation program.
                                 ______

      By Mr. JEFFORDS:
  S. 2146. A bill to amend the Internal Revenue Code of 1986 to provide 
a special valuation of sensitive environmental areas for estate tax 
purposes, and for other purposes; to the Committee on Finance.


      wetlands and greenspace preservation assistance act of 1994

 Mr. JEFFORDS. Mr. President, I introduce the Forests, 
Wetlands, and Greenspace Preservation Assistance Act. When passed this 
bill will remove tax regulations which encourage destruction of 
environmentally sensitive areas.
  The bill is modeled after the family farm exemption already codified 
in our Tax Code. Under this existing regulation, farm land is assessed 
at its use-value for purposes of computing estate taxes, provided the 
descendants continue faming the land for 10 years. If the family stops 
farming the land, then the estate taxes are recaptured by retroactively 
assessing the land at its highest and best use value.
  My bill essentially extends this special valuation to other 
environmentally sensitive lands, such as wetlands and forests, provided 
the descendants agree to keep the lands in their natural stage for at 
least 20 years. In this bill, green space is taxed as green space, if 
the land remains as green space.
  Mr. President, throughout this Congress we have been actively 
debating a number of environmental measures. Many of these measures are 
directly related to land preservation, such as the need to protect 
wetlands, the importance of our ancient forests and the value of 
watersheds to the health of surface and ground water. All these 
policies ask that we preserve these lands, undeveloped, for the good of 
the community, the health of the environment, and for use and enjoyment 
by future generations.
  One year ago, the President traveled to the Pacific Northwest in 
order to resolve the longstanding conflict between preserving the old-
growth forest of the region and maintaining a viable economy for the 
small timber dependent towns in the area. As many have stated, this 
situation had reached the ``train wreck'' stage.
  Such train wrecks are not unique to the Pacific Northwest. In 
Vermont, and all though the northern hardwood forest region, we are 
experiencing a more subtle erosion of our natural resource base as 
landowners, for a variety of reasons, feel increasing pressure to 
abandon traditional management practices.
  In the hope of better understanding the dynamics and mechanics of 
changing ownership and use patterns, in 1990 Congress passed 
legislation establishing the Northern Forest Lands Council. The Council 
recently published draft recommendations designed to reinforce the 
traditional patterns of land ownership and uses of large forest areas 
in the northern forest of Maine, New Hampshire, New York, and Vermont, 
which have characterized these lands for decades.

  Among its 33 recommendations was a call to change estate tax policy 
to reduce the pressure on heirs to sell, convert, or otherwise change 
the character of family forest ownership. The bill I am introducing 
today, which is similar to S. 887, I introduced in the 102d Congress, 
addresses this concern.
  The bill being introduced today is not directed specifically toward 
the northern forest issues, as this bill would apply nationally to a 
broader inventory of properties. Nor is this bill meant to solve all 
the issues of the northern forest, as I expect to join a delegation 
effort in introducing comprehensive legislation once the Council's 
recommendations are final.
  Mr. President, current rules on estate taxes are having an 
unintended, negative impact on private property ownership and natural 
resource stewardship. We should revise this tax policy and remove other 
policies which directly conflict with the goals of many of the bills we 
are working to reauthorize this year.
  We should not tax people into developing land they would rather 
preserve. This bill gives beneficiaries time to think about the fate of 
any land they inherit. Often, those who inherit green space are forced 
to sell this land to developers in order to pay high tax bills. This 
bill gives beneficiaries time to seriously consider permanently 
preserving the land. Taxing the landowner on current use allows them to 
hold this valuable resource as open space, avoiding the rash decision 
to develop and holding off the tax man wile they review their options.
  The key component of the bill is choice and time to make this choice. 
National policies must be made consistent. I support programs that 
protect our environment. Now I am working to change policies which may 
adversely impact the environment. Forest lands, wetlands, prairie 
lands, and other green space are an invaluable component of our Nation. 
Let us give beneficiaries of valuable green space a choice. Protecting 
these ecosystems will avoid future train wrecks and go a long way 
toward preserving these lands for future generations.
  I am taking action on this single issue today in order to maintain 
its visibility in the 103d Congress. I think it makes great sense, and 
I hope to have a chance to debate this issue should Congress consider 
other tax changes. I welcome the comments of my colleagues and others 
on this bill.
                                 ______

      By Mr. DeCONCINI:
  S. 2147. A bill to amend chapter 21 of title 28, United States Code, 
to clarify the standard by which a justice, judge, or magistrate shall 
disqualify himself from a hearing; to the Committee on the Judiciary.


                       Judicial Bias Legislation

 Mr. DeCONCINI. Mr. President, I introduce legislation which 
will preserve the integrity of our court system by reaffirming 
statutory standards for the recusal of a judge who demonstrates bias 
against a party before him. In a recent Supreme Court case, Liteky 
versus United States, the Court determined that comments or actions 
made by a judge, during a judicial proceeding, that were unfairly 
prejudiced for or against a party were not grounds for 
disqualification, unless there was a showing that a fair judgment is 
impossible. Under current law, a judge should step down from a case 
when impartiality might reasonably be questioned. This standard, as 
interpreted by the Supreme Court in the Liteky case, is now a showing 
of impossibility.
  I believe that the new standard created by the Court is unnecessarily 
stringent and flies in the face of our Nation's long history of 
judicial impartiality. The bill I am introducing today would amend the 
current Federal law, 28 U.S.C. Sec. 455, which deals with 
disqualification of judges, and overrule the Supreme Court's 
interpretation of that law under Liteky.
  The integrity of our entire judicial system rests on the impartiality 
of our judges. The United States Constitution's guarantee of a fair 
trial is zealously guarded by the requirement that a judge remain 
impartial in the proceedings. The Judicial Canon of Ethics, the 
Judicial Oath and Federal law all require that judges maintain an 
appearance of impartially so as not to taint the propriety of the 
bench. Under the Liteky standard imposed by the Supreme Court, a judge 
could let his or her partiality and prejudice show freely, because the 
only way he or she would have to step down from a case is if there is a 
showing that fair judgment is impossible. I believe that judges must do 
all they can to win the confidence of the American people that our 
system of justice, created and protected by the constitution, is being 
fairly and impartially administered.
  I am introducing this bill today to protect the right of American 
citizens to a fair trial. I am not suggesting that judges rescue 
themselves any time that they hold an opinion. Nor does this bill 
require judicial recusal in cases where statements were made at a prior 
trial or where an unfavorable ruling was rendered in a prior case. It 
is only to ensure that extreme judicial or personal bias and prejudice 
does not inhibit the rights of citizens to fair and impartial trials.
  This bill would provide that a judge should disqualify him or herself 
in any proceeding in which his or her judicial or extrajudicial 
statements, conduct or actions would lead a reasonable person to 
believe a fair and impartial hearing is unlikely. The standard required 
under this bill is less rigorous than the one articulated by the 
Supreme Court in the Liteky case. A litigant would not have to meet the 
strict and unfair standard of impossibility.
  The standard for rescual required by this bill is better tailored to 
fit the needs of litigants and will prevent judges from abusing their 
discretion in hearing cases in which they cannot remain impartial. 
Enactment would also restore public confidence that the judicial system 
is fair and impartial.
  Mr. President, I ask unanimous consent that the entire text of the 
bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S.2147

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

     SECTION 1. DISQUALIFICATION OF JUSTICE, JUDGE, OR MAGISTRATE.

       Section 455(a) of title 28, United States code, is 
     amended--
       (1) by inserting ``(1)'' after ``(a)''; and
       (2) by adding at the end thereof the following new 
     paragraph:
       ``(2)(A) For purposes of paragraph (1), the impartiality of 
     a justice, judge, or magistrate shall be reasonably 
     questioned if the judicial or extrajudicial actions or 
     statements of such justice, judge, or magistrate would cause 
     a reasonable person to believe that an impartial proceeding 
     is unlikely.
       ``(B) The provisions of subparagraph (A) shall not be 
     construed as the only basis to reasonably question the 
     impartiality of a justice, judge, or magistrate, such as a 
     question of such impartiality on the basis of--
       ``(i) a financial interest of a justice, judge, or 
     magistrate; or
       ``(ii) any other basis described under subsection 
     (b).''.

                          ____________________